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

June 28, 2012 Posted by | Legislation, Strangelove | , , , | 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

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

2011 Wis SJR10 – Continuity of state and local gov. operations


http://www.legis.state.wi.us/2011/data/SJR-10.pdf

2011 − 2012 LEGISLATURE
LRB−0710/2
SRM:cjs:md

2011 SENATE JOINT RESOLUTION 10

February 4, 2011 − Introduced by Senators HOPPER and JAUCH, cosponsored by
Representative BALLWEG. Referred to Committee on Senate Organization.

  1. To amend section 34 of article IV of the constitution; relating to: continuity of
  2. government (second consideration).

Analysis by the Legislative Reference Bureau

EXPLANATION OF PROPOSAL

This proposed constitutional amendment, to be given second consideration by
the 2011 legislature for submittal to the voters in April 2011, was first considered by
the 2009 legislature in 2009 Assembly Joint Resolution 59, which became 2009
Enrolled Joint Resolution 14.

Article IV, section 34, of the Wisconsin Constitution provides that the
legislature, to ensure continuity of state and local government operations in periods
of emergency resulting from enemy attack, must provide for prompt and temporary
succession to the powers and duties of public offices, of whatever nature and whether
filled by election or appointment, the incumbents of which may be unavailable to
carry on the powers and duties of the offices. In addition, the legislature must adopt
any other measures that may be necessary to obtain the objectives of that section of
the constitution.

This constitutional amendment amends that provision in article IV, section 34,
to strike the phrase “enemy action in the form of an attack” and substitute “a severe
or prolonged, natural or human−caused, occurrence that threatens life, health, or the
security of the state,” thereby providing for legislative action to ensure continuity in
periods of emergency, whether resulting from enemy attack or from other causes.

PROCEDURE FOR SECOND CONSIDERATION

When a proposed constitutional amendment is before the legislature on second
consideration, any change in the text approved by the preceding legislature causes
the proposed constitutional amendment to revert to first consideration status so that
second consideration approval would have to be given by the next legislature before
the proposal may be submitted to the people for ratification [see joint rule 57 (2)].

If the legislature approves a proposed constitutional amendment on second
consideration, it must also set the date for submitting the proposed constitutional
amendment to the people for ratification and must determine the question or
questions to appear on the ballot.


  1. Whereas, the 2009 legislature in regular session considered a proposed
  2. amendment to the constitution in 2009 Assembly Joint Resolution 59, which became
  3. 2009 Enrolled Joint Resolution 14, and agreed to it by a majority of the members
  4. elected to each of the 2 houses, which proposed amendment reads as follows:

    SECTION 1. Section 34 of article IV of the constitution is amended to
    read:

    [Article IV] Section 34. The legislature, in order to ensure continuity
    of state and local governmental operations in periods of emergency
    resulting from enemy action in the form of an attack a severe or prolonged,
    natural or human−caused, occurrence that threatens life, health, or the
    security of the state, shall (1) forthwith provide for prompt and temporary
    succession to the powers and duties of public offices, of whatever nature
    and whether filled by election or appointment, the incumbents of which
    may become unavailable for carrying on the powers and duties of such
    offices, and (2) adopt such other measures as may be necessary and proper
    for attaining the objectives of this section.

  5. Now, therefore, be it resolved by the senate, the assembly concurring,
  6. That the foregoing proposed amendment to the constitution is agreed to by the 2011
  7. legislature; and, be it further
  8. Resolved, That the foregoing proposed amendment to the constitution be
  9. submitted to a vote of the people at the election to be held on the first Tuesday in April
  10. 2011; and, be it further
  11. Resolved, That the question concerning ratification of the foregoing proposed
  12. amendment to the constitution be stated on the ballot as follows:
    1. QUESTION 1: “Continuity of government operations during an
    2. emergency. Shall section 34 of article IV of the constitution, which requires the
    3. legislature to ensure continuity of state and local government operations during an
    4. emergency, be amended to change the definition of emergency from ‘enemy attack’
    5. to ‘severe or prolonged, natural or human−caused, occurrence that threatens life,
    6. health, or the security of the state’?”
    7. (END)

Summary

“periods of emergency resulting from enemy action in the form of an attack” is a pretty specific condition, one that strongly implies chaos to a degree that would physically impair the normal functioning of government. It was clearly meant for a moment when political agendas had to be set aside and emergency measures taken to address immediate problems. This section of the Wisconsin Constitution dates back to 1961, before 21st century communications like cell phones, satellite phones, and the Internet. It was a time when the possibility that key people could be unreachable for extended periods of time was a reasonable concern. A time when phones were relatively few and land wired, although there were more pay phones. A time before the resources of a staff could be squeezed into a portable device.

Today, the concern must be for the physical impairment of the key individual, and less for the breakdown of communications. In the current environment, it would be unrealistic to expect that the republicans would set aside ideology long enough to deal with an emergency.

“severe or prolonged, natural or human−caused, occurrence that threatens life, health, or the security of the state” is a very broad, ill-defined condition for authorizing the “temporary” alteration of an elected government.

“provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices”

This was written to authorize extreme measures to avert the complete breakdown of government at a time when control of the territory itself would be brought under question. The threat of foreign invasion is less likely than ever. But is invasion what this amendment is about?

  • severe or prolonged
  • natural or man-made
  • threatens life, health, or the security of the state

A hurricane is severe, natural caused, threatens life. It fits the requirements. But is it grounds for replacing government officials who “may become unavailable”?

The recession is severe and prolonged, man-made, and threatens the security of the state. Does it justify replacing government officials, including elected officials, who may just be on vacation or out of state on business, or maybe just a legislator when the legislature is out of session?

The budget crisis is severe and prolonged, man-made, and threatens the security of the state. This amendment could be used to replace one or more Democrat senators and eliminate what little balance of power there is in the state government.

Unanswered questions/undefined terms:

  • How severe is “severe?
  • How long is “prolonged?
  • How many lives must be threatened to say a situation “threatens life”? What kind of threat?
  • What kind of threat to health? How widespread? Bird flu? Salmonella? Poisoned ground water?
  • What constitutes a “threat to the security of the state”? Illegal immigrants? Corporate lobbyists? The Koch Brotherhood?

This amendment goes very far beyond the scope and purpose of the original section of the state Constitution.

Unbelievably, this resolution does not offer the slightest reason or justification for such a drastic alteration of a section of their constitution that is largely obsolete and irrelevant.

This suggested amendment does not simply beg to be abused, it seems designed for the sole purpose of laying the foundation for an usurpation of power.

It paves the way for a coup d’état. I guess that is one way to “take back the government”, but it is not the democratic way – not the American way.

I rate this amendment a corruption of the Republican form of government and anti-American.

Update: I have noticed that they tried to do even worse in the last session:

2009 Wis SJR39

In the previous attempt, all they did was strike “resulting from enemy action in the form of an attack“, leaving the authorization for ANY “emergency”. There was a requirement that it be posted 3 months before the election, which was dropped this time, but no wording for the ballot was specified.

March 3, 2011 Posted by | Constitution, Legislation, Strangelove | , , , , , , , , , , | 1 Comment

MN HF264 – The Cheeseburger Bill


H.F. No. 264, as introduced – 87th Legislative Session (2011-2012) Posted on Jan 31, 2011

1.1 A bill for an act
1.2 relating to civil actions; prohibiting actions against certain persons for weight

1.3
gain as a result of consuming certain foods;proposing coding for new law in

1.4
Minnesota Statutes, chapter 604.

1.5
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.6
Section 1. [604.191] PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION

1.7
ACT.
1.8 Subdivision 1. Title. This act may be cited as the Personal Responsibility in Food

1.9
Consumption Act.

1.10
Subd. 2. Definitions. (a) For purposes of this section the following terms have

1.11
the meanings given.

1.12
(b) “Long-term consumption” means the cumulative effect of the consumption of

1.13
food or nonalcoholic beverages, and not the effect of a single instance of consumption.

1.14
(c) “Party” means an individual, corporation, company, association, firm, partnership,

1.15
society, joint stock company, or any other entity, including any governmental entity.

1.16
Subd. 3. Immunity from civil liability. A producer, grower, manufacturer, packer,

1.17
distributor, carrier, holder, marketer, or seller of a food or nonalcoholic beverage intended

1.18
for human consumption, or an association of one or more of such entities, must not be

1.19
subject to civil liability based on any individual’s or group of individuals’ purchase or

1.20
consumption of food or nonalcoholic beverages in cases where liability arises from weight

1.21
gain, obesity, or a health condition associated with weight gain or obesity and resulting

1.22
from the individual’s or group of individuals’ long-term purchase or consumption of a

1.23
food or nonalcoholic beverage.

2.1 Subd. 4. Actions permitted. Subdivision 3 does not apply to a claim of weight
2.2
gain or obesity that is based on:

2.3
(1) a material violation of an adulteration or misbranding requirement prescribed

2.4
by state or federal statute, rule, or regulation and the claimed injury was proximately

2.5
caused by the violation; or

2.6
(2) any other material violation of federal or state law applicable to the

2.7
manufacturing, marketing, distribution, advertising, labeling, or sale of food, if the

2.8
violation is knowing and willful, and the claimed injury was proximately caused by the

2.9
violation.
2.10 Sec. 2. EFFECTIVE DATE.

2.11
Section 1 is effective the day following final enactment and applies to any action

2.12
brought by any party on or after the effective date.

Countered by opposing lawmakers in that:

  1. no such lawsuit has ever been filed in the state, and
  2. it’s the judge’s job to rule on the validity of legal claims,

(Dean) Urdahl (R-Grove City) has called his message preventative, pointing out that even if the prosecution did not win, a lot of expenses would be incurred.

“even if the prosecution did not win”. Under this law, we would never know. Under this law, some could be denied justice. I would expect the statute of limitations to severely limit the liability of “long-term consumption”, but that’s just the common sense talking.

There are times when the protection of businesses from the consequences of their actions is needful to protect the greater good.

The polio vaccine is one case in point. Continue reading

March 2, 2011 Posted by | Legislation, Strangelove | , , , , , , , , , , | Leave a comment

112th Congress HConRes. 1 – Assembling Congress Outside the District of Columbia


112th Congress, H. Con. Res. 1

_______________________________________________________________________

                         CONCURRENT RESOLUTION

    Resolved by the House of Representatives (the Senate concurring),
That pursuant to clause 4, section 5, article I of the Constitution,
during the One Hundred Twelfth Congress the Speaker of the House and
the Majority Leader of the Senate or their respective designees, acting
jointly after consultation with the Minority Leader of the House and
the Minority Leader of the Senate,

 may notify the Members of the House and the Senate, respectively, to
assemble at a place outside the District of Columbia if, in their
opinion, the public interest shall warrant it.

            Passed the House of Representatives January 5, 2011.

            Attest:

                                                                 Clerk.
112th CONGRESS

  1st Session

                             H. CON. RES. 1

_______________________________________________________________________

                         CONCURRENT RESOLUTION

Regarding consent to assemble outside the seat of government.

============

House Concurrent Resolutions (H. Con. Res.) and Senate Concurrent Resolutions (S. Con. Res.) require the approval of both chambers but do not require the signature of the President and do not have the force of law. Concurrent resolutions generally are used to make or amend rules that apply to both chambers.

There does not seem to be any reason for this, and, considering the budget deficit problem, it seems like the worst time to take Congress on the road. I shudder at the cost.

January 28, 2011 Posted by | Congress, Government, Legislation, Strangelove | , , , , , , , , , , , , , , | Leave a comment

112th Congress HR 2 – Repealing the Job-Killing Health Care Law Act


H. R. 2:

                                 A BILL AN ACT

   To repeal the job-killing health care law and health care-related
provisions in the Health Care and Education Reconciliation Act of 2010.
   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 ``Repealing the Job-Killing Health
Care Law Act''.
SEC. 2. REPEAL OF THE JOB-KILLING HEALTH CARE LAW AND HEALTH CARE-
              RELATED PROVISIONS IN THE HEALTH CARE AND EDUCATION
              RECONCILIATION ACT OF 2010.
    (a) Job-Killing Health Care Law.--Effective as of the enactment of
Public Law 111-148, such Act is repealed, and the provisions of law
amended or repealed by such Act are restored or revived as if such Act
had not been enacted.
    (b) Health Care-Related Provisions in the Health Care and Education
Reconciliation Act of 2010.--Effective as of the enactment of the
Health Care and Education Reconciliation Act of 2010 (Public Law 111-
152), title I and subtitle B of title II of such Act are repealed, and
the provisions of law amended or repealed by such title or subtitle,
respectively, are restored or revived as if such title and subtitle had
not been enacted.

                                 all>

SEC. 3. BUDGETARY EFFECTS OF THIS ACT.

    The budgetary effects of this Act, for the purpose of complying 
with the Statutory Pay-As-You-Go Act of 2010, shall be determined by 
reference to the latest statement titled ``Budgetary Effects of PAYGO 
Legislation'' for this Act, submitted for printing in the Congressional 
Record by the Chairman of the Committee on the Budget of the House of 
Representatives, as long as such statement has been submitted prior to 
the vote on passage of this Act.

            Passed the House of Representatives January 19, 2011.

            Attest:

                                                                 Clerk.
112th CONGRESS

  1st Session

                                H. R. 2

_______________________________________________________________________

                                 AN ACT

   To repeal the job-killing health care law and health care-related 
provisions in the Health Care and Education Reconciliation Act of 2010.

This has got to be one of the most childish pieces of legislation I have ever seen. The title alone is antagonistically pejorative. It lacks the usual preamble of reasons and justifications, especially for legislation this far-reaching.

Most importantly, it lacks any sign of concern for, or even awareness of, the consequences of implementing this bill as a law. A responsible bill would have analyzed the portions of the law it seeks to repeal and provided instructions on how to unwind them.

I wonder where they got the idea that they could make a law retroactive?

In short, nobody did their homework, or due diligence, on this one.

The very low quality of work on this bill clearly indicates that it is a deeply partisan message, and was never approached as serious legislation or work in support of the people’s business.

There are not yet I have not yet seen any corresponding Senate bills online.

Here is the list of incompetents responsible for this embarrassingly irresponsible piece of legislation:

Continue reading

January 25, 2011 Posted by | Government, Health Care, Legislation, Strangelove | , , , , , , , , , , , , , , | Leave a comment

   

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