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  • DHS Unfunded Mandates Require UMRA Review, Point of Order

DHS Unfunded Mandates Require UMRA Review, Point of Order

fain William L. Kovacs

displeasingly July 2021

DHS Unfunded Mandates Require UMRA Review, Point of Order

http://skywaysmedia.co.uk/websites/nu-phalt/ For the last several weeks’ members of Congress have publicly complained the Department of Homeland Security (“DHS”) has been “dumping,” without notice or consultation, illegal aliens in small towns throughout the U.S., e.g., Gila Bend, AZ, Brownsville, TX, Chattanooga, TN. The legislators claim the towns do not have the resources to care for the illegals. Some towns do not even have hospitals. Members of Congress have asked DHS to set out its legal authority for its actions, but there is no response. Most unfortunate, there does not appear to be any federal funding for the impacted communities.

The DHS’s illegal alien dumping appears to conflict with most requirements of the Immigration and Nationality Act and issued regulations, e.g., failure to perform background checks, admitting inadmissible aliens having health concerns, criminal convictions, and public charges. The standard remedy, however, Administrative Procedure Act (“APA”) or Constitutional challenges by these local communities, requires money and years of procedural wrangling, which they cannot afford. Meanwhile, these communities must assume the costs of DHS actions.

A  possible way to quickly resolve the controversy may be to dust off the Unfunded Mandates Reform Act of 1995 (“UMRA”), a law intended to end the imposition of federal mandates on local communities without full consideration of the unfunded costs imposed on them.

Unfortunately, UMRA, a densely written, procedurally complex statute of great promise but suffering decades of avoidance and disappointing performance, is seldom used. For illegal immigration, however, there may be creative ways for impacted communities and their members of Congress to force an UMRA review.

A “Federal intergovernmental mandate” is a defined term under UMRA. It includes any federal regulation that imposes an enforceable duty on state, local or tribal governments that reduces or eliminates reimbursements to those governments for the net cost associated with illegal, deportable, and excludable aliens, including court-mandated expenses related to health care, education, or criminal justice.

DHS will likely argue its dumping of illegal aliens is not a regulation since it was not proposed as a regulation. DHS’s actions, (failure to apply existing regulations), however, de facto, repeal, without notice or comment, a comprehensive set of issued regulations covering every aspect of how aliens can legally immigrate into the U.S. and the categories of aliens eligible and ineligible for entry.

Even assuming the DHS has emergency authority to change its regulations immediately, compliance with UMRA still mandates that the DHS follow specific procedures when imposing unfunded mandates on local communities. UMRA requires consultation with the local governments and an assessment of the anticipated costs/benefits of the unfunded mandate.

Since DHS ignored the use of the APA in changing its regulations and refuses to disclose the legal authority for its actions, it is unlikely DHS prepared a cost/benefit assessment. While lawsuits are expensive, under UMRA however, the legal dispute is much simpler. There are only two questions before the court. Did DHS impose unfunded mandates on local communities? Did DHS undertake an UMRA cost/benefit assessment? There are no complex administrative law issues.

If DHS imposed unfunded mandates and failed to perform the cost/benefit assessment, the court can compel it to perform the assessment.

If a court orders consultation with local communities and preparation of the cost/benefit assessment, Congress will have the needed cost/benefit information to use the Legislative Accountability and Reform provisions of UMRA creatively. These provisions allow members of Congress to raise a Point of Order to legislation funding DHS operations that move illegal aliens into communities, thereby making congressional consideration of such legislation not in order.

Specifically, the Point of Order does not apply to appropriations except when the appropriation increases the direct costs of the federal mandate contained in any appropriations legislation. If an appropriations bill funds DHS activity that supports the moving of illegal aliens from the border to small communities, e.g., transportation, room and board, cell phones, clothing, the Point of Order would be valid since those DHS activities directly impose unfunded mandates on local communities by its “illegal dumping.”

UMRA gives significant power to courts and legislators to ensure agencies fully understand the impacts of their mandates on local communities before imposing them. Once the costs are identified in an UMRA assessment, members of Congress, by raising a Point of Order, may block DHS appropriations unless there is budget authority equal to the costs of the mandate. Since agencies are always in need of appropriations, every member of Congress has leverage over DHS through the appropriations process.

 

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  • A Modest Proposal to Stop Congress from Giving Our Money to Private Entities

A Modest Proposal to Stop Congress from Giving Our Money to Private Entities

William L. Kovacs

May 2020

A Modest Proposal to Stop Congress from Giving Our Money to Private Entities

Just a few days before Christmas 2019, Congress, in its 2020 fiscal year appropriations, resurrected from the grave, billions of dollars in expired tax extenders and spread the benefits to distilleries, race-horse and Nascar owners, short-line railroad, biodiesel blenders and other favored industries. Being Christmas, it even applied the tax credits retroactively.

Should Congress consistently give billions of our hard-earned dollars to private entities?

While common sense says NO, it is unfortunate that Congress fails the common-sense test.

The issue of Congress giving away our money to private entities has been debated since the founding of the Republic. Opponents of this giving argue taxpayer money can only be spent on matters enumerated in the Constitution. Government asserts it can spend it on anything that is for the general welfare.

Continuing this debate may seem irrelevant since the courts have made it clear legislatures determine what is general welfare. Such a broad interpretation of governments’ ability to tax and spend has resulted in a massive increase in the national debt and a huge expansion of government. The federal government provides grants, loans, tax credits, tax deferments and guarantees risk to incentivize certain activities. State and local governments provide property tax relief, tax abatements, low interest bonds and outright grants, usually to attract business to an area.

Examples abound at the federal level:

  • Up to a $7,500 tax break for purchasers of the first 200,000 electric vehicles produced by an auto manufacturer;
  • Oil and gas industries receive $20 billion in annual subsidies;
  • Tax deferment on capital gains from Opportunity Zone investment which was to go to poor areas but is a boon to rich areas, e.g. high-end apartments with yoga lawns and pools surrounded by cabanas and daybeds;
  • The prescription drug industry benefited from $64 billion in federal research funding;
  • Flood insurance subsidies promote building high-end housing in flood prone areas. This insurance program is potentially liable for $1.24 trillion in claims while only collecting $3.5 billion in annual premiums. The program is already over $25 billion in losses that taxpayers will have to pay; and
  • Pension bailouts to coal miners while laying the groundwork for a massive bailout of the underfunded private, multi-employer pension system.

Presently the U.S. carries over $23 trillion in national debt and could be on the hook for over $200 trillion in unfunded liabilities. Yet Congress continues to give away billions to private entities.

cytotec generic sale  While there is almost no limit to governments’ power to give away taxpayers’ money, there are historical precedents for limiting such gifts. In the mid-1800s, many municipalities and states used public funds to purchase stock in railroads being built across the continent. Many government entities were swindled out of large amounts of money. To prevent future losses, forty-six states enacted constitutional limitations preventing gifts to private entities. These restrictions were called “gift clauses” or “anti-donation” clauses or simply “government gift-prohibitions.”

The government gift-prohibition policies barred state and local governments from giving or loaning public funds to private corporations or associations for private undertakings. Initially, these provisions stopped government speculation with taxpayer money. Over time, however, the courts defined public welfare to be anything that has a “public purpose.” Fitting within this definition is almost every type of government project conceived by a legislature, e.g. parking lots, sports facilities, corporate rent subsidies, politically favored forms of energy. Taxpayer money just flows, and the courts find it legal, based on legislated appropriations.

More troubling is that government gives taxpayer money to the largest and most profitable corporations in the world. “The Good Jobs First” report tracts the one hundred largest companies receiving government gifts (federal, state, local). First on the list is Boeing at $14.9 billion; number two is General Motors at $6.9 billion and number three is Intel at $6 billion. Most companies on the list are in energy, transportation or technology.

These large corporations persuaded our government that a tax cut would spur investment in new business and equipment. These corporations however, spent three times as much on additional dividends and stock buybacks than they invested in their businesses.

We the people need to clearly re-enact the wise-policies of the mid-1800s and demand all candidates running for office take a government gift-prohibitions pledge:

I pledge that, if elected, I will serve as a fiduciary of public money and will not vote to give, grant, or loan public funds or extend the credit of the public to any private corporation, association, or private undertaking.

By asking every candidate for public office to take this pledge, citizens can identify candidates willing to protect taxpayers. If the pledge is broken, the public will quickly know who is not trustworthy. The entire effort becomes self-policing by citizens.

A modest proposal, but it is a start!

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  • Impeachment and the Significance of Member Oaths

Impeachment and the Significance of Member Oaths

William L. Kovacs

January 2020

Impeachment and the Significance of Member Oaths

As impeachment of the President moves to the Senate, both parties assert that members of the opposing party are violating their oath to support the Constitution.

Speaker Pelosi captures the Democrats’ thinking – “Every Senator now faces a choice: to be loyal to the President or the Constitution.” On the Republican side, the Senate majority leader counters “The House made a partisan political decision to impeach. I would anticipate … a largely partisan outcome in the Senate.”

Absent from the debate is discussion of what duties are imposed by swearing an oath?

There are various “Oath Clauses” – three in the Constitution, several statutory and one in Senate Rules of Impeachment.

Taking an oath is the first constitutional act of members of Congress. While the Article VI requirement of a Constitutional Oath is vague (“to support the Constitution”), the administered statutory oath includes the phrase “…I will well and faithfully discharge the duties of the office on which I am about to enter…” The oath obligates each member of Congress to recognize the limits of their authority and respect the separation of powers.

When a member takes the oath, a trustee relationship is created requiring loyalty to the Constitution and the institution in which one serves. As political parties gained greater power with massive organizational and fundraising ability, members of Congress tended to shift loyalty to the political party and away from the institution in which they serve. Notwithstanding an oath pledging to support the constitutional separation of powers, Republicans vote with Republicans, Democrats vote with Democrats, as evidenced by impeachment proceedings and legislative votes being party-line ninety percent of the time.

By prioritizing loyalty to party over the Constitution and the branch of government in which they serve, the Constitution is manipulated; the principle of separation of powers is eroded. Once eroded, the actions of government rest more on political power and less on constitutionally established institutions.

This brings us to the impeachment of the President. The impeachment language in the Constitution is simple – “The House shall have the sole power of Impeachment” and the Senate “shall have the sole power to try all Impeachments.”

The oath to be administered in impeachment proceedings is contained in Rule XXV, “Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials.” It requires Senators do “impartial justice according to the Constitution and laws.” These words immediately conflict with our political world in which 14 Democratic and 16 Republican Senators have already made biased statements on their votes without hearing evidence. There are no sanctions if a Senator acts with bias; and bias being a political question, court reviewability is unlikely.

Why do our representatives put us through a political process with predetermined outcomes?  Can anything be done to restore the constitutional significance of Impeachment proceedings?

Without impugning intent to the House or the Senate, it is clear Republicans in the Senate do believe the House investigation is flawed and will quickly acquit. The Democrats believe the Senate has an obligation to conduct an impartial trial which includes calling additional witnesses.

If the members of the House had acted as trustees of the Constitution, not as political loyalists, their institutional goal would have ensured a fair investigation, both sides having equal rights. Both parties would have worked as a constitutionally established institution obligated to find the facts, not seek political advantage. The removal of a President demands both parties have the same goal, protection of the Constitution. Trustees of the Constitution would do whatever it takes to protect it. Political parties will do whatever it takes to gain power.

Since the House has spoken, it is up to the Senate to devise a remedy to bring the nation together. Immediate dismissal, or the appearance of a sham trial will end the impeachment nightmare but further divide Congress and the public.

The nation deserves to know all the facts, damning and exonerating, of the President’s conduct. It is the obligation of the trustees of the Constitution to work together as an institution to find the facts. One approach might be for the Senate to unanimously remand the Articles of Impeachment to the House to develop solid facts. Upon the Articles return, every member of the House should abandon party loyalty and become real fact-finders, working to discharge a solemn constitutional duty. Only when the members of the House act as trustees to the Constitution, can they expect Senators to act impartially. Until then, it’s only political theatre and we all have tickets.

This article was first published in The Hill on January 6, 2020.

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  • Reform the Kakistocracy: an essay

Reform the Kakistocracy: an essay

William L. Kovacs

July 2019

Kakistocracy, a term describing what our government has become: a government controlled by “leaders” who are the least able or least principled citizens.

Over the last five-plus decades the kakistocracy transformed our federal government from one of limited powers to one of immense power. Most troubling, the transformation occurred without any changes to the Constitution. This decades-long transformation dramatically limited the powers of Congress, produced an extraordinarily powerful executive, and allowed the courts to become super-legislatures. These changes directly impact how each branch of government is able to fulfill its most essential role as a check on the powers of the other branches.

How did this transformation occur? First and foremost, Congress, our primary law-maker delegated massive amounts of authority to the Executive, which very gladly accepted all the powers delegated. The Executive using the bureaucracy and regulatory authority, implemented the delegated authorities to accumulate immense power over most aspects of society.

The courts not satisfied deciding just real disputes between adversaries; accumulated more powers than given them by the Constitution or Congress through rulings that extended their authority from the parties before the court to broad-based policy decisions and nationwide injunctions. The National Environmental Policy Act, (“NEPA”) is an excellent illustration of how the courts create legal rights never authorized by Congress.  This six-page statute requiring federal agencies to consider the environmental implications of their decisions was judicially expanded to provide environmental groups the right to bring lawsuits against any agency to force proposed environmental impact statements to be more and more comprehensive, sometimes thousands of pages.  NEPA alone can stop any project in the nation.

Another example is the transformation of the Clean Air Act, a law designed to regulate specific, powerful pollutants harmful to human health, into a law that governs almost any industrial activity in the country.

The result of the transformation of our government is decades of policy failures, harmful wealth inequality, a health care system costing two times more than in other industrialized nations, more than a few undeclared wars and the imposition of such massive amounts of debt that citizens will eventually live in involuntary servitude to the federal government. The share of the debt owed by every citizen of this country is approximately $64,000, and for every trillion dollars of new debt accumulated by our government, each of us will owe another $3000.

Reforming the kakistocracy will not be an easy undertaking in a politically divided nation. Presently most members of the kakistocracy give their loyalty to the political party that put them in office. Unfortunately, by them giving more loyalty to a political party than to the Constitution and the branch of government in which these individuals serve, they have destroyed the ability of the respective branches to be both a constitutional check on each other and reasonable adversaries working to find solutions to the problems of the nation.

Our Constitution does not even mention political parties which are nothing more than associations of individuals, organized to take control of our government. However, our Constitution clearly states the responsibilities of the three branches of government and requires every officer of the United States to take an oath to the Constitution. Taking such oath means every official must act as a fiduciary to the Constitution and the branch of government in which they serve and not to the political party that supported them.

The most fundamental change now needed to control the kakistocracy is for members of Congress to abandon their abiding loyalty to the two major political parties and work as fiduciaries to the Constitution, and the institution of Congress, in addressing the issues facing the nation. This approach requires conforming the actions taken by Congress with the constitutional limits imposed on it. By acting as fiduciaries and not as political parties, Congress will function as an institution to do the peoples’ business rather than as a political club doing the bidding of the special interests.  This change opens up ways for Congress: to address the federal deficit; reduce the massive regulatory structure created to manage the administrative state; ensure there are no more wars unless declared by Congress and to devolve to the states many of the powers taken from them, by the federal government, over the last fifty years.

As citizens, we must always be mindful of two facts. First, we elect individuals to run our country, not political parties. Political parties are special interests, not fiduciaries. Why do we trust them to run our government? The alternative is for individuals to seek election on the promise to serve as fiduciaries and we could elect them.

Second, it is the natural tendency of government and those who benefit the most from it, to continuously grow it. The more government grows, the more resources are available to those in control for redistribution to the beneficiaries of their choice. The only way to control government is to streamline it, a process that will have many positive benefits. Less government means it will need less of our money to function. When the government has less money, lobbyists and politicians will have less interest in government since there will be less to take from it.

Citizens cannot expect the government to control itself. In a democracy, it is only citizens who can control their government by determining who runs it. The brilliant part of our Constitution is that it allows us to participate in a legal, political revolution on a regular basis.  This legal process, called voting, makes it possible for us to completely replace the “leadership” of our government in a four to six-year period.  Its time citizens elect citizens who commit to serving as fiduciaries to the Constitution and the institution in which they serve; not politicians whose loyalty is to a political party.

This article was originally published in Reality News, June 2019