Oral Argument in the Pork Lawsuit Appeal

[Jim Ostrowski]

This is the oral argument I prepared for the pork lawsuit appeal in Albany (Appellate Division) on Monday. In that case, I argued against Andrew Cuomo's legal staff that cash grants to corporations are illegal. I was not able to deliver all these remarks as we were interrupted with many questions. The questions seemed to have favored our position.



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It’s only a slight exaggeration to say that American history is ongoing debate between Hamilton and Jefferson. We are here today to breathe life into the old Jeffersonian New York Constitution of 1846. Hamilton believed in corporate welfare and crony capitalism. We tried that in New York in the early decades of the 19th century. Politicians used taxpayers’ money to pick winners in the marketplace, and things being what they are when people spend other people’s money, they chose badly and put the state into a financial crisis.

In response, the people passed what they thought was a ban on corporate subsides. Under that regime, New York became the most powerful economy on earth over the next 100 years.

However, in the 1960’s Hamilton’s ideas became fashionable again and the politicians asked the people to once again allow them to risk their money by trying to pick winners in the marketplace.

In November 1967 the people said no at the ballot box but the politicians ignored that vote and ignored the Constitution and decided to have their way anyway. They set up public corporations to do an end-run around the Constitution. They got away with this ploy for forty years simply because no one challenged them.

But finally fifty taxpayers did challenge them. Fifty taxpayers asked, how can these defendants ignore the clearly-expressed preference of the people in elections over a period of 121 years?

Now they say they can do indirectly what they cannot do directly. Now they say they can launder state money through the Empire State Development Corporation before they dole it out to their cronies’ private firms.

There are three big problems with that argument. First, it runs afoul of the well-established principle that the Constitution may not be evaded by indirect means.

Second, it proves too much and leads to absurdities such as the prospect of looting the state treasury for private purposes such as my trip around the world simply by laundering the money through a public corporation.

Finally, this ploy is barred by the plain language of the Constitution which not only bars giving money to private firms but giving money “in aid of” private firms, a broader prohibition that bans laundering the money through a third entity first.

So, your Honors, my clients and I got up early today and drove here from Buffalo and other points around the state to ask this Court to breathe new life into the old and wise Constitution of 1846 and to breathe new life into the very notion of constitutionally limited government. For what good are constitutions if their plain language and clear intent are ignored and constitutions became mere props upon which false oaths are sworn by newly elected public officials?

If the plain language and unambiguous legislature history is not enough, let’s look at the consequences of tens of billions of dollars in illegal corporate subsidies. The state is broke. The state is in a state of emergency. Schools are closing, parks are closing and funding for the courts, a core function of government, is being slashed. Finally, the state’s economy is a mess. Crony capitalism has failed and led to a fiscal crisis that is eating away at the core functions of state government.

There is an easy solution to this crisis. Enforce the plain language of the Constitution just as the Supreme did in the Heller v. District of Columbia. The right of the people to bear arms means the people have the right to bear arms.

When the state constitution says that “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking,” it means that the money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking. It’s that simple. And all the legal and mental and metaphysical gymnastics that lawyers are paid to dazzle us with cannot change that.

The solution is before our eyes. Enforce the Constitution. Enforce it now. Enforce it before it is too late.

[PickOranges]

You know Jim. I probably don't agree with you 75% of the time but that is all right. We both want the best for our country.

I think when you step up to the plate to do what you think is right to make democracy better for everyone is commendable in my book.

This one I want to thank you..

[Jim Ostrowski]

Thanks, as Ramsey Clark taught me in 1974, if two people agree on everything, one of them isn't thinking.

[nogods]

Enforce it before it is too late.

I hope you never got to say that portion of your prepared remarks.

[PickOranges]

I started to read: The Power Broker: Robert Moses and the Fall of New York It is a Pulitzer Prize-winning 1974 biography of Robert Moses. The author was Cara I believe.

It was an interesting book but over 1100 pages and I only had time to read the first 4 chapters.

If anyone is interested, I ordered it online from the Buffalo and erie county Public Lib. They delivered to my local library.