Monday, December 13, 2010

High School Drug Sweeps: Legal? A Good Idea?

On November 18 at the Library in Traverse City, the ACLU of Northwest Michigan presented a lecture on the “school-to-prison pipeline.” The speaker was Mark Fancher, a staff attorney and director of the ACLU of Michigan Racial Justice Work Group which in 2009 issued a report entitled, “Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline.”

After the lecture, I was approached by a parent of a student at Traverse City Central High School on a related subject. I was asked if I had heard about the “drug sweep” that had taken place at the school the day before. I had not. The man said that though his daughter had not been “busted,” he wondered whether such a sweep, conducted with drug-sniffing dogs, was legal.

Reading about it in the paper the following morning, I guessed that this parent’s question might be one on the mind of many other parents, students, and interested members of the community. Here is the answer.

Searches of students by school officials on school property are governed, like all searches, by the Fourth Amendment to the U.S. Constitution. That Amendment does not prohibit all searches, only those that are “unreasonable.” An illegal search occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.” The starting point, of course, is that there must be what the courts consider to be an actual “search.”

The current state of the law is that a dog sniff of an inanimate object is not a “search” under the Fourth Amendment. For example, the Supreme Court has held that the use of a trained canine to sniff unattended luggage is not a search. It is different, however, when dogs are used to sniff a person’s body, mainly because the level of intrusiveness is greater (as everyone knows, dogs often sniff parts of the body that cause personal embarrassment, and some persons have an irrational fear of dogs). Moreover, people naturally consider their own bodies to be private — private to them — and they feel that expectation of privacy should be respected by others, most certainly by government authorities (including police and school officials).

Many “drug sweeps” conducted in school buildings are thus permissible under the Constitution because they are conducted by drug-sniffing dogs of school lockers, previously detached backpacks, and cars parked in school parking lots, and not of a student’s person. With respect to student lockers, courts have generally held that they belong to the school and therefore students do not have a legitimate expectation of privacy for items stored in them. And with respect to backpacks, students cannot be ordered to remove them from their person in order that the dogs can sniff them; that would violate their Fourth Amendment rights.

That’s a general statement of the law: the drug sweep at Central High School was probably legal. But was it a good idea?

As Mark Fancher made clear in his talk last week, the “school-to-prison pipeline” is a disorder in our educational system, currently of epidemic proportions, that is the result of a number of factors, one of which is the criminalization of students. Many persons my age and younger went through their entire 12 years of public education without ever experiencing the presence of police officers in the school building; today, that experience is commonplace and, as the ACLU report indicates, the police are often called in to handle what were once considered routine disciplinary matters. As Traverse City police Captain Steve Morgan told the Record-Eagle, “Usually the schools will request [a drug sweep] once or twice a year. We never go unless the school officials request us. We’ve probably been to all the area secondary schools at one time or another.”

But what exactly is the effect on the students, whether or not they are busted? Does it encourage trust and respect between students and teachers, between students and administrators, between young people and the police? What does it feel like when you’re 16 years old to be treated much like a criminal — which is to say, to be ordered around by police officers and to have your locker, your backpack, or your vehicle randomly searched without your permission?

Apart from the anger and resentment it likely caused, was the drug sweep cost effective? At Central High last week there were police officers and police dogs from three counties effecting a lock down, disrupting classes and interfering with other activities — for what? The paper reported that the sweep netted one arrest: one student was charged with possessing about two grams of marijuana. Though the belongings of every student may not have been searched, it still amounted to one arrest in a student body of 1,500. One out of 1,500 (an arrest percentage of 0.067%) is not a particularly good effectiveness indicator, is it? Now I’m not so naive to assume that none of the students at Central High ever uses marijuana, but it’s also clear that the school does not have a widespread, over-the-top drug problem on its hands either. Simply put, it was not a good use of taxpayer money.

Nelson Mandela said: “There can be no keener revelation of a society’s soul than the way in which it treats its children.” Think about it, administrators, teachers, and parents at Central High School. You can bet the students are.



[Note: The 74-page report of the Racial Justice Work Group of the ACLU of Michigan is available for downloading at www.aclumich.org.]

Wednesday, November 24, 2010

Department of Hilarious Moments:Maintaining a Sense of Humor in Difficult Times

The well-known and well-respected war correspondent, Dexter Filkins, writing in the New York Times on Tuesday of this past week, reported on the secret talks that have been going on for the last three months between Taliban and Afghan leaders to end the war in Afghanistan. The talks seemed to be showing promise, Filkins wrote, “if only because of the repeated appearance of a certain insurgent leader at one end of the table: Mullah Askhtar Muhammad Mansour, one of the most senior commanders in the Taliban movement.”

Mr. Mansour was considered so critical to the success of the talks that NATO and Afghan officials held three meetings with him, he was flown to Kabul on a NATO aircraft and taken to the presidential palace for an official audience with President Hamid Karzai and, to top it off, he was given “a sizeable sum of money to take part in the talks — and to help persuade him to return.” (The amount is estimated to have been in the low six figures.) Even General Petraeus was on board, commenting favorably on the progress the talks were making with his participation, and Mr. Filkens himself was cautioned not to reveal the presence of Mr. Mansour at the negotiations for security reasons.

Then something strange and unexpected happened. At a recent meeting in Kandahar a man who knew Mr. Mansour personally was brought into the negotiating room and given a seat at the table. What followed probably went something like this:

The NATO official said to the man, “Please present yourself to Mr. Mansour.”

“Fine,” he replied, “but where’s Mr. Mansour?”

“He’s right there. He’s seated across from you.”

“Er, no, sir, he’s not. That’s not Mr. Mansour. I’ve never seen that man before. I don’t know who he is.”

[The reaction of the NATO official has not been released and is considered classified.]

There you have it. As it turned out, Mullalh Askhtar Muhammad Mansour was not really Mullah Askhtar Muhammad Mansour after all.

Dexter Filkins was thus compelled to conclude: “In an episode that could have been lifted from a spy novel, United States and Afghan officials now say the Afghan man was an impostor, and high level discussions conducted with the assistance of NATO appear to have achieved little.”

Well, okay, you say, but what happened to the imposter after his cover was blown? The answer: to complete this military version of the keystone cops, somehow the guy was left unattended and he simply walked back over the border into Pakistan into the mountains from whence he came. Nobody (on our side) knows where he is — or, for that matter, who he is.

After the fact, an unnamed Western diplomat said, “It’s funny but not funny because the consequences are so staggering.”

To the contrary, I know full well that these negotiations were at least thought to have been important stuff, but come on, you all, we have to admit it — this episode in the war in Afghanistan is totally, flat-out hilarious.

Sources: Dexter Filkins, “Taliban Leader in Secret Talks Was an Impostor: Setback in NATO Effort: Man Purporting to Be Insurgents’ No. 2 Got Western Money,” New York Times A1 (November 23, 2010); Maureen Dowd, “The Great Game Imposter,” New York Times A23 (November 24, 2010).

Tuesday, September 28, 2010

Elect This Man!

I welcomed the news that a man by the name of Jason Gillman is running for the Grand Traverse County Commission. Jason, it appears, is a Republican and “a Tea Party activist.” Recently, he turned his attention to what is known as the state’s “Bridge Card” program which provides food assistance to the poor.

Jason doesn’t like the program. “The shame is the overall mismanagement of the environment that Michigan’s in,” he said. “A little too much government involvement has caused what we’re in.” More specifically, Jason says that “I don’t think folks should be buying soda.”

For the moment, forget that 6,117 residents of Grand Traverse County, Jason’s constituency, depend on the program. Forget that over the past year those enrolled in our five-county area increased by 33%, and that the number enrolled in Leelanau County alone, where I live, increased by 47%. Forget that unemployment rates soared this year in the region (the rate in Grand Traverse County jumped from 11.6% in 2009 to 12.4% this year, and reached 14.9% in Benzie County this summer). Forget that nationally the ranks of the long-term unemployed exploded by over 400% - from 1.3 million in December 2007, when the recession began, to 6.8 million last June. Forget that in 2008-09 median household incomes plummeted in Michigan a whopping 6.9%, which was more than twice the national average of minus 2.9% and greater than any other state. Forget that the co-chairman of Food Rescue of Northwest Michigan said recently that "there doesn't seem to be a limit to the need." Forget that a Kingsley woman told the Record-Eagle that, without the Bridge Card program, “We wouldn’t make it. I wouldn’t be able to feed my kids.” Just forget all that.

Jason’s political and economic ideology provides that the poor should be reduced to and assisted only at a subsistence level, if at all. They shouldn’t have old televisions, worn-out electrical appliances, beat-up cars, decent clothing, or adequate health care. Or, for that matter, enough to eat.

But Jason’s over-the-top really brilliant idea was captured in the following report in Sunday’s Record-Eagle: “Gillman would rather see more people go to work and fewer rely on state assistance.”

You’d think, wouldn’t you, that by now someone else would have thought of that! I mean, really. Like most Tea Partiers, hey, this guy Jason is a frigging genius!

So don’t waste a moment, Grand Traverse County! Get him on board the County Commission! Vote for Jason Gillman!

Monday, August 2, 2010

Out at Home, Out for the Season: The Play that Cost the Tigers the 2010 Division Title

Everyone knows that Jim Leyland is a great baseball manager. He’s managed in over 2,800 games in the major leagues for the Pirates (eleven years), the Marlins (two years), the Rockies (one year), and the Tigers (four-and-a-half years and counting). He’s only the seventh manager in history to win pennants in both the National and American Leagues and a three-time Manager of the Year Award winner. He’s also a very good guy, respected, admired, and well liked by players, owners, and members of the press.

But, you know, even Jim Leyland makes mistakes. He made a fairly big one during a night game with the Toronto Blue Jays on July 24. And Leyland’s veteran third base coach, Gene Lamont, made an even bigger one.

Here’s what happened: Magglio Ordonez, the Tiger’s popular veteran right fielder and the team’s second best hitter, was suffering the effects of a sprained ankle and was unable to play the outfield. But he could still swing the bat and Leyland wanted him in there. At this point in the season, considering the status of the American League Central Division (the Tigers, Twins and the White Sox were in a three-way fight for the lead), every game was important. For several games Magglio had been in the line-up as the designated hitter, and Leyland decided to play him again in that role. This meant, of course, that Magglio would play offense and hit, but he would not play defense where, in his position in right field, he’d have to do a lot of running.

In the third inning, rookie centerfielder Austin Jackson singled. Magglio walked. At this point, Magglio was no longer a hitter; he’d become a runner. But he was not supposed to run. It wasn’t that he couldn’t run at all, it’s just that he’d have to run on his bum right ankle. The issue before Leyland thus became whether or not to remove Magglio for a pinch-runner. Doing that, of course, would remove him — and his bat — from the lineup for the remainder of the game. Leyland made the decision to leave Magglio in the game.

Next up was the clean-up hitter, Miguel Cabrera, who many regard as the best offensive player in baseball right now and who is a candidate for the coveted Triple Crown (first in batting average, runs batted in, and home runs over an entire season). At the time, Miguel was hitting around .349, had about 24 home runs, about 85 rbi’s and, in addition, led the Major Leagues in doubles with about 32. All of this meant that there was a very good likelihood that Cabrera would put the ball into play and turn Magglio into a baserunner, big time. Nobody seemed to be thinking about it, but Magglio was put in a very vulnerable situation.

And that’s just what happened. Miguel Cabrera lined a double into the gap off the wall in right-center, and Magglio began circling the bases, running as fast as he possibly could. Depending on how far and where the ball is hit, how quickly it is recovered by an outfielder and how quickly and accurately it is relayed by an infielder to the catcher, runners on first often score on a double. But not always; it depends on all those factors. It also depends on the speed of the baserunner. Which depends, in large part, on the condition of his wheels.

Jackson, starting from second base, scored easily. However, it was evident — or should have been — that an attempt by Magglio to score from first on Cabrera’s double would, at the very least, wind up in a close play at home. Nonetheless, as he approached third base, Gene Lamont, coaching at third base, waived Magglio home. As the play continued to develop and the ball was being relayed home, there was no doubt — to the experienced Lamont or anyone else watching — that Magglio would have to slide in order to avoid being tagged out. Lamont’s decision to push Magglio to score on Cabrera’s double — the second coaching decision affecting the play — put Magglio at risk even more than the earlier decision to allow him to run the bases. And if the first decision was questionable, this one was disastrous.

Why was Magglio placed at risk by these decisions? The answer to that is pretty obvious. Magglio was put at risk when he was made a baserunner because he had a sprained ankle, an injury that occurs when the ligaments in the ankle are forced beyond their normal range of motion and are torn. Ligaments are tough, elastic bands of fibrous tissue that connect one bone to another and help stabilize joints, preventing excessive movement. Magglio was at risk because he was put into a position where he would be required to run, and possibly run hard, and where the stability of his ankle would very likely be tested to the max.

Well, we now know how it turned out. Magglio was laboring as he rounded third and headed for home. He did have to slide, which he did, and he was tagged out, about ten feet from home plate — it wasn’t even close. (He shouldn’t have been sent home even had he been in the best of health.) Far more important, however, was that in the process of sliding the cleats on Magglio’s right foot dug slightly into the dirt around home plate resulting in his ankle being again twisted. His ankle ligaments not being sufficient to withstand the trauma and maintain stability of the joint, Magglio suffered a fracture to his already injured right ankle. He will be out of action for six to eight weeks, and will probably not return until after September 1.

After the game, Johnny Damon (who, because of a bad back, also hasn’t been playing recently) told reporters: “I saw his right foot go another direction and I was hoping it was just a sprain, but unfortunately it was more severe. Anytime you lose a guy like that, it’s huge. He’s the No. 3 hitter. He’s that bridge from me to Cabrera, so it’s tough. And the length of time we’re going to lose him — it’s six to eight weeks. So we know that could very well be the [end of his] season.”

And, most likely, it was also the end of the Tigers’ season, the end of their hopes to win a division title this year and to get into post-season play. Leyland couldn’t have known it at the time he let Magglio run the bases, but three innings later Carlos Guillen, the Tiger’s star second baseman, would suffer a right calf strain that would place him on the 15-day disabled list. On the other hand, it was known at the time that Brandon Inge, the able and likeable Tigers’ third baseman, in a game with the Texas Rangers six days earlier had suffered a broken hand after being struck by a pitch. Inge was not expected to return for four-to-six weeks.

Thus, in the course of a week, three of the Tiger’s first seven hitters wound up out of commission for extended periods of time. Moreover, with the trading deadline approaching on July 31, there was no way the damage could be repaired simply by engaging in one or more “rent-a-player”-type trades that have recently become part of the baseball scene. (These trades involve a contending team sending secondary players and/or minor league prospects, often good ones, to other teams for established players who will become free agents at the end of the season. The star players in the trades may only play for the contender until their contracts expire at the end of the season; thus the term “rent-a-player.”)

In a post-game interview, Jim Leyland told reporters that “We’ve got to revamp this whole thing now. I haven’t even talked to [general manager Dave Dombrowski] yet. I have no idea who’s coming up [from the minors to replace Ordonez and Guillen]. I have no idea what we’re doing.”

The Tigers were suddenly in a terrible position, particularly because they’ve relied so heavily this season on rookies — Austin Jackson, Brennan Boesch, Scott Sizemore, Danny Worth, Alex Avila and Robbie Weinhardt. Later on, Dombrowski said that he had no intention of trading away these guys or every other good prospect in the Tiger’s organization for end-of-the-season starters in an effort that would be problematic, at best. Arguably, the Tigers needed another good bat in the lineup to make it to the play-offs even before the injuries occurred, and while you can sometimes fill a spot, or even a couple of spots with prospects-for-veteran type trades, there’s only a slim possibility of repairing the wide-spread damage the Tigers have suffered that way.

On July 30, in the first game of a series in Boston with the Red Sox, Jhonny Peralta, just obtained from Cleveland in a trade, homered twice that night in his first appearance as a Tiger. While the Tigers held on to win, staving off a grand slam home run by David Ortiz in the 9th inning, I noticed that the last three batters for the Tigers were hitting .187, .201, and .210, respectively. This at a time when 31% of the Tigers’ run production was coming from one man, Miguel Cabrera, and when the Tigers had won only 4 of their last 18 games since the All-Star break when they were in first place in the division. (They’re now in a free-fall, 7.0 games behind the White Sox and 6.5 behind the Twins.) With an offensive weakness that profound, the only reason that the Tigers are hanging on to third place is that Kansas City and Cleveland (the other two teams in the Central Division) are playing so poorly. But now it’s virtually impossible that the Tigers will be able win the division this year.

Admittedly, this analysis has the benefit of 20/20 hindsight. Nonetheless, though Leyland’s decision to let Ordonez run ahead of Cabrera was not terrible, it was, I think, a mistake. But hindsight or not, Lamont’s decision to waive him home was surely a mistake and was indeed terrible.

So it was. The decisions regarding how to play Magglio Ordonez on July 24 in the game against the Blue Jays were deadly for the Tigers’ hopes for the post-season this year. Once a contender, they now have a very little chance of passing the Twins and the White Sox, and because of their mediocre record (they’re only playing around .500 for the season) they’re already out of the wild card race.

And those decisions didn’t do Magglio Ordonez much good either. Not only was he enjoying another very good year, but at the time of his injury he was 175 plate appearances of 54 games shy of the vesting option in his contract that would guarantee him $15 million in 2011. As one reporter pointed out, the odds of that happening at this point are somewhere between slim and none.

It’s likely that very few fans realized just how important those decisions were on July 24th — both occurring in a game played two-and-a-half months before the end of the season. But they probably meant the end of a successful season in 2010 for both the Tigers and for Magglio Ordonez.

Monday, June 28, 2010

What If They Threw a War and Nobody Came?

The funniest thing in the newspaper yesterday (Sunday, June 27) was not in the funny pages, but in an article in The New York Times concerning recent developments in Afghanistan. After recapping the stunning dismissal of General McChrystal and the apparent efforts of Afghan President Hamid Karzai to negotiate a peace directly with Taliban leaders and their Pakistani backers, the author, Scott Shane, made this statement in a stand-alone paragraph:

"Even as the Obama administration smoothly handled the McChrystal flap and regrouped behind the Afghanistan policy, word came in a report in The New York Times on Friday of diplomatic maneuvering between Afghan and Pakistani leaders that could result in a separate peace, potentially leaving the American generals with 100,000 troops and no one to fight."

Call me perverse, but this, I think, is simply hilarious.

Wednesday, May 5, 2010

Nuclear Transparency

In a tiny obscure wire service article tucked away on the back page of the Traverse City Record-Eagle a few days ago was a report that, "in an unprecedented accounting of a secretive arsenal," the Pentagon had announced that the United States has 5,113 nuclear warheads in its stockpile and "several thousand" more "awaiting the junkpile." Hillary Clinton, speaking at the U.N., said that the disclosure was in the interests of "transparency."


A quick look at Google tells me that there are 336 cities in the world with a population over one million, and another 256 with a population of between 600,000 and a million. Accordingly, if we were to drop one nuclear bomb on each of those 592 cities, we’d still have 4,521 left over. Hmmm. Tough decisions ahead. Just what will we do with all those unused bombs? Well, you never know, do you, when a little extra will come in handy.

Since we’ve experienced the awesome fright of the shoe-bomber, the underpants-bomber, and now the Times Square non-bomber, hopefully we’ve learned several times over that it always pays to have a few of the really big bombs in reserve. We just can't have too many of those nukes at the ready.

So, the Times Square scare notwithstanding, if you missed the article and are learning about this now for the first time, I’ll bet you’re feeling safer already.

Aren’t you?

Oh, and by the way, where the hell is that "junkpile" located? We could use a little transparency on that subject, too, Hillary.

Monday, February 15, 2010

Weekend News

Allies Attacking Big Taliban Haven in Afghan South: Aim Is to Install Government Forces to Keep Insurgents Out of Area
New York Times, Saturday, February 13

After Bullets, the Real Test: How to Keep the Taliban Out
New York Times, Saturday, February 13

Afghan Bomb Wounds U.S. Soldiers
New York Times, Saturday, February 13

Bombs Slow U.S. Advance: NATO Says It Hopes to Secure Marjah and Surrounding Area Within Days
Traverse City Record-Eagle, Sunday, February 14

Afghan Attack Gives Marines a Taste of War: Alone as the Vanguard in Taliban Territory
New York Times, Sunday, February 14

Errant U.S. Rocket Strike Kills Civilians in Afghanistan
New York Times, Sunday, February 14

U.S. Rockets Slam Into Afghan Home, Killing 12: Troops Face "Death at Every Corner" in Offensive’s 2nd Day
Traverse City Record-Eagle, Monday, February 15

Caught In the Open: A Firefight With the Taliban: Intense Gunfight Illustrates Issues in Battling Insurgents
Traverse City Record-Eagle, Monday February 15
 
Sure is good to be back reading headlines reporting the military exploits of the U.S. waging war in a foreign land, isn’t it? After the election of Barack Obama, I was a little concerned — thought perhaps we were going to lose our touch.

Monday, February 1, 2010

The Senate's Newest Game: "Planetary Chicken"

We are in a race against time. Mother Nature isn’t sitting around waiting for us to get our political act together.

Representative Jay Inslee (D. WA)

In the long term, the fossil-fuel industry is going to lose this war. But in the short term, they are doing everything they can to delay the revolution. For them, what this fight is really about is buying precious time to maximize profits from carbon sources. It’s really no more complicated than that.

Kevin Knobloch
President, Union of Concerned Scientists


As you may know, “emissions trading” (also known as “cap and trade”) is an administrative approach designed to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants.

“Cap and trade” [hereinafter sometimes “C&T”], has not been the preferred approach of the Obama Administration. While recently the President has said he will accept a C&T policy that encompasses the entire economy, his preference was once for a system of regulating the emission of heat-trapping gases administered by the Environmental Protection Agency. (Just after he took office, President Obama appointed Carol Browner, the head of the EPA under Bill Clinton, as “climate czar.”) But this kind of governmental regulation — once used successfully in winning World War II and in other such unimportant contexts — is anathema to conservatives and opposed almost unanimously by Republicans in Congress.

So, over the past year or so, by default, C&T has become the only remaining alternative. (Interestingly, C&T was first proposed in the Senate in 2003 by John McCain and Joe Lieberman. McCain, however, forever the flip-flopper, is now against it.) It works like this: A central authority (usually a governmental body) sets a limit or cap on the amount of a pollutant that can be emitted. Companies or other groups are issued emission permits and are required to hold an equivalent number of allowances, or credits, which represent the right to emit a specific amount. The total amount of credits cannot exceed the cap, limiting total emissions to that level. Companies that need to increase their emission allowance must buy credits from those who pollute less on an open market. This enables polluters to decide for themselves whether it’s cheaper to cut emissions or buy credits. The transfer of credits is referred to as a trade.

In effect, the buyer is paying a charge for polluting, while the seller is being rewarded for having reduced emissions by more than was needed. Thus, those who can reduce emissions most cheaply will do so, achieving the pollution reduction at the lowest cost to society. One of the big arguments used to attract conservatives to C&T is that it is “market-based,” that it “cut climate pollution by harnessing the power of the free market.”

One of the most oft-cited right-wing objections to C&T is that charging a polluter to pollute is actually (heaven forbid!) a tax. This is not altogether an unfair characterization. For those familiar with professional baseball, it’s a little like the New York Yankees, who have a team payroll in excess of $200 million (as opposed to the Florida Marlins, who have a team payroll of about $30 million), being forced to pay a “luxury tax” to the teams less financially endowed for the privilege of spending in excess of a specified limit (i.e., a cap) and thereby buying up a whole lot of the best players. This makes sense for the Yankees because, on top of their big market, with the better players they can win such things as the World Series, and thus make a lot more money, more than enough to cover their luxury taxes. So it is with the big carbon emitters (or big investment banks, or big pharmacueticals, or big health insurers, etc., etc.). It seems that in this country, in the name of free enterprise, the rich guys are given room to do pretty much whatever they damn well please.

In any event, C&T conceptually is shot-through with problems, the most obvious being that there’s no guarantee that the total level of emissions will be reduced; about all we can expect is that though the smaller emitters are likely to get smaller the bigger ones will likely get bigger. The fact is that “tracking CO2 from millions of sources poses a daunting challenge, and granting too many loopholes known as “carbon offsets” could render the entire system meaningless.” Another is that C&T “is almost perfectly designed for the buying and selling of political support through the granting of valuable emissions permits to favor specific industries and even specific Congressional districts.”

Oh, well. At least, in theory, it’s capitalistic all the way down, and, besides, it’s sooo American.

Nonetheless, just as it was about to be considered by the United States Senate, C&T lost its luster. For you see, Scott Brown, the newest member of that august body, went on record as opposing the idea in his campaign to claim Teddy Kennedy’s seat. If you’re about to say, “So what?” — wait just a minute. Brown’s success at the polls means there are now 41 Republican votes in the Senate and, as we all have learned in the past few years, whichever party controls 41 seats in the Senate controls the Senate. (The day after the election, a headline in the website of The Village Voice smartly announced: “Scott Brown Wins Mass. Race, Giving GOP 41-59 Majority.”) Never mind that this is still the largest majority either party has held in the Senate in 30 years. Never mind that as kids we learned that a democracy is supposed to run on majority rule, and that majority rule means rule by a majority of one, and that these days the Senate is comprised of 100 members. Be that as it may, as it now stands the C&T proposal is hovering on the lip of the dumpster.

In the face of these political realities, in his State of the Union address President Obama asked Congress “to send me legislation that places a market-based cap on carbon pollution.” But it didn’t take much time for the demise of the concept to be announced a few days after the speech by Senator Lindsey Graham (R. SC), who noted that “the cap and trade bills in the House and Senate are going nowhere.” Even Senator John Kerry (D. MA), a Democratic leader in the fight for energy legislation, admitted that he “can’t tell you whether it [passage of an energy bill] will happen this year or not.” On the very day of the SOU speech, The New York Times reported: “Some leaders in the energy industry were almost gleeful in pronouncing cap and trade dead for the year. They see an opportunity to win support from Congress for their businesses and to delay indefinitely the costs of reducing pollution from heat-trapping gases.” How sad is that?

But, once again — ta, da — wait just a minute. Two senators, Maria Cantwell of Washington, a Democrat, and Susan Collins of Maine, a Republican, have proposed a system known as “cap and dividend.” (This has bipartisan appeal because the “cap” idea sounds good to Democrats and “dividend” sounds good to Republicans.) Their proposal contemplates that power plants, steel mills, refineries and other major carbon emitters would have to pay for permits to pollute, with all the money being rebated to consumers to cover the higher costs of energy and manufactured goods. What geniuses these senators are!

But, hmmm. Let’s get this straight. We’re going to put a cap on the amount of emissions, but those emitters who can afford it (once again, the big ones) will buy permits to emit. These emitters by permit will therefore incur increased costs of production, which, in turn, will be passed on to consumers. But do not fear, Mr. and Mrs. Consumer — they’re thinking about you over in the Senate. You’ll be recompensed for your higher energy bills in the form of a rebate paid to you by the government out of funds raised by selling the permits. If this works, which is doubtful, it means that the real cost of generating emissions will be funneled backward 360 degrees and ultimately be borne by the emitters after all. (Yea, right.)

Of course, the Cantwell-Collins idea is no better than its progenitor, for it, too, is unlikely to decrease emissions at a level commensurate with our 2020 goals. But that’s no surprise, since it really isn’t designed to impact on emissions significantly in the first place; it’s designed to titillate conservatives “on both sides of the aisle,” as they say, into the fantasy that they’re actually accomplishing something. The United States Senate has no better insight into the importance of combating global warming than it does understanding of what’s meant by majority rule.

When all is said and done, it all comes down to nothing more than another senatorial circle jerk. Remember that the Senate’s complete lack of will to act last fall “helped torpedo the talks in Copenhagen, which not only failed to produce a binding treaty but postponed meaningful action until 2015.” As a result of that debacle, we are now “staring into the abyss,” says Dan Dudek, chief economist for the Environmental Defense Fund. “The United States and other developed countries must cut carbon emissions by 80 to 95 percent over the next few decades to avoid very serious climate change,” Robert S. Eschelman writes in the The Nation. So far, our efforts are “Lilliputian.” Atmospheric CO2 concentration, in case you wondered, is now somewhere around 390 ppm.

But once again, there appears to be a light, however dim, at the end of this seemingly endless tunnel. The light emanates from the EPA option for regulating carbon emissions, an option available to the president that can be implemented without the intervention of Congress. Simply put, he can impose the needed regulations by executive order — just as President Roosevelt imposed price controls during World War II. (Query: Which is more important, defeating Hitler or saving the planet? Hmmm.) The president, of course, is well aware that he has the power to do just that. Writing in the recent issue of Rolling Stone, Jeff Goodell reports that President Obama,“a month after taking office, moved to implement a 2007 ruling by the U.S. Supreme Court empowering the EPA to regulate carbon dioxide as a pollutant.”

“The threat to Big Coal and Big Oil was implicit,” Goodell continues, noting that “if energy interests balked at working with Congress to create a new system to curb carbon pollution, the administration would simply unleash federal regulators.” In similar vein, “if Congress does nothing,” warned Sen. Barbara Boxer, who was spearheading climate legislation as chair of the Senate Environment Committee, “we will be watching EPA do our job.” This is the very threat voiced by Senators Kerry and Graham last October when, in support of their proposed cut and trade legislation in the Senate, they jointly wrote in The New York Times that, should Congress fail to act on climate change, “the administration will use the Environmental Protection Agency to impose new regulations.” “Imposed regulations,” they added, “are likely to be tougher and they certainly will not include the job protections and investment incentives we are proposing.”

The current diddling in Congress makes the EPA alternative all the more likely, and all the more attractive. The big question, of course, is when the talking stops and the crunching begins, will the president have the guts to flip the switch, and divert his effort from the track heading up toward Capital Hill to the one leading to the Environmental Protection Agency?

If Congress defaults, and President Obama goes the EPA route, the political fallout from conservatives will be immense. Glenn Beck has already gone on record charging the industry-friendly market-based C&T bill is an instrument of government control and communist bureaucracy. “They are going to take our financial systems, and then they are going to nationalize industry, and then they are going to nationalize energy,” he blustered, adding that those who support pending C&T legislation “have exposed themselves quite honestly, I think, as treasonous.” Should the Obama administration actually turn to the EPA, you can imagine what Beck and his colleagues at Fox will have to say. On several occasions, one rather recent, the president has said that he would rather be a good and courageous president for one term than a poor, ineffectual one for two terms. It may come to that.

Bill McKibbon says that, right now, getting carbon emissions under control is “nothing more than a dream. Making it real depends on how hard we push the system. There’s no question it’s capable of responding, and no question that left to its own devices it won’t.” The kind of movement required to make the push, McKibbon contends, needs to grow and to grow now. “We’ll need civil disobedience, of the kind that blockaded Congress’s coal-fired power plant last spring; we’ll need symbolic witness, like 350.org; we’ll need old-fashioned lobbying.”

For the moment, despite the consequences, there are two questions hanging fire: First, will the president have the guts to do what he should, to do what’s right? And second, whatever he may do, will the American people have the guts to “push the system,” push it hard?

The answer to neither one of these questions is assured, and the likelihood that either will be in the affirmative is questionable. But for those of us who are even half-way paying attention, our moral and political obligations are clear: we should do what Bill McKibbon suggests — civil disobedience, symbolic witness, old-fashioned lobbying.

And I guess we’d better get on with doing them real soon.