Zera's Blog

A Citizen's View from Main Street

The overlooked part of AZ-SB1070


When the law first hit the news, I took a look at it to see just what was going on in it. What I found were a few things that never made it into the news.

No commercial value, I suppose.

There are what I consider to be serious flaws in the law that go beyond the partisan problems, though they are certainly partisan in origin. Flaws that are just plain bad law.

A person who is a legal resident of this state may bring an action in superior court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than one thousand dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.
11-1051(G)

Public employees and officials are given a degree of immunity (“Governmental Tort Immunity“) from prosecution so they can do their jobs in good faith without constantly worrying about lawsuits and liabilities. It protects the ability of government to function, and taxpayers from potentially large legal and penalty costs.

I see three problems with this section:

  1. This gives standing for unaffected third parties to sue “any official or agency of this state or a county, city, town or other political subdivision of this state”. It gives any angry vigilante the right to sue any political subdivision, whether he/she lives in the jurisdiction of that subdivision or not. Whether or not he/she is personally harmed or merely irritated.
  2. At a minimum, every lawsuit would cost the taxpayers in legal expenses. If convicted, the taxpayers would be on the hook for the civil penalties. Further, the penalties begin at the time of accusation, not conviction. This complicates things because there is no clear understanding of what might be penalized until and unless there is a conviction. By the nature of the law, this is more likely to be an error of omission rather than commission – which means that inaction, or insufficient action, is what would be penalized. How do you quantify an non-event?

    A bill of attainder (also known as an act of attainder or writ of attainder) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.

    Not quite, but not far off.

  3. Revoking governmental tort immunity cannot help but distort how governmental units function. The threat of potential lawsuits would require new and costly insurance. A case under this law could take months to litigate, even without appeals. It could financially ruin a small unit of government like a small town police department that can’t keep police on the streets in the first place, even if the lawsuit failed.

The costs may be recovered if the lawsuit fails:

The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a county, city, town or other political subdivision of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.
11-1051(I)

This has problems of its own:
a) The costs are up-front. A small unit of government could go bankrupt defending itself before it could recover the costs of a bad lawsuit.

b) Recovery depends on the ability of the accuser to pay. It could take months, years, or forever.

c) Recovery depends on “an adjudication on the merits”. That sounds to me like the taxpayers would eat the legal costs of cases resolved by negotiation or on technical grounds.

This overrides:

Continue reading

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June 28, 2012 Posted by | Legislation, Strangelove | , , , | Leave a comment

Eric Cantor’s Small-Business Tax Cut Faces Threat Of Presidential Veto


And a well-deserved veto it would be.

Holy Crap, Batman! Look at the numbers!

$46B added to the deficit in order to create 100K jobs. That’s $460,000/job. That’s likely 10 to 15 times the salary of the jobs created. There is no possibility that this would generate enough new revenues to pay for the cuts, even if the new jobs were taxed at 100%.

Cutting taxes for 22M “small” businesses to create 100K jobs means only 1 job would be created for every 220 businesses getting a tax cut – and that’s if the republican best-case scenario proves true.

Official portrait of Congressman .

Official portrait of Congressman . (Photo credit: Wikipedia)

I think that Eric Cantor and I have radically different definitions of “potent economic stimulus”. This is designed to be incredibly inefficient, ineffective, and wasteful as a “jobs” program.

Could the lies be any more blatant? Promoting this as a “jobs” bill is an insult to the intelligence of every American, and a clear demonstration that republicans are fiscally irresponsible in ideology and practice. After all, they can blame President Obama for not signing it, or the Senate Democrats for not passing it, and never face responsibility for passing it. I expect them to accuse the Democrats of playing politics in stopping this moment of insanity.
Read the Article at HuffingtonPost

April 19, 2012 Posted by | 2012 Election, Budget, Economics, Ethics, GOP, Legislation | , , , , , , , , , | Leave a comment

NH-HB1580 – New Hampshire Republicans seek to Embrace Foreign Law


Because moving forward to the 1950s is not wacky enough, state republicans in New Hampshire are considering traveling back to 1297AD for their justification for the legal basis of individual rights and liberties within new law.

HB 1580 – AS INTRODUCED

2012 SESSION

12-2335
08/03
HOUSE BILL 1580
AN ACT requiring a reference to the Magna Carta on certain legislation.
SPONSORS: Rep. Kingsbury, Belk 4; Rep. Twombly, Hills 25; Rep. L. Vita, Straf 3
COMMITTEE: Constitutional Review and Statutory Recodification

ANALYSIS

This bill requires a reference to the Magna Carta on certain legislation.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2335
08/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT requiring a reference to the Magna Carta on certain legislation.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Magna Carta References. Amend RSA 14 by inserting after section 39-a the following new section:

14:39-b Magna Carta Reference. All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived.

2 Effective Date. This act shall take effect November 1, 2012.

What kind of restriction does this place on the recognition of individual rights and liberties? The first problem with this law is that there is more than one version of the Magna Carta. Lets look at the Magna Carta (1297):

Continue reading

January 7, 2012 Posted by | GOP, Legislation, Strangelove | , , , , , , , , , , | Leave a comment

South Carolina Voter ID Law: Justice Department Blocks Controversial Legislation


"Certificate of Election of John Jay as G...

John Jay election certificate

At the beginning of our country, all you had to do to prove you were a citizen was to swear to it. Word of honor was enough. Neither the states nor the central government recorded or tracked births. Then it required an oath. Then a court. And a witness. Then it went too far, with intelligen­ce tests and poll taxes. Rules and laws were used to manipulate elections instead of protecting our suffrage rights. In the past year, we have seen a major return to such voter suppressio­n.

Protecting rights is a trade-off. Rights are not absolute, or free. In Federalist 2, John Jay said:

“Nothing is more certain than the indispensa­ble necessity of government­, and it is equally undeniable­, that whenever and however it is instituted­, the people must cede to it some of their natural rights in order to vest it with requisite powers.”

The goal is to protect the most rights while ceding the least. Given the scarcity of fraud and the large number of disenfranc­hised, the voter ID laws are the embodiment of bad government­.

Promoted as a way to protect the integrity of the election process, they accomplish the opposite. They are designed and intended to disenfranchise voters who are not likely to vote for conservatives.

In short, voter ID laws create the very problem they profess to fix – the manipulation of elections – and they do it deliberately. And with extreme partisanship.

December 24, 2011 Posted by | Elections, Legislation, Voter ID | , , , , , , , | Leave a comment

Payroll Tax Cut Fight: ‘Wall Street Journal’ Editorial Rips Boehner, McConnell


The Wall Street Journal opinion piece passes out the business-c­entric blinders.

“No employer is going to hire a worker based on such a small and temporary decrease in employment costs, as this year’s tax holiday has demonstrat­ed. The entire exercise is political, but Republican­s have thoroughly botched the politics.”

True, but not the point of the exercise. Employers will hire when they see customers with money coming their way – which is the point of the tax holiday: Putting more money in consumer pockets. Wasn’t it the republican­s who said that people know best how to spend their own money? Conservatives consistently devalue the necessity of funding the demand side of supply and demand. Instead, they are aggressively working to weaken the economic foundation of the middle class.

“Their first mistake was adopting the President’­s language that he is proposing a tax cut rather than calling it a temporary tax holiday. People will understand the difference­—and discount the benefit.”

So people will understand when it comes time to end the Bush “tax holiday” for the rich?

“Republica­ns have also achieved the small miracle of letting Mr. Obama position himself as an election-y­ear tax cutter, although he’s spent most of his Presidency promoting tax increases and he would hit the economy with one of the largest tax increases ever in 2013. This should be impossible­.”

Except that Obama44 has been cutting taxes. The “tax holiday” in question is only one example. Conservati­ves keep changing the definition­s. Either the House republican­s have voted for a middle-cla­ss tax increase, or we need to end one of the largest unfunded tax holidays ever.

Conservatives are nibbling at the edges of doublethink. The Obama44 cuts to payroll taxes and the Bush43 income tax cuts to income taxes are both temporary cuts. There is one notable difference between the two though. The Obama cuts are being paid for – how is a major point of contention. The Bush43 cuts went straight to the national debt.

The President and the Democrats want the rich to pay for extending the payroll tax cuts, and put some of that idle money back in circulation as an economic stimulus. The republicans want the middle class and poor to pay for it, which would negate the simulative effect and hurt the economy in the long term. Redistribution of wealth at its most ineffective.
Read the Article at HuffingtonPost

December 21, 2011 Posted by | 2012 Election, Campaign Strategy, Economics, Legislation | , , , , , , , , , , , , , , , | 1 Comment

112th Congress HJRes78 – A Citizens United Amendment


Ii I analyze any more Democrat Bills, I will have to come up with a new category for them.

The Joint Resolution:


[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.J. Res. 78 Introduced in House (IH)]

112th CONGRESS
  1st Session
H. J. RES. 78

  Proposing an amendment to the Constitution of the United States to 
   clarify the authority of Congress and the States to regulate the 
      expenditure of funds for political activity by corporations.
_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2011

  Ms. Edwards (for herself and Mr. Conyers) introduced the following 
 joint resolution; which was referred to the Committee on the Judiciary
_______________________________________________________________________

                            JOINT RESOLUTION

  Proposing an amendment to the Constitution of the United States to 
   clarify the authority of Congress and the States to regulate the 
      expenditure of funds for political activity by corporations.

    Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled   (two-thirds of each House 
concurring therein), That the following article is proposed as an 
amendment to the Constitution of the United States, which shall be 
valid to all intents and purposes as part of the Constitution when 
ratified by the legislatures of three-fourths of the several States:

                              ``Article--

    ``Section 1. Nothing in this Constitution shall prohibit Congress 
and the States from imposing content-neutral regulations and 
restrictions on the expenditure of funds for political activity by any 
corporation, limited liability company, or other corporate entity, 
including but not limited to contributions in support of, or in 
opposition to, a candidate for public office.

    ``Section 2. Nothing contained in this Article shall be construed 
to abridge the freedom of the press.''.

                                 <all>

Analysis

Section 1:

This is similar to my second proposed amendment in that it works to deny Constitutional protection to corporate political spending. This is probably the least disruptive method from a legal standpoint, but it retains the “regulating the hand that feeds” conflict of interest problem.

It does not include organized religion, which should not be engaging in political campaigns but do anyway.

To be fair, it does not include unions either. On the other hand, unions are associations of actual people, not “artificial persons”. They do not pose the same threat to our sovereignty as corporations. Perhaps someday an adjustment will need to be made, but that becomes a slippery slope problem.

Section 2:

The freedom of the press must be maintained, though the corporate media undermines the Fourth Estate through the corrupt use of ownership powers.

Constitutional Authority Statement:

[Congressional Record Volume 157, Number 134 (Monday, September 12, 2011)]
[House]
[Pages H6097-H6098]

From the Congressional Record Online through the Government Printing Office [www.gpo.gov]

 By Ms. EDWARDS:
 H.J. Res. 78.

[[Page H6098]]

 Congress has the power to enact this legislation pursuant
 to the following:
 Article V of the Constitution.

Article V:

    • The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution,
    • or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,
  • which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when
    • ratified by the Legislatures of three fourths of the several States,
    • or by Conventions in three fourths thereof,

    as the one or the other Mode of Ratification may be proposed by the Congress;

  • Provided
    • that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
    • and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Related Bills:


Conclusion

This is a simple and straightforward answer to Citizens United. Without a mandate, I think that there would be many partisan battles over regulation. Especially when one party confuses corporations with living people.

I also think it needs an enacting clause. Other than that, I like it.

November 8, 2011 Posted by | Campaign Finance, Citizens United vs FEC, Constitution, Legislation | , , , , | 1 Comment

112th Congress SJRes29 – A Citizens United Amendment


I usually reserve my analysis for the republican clunkers. This is the second time I have analyzed a Democrat Bill.

The Joint Resolution:


[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[S.J. Res. 29 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
S. J. RES. 29

    Proposing an amendment to the Constitution of the United States 
     relating to contributions and expenditures intended to affect 
                               elections.
_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            November 1, 2011

   Mr. Udall of New Mexico (for himself, Mr. Bennet, Mr. Harkin, Mr. 
Durbin, Mr. Schumer, Mr. Merkley, Mr. Whitehouse, Mr. Begich, and Mrs. 
  Shaheen) introduced the following joint resolution; which was read 
          twice and referred to the Committee on the Judiciary
_______________________________________________________________________

                            JOINT RESOLUTION

    Proposing an amendment to the Constitution of the United States 
     relating to contributions and expenditures intended to affect 
                               elections.

    Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled (two-thirds of each House 
concurring therein), That the following article is proposed as an 
amendment to the Constitution of the United States, which shall be 
valid to all intents and purposes as part of the Constitution when 
ratified by the legislatures of three-fourths of the several States 
within seven years after the date of its submission by the Congress:

                              ``Article--

    ``Section 1. Congress shall have power to regulate the raising and 
spending of money and in kind equivalents with respect to Federal 
elections, including through setting limits on--
            ``(1) the amount of contributions to candidates for 
        nomination for election to, or for election to, Federal office; 
        and
            ``(2) the amount of expenditures that may be made by, in 
        support of, or in opposition to such candidates.

    ``Section 2. A State shall have power to regulate the raising and 
spending of money and in kind equivalents with respect to State 
elections, including through setting limits on--
            ``(1) the amount of contributions to candidates for 
        nomination for election to, or for election to, State office; 
        and
            ``(2) the amount of expenditures that may be made by, in 
        support of, or in opposition to such candidates.

    ``Section 3. Congress shall have power to implement and enforce 
this article by appropriate legislation.''.

                                 <all>

Analysis

Section 1:

I see three problems with this section:

  1. It does not cover issues. While issues are not directly on the ballot, they are still an integral part of a political campaign.
  2. It does not cover Constitutional Amendments.
  3. The politicians setting the regulations, without direction or mandate, are the ones who benefit from the current state of campaign financing. This leaves plenty of room for continued influence peddling.

Section 2:

There are similar problems with this section:

  1. It does not cover issues.
  2. It does not cover Constitutional Amendments.
  3. It does not cover referenda.
  4. It does not cover local elections.
  5. It does not cover other Questions put to the voters, such as millage.
  6. It does not cover cross-state interference in local politics. The sovereignty of the individual states is being challenged by out-of-state money.

Constitutional Authority Statement:

None given (yet), but Article V of the Constitution covers it.

Article V:

    • The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution,
    • or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,
  • which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when
    • ratified by the Legislatures of three fourths of the several States,
    • or by Conventions in three fourths thereof,

    as the one or the other Mode of Ratification may be proposed by the Congress;

  • Provided
    • that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
    • and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Related Bills:


Conclusion

I do not believe that this proposed amendment goes far enough to protect our democratic process from the influence of non-citizens or the excessive influence of the very rich.

November 6, 2011 Posted by | Citizens United vs FEC, Constitution, Legislation | , , , | 1 Comment

112th Congress HR1116 – Respect for Marriage Act


I usually reserve my analysis for the republican clunkers. This is the first time I have analyzed a Democrat Bill.

The Bill:


[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 1116 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 1116

  To repeal the Defense of Marriage Act and ensure respect for State 
                        regulation of marriage.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 16, 2011
_______________________________________________________________________

                                 A BILL

  To repeal the Defense of Marriage Act and ensure respect for State 
                        regulation of marriage.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Respect for Marriage Act''.

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY 
              SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

    Section 1738C of title 28, United States Code, is repealed, and the 
table of sections at the beginning of chapter 115 of title 28, United 
States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE RECOGNITION.

    Section 7 of title 1, United States Code, is amended to read as 
follows:
``Sec. 7. Marriage
    ``(a) For the purposes of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus 
and agencies of the United States in which marital status 
is a factor, an individual shall be considered married if that 
individual's marriage is valid in the State where the marriage was 
entered into or, in the case of a marriage entered into outside any 
State, if the marriage is valid in the place where entered into and the 
marriage could have been entered into in a State.
    ``(b) In this section, the term `State' means a State, the District 
of Columbia, the Commonwealth of Puerto Rico, or any other territory or 
possession of the United States.''.
                                 <all>

Analysis

Section 1:

This Act is about general marriage equality, but I like the term “Respect” too. Technical accuracy is rarely inspirational or engaging.

Section 2:

This raises a question I have wondered about before: is it enough to say that a section is repealed, or should the bill also include instructions to delete the section from existing code?

Section 3:

I am concerned with the difference in wording between DOMA and RMA.

Constitutional Authority Statement:

By Mr. NADLER:
H.R. 1116.
Congress has the power to enact this legislation pursuant
to the following:
Clause 18 of Section 8 of Article I of the Constitution,
and Section 5 of Amendment XIV to the Constitution.

Art. 1, Sec. 8, Clause 18:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I do not see anything in section 8 that applies to marriage. FAIL

Amend XIV, Sec. 5:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

I do not see anything in the 14th amendment that applies to marriage. FAIL

Amend XIV, Sec. 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This refers to state law and state restrictions, where the Bill refers to federal law and federal recognition. This Amendment is irrelevant to the Bill. FAIL

These are prove-nothing vague citations that fail to specify any particular power or authority. Mr. Nadler needs to be more thorough:

Article IV, section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, section 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article IV, section 3, Clause 2:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Related Bills:

From DOMA:

SEC. 3. DEFINITION OF MARRIAGE.

    (a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage’ and `spouse’

    `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.

    (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

        `7. Definition of `marriage’ and `spouse’.’.

To properly generalize the definitions, it seems to me that the starting point should be the original language.

If I had written the Bill:

_______________________________________________________________________

                                 A BILL

  To repeal the Defense of Marriage Act and ensure respect for State 
                        regulation of marriage.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Respect for Marriage Act''.

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY 
              SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

    Section 1738C of title 28, United States Code, is repealed and stricken,
and the table of sections at the beginning of chapter 115 of title 28, United 
States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE AND SPOUSE RECOGNITION.

    Section 7 of title 1, United States Code, is amended to read as 
follows:
``Sec. 7. Marriage and Spouses
    ``(a) For the purposes of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the
United States in which marital status is a factor,
          (1) an individual shall be considered married if
              (A) that individual's marriage is valid in the State
     where the marriage was entered into or,
              (B) in the case of a marriage entered into outside any
     State, if the marriage is valid in the place where entered into
     and the marriage could have been entered into in a State.
          (2) the person an individual is married to is considered to
     be the spouse of that individual, irrespective of gender.
    ``(b) In this section, the term `State' means a State, the District 
of Columbia, the Commonwealth of Puerto Rico, or any other territory or 
possession of the United States.''.
                                 <all>

Constitutional Authority Statement:

By Author:
H.R. 1116.
Congress has the power to enact this legislation pursuant
to the following:
U.S. Const., art. IV, sec. 1,
U.S. Const., art. IV, sec. 2,
U.S. Const., art. IV, sec. 3, cl. 2
14th Amendment, sec. 1

Conclusion

This Bill applies to federal laws, contracts, policies, and programs. It does not apply to State laws, etc. with the possible exception where the two interact. Such a situation would be best resolved case by case rather than attempting a catch-all set of laws or policies.

The republicans will never accept equal rights or freedom of religion for beliefs they do not agree with. The majority of people, however, believe it is time to end this discrimination.

Obviously, I am not impressed with the wording or the authority citation, and I hope they fix it before it does get passed – someday.

July 21, 2011 Posted by | Gay Rights, Legislation | , , , , , , , , , , , , | 2 Comments

112th Congress HR2417 – Better Use of Light Bulbs Act


This Bill has already failed, but it illustrates how the priorities of the republicans stray from the priorities of the country. It also serves as a commentary on the technical competence of knee-jerk legislation.

The Bill:

[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 2417 Introduced in House (IH)]
112th CONGRESS
  1st Session
                                H. R. 2417
To repeal certain amendments to the Energy Policy and Conservation Act 
  with respect to lighting energy efficiency, and for other purposes.
_______________________________________________________________________
                    IN THE HOUSE OF REPRESENTATIVES
                              July 6, 2011
Mr. Barton of Texas (for himself, Mr. Akin, Mr. McClintock, Mr. Flores, 
   Mr. Hultgren, Mr. Turner, Mr. Wolf, Mrs. Lummis, Mrs. Capito, Mr. 
Scalise, Mr. McKinley, Mr. Burgess, Mrs. Blackburn, Mr. Goodlatte, Mr. 
 Poe of Texas, and Ms. Eddie Bernice Johnson of Texas) introduced the 
   following bill; which was referred to the Committee on Energy and 
                                Commerce
_______________________________________________________________________
                                 A BILL
To repeal certain amendments to the Energy Policy and Conservation Act 
  with respect to lighting energy efficiency, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
    This Act may be cited as the “Better Use of Light Bulbs Act”.
SEC. 2. LIGHTING ENERGY EFFICIENCY.
    (a) In General.–Sections 321 and 322 of the Energy Independence 
and Security Act of 2007 (Public Law 110-140) are repealed.
    (b) Application.–The Energy Policy and Conservation Act (42 U.S.C. 
6201 et seq.) shall be applied and administered as if sections 321 and 
322 of the Energy Independence and Security Act of 2007 (and the 
amendments made by those sections) had not been enacted.
SEC. 3. MERCURY-CONTAINING LIGHTING.
    No Federal, State, or local requirement or standard regarding 
energy efficient lighting shall be effective to the extent that the 
requirement or standard can be satisfied only by installing or using 
lamps containing mercury.
SEC. 4. STATE REGULATION.
    No State or local regulation, or revision thereof, concerning the 
energy efficiency or energy use of medium screw base general service 
incandescent lamps shall be effective.
SEC. 5. DEFINITIONS.
    In this Act, the terms “general service incandescent lamp”, 
“lamp”, and “medium screw base” have the meanings given those terms 
pursuant to the Energy Policy and Conservation Act (42 U.S.C. 6201 et 
seq.), as applied and administered pursuant to section 2.
                                 <all>

Analysis

Section 1:

A cute use of an acronym, but it does not really apply to the Bill. The Bill is about choice, not best practices.
HR91 and S395 use the same name.

Section 2:

A sweeping statement that a section of law is repealed does not actually modify the law. Rather, it complicates the law with conditional statements. This bill creates the very same burdensome bureaucratic rat’s nest legal code that everyone wants to simplify and streamline. The final modifications of 42 U.S.C. Chapter 77 (a.k.a. 42 U.S.C. 6201 et seq.) are not specified here, but left vague and open to interpretation. This bill represents the legislative laziness that creates problems and drives up legal costs.
What they should have written might have looked more like:
 (a) In General.–Sections 321 and 322 of the Energy Independence and Security Act of 2007 (Public Law 110-140) are repealed.
 (b) Application.–(precise instructions on how to unwind 110-140, Sec. 321 and Sec. 322)
 (c) Rulemaking.–(precise instructions on how to unwind rules required by or based on 110-140, Sec. 321 and Sec. 322)
 (d) Expenditures.–(precise instructions on how to remove funding for programs enacted by 110-140, Sec. 321 and Sec. 322)

Section 3:

This section is curious for a few reasons:
  1. With the development of full-spectrum LED lights, this section is rendered useless. LED lights can meet any requirement of standard that florescent lights could. The exception would be for ballast requirements that have nothing to do with bulb choice.
  2. Supposed protection from mercury in the bulbs (less than a thermometer’s worth) would be more than offset by the extra coal ash generated. Coal ash contains mercury, some of which goes into the air. Light bulbs containing mercury must be recycled, they cannot be put in the trash. The whole mercury-in-landfill argument is false.
  3. It explicitly prohibits state or local government from setting a higher standard. Setting a minimum national standard is one thing, preventing the states from improving on it is another thing entirely.

Section 4:

Another mindless anti-state/local sovereignty restriction. Interestingly, it may also be anti-innovation.
“There’s a massive misperception that incandescents are going away quickly,” said Chris Calwell, a researcher with Ecos Consulting who studies the bulb market. “There have been more incandescent innovations in the last three years than in the last two decades.”
and
“Due to the 2007 federal energy bill that phases out inefficient incandescent light bulbs beginning in 2012, we are finally seeing a race” to develop more efficient ones, said Noah Horowitz, senior scientist with the Natural Resources Defense Council.

Constitutional Authority Statement:

By Mr. BARTON of Texas:
H.R. 2417.
Congress has the power to enact this legislation pursuant to the following:
This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 3 of the United States Constitution.
U. S. Const., Art I, Sec. 8, clause 3:
[The Congress shall have Power] “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
I might add:
U. S. Const., Art I, Sec. 8, clause 18:
[The Congress shall have Power] “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Seems to be an incomplete Authority without the power to write the laws that exercise the allotted powers.
I would also like to note that this Bill was written under the assertion that the Federal government lacks the authority to write the law it is attempting to repeal, while using the same allegedly non-existent Constitutional Authority for this Bill.
It has been estimated that this Bill would directly cost consumers $6-12B in additional energy costs in order to feed anti-government sentiments. The indirect costs of additional air pollution and energy-dependence have not been calculated, to my knowledge. This is a very high cost for no purpose other than partisan politician gain.
{UPDATE} The republicans seem to have found a way to temporarily defund enforcement.
Oooopsy. GOP attack on light-bulb efficiency irks manufacturers

July 18, 2011 Posted by | Legislation, Strangelove | , , , , , , , , , , , , | Leave a comment

112th Congress HR1255 – Government Shutdown Prevention Act of 2011


HR1255 provides a learning moment in the annals of American civics, for those who would learn…

It certainly leaves the tea party republicans no incentive to seek compromise or negotiate in good faith. In fact, it also gives them incentive NOT to raise the debt ceiling.

The Bill:

[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 1255 Introduced in House (IH)]

112th CONGRESS
1st Session
H. R. 1255

To prevent a shutdown of the government of the United States, and for
other purposes.

_______________________________________________________________________

IN THE HOUSE OF REPRESENTATIVES

March 30, 2011

Mr. Womack (for himself and Mr. Woodall) introduced the following bill;
which was referred to the Committee on Appropriations, and in addition

to the Committees on Oversight and Government Reform, House
Administration, and the Budget, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

A BILL

To prevent a shutdown of the government of the United States, and for
other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Government Shutdown Prevention Act
of 2011”.

SEC. 2. FUNDING THE GOVERNMENT FOR THE REMAINDER OF FISCAL YEAR 2011.

(a) Deadline for Consideration of Legislation Funding the
Government for the Remainder of Fiscal Year 2011.–If the House has not
received a message from the Senate before April 6, 2011, stating that
it has passed a measure providing for the appropriations for the
departments and agencies of the Government for the remainder of fiscal
year 2011, the provisions of H.R. 1, as passed by the House on February
19, 2011, are hereby enacted into law.

(b) Publication of Act.–In publishing this Act in slip form and in
the United States Statutes at Large pursuant to section 112 of title 1,
United States Code, the Archivist of the United States shall include
after the date of approval, if applicable, an appendix setting forth
the text of the bill referred to in subsection (a).

SEC. 3. TREATMENT OF CERTAIN PAYMENTS TO MEMBERS OF CONGRESS AND THE PRESIDENT.

(a) Treatment of Members During a Government Shutdown.–The
Secretary of the Senate and the Chief Administrative Officer of the
House, respectively, shall not disburse to each Member or Delegate the
amount of his or her salary for each day that

(1) there is more than a 24-hour lapse in appropriations
for any Federal agency or department as a result of a failure
to enact a regular appropriations bill or continuing
resolution; or

(2) the Federal Government is unable to make payments or
meet obligations because the public debt limit under section
3101 of title 31, United States Code, has been reached.

(b) Treatment of the President During a Government Shutdown.–The
President shall not receive a disbursement of basic pay for any period
in which–

(1) there is more than a 24-hour lapse in appropriations
for any Federal agency or department as a result of a failure
to enact a regular appropriations bill or continuing
resolution; or

(2) the Federal Government is unable to make payments or
meet obligations because the public debt limit under section
3101 of title 31, United States Code, has been reached.

<all>

Analysis

First of all, it appears to be assigned to no less than 4 committees simultaneously. I’ve always understood that bills have to go from committee to committee sequentially. Otherwise, amendments could leave you with multiple versions of a bill – which cannot be. Unless, of course, no amendments are to be allowed – which in turn means that all discussion and debate is aimed not at the legislation, but at persuasion.

UPDATE: H. Res. 194 blocked any path for Democrats to alter the bill.

“All points of order against consideration of the bill are waived. The bill shall be considered as read. All points of order against provisions in the bill are waived.”

The “hear no evil, speak no evil” resolution.

UPDATE: H. R. 1255 has been passed by the House, making the number of simultaneous committees a rhetorical question.

“and for other purposes.”

Always a warning flag. It means that there is more to the bill than is reflected in the title.

Section 2:

“Deadline for Consideration of Legislation Funding the
Government for the Remainder of Fiscal Year 2011.–If the House has not
received a message from the Senate before April 6, 2011, stating that
it has passed a measure providing for the appropriations for the
departments and agencies of the Government for the remainder of fiscal
year 2011, the provisions of H.R. 1, as passed by the House on February
19, 2011, are hereby enacted into law.”

There are two issues here:

  1. “the provisions of” is not terribly explicit. If they had at least stated “DIVISIONS A through C”, it would have shown at least a little legislative skill. I seriously doubt the legitimacy of a law that references or attempts to enact the language of another bill, which never became law in it’s own right.
  2. This is the same sort of back-door legislative legerdemain that the republicans cried foul over, but without the cover of House/Senate rules. This is not the “deem and to pass” procedure despite the apparent similarities. The self-executing rule is a House rule that can only effect the authority of the House. It cannot speak for the Senate. The Senate already said no to the language of H. R. 1, so trying to enact it through the back door carries a decidedly anti-constitution stigma.

“(b) Publication of Act.–In publishing this Act in slip form and in
the United States Statutes at Large pursuant to section 112 of title 1,
United States Code, the Archivist of the United States shall include
after the date of approval, if applicable, an appendix setting forth
the text of the bill referred to in subsection (a).”

This is a sure sign that they know they are not doing this right, and need to tell the Archivist how to clean up their mess.

Section 3 has it’s problems as well:

shall not disburse to each Member or Delegate the amount of his or her salary for each day that”

Let’s check the Constitution:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”

U.S. Const., Amend. XXVII

Oops, those “Read the Bill”/”Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.” people just gave themselves an egg facial.

UNCONSTITUTIONAL!

“The President shall not receive a disbursement of basic pay for any period in which”

Another trip to the Constitution:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

U.S. Const. Art. II, sec. 1

The republicans aren’t even bringing their “C” game. If this is their best effort at “shall be bound by Oath or Affirmation, to support this Constitution”, then they need classes from non-conservatives. Whatever they learned from the conservatives does not pass muster. Or maybe they just do not understand the meaning of “shall”.

shall (merriam-webster)

“used in laws, regulations, or directives to express what is mandatory”

UNCONSTITUTIONAL!

“the Federal Government is unable to make payments or meet obligations because the public debt limit under section 3101 of title 31, United States Code, has been reached.”

This is the most insidious part of all. Even if an appropriations bill is passed into law, they could still shove H.R.1 down our throats just by thwarting efforts to raise the debt ceiling.

What is their justification?

By Mr. WOMACK:
H.R. 1255.
Congress has the power to enact this legislation pursuant to the following:
Section 2 is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution in furtherance of the appropriation power provided in clause 7 of section 9 of article I of the Constitution and spending power provided in clause 1 of section 8 of article I of the Constitution.
Section 3(a) is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution. Section 3(a) is consistent with article XXVII in that it does not vary the compensation of Members and Senators but only seeks to regulate its disbursement during certain periods.
Section 3(b) is enacted pursuant to clause 18 of section 8 of article I of the United States Constitution. Section 3(b) is consistent with clause 7 of section 1 of article II of the United States Constitution in that it does not vary the compensation of the President but only seeks to regulate its disbursement during certain periods.

And what do those clauses say?

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

U.S. Const, Art I, sec 5 – second clause

This clause has no applicability to section 2 of H.R. 1255. Law cannot be enacted by House rules. If H.R. 1 had been incorporated into H.R. 1255, then this would be a stand-alone bill. As it is, I do not see any “deemed to pass”  type language here. This is of particular concern because the Senate has already rejected the language of H.R. 1.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

U.S. Const, Art I, sec 9 – seventh clause

No problem here.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

U.S. Const, Art I, sec 8 – first clause

No problem here either.

Personal Note: The preamble states promote the general Welfare while this clause states provide for the general Welfare – interesting variation in language.

Concerning section 3 of H.R. 1255:

The rules made by each House to proscribe the punishment of it’s Members do not withstand provisions in the Constitution.

It is not clear that “punish its Members” includes economic actions. Furthermore, “punish its Members for disorderly Behaviour” applies only when there is – DISORDERLY BEHAVIOR. Burning a budget on the House floor would be disorderly behavior, failing to pass one is not.

This section is intended to impair the people who would have to take action to start funding the government again. While most of them have their own funds to live on, not all have that kind of personal reserves. Just ask Sean Duffy. Not paying Congress or the President while they are working to fund the government could impair that effort. These are the people who MUST be on the job when nobody else is, if we are to have a government – and a country.

Also, there is no language to make up the missed payments. The bill explicitly states “shall not disburse” – which means that, contrary to Mr. Womack’s assertion, this does indeed “vary the compensation”.

There is no “article XXVII” in the Constitution. I presume this constitutional scholar means U.S. Const, amend XXVII. (Amendment 27)

Nit Pick: “Members and Senators” should be “Members of each House” if they want to be consistent with the clauses they reference. Otherwise, it should be “Senators and Members of the House” or some such. This is just mixing titles and designations.

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

U.S. Const, sec 8, eighteenth clause

This is a curious citation because the only application relevant to (3)(b) would be in support of paying the Debt, yet (3)(b) is about NOT paying a debt.

Again, there is no language to make up the missed payments. The bill explicitly states “shall not receive a disbursement” – which means that, contrary to Mr. Womack’s assertion, the President’s Compensation would indeed be “diminished during the Period for which he shall have been elected.

Lastly, the bill would have to be passed in both the House and Senate, and signed into law, on or before 8 April 2011, or it could not be anything but an unconstitutional ex post facto (retroactive) law.

“No Bill of Attainder or ex post facto Law shall be passed.”

U.S. Const, art I, sec 9, third clause

That would be a third strike on constitutionality alone.

Conclusion

With legislative sleight-of-hand, two unconstitutional provisions, a poison pill, and two ticking time bombs, this cannot be seen as a serious bill written by responsible people. It can only be seen as a propaganda tool to be used against the unwary. The most nefarious aspect is that it leaves republicans, especially the Tea Party caucus, NO reason to compromise or even negotiate in good faith. Further, it provides considerable reason NOT to raise the debt ceiling and let the government go broke. The negative consequences of this would be enormous.

You have been warned!

You have Rep. Steve Womack (R-AR) and Rep. Rob Woodall (R-GA) to thank for wasting your time, my time, and the limited time of the House of Representatives.

UPDATE: H. R. 1255 was passed by the House with 15 Republicans and all Democrats voting against it.

UPDATE: The republicans are still pushing this through the Senate.

UPDATE: With the passing of another continuing resolution, and particularly with passage of the pending budget bill, this bill would come into conflict with the deals already brokered. This bill is now beyond repair.

112th Congress H.R. 1255

March 31, 2011 Posted by | Constitution, Government, Legislation, Strangelove | , , , , , , , , , , , , , | 2 Comments

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