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  • WH Admits Working with Big Tech to Censor, Many Implications

WH Admits Working with Big Tech to Censor, Many Implications

William L. Kovacs

July 2021

WH Admits Working with Big Tech to Censor, Many Implications

The Biden administration confirms it aggressively works with Big Tech “…to flag ‘problematic’ posts “that spread disinformation on Covid-19” on the Internet. George Orwell would call such activity propaganda. Historians characterize such a close working relationship between government and big business, as fascism. To the Biden administration, it’s merely cleaning up “misinformation”.

Whatever the American people believe this close working relationship might be, the key fact is whatever information is allowed into the public square depends on Big Tech’s willingness to allow the “information” into the public square.

A little of the history on this matter before discussing how the Biden administration has opened itself up to significant discovery (written and oral questions under oath) in civil litigation.

On April 15, 2021, this blog was one of the first to post an article on Big Tech as State Actor Having Constitutional Obligations to those whose speech in the public square it denies. At that time, the article had a theoretical evidentiary link based on second-hand media reports. It was part of three articles on breaking up Big Tech without new laws. A second article discussed the fact Congress does not have the constitutional authority to delegate to Big Tech the power to regulate other private parties. The third article discussed how citizens can break up big tech using the techniques of the Left.

Notwithstanding Biden’s broad-ranging Executive Order to twelve agencies to ensure competition in the tech market, it is highly unlikely the Biden administration will seriously take on Big Tech, with new legislation, new regulations, or challenge it in the courts. Big Tech companies are the friends, donors, protectors, and the sycophant speech censor for the Biden administration.

Notwithstanding the rhetoric, if the Biden administration wanted to break up Big Tech, is could bring an antitrust action today. It has not. If Biden wanted to subject Big Tech to lawsuits, Biden could ask Congress to repeal section 230 of the Communications Decency Act that provides Big Tech with immunity from suit. Biden would likely have Republican support but he has not asked Congress for help. Or, Biden could direct the FCC to narrow section 230 immunity through rulemaking by limiting the section to child pornography. He has not directed it. So, more talk, talk and talk from a politician.

To take on Big Tech, other ways must be explored.

The most likely way to take on Big Tech/White House censorship will be in Former President Trump’s class-action lawsuit against Big Tech. Trump claims the Big Tech’s close cooperation with the government makes it a state actor. The Biden administration could also join the lawsuit if it truly believes what it claims. It has not.

Trump’s lawsuit has relied on much the same public information as my April article, which is not sufficient evidence for a court of law.

All changed with Jen Psaki’s (White House Press Secretary) admission, at a press conference on July 15, 2021, that the Biden administration is in regular conversation with Big Tech on censoring “misinformation.” Since the press conference, social media has exploded with commentary on the issue. More commentary is not needed. Psaki’s actual words are what people need to read to appreciate how she opens up many lines of discovery in Trump’s civil lawsuit.

A complete  http://justbakwass.com/best-instagram-bio/ transcript of Psaki’s comments on “misinformation” opens the White House to civil discovery procedures.

http://canaimachillhouse.com/things-to-do/ [The content in brackets in the brackets after Psaki’s statements identifies the information that could be obtained through civil discovery.]

“Alex: (16:19)
Thanks, Jen. Can you talk a little bit more about this request for tech companies to be more aggressive in policing misinformation. Has the administration been in touch with any of these companies and are there any actions that the federal government can take to ensure their cooperation? Because we’ve seen from the start, there’s not a lot of action on some of these platforms.

Jen Psaki: (16:38)
Sure. Well, first we are in regular touch with these social media platforms and those engagements typically happen through members of our senior staff, but also members of our COVID-19 team. Given as Dr. Murthy conveyed, this is a big issue of misinformation, specifically on the pandemic.

[ Hatta Possible Civil Discovery: Identification of all participants in the conversation, the substance of each conversation, documents identifying specific disinformation and the basis for determining disinformation.]

Jen Psaki: (16:57)
In terms of actions, Alex, that we have taken, or we’re working to take, I should say, from the federal government, we’ve increased disinformation research and tracking within the Surgeon General’s office. We’re flagging problematic posts for Facebook that spread disinformation. We’re working with doctors and medical professionals to connected medical experts who are popular with their audiences with accurate information and boost trusted content. So we’re helping get trusted content out there.

[ Berrechid Possible Civil Discovery: Identification of all disinformation being conducted and tracked by the Surgeon General’s office, all post flagged for Facebook, the identity of all “trusted” doctors and professionals who will do the outreach.]

[Psaki discusses other issues not relevant to Covid – 19 “misinformation.]

Jen Psaki: (17:27)
We also created the COVID Community Court to get factual information into the hands of local messengers. And we’re also investing, as you’ll have seen, in the President’s, the Vice President’s, and Dr. Fauci’s time in meeting with influencers who also have large reaches to a lot of these target audiences who can spread and share accurate information. You saw an example of that yesterday. I believe that the video will be out for tomorrow. I think that was your question, Steve, yesterday, full follow-up there.

[ Possible Civil Discovery: Identification of all local messengers and influencers who share the administration’s version of the facts. Discovery would also include the soon-to-be-released video, who made it, what information was relied on in making it, and What is the COCID-19 court, what will it do and who is on it?]

Jen Psaki: (17:56)
There are also proposed changes that we have made to social media platforms, including Facebook. And those specifically are four key steps. One, that they measure and publicly share the impact of misinformation on their platform. Facebook should provide, publicly and transparently, data on the reach of Covid – 19 vaccine misinformation. Not just engagement, but the reach of the misinformation, and the audience that it’s reaching. That will help us ensure we’re getting accurate information to people. This should be provided not just to researchers, but to the public so that the public knows and understands what is accurate and inaccurate.

[Possible Civil Discovery: Identification of how the government believes Facebook should measure misinformation and the reach of such misinformation? How the government believes Facebook should inform the public of what is the specific misinformation. Additionally, identification of the target audiences and the “accurate” information government wants to reach the public?]

Jen Psaki: (18:32)
Second, that we have proposed that they create a robust enforcement strategy that bridges their properties and provides transparency about the rules. So I think this was a question asked before. There are about 12 people who are producing 65% of anti-vaccine misinformation on social media platforms. All of them remain active on Facebook, despite some even being banned on other platforms, including ones that Facebook owns.

[Possible Civil Discovery: Identification of what the administration considers an appropriate, robust, enforcement strategy Facebook should undertake?  Also, what is the identity of the 12 people producing 65% of anti-vaccine misinformation and the specific misinformation?]

Jen Psaki: (18:58)
Third, it’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social media platforms. Sometimes it’s not accurate, and Facebook needs to move more quickly to remove harmful violative posts. Posts that will be within their policies for removal often remain up for days. That’s too long. The information spreads too quickly.

[Possible Civil Discovery: Identification of the administration’s discussion of what does it want Facebook to do “more quickly?” Additionally, what does the White House consider a quick removal, and how does it determine what “misinformation” should be removed?]

Jen Psaki: (19:19)
Finally, we have proposed they promote quality information sources in their feed algorithm. Facebook has repeatedly shown that they have the leverage to promote quality information. We’ve seen them effectively do this in their algorithm over low-quality information. And they’ve chosen not to use it in this case, and that’s certainly an area that would have an impact. So these are certainly the proposals. We engage with them regularly, and they certainly understand what our asks are.

[Possible Civil Discovery: What proposal has the administration made to Facebook on promoting quality information on their algorithms? What does the administration determine quality information? Is the White House following the guidelines in the Information Quality Act to determine “quality information?” Identify each time the administration has engaged with Facebook or any other Big Tech company on this issue?

[The Information Quality Act requires Federal agencies to comply with data quality guidelines to ensure and maximize the quality, utility, objectivity, and integrity of the information disseminated by the Federal government.]

Alex: (19:45)
One of the problems with vaccines right now is that they become politicized. The White House has obviously made the calculation that it’s important to be more aggressive in confronting this information, but is there at all concern that that could backfire and further contribute to politicization? And is there anything that you can do to prevent that at this point?

Jen Psaki: (20:02)
Well, you’re absolutely right, I should say, Alex, in that we have to be very careful and we are mindful of being quite careful of not politicizing the effectiveness of vaccines. The fact that they can save lives, young people, old people, middle-of-the-road people. It’s important for us, we’ve made a calculation, to push back on misinformation. You’re right.

[Possible Civil Discovery: Identify all the information relied upon in making the calculation to push back on misinformation? Who reviewed the data to make that determination and was all the data subject to the guidelines of the Information Quality Act?]

Jen Psaki: (20:22)
But that’s one of the reasons, as Dr. Murthy was conveying, we have empowered, engaged, funded local voices because they are often the most trusted voices. Doctors, medical experts, clergy, people who are civic leaders in communities. That’s where we are putting most of our resources, even as we are working to combat misinformation that’s traveling online or traveling, unfortunately out of the mouths of elected officials from time to time.”

[Possible Civil Discovery: Identification of all local “trusted” voices to be participants in the administration’s outreach, as well as what resources the administration deploying and the cost of such effort?]

With the July 15, 2021 press conference, Jen Psaki, opened up the administration to answer questions under oath in a civil deposition or by written question. This discovery will likely be used by Trump’s attorneys. With even reasonably good lawyering, the public will discover what the Biden administration believes is misinformation and what is good information, who possesses which type of information, and the rigors of ensuring “good information” is tested against the Information Quality Act. It will also let the public know what information the Biden administration wants us to know is the “truth.” That by itself will be interesting in a day when 58% of people believe media has become “the enemy of the people.”

 

 

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  • Libertarian Party’s Future is at Fork in Road

Libertarian Party’s Future is at Fork in Road

William L. Kovacs

March 2021

Libertarian Party’s Future is at Fork in Road

After the 2020 election, there were several articles on the future of the Libertarian Party (“LP”) fighting to be heard in a duopoly, (“Democrats and Republicans”), a controlled political system. In “Guerrilla Politics” the author argues the LP should admit it cannot win significant elections, that ballot access is a “vanity project” and the party needs to focus on a few states and high-level races so it can be a “spoiler” to incumbents and at times, support the incumbent if it agrees with a few of LP principles. Another article in  LP.org discussed how the duopoly uses constant litigation to drain the resources of the LP.

While both articles provide interesting perspectives, both avoid the central question – does the LP want a future as a major political party?

While the duopoly controls politics there are bright spots for LP

This question is asked against the stark reality that the duopoly controls 99.92% of all elected offices in the U.S., spent in the 2020 presidential race almost $3 billion dollars vs $2.9 million by the LP candidate; and obtained over 98% of the national vote. Even more humiliating to the LP is that out of 328 million citizens, the duopoly elected “sleepy” Joe Biden, a gaffe-prone, plagiarist who has difficulty with sentence structure and avoids answering questions on issues.

There are several very bright spots for the LP. It is the only minor party on the ballot of all 50 states, an impressive achievement. Moreover, a very recent Gallup poll finds 62 % of Americans stated a third party was needed, the highest level ever.

What is the goal of the LP?

The difficulty in commenting on the future of the LP is while its slogan is “The Party of Principle,” there is no discussion of how these principles translate into practical policies that improve life in the U.S. A statement of principles is merely a statement of surface-level belief. Fighting to transform principles into reality, is costly. It involves a tremendous amount of hard work, action, communications with people outside of the party circle, coalition building, education, recruitment, and an openness to others who might support many of the LP principles, but not all. In short, the LP must recognize political success is achieved by addition, not by principles.

Professor Devine, in his book on minor political parties, writes that for America’s third-largest political party, “there is growing disconnect between the party’s radical platform and the more mainstream, “fiscally conservative and socially liberal” policy preferences of its rank-and-file supporters.”

To be successful the LP must decide if it wants to be a political party that leads the nation or be a social club discussing political issues. With freedom under attack and censorship viewed as “truth-telling,” it is the perfect time for the LP to decide its fate. If the LP decides it wants to win elections it needs to continue its very effective ballot access litigation and its minimal efforts at candidate recruitment and education. But it must go well beyond the minimum.

A few modest suggestions for the LP.

  • Explain how LP principles can be implemented to help the American people. This is essential since most Americans have little knowledge of the LP. 44% of Americans don’t even “know the correct definition of the party,” let alone its platform. Without knowing what it stands for, it is hard to vote for it. LP’s primary issues are individual freedom, free markets, freedom in personal relationships e.g., drug legalization, and a foreign policy used for defense rather than as the policeman of the world. LP has an opportunity to explain to a public locked in homes, under massive government surveillance, suffering assaults on privacy, paying for massive corporate bailouts and $5- 6 trillion spent on wars and nation-building, how its policies will make for a better U.S. Explaining its positions to the public will win significant additional support.
  • Develop coalitions with groups on specific issues of agreement. An excellent example is the decriminalization of drugs and prison reform. While there are many social organizations involved in this issue, there are also many minority organizations that have an interest in it. Reach out to the minority community, especially its business community, that has a strong history of entrepreneurship and is very understanding of the stigma of incarceration. Also, reach out to anti-war groups, they need allies as much as the LP does.
  • Consider the joint establishment of a litigation center with other minor parties to keep costs reasonable. Since all minor parties have similar concerns with the duopoly harassment on ballot access, having a cadre of experienced lawyers able to take on the cases nationwide is essential. Research how the many non -profit litigation centers have dramatically influenced the courts and national policy at a very reasonable cost.
  • Expand the legal theories beyond obtaining ballot access. Use the Civil Rights and Anti-trust laws to put an end to the constant harassment of litigation, and election law changes to deny ballot access to minor parties. Put the duopoly at financial risk by seeking damages for all the harm caused by a century-long conspiracy by the duopoly to deny civil rights and restrain trade.
  • Start this second to get on the debate stage for the presidential debates. Yes, the LP and Level the Playing Field, in June 2020, lost another case seeking to include minor parties in the debates. It is essential to grasp that judicial appointees are not dispensing justice; they were appointed to do the duopoly’s work. There are two options that have strong possibilities to put the LP message on stage.:
      1. Pass a law. Develop and have introduced legislation that has reasonable and achievable standards for participation by minor parties in the debates. Involve all minor parties in recruiting citizen lobbyists in every congressional district in the nation. Have them lobby their members of Congress and Senators in their home offices. Make the campaign local and public with visits and press releases. Make the campaign national by starting a social media campaign to raise awareness and support.
      2. Petition the IRS to deny non – profit status of the Commission on Presidential Debates (“CPD”). The CPD is merely a front organization for the two political parties. It uses tax-exempt status to raise money to host a debate that only provides exposure to the duopoly. In essence, corporations receive a tax deduction for making a political contribution. The IRS can investigate and change its status if it finds its goal is political, not educational. If big business loses the tax-deductibility of its “lobbying” contributions, the contributions evaporate. If the petition is denied sue the IRS.
  • Seriously think about this “wild and crazy option”. There is a large section of the electorate that would like to vote against Trump and Biden-type candidates, but it needs someone to vote for. If the LP wants a sizable part of those votes, it must nominate a candidate that has some name recognition, an ability to speak to the voters, a concise message that explains how libertarian policies would help Americans and can raise money. A few names come to mind: Rand Paul, Tulsi Gabbard, Tom Massie, Jim Justice, or Justin Amash. Each of these candidates are proven vote-getters and can raise money. Each of them has the ability to secure over 15% of the vote. If that happens LP will be recognized as a major party and will have a massive impact on the 2024 election and future elections.

The LP is at a fork in the road. Its current path leads to irrelevancy under duopoly domination.  Taking the less traveled path has the chance to break the duopoly and start implementing libertarian principles. Shock the political system! It deserves it!

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  • Trump: “To Pardon or Not to Pardon Me, Is the Question”

Trump: “To Pardon or Not to Pardon Me, Is the Question”

William L. Kovacs

December 2020

Trump: “To Pardon or Not to Pardon Me, Is the Question”

President Trump’s 2020 election loss raises the question – Will he pardon himself before leaving office? It would free him of all legal liability for any past federal criminal acts he might have committed. Such liability or defending himself against charges of wrongdoing is certainly a real possibility. Many Democrats are seeking criminal action against President Trump after he leaves office. Congressman Bill Pascrell (D-NJ) recently stated Trump and his worst enablers “…must be tried for their crimes against our nation and Constitution.”

The pardon power in the Constitution is straightforward: “The President shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”  It contains no limitations such as “a president cannot pardon himself.” Why not pardon himself, family, and friends before walking out the door? Why not use the pardon power to give himself a long, peaceful life after the White House? Trump and his family would be free of alleged conspiracies with Russia, tax evasion, or any other federal crimes.

New York state would likely still pursue him for business crimes but such crimes are civil violations or if criminal, complicated document crimes, requiring proof of intent. Crimes usually settled by a check and a harsh-sounding press release.

Whether a president can pardon himself has never been determined. Once he pardons himself, however, unknown consequences will follow. It will also be irrevocable, uncertain and could be Trump’s real hell.

While the few words of the pardon power do not contain any limits, the Constitution has many clauses that must be read together. Every clause is related to and limited by some other part of the Constitution.

For example, Article I reads: “All legislative powers herein granted shall be vested in Congress.” Certainly today, legislative powers are delegated to a president that makes law through regulation, Executive Order, and now seemingly with tweets. Congress holds the power to declare war, yet it the executive, without congressional declarations of war, has taken us into several wars for the last seventy years.

While the role of the courts is to interpret the meaning of the Constitution as it applies to controversies, many times the Court has “discovered” massive federal powers in the Constitution that our founders did not write. The Supreme Court has bestowed the absolute power on the federal government to declare “sovereign immunity;” thereby exempting itself from lawsuits and associated damages for harm it causes. The Supreme Court upheld the constitutionally of the Affordable Care Act by magically finding it a tax, a characterization rejected by Congress. U.S. history is replete with judicially imposed constitutional changes from civil rights, to property rights, to abortion. Predicting what the Supreme Court will do with a pardon power case is unpredictable.

What is likely, however, is that the scope of presidential pardon power will be balanced against the president’s obligation to “take Care that the Laws be faithfully executed.” This faithful execution of law means the president, as the nation’s chief law enforcement officer, must enforce the law. He may not break the laws he enforces. Allowing a president to break the laws he enforces, nullifies the “take care” clause of the Constitution. If a president can pardon himself, he nullifies one of the primary duties of his office.

Worse, however, if the president pardons himself for violations of law, the pardon itself may establish a continuing violation of law by obstructing justice, i.e. the interference with the orderly administration of law and justice. Granting himself a pardon would be viewed as a continuation of obstructing justice. Were such pardon deemed to be “faithful execution of the law,” presidents would be “above all law.” They would be supreme rulers, exempt from the law.

It is likely, for similar reasoning, then-President Richard Nixon left to his successor Gerald Ford, the power to grant him a pardon in accordance with the law. President Trump faces the same existential dilemma as Nixon; if he leaves office without a pardon, he risks vengeful Democrats wanting to prosecute and imprison him for what could be the rest of his life.

Trump has two choices, resign and hope a president Pence gives him a pardon, or serve out the rest of his term and hope a president Biden pardons him. It may be a step too far for Trump to resign and expect a pardon from President Pence. Unlike Gerald Ford, who put the healing of the country ahead of his political future, a President Pence is unlikely to put his presidential ambitions at risk for Donald Trump.

This leaves a pardon to a president Biden. A person promising exactly what President Ford delivered, bringing unity to a divided nation. President-elect Biden has signaled he is a transition president, likely only to serve one term. Biden is perfectly positioned to make “This is the time to heal America,” happen.  Pardoning Trump would be the overt action that tells 70 million Trump voters, it is time to heal a divided America.

The John F. Kennedy Library Foundation bestowed on President Ford its Profiles in Courage Award for his bold actions to bring the nation together. Will a President Biden have the courage to heal a divided nation or is his talk of “unity” just more talk?

 

 

 

 

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  • The Limits on Governing in a Biden Presidency

The Limits on Governing in a Biden Presidency

William L. Kovacs

November 2020

The Limits on Governing in a Biden Presidency

If the winner of the 2020 presidential election is Joe Biden, the real question is – what exactly can he do to govern the country? Can he form a government that works for citizens or is he locked into a political system he helped form in over forty years in the DC swamp?

Biden is likely to exercise the powers of the presidency with a majority Republican Senate, run by Mitch McConnell, a master of Senate strategy. McConnell’s Senate is the graveyard for Democrat nominees and legislation, e.g. judge Merrick Garland, multi-trillion-dollar House of Representative’s Coronavirus relief plans. McConnell’s Senate can literally block all of Biden’s judicial nominees and cabinet officers. If however, Democrats win the two Georgia Senate seats in the January 2021 run-off elections, this scenario flips on its head. The filibuster is eliminated and more social legislation will be passed in the next two years than was passed during Franklin Roosevelt’s presidency. My assumption is that the Republican party will keep control of the Senate.

Even the Democrat-controlled House of Representatives lost several members from its majority. In fact, Democrats lost six seats and failed to defeat any Republican incumbents. What should be most concerning to a Biden presidency is how to fund the government. The temporary budget expires on December 11, 2020, and the Senate has not passed any of the appropriation bills. At worst, another government shutdown. At best there will be a temporary appropriation that moves the funding problem from the Trump to the Biden administration.  A Biden presidency is unlikely to get much, or any, of its Democrat wish-list, e.g. funding for state pension plans, additional funding to address climate change and infrastructure, or tax increases on those earning over $400.000 a year.

There are a few issues a President Biden could put into motion without Congressional assistance. He could rejoin the Paris Climate Agreement that President Trump withdrew from. As an Agreement, not a treaty, he does not need Senate advice and Consent. Presidential Agreements are as solid as wind and change with administrations. President Biden could also remove the tariffs on China imposed by Trump to benefit consumers’ pocketbooks.

Going across the street from the Capitol, there is a six-to-three conservative majority on the U.S. Supreme Court. How it rules on ObamaCare is only one of the Democrats’ concerns. The Supreme Court will have the power to review all regulations issued by Biden’s administration. Regulatory power is the one power presidents can freely exercise without Congress. Moreover, Biden will likely reverse many of Trump’s deregulatory environmental actions, specifically Trump’s rollbacks of water and wetland regulations, the disposal of mining waste, the Clean Power Plan and almost one-hundred other Obama issued regulations.

A majority conservative court, however, can severely keep in check expansive new regulations and de-regulatory actions it believes not to be “reasonable.”

A President Biden may find some Trump inflicted pain before even being sworn into office. Trump may persuade Attorney General Barr to appoint a special counsel to investigate Hunter Biden’s alleged illegal Burisma activities. After being sworn in it will be difficult for Biden to personally stop a criminal investigation of his son after taking an oath to faithfully execute the laws of the U.S.

Biden’s revenge maybe for the U.S. Attorneys in the Eastern and Southern Districts of New York to open investigations of Trump, especially on alleged tax fraud and money laundering. When exercising the powers of government, opening an investigation of Trump’s tax filings would be as easy as sending a birthday card.

The final and most serious attack on the Biden presidency might come from Donald Trump himself. Trump is not leaving the grand stage quietly. He will do something “big,” “loud,” and “highly critical” of the Biden administration. Trump will be the resistance leader against high taxes, over-regulation, and programs that move the U.S. toward socialism. Perhaps Trump will start the often discussed Trump News Network. It is estimated he has a combined social media following of 87.7 million followers. Fox News only has 3.6 million viewers and the other channels have far fewer viewers.

Trump would dominate the news during a Biden presidency. Under such withering, constant criticism, Biden would have to work with, around or in conflict with, a hostile Senate, a conservative Supreme Court, almost half the nation disagreeing with his policies, his son under criminal investigation, and a 24-hour news channel actively organizing opposition to his presidency.

At a time when Biden will need help from every person capable of giving it, the radical left will push him further and further to the left, leaving him “hung out to dry.” A nightmare for Biden would be for Speaker Pelosi to lose the speakership to a far-left progressive. Unlikely, but worth noting as a possibility.

Trump believes Biden, the FBI, and others in the Obama administration, engineered attacks on him before he was even sworn into office. He believes they continued the attacks for his entire presidency. They manipulated events to have a special counsel to investigate him. They impeached him. There was not a day President Trump was not attacked by his enemies.  Biden will likely be subjected to similar working conditions in his White House.

Welcome, President-elect Biden to American politics 2020.

 

 

 

 

 

 

 

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  • Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

William L. Kovacs

July 2020

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mr. President, in your July 3rd Mount Rushmore speech, in the Black Hills of South Dakota, you exclaimed we are “…the most just and exceptional nation ever to exist on earth.” You have an opportunity to prove it. Honor the 1868 Treaty to re-establish a Sioux Nation Reservation (“Sioux”) on the sacred lands taken from them by military force.

President Obama supported this effort. You have a chance to close, perhaps the largest real estate deal in history.

Your speech was heavy on exceptionalism but avoided mention of the illegal seizure of Sioux lands 143 years ago, a fact recognized by the U.S. Supreme Court in 1980.

The talk about “witnessing a merciless campaign [by protesters] to wipe out our history, defame our heroes, erase our values, …, and unleash a wave of violent crime in our cities, was expected. You called the protestors the “…very definition of totalitarianism,” proposing ten years in jail for anyone damaging national monuments. You made your point, but please do not forget the violence the U.S. inflicted on the Sioux when it wanted their land for passage, gold, timber, and cattle grazing.

As Paul Harvey said – “And now the rest of the story.”

To end the Indian Wars, the federal government and the Sioux negotiated the Treaty of Fort Laramie (1868), pledging to cease the war between the parties forever. The U.S. pledged that the Sioux Nation (parts of North Dakota, South Dakota, Wyoming, Nebraska, and Montana) would be set apart for the absolute and undisturbed use and occupation of the Indians.

The Indians pledged safe travel through their territory, peace and that if any “bad men among the Indians shall commit a wrong or depredation upon the person or property… subject to the authority of the U.S., the Indians shall deliver the wrongdoer to the U.S.”

After ratification, gold was discovered in the Black Hills. Americans demanded to open the territory for settlement. Additionally, the final construction of the Union Pacific Railroad increased travel through the territory.

More settlers and travelers led to clashes between tribes, leading to open hostilities. In 1876, President Grant secretly allowed settlers to move into Indian territory. Grant unilaterally ordered the removal of certain tribes from the territory. In 1877, open war broke out, and the U.S. government annexed the lands protected by the treaty.

From 1877 to 1980, Congress offered money to settle with the Indians, but the Sioux Nation never accepted being forcibly deprived of their lands.

In 1923 the Sioux filed suit in the Court of Claims, but the case was dismissed in 1942. Between 1946 and 1958, Indian claims commissions attempted to determine compensation, and the Court of Claims finally awarded $17. 5 million to the Sioux Nation but without interest from the date of seizure in 1877. The Sioux refused the money.

Litigation continued until 1980 when the Supreme Court ruled since there was a taking of tribal property, there was an “… implied an obligation on the government’s part to make just compensation to the Sioux.” The Supreme Court held that obligation consisted of the $17.5 million Court of Claims damage award, plus interest from the taking date, about $1.5 billion today. The Sioux again refused the money.

Throughout a century of proceedings, the U.S. viewed the taking as an eminent domain proceeding to be settled by money. The Sioux Nation, never relinquished claim to the territory, considering the seizure as a violation of U.S. treaty obligations.

This stalemate is untenable in a democratic society. While the Fifth Amendment of our Constitution requires “just compensation” for the taking of property; it also requires that before the property can be taken, the owners must be extended due process. The Sioux never received due process before the U.S. seizing its property.

The U.S. alternative would be to claim the territory under the right of conquest, extinguishing all Indian rights. This doctrine would merely confirm what happened. The right of conquest was legal in 1868, but presently, it is illegal and perhaps a war crime under Nuremberg Principles. Not a good political move.

President Trump, you can prove the U.S. is still exceptional by abandoning ownership claims to Sioux territory. Most of the land is still sparsely inhabited. Moreover, since the U.S. owns 47% of the west, other adjoining lands may substitute for highly populated areas in the territory.

Resolving this dispute with the Sioux may be the largest real estate deal in history. It will also right a tremendous wrong.

This article was first published in medium.com

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  • The Decline of U.S. Leadership: Truman to Trump

The Decline of U.S. Leadership: Truman to Trump

William L. Kovacs

June 2020

The Decline of U.S. Leadership: Truman to Trump

Leaders can be elected

U.S. presidential leadership has changed dramatically from Harry Truman, a real-wartime president, to Donald Trump and Governor Andrew Cuomo, who claim to be “wartime leaders” in the fight against a pandemic.

In the late 1940s, we had a president with a sign on his desk “The Buck Stops Here.” President Truman clearly meant “…that responsibility will not be passed on to anyone else.” President Truman took responsibility for many extraordinary and controversial actions. He dropped atomic bombs on Japan to end the war in the Pacific, announced the Truman Doctrine to fight the spread of communism, created the Marshall Plan to rebuild Europe, proposed civil rights legislation at a time of racial segregation, integrated the military, and ordered the Berlin Airlift to bring supplies to West Berlin after the Soviets blockaded it.

Trump and other present-day “leaders” blame others for their mistakes

Today we have a president who “leads” the “war” against COVID-19 by stating “I don’t take responsibility at all” for the slow rollout of testing for the virus. President Trump seems to blame everyone in the world for his questionable management of the pandemic.

Trump blamed China for not warning us sooner. He would have taken action had he known sooner.

Trump blamed Obama for not stockpiling needed protective equipment.

Trump blamed the Centers for Disease Control for initially developing faulty tests.

Trump blamed Governors for not purchasing more ventilators and General Motors for not producing ventilators more quickly. He also blamed hospitals for misusing masks and other equipment.

Let us not forget the Governor of New York, Andrew Cuomo. He “led” the response to coronavirus in his state, the state which the highest number of cases and deaths; seven times more than California and eleven times more than Florida.

Throughout the U.S., over one-third of all coronavirus deaths occurred in nursing homes. This fact had been known from the beginning of the pandemic when Washington state reported on the first deaths. With deaths being reported daily, Governor Cuomo ordered New York nursing homes to accept coronavirus patients, a fact Miranda Devine called “a death sentence for other residents as the infection spread like wildfire.”

But Governor Cuomo blamed President Trump and the CDC guidelines as the reason for his order. As the deaths continued to rise, he subsequently blamed the nursing homes for accepting the patients he ordered them to accept.

Blame boosts ego by demeaning others

Blaming provides a way of devaluing others, with the end result that the blamer feels superior, seeing others as less worthwhile making the blamer ‘perfect’.”

In an article entitled., “Blaming Others: 6 Reasons Why People Play the Blame Game,” Connie Stemmle, discusses how blaming others comes as second nature to people used to getting their way. More significantly, however, people blame others for their actions to boost their ego in an attempt to validate that they are right and someone else is wrong. “This shows a sign of low self-esteem.”

Blamers lack leadership traits

The Center for Creative Leadership does extensive research on “leadership.” It found that great leaders consistently possess 10 core leadership skills: Integrity, Ability to delegate, communication, self-awareness gratitude, learning ability, influence, empathy, courage, and respect.

The characteristics needed to be a great leader are mostly lacking in a person who constantly blames others just to satisfy their ego by shifting responsibility and accountability for their actions.

Leadership is about working with people to achieve results

If leadership is about working with people, President Trump fails miserably. A few recent examples make the point.

At his Arizona rally he refused to follow his own administration’s guidelines on wearing a face mask to protect others from COVID-19 and refused to comply with the laws of both Arizona and the city of Phoenix.

At his Tulsa, OK rally the president’s campaign removed all the on the stickers on seats that informed attendee “Do Not Sit Here, Please!” so as to comply with social distancing.

The White House indicated the president would not comply with New Jersey’s quarantine law when he entered the state to golf. The White House indicated the president “is not a civilian.” Is he now a military ruler?

The president threatened protesters (U.S. citizens) at the Tulsa rally, calling them agitators, looters or lowlifes.

Fact-checkers estimate the president made 18,000 false or misleading claims in1,170 days in office.

Most disheartening is who will be our next leader?

More disheartening than the failure of our current President or Governor Cuomo to take any responsibility for their actions are the likely presidential nominees. In a recent article, I noted: “The United States has 328 million people. We have some of the most educated and creative minds in the world. But in 2020, amid a pandemic, the two major political parties appear to be nominating candidates for president, so exceptionally flawed, that all one can ask is – can’t we find someone better than these two?”

Has the U.S. fully transitioned into a Kakistocracy – rule by the least able or least principled citizens?

Blaming others, refusing to obey the law and misleading the nation with false statements, is more than an attempt to escape from responsibility. It is a total refusal to lead.

Benjamin Franklin commented – “He that is good for making excuses is seldom good at anything else.”  This is the “State of our Union.” Where is Harry Truman when we need him?

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  • Brewster’s Millions Is Funny; Who Pays for Big Fed Spending

Brewster’s Millions Is Funny; Who Pays for Big Fed Spending

William L. Kovacs

May 2020

Brewster’s Millions Is Funny; Who Pays for Big Fed Spending

If one needs a laugh in the last days of the stay-at-home orders, watch Brewster’s Million. The time will be well worth spending. And if you need more stress, think about a federal government spending at least $4 trillion in under 45 days. All that money will be paid by our kids. What are we doing to them?

Brewster’s Millions provides comic relief to generations of Americans. The massive national debt will provide long-term economic pain to generations of Americans.

Congress and the Federal Reserve’s spending spree to address the coronavirus pandemic is wasteful and poorly targeted. Some stimulus is necessary due to government action to shut down the economy, but thoughtlessly giving away trillions of dollars is a poor choice if the goal is to reinvigorate the economy. As seen, Federal Reserve intervention has created “zombie companies” companies, large publicly traded companies vacuumed up funds meant for Main Street, and the two trillion dollar stimulus is likely to become a hotbed of fraud.

Over at the Libertarian Republic, I compare the reckless government spending to Brewster’s Millions, a classic film starring Richard Pryor, where the plot highlights the difficulty of spending huge sums of money is a short period of time. A skill, politicians of all stripes have mastered.

In the post, I analyze the how the CARES Act and the Feds have decided to allocate trillions of dollars and note how quickly government can act when it involves frittering away taxpayer dollars.

Perhaps, a greater problem than poorly targeted stimulus, is how future generations will have to pick of the tab, a tab that is unlikely to do much good for Americans now. As I wrote:

Congress and the president certainly spent more money than anyone ever thought possible, in a few months. Whether these elected officials keep their jobs or needed to spend even more money for voters to be satisfied, is to be determined in November, 2020 by the recipients of the federal giveaways.

What is certain however, is that the children of this nation will inherit the debt. Lots and lots of debt. Seventy-seven percent of the U.S national debt was incurred by three presidents – George W. Bush, Barack Obama and Donald Trump. Simply, in 2001, at the end of the Clinton administration,     our national debt was only $5.791 trillion. When all the giveaways are completed, the national debt will be well over $26 trillion. The portion of every citizens’ debt today is about $ $72,000; and likely to exceed $82,000 per person in six months.

Since it is highly unlikely anyone alive today will offer to even start paying off the debt, yes, children, it is to a certainty, you will inherit the debt.

Brewster’s Millions provides comic relief to generations of Americans. The massive national debt will provide long-term economic pain to generations of Americans.

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  • Out of 328 Million People, Can’t We Find Better Candidates?

Out of 328 Million People, Can’t We Find Better Candidates?

William L. Kovacs

May 2020

Out of 328 Million People, Can’t We Find Better Candidates?

The United States has 328 million people. We have some of the most educated and creative minds in the world. But in 2020, amid numerous crises, the two major political parties appear to be nominating for president, individuals so exceptionally flawed, that all one can ask is – can’t we find someone better than these two?

Has the U.S. transitioned into a Kakistocracy – rule by the least able or least principled citizens?

The Democrats are about to nominate a man referred to as “Sleepy Joe Biden.” He is gaffe prone; decades of gaffes insulting blacks, Indians, women, disabled, to name a few. He also has a lifetime of plagiarism starting with law school papers and continuing onto Senate floor speeches and presidential campaigns.

The Republicans are about to re-nominate a man described by behavioral scientists as a perfect example of a “narcissist,”  “ A grandiose self-image. A very inflated ego. A continuous need for attention. A big urge to be admired. And if that admiration is lacking or the narcissist is criticized, which is even worse, he lashes out recklessly.”

Americans know the system does not work for them!

Only 1 in 10 adults believe the two-party system works. Gallup finds 57% of Americans say a new major political party is needed. The Pew Research Center report finds: “Public trust in the government remains near historic lows. Only 17% of Americans today say they can trust the government in Washington to do what is right “just about always” (3%) or “most of the time” (14%).”

A Real Clear average of polls for April 2020 finds only 35.1% of Americans believe the country is on the “right-track” whereas 57.7 % believe it is on the “wrong-track.”

How did two political parties limit political competition to such an extent that they secured complete control of the government of the United States?

The Republican and Democratic parties manipulate election laws to ensure one of their loyalists almost always wins the election. Controlling who wins directly translates into what laws are enacted, which citizens or corporations receive subsidies, who is taxed more or taxed less, how commerce is regulated and who will judge us should we violate any command.

According to David Nir, in an article in the Daily Kos that references Becoming a Candidate, a book by Jennifer Lawless, there are 519,682 elected officeholders in the United States. Of this total the Libertarian Party, in 2017, claims 168 of these officeholders; the Green Party in 2016 held 143 offices, and the Constitution Party holds 12 offices. Many of these positions are non-partisan offices. There are also, at least 26 Independent office holders, including 2 U.S. Senators who caucus with the Democrats, and 26 Democratic Vermont Progressives. A basic calculation places the third-party competitors’ share of the political market at 0.0007215%.

What makes the power of the two major parties so baffling is that political parties are not mentioned in our Constitution.  In fact, for the first several years of our Republic, there were no political parties.

A political party is merely a corporation designed to take control of government

Political parties are nothing more than highly organized, demographically diverse, nonprofit associations of individuals, arranged in a corporate structure, for the sole purpose of controlling all government in the United States and by extension, us. This duopoly, through its many affiliates, has officers in every nook and cranny in the nation to ensure that a member of one of two major parties occupies every seat in government.

Beyond excluding citizens, with different political viewpoints, from participating in the governing of the nation, Republicans and Democrats turn representative government on its head. Instead of allowing citizens to vote for a person who will serve as a fiduciary loyal to the Constitution and citizens; the two major parties use their massive power to force us to vote for one of two individuals whose loyalty is primarily to a Republican or Democrat party.

This limiting of political ideas has led to decades of policy failures. On the most important issues, the two major parties are identical. Both parties have contributed to our massive national debt; tolerate the abuse of war powers by the president; and ignore a haphazard health system costing twice as much an any industrialized nation but leaving 30 million people uninsured or under-insured. These are only a few of government’s failed policies.

How did we allow this to happen?

Professor Brian Porto, in his law review “The Constitution and the Ballot Box” explains that while political parties organized a few years after the founding of our country, it was not until the 1912 elections, when Teddy Roosevelt’s Bull Moose party received more votes than the Republican, and the Socialist Party received six percent of the presidential vote and won several congressional seats, 79 mayoralties and over 1,200 local offices, that the two major parties feared they needed protection.

As fear gripped the Republican & Democratic parties; state legislatures began making access to the ballot more difficult for third-party candidates than for Republican & Democratic candidates, by:

  • Requiring a significant number of signatures, e.g. 3% of the vote in the last Gubernatorial race, while waving or substantially reducing the number of signatures needed by Republican & Democratic candidates;
  • Providing shorter time periods for third-party candidates to gather signatures than for Republican & Democratic party candidates;
  • Requiring third-party presidential nominees to file nominating petitions 8 months before the election and months before the Republican & Democratic candidates had to file;
  • Imposing signature distribution requirements on third-party candidates, e.g. a certain number of signatures from each county or congressional district; and
  • Requiring new third-parties to nominate candidates for each office up for election in that cycle.

Each obstacle acted to limit political competition and to ensure perpetual control of government in the U.S. by the two major parties.

The Commission on Presidential Debates – the ultimate slap in democracy’s face

An October 11, 2019 press release from the Commission on Presidential Debates (“CPD”) announcing its 2020 debate schedule, and a March, 2019  court opinion, provide a glimpse into who controls our government?

The CPD, a private organization, operating under FEC regulations, has government authorization to set standards that prevent third-party candidates from participating in presidential debates. The CPD has this power as long it does not directly endorse, support, or oppose a candidate, and selects at least two debate candidates. Moreover, those with the most to gain from the major parties, corporations and media, can fund the debates with tax-deductible contributions.

Notwithstanding assertions of “impartiality,” CPD officials wear many hats, e.g. CPD board member and Chair of a political party. These officials can also take positions contrary to CPD when speaking in their “individual capacity.” Such looseness of structure allows the CPD to satisfy FEC requirements while setting “objective” standards not achievable by third-parties.

This controversy started immediately after the major parties formed the CPD in 1987. Prior to the CPD, The League of Women Voters (“The League”), sponsored the debates. When The League discovered the two major political parties secretly gave the campaigns control over questioners, composition of audience, and press access, it withdrew its support.

The League president, Nancy Neuman, characterized these actions as “campaign-trail charades devoid of substance…that would perpetrate a fraud on the American voter.”

From the inception of the CPD, only one candidate, not a Republican or Democrat, was invited to debate, Ross Perot, in 1992; at the request of the other participants. His debate performance helpd him garner 18.91% of the popular vote.

Before the 2000 election the CPD amended its criteria to require participants to secure at least 15% support in selected polls. This requirement is rarely achieved by a third-party candidate, and is much higher than required for state ballot qualification or public financing. Ralph Nader, Green party candidate on the ballot in 43 states, was so angry, the CPD had to physically bar him from the debates.

The real action however, was in the courts. Level the Playing Field and Gary Johnson, Libertarian Party, litigated against the 15% poll criteria alleging FEC and CPD regulatory non-compliance and violations of First Amendment rights and the anti-trust laws. The FEC and the federal courts, in derogatory fashion, dismissed all complaints leaving the two major parties in complete control of the debates.

An appeals court noted: “Every four years, we suffer through the celebration of democracy (and national nightmare) that is a presidential election.”

The trial court dismissed as “old news” statements by the Republican chair of the CPD, that the Commission “was not likely to look with favor on including third-party candidates in the debates” and the Democratic chair saying he “personally believed the panel should exclude third-party candidates from the debates.” Also, the “CPD director asserted CPD officials are “permitted to wear multiple hats and can speak freely … in [their] … personal capacity.”

The two major parties rig the system, so they win!  They have established a Kakistocracy. Who represents the citizens of the U.S.?

This article was first published in medium.com on May 4, 2020. Ideas for challenging the two party system include civil rights and antitrust lawsuits.

 

 

 

 

 

 

 

 

 

 

 

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  • Democrats Promise to Spend and Spend, But Republicans Spend More!

Democrats Promise to Spend and Spend, But Republicans Spend More!

William L. Kovacs

November 2019

Democrats Promise to Spend and Spend, But Republicans Spend More!

In every presidential election the Republican candidate runs as a conservative promising to reduce the debt and deficit. Democrats run with bold ideas to spend unlimited trillions to provide Medicare for all, eliminate student debt, raise teachers’ salaries, increase the minimum wage and in the 2020 election, to spend trillions upon trillions to eliminate fossil fuels and rebuild our entire economy into a “green utopia.” Republicans attack Democrats as crazy, uncontrolled spenders. Unfortunately, the statistics tell a different story.  Republicans like spending, even a little more than Democrats.

In the 2016 election candidate Trump ran as a conservative promising to wipe out the National Debt in eight years. The debt was $20 trillion when President Obama left office.

By February 2019 the National Debt hit a record of $22 trillion, a $2.065 trillion increase in two years. By May 2019 it became clear the tax cuts would not generate enough income to offset the lost revenue and under budget estimates, debt would rise to $29 trillion in eight years.

Then the kicker! In July 2019 Congress and the President arrived at a budget deal that suspends the debt limit thereby allowing the government to spend whatever it wants for two years. The estimated cost of the deal is $2.7 trillion for two years but it could be much more.

While one wild spending Republican president does not undercut decades of promises from conservatives to cut spending and reduce the deficit, some simple calculations undercut the myth that conservatives care about debt and deficit more than Democrats. In a well-researched May 12, 2019 article in The Balance, Kimberly Amadeo sets out increases to the National Debt by each President since Woodrow Wilson.

To non-academics like me her article provides all that is necessary to answer one simple question – Which of the two major political parties spends more of our money and puts us deeper in debt?

To answer this question, I start with Herbert Hoover since he followed Calvin Coolidge, the last president who added $0 to the National Debt. In fact, according to her statistics, Coolidge decreased the existing National Debt by 26%, a $5 billion decrease. Amadeo’s numbers are set out in fiscal years (“FY”) since FY’s reflect the amount each President signs into law. This approach avoids the fact that a new president assumes the prior president’s budget for the first year in office. The amounts are actual dollars, without any adjustment.  I simply added up the amounts spent by each Presidential administration per fiscal year and put them into two columns, Republican and Democrat, to determine which political party added the most to the National Debt?

President* Years Republican Democrat Total Deficit
Hoover 1930-1933 $ 6 billion $ 6 billion
F. Roosevelt 1934-1945 $ 236 billion $ 242 billion
H. Truman 1946-1953 $ 7 billion $ 249 billion
D. Eisenhower 1954-1961 $ 23 billion $ 272 billion
J. Kennedy 1962-1964 $ 23 billion $ 295 billion
L.B. Johnson 1965-1969 $ 42 billion $ 337 billion
R. Nixon 1970-1974 $ 121 billion $ 458 billion
G. Ford 1975-1977 $ 224 billion $ 682 billion
J. Carter 1978-1981 $ 299 billion $ 981 billion
R. Reagan 1982-1989 $ 1.860 T $ 2.841 T
G.H.W. Bush 1990-1993 $ 1.554 T $ 4.395 T
W. J. Clinton 1994-2001 $ 1.396 T $ 5.791 T
G.W. Bush 2002-2009 $ 5.849 T $ 11.640 T
B. Obama 2010-2017 $ 8.588 T $ 20.228 T
D. Trump** 2018-2021 $ 5.088 T $ 20.228 T
Party totals $ 14.725 T $ 10.519 T $ 24.474 T

*The FY deficit numbers for each President are based on the FY deficits stated by The Balance,        update August 26, 2019.

** Estimate of deficit based only on one term as President.

At the end of the Obama administration the two parties were almost statistically tied in the amount of debt they imposed on the nation. The seven Republican administrations imposed $9.637 trillion in debt. The seven Democratic administrations imposed $10.519 trillion. While both parties controlled the White House seven times during this period, the Democrats’ occupied the White House forty-eight years while the Republicans occupied it only forty years.  On a FY basis, Republicans, on average, increased debt by $241 billion a year whereas Democrats, on average, increased the debt by $219 billion a year.

The Trump administration however, is projected to add $5.088 trillion to the National Debt in his first term, leaving us with a National Debt of $24.474 trillion at the end of FY 2021. By comparison President Obama added $4.829 trillion to the National Debt in his first term. This time period however, includes the Great Recession and the added spending was necessary to hold off a depression.

Together, Obama’s two terms ($8.588 trillion of new debt) and the first term of the Trump administration ($5.088 trillion of new debt) added $13.676 trillion to the National Debt. Percentage wise the two administrations are responsible for 52% of the total National Debt. If there is a second term for the Trump administration, and it can hold the increase in the debt to projected amounts ($3.524 trillion), his administration would add $8.350 trillion to the national debt. Together, Obama’s $8.58 trillion and Trump’s $8.35 trillion would add almost $17 trillion to the national debt. Simply, Presidents Obama and Trump would be responsible for 59% of the nation’s national debt.

Therefore, after the first term of the Trump administration, conservative presidents, in their forty-four years in office, will have increased the national debt by $14.725 trillion whereas the wild-spending Democrats, in their forty-eight years in office, will have added  $10.519 trillion to the national debt.

So much for the myth that the Republicans care about debt and deficits? The moral of this story that Democrats tell the truth when they promise to spend our money and lots of it. Republicans merely tell us what we want to hear and when in office, they spend more of our money than Democrats.

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  • Affordable Clean Energy Rule: Determining the Rule of Law

Affordable Clean Energy Rule: Determining the Rule of Law

William L. Kovacs

June 2019

Affordable Clean Energy Rule: Determining the Rule of Law

June 19, 2019, is a day of infamy for advocates of the costly and complex federal regulations to address climate change issued by Obama era regulators at the Environmental Protection Agency (“EPA”). On that day, the Trump EPA announced that it was replacing Obama’s Clean Power Plan with the Affordable Clean Energy Rule (“ACER”).

The contrast between the two rules could not be starker. Obama’s Clean Power Plan used the federal rule-making process to set strict emission standards on America’s power and manufacturing industries, imposed rigid state plan requirements that mandated the reduction of the use of certain forms of energy, e.g., coal, and subsidized other forms of energy like wind and solar. The Clean Power Plan empowered EPA to restructure all of American life from the types of energy used, to the products that could be manufactured, to the location of industry.

The legality of Obama’s Clean Power Plan was challenged in court by 28 states and hundreds of U.S. businesses. The U.S. Supreme Court stayed the implementation of the law, and it never went into effect.

When the Trump administration took office one of its first deregulatory efforts was to initiate a rule change to replace the Clean Power Plan. Under the new rule, legally effective around July 18, 2019, the energy industry would still be required to reduce carbon dioxide emissions by thirty-five percent below 2005 levels by 2030. The International Energy Agency however, believes a 74% reduction is needed to address the impacts of climate change.

ACER moreover, eliminates the mandates on states to meet federal emission targets. States are now free to determine how energy efficiency can be improved. Finally, ACER is an armistice between the federal government and the coal industry. Effectively, President Obama’s war on coal is over.

While the environmental community is likely to aggressively challenge the new rule in court for not doing enough to address climate change, that challenge will raise a far more significant issue concerning the rule of law in this country. Specifically, the Obama administration viewed the Clean Air Act as a broad grant of authority that allowed it to regulate the economy in ways never envisioned by Congress.

The Trump administration viewed the Obama Clean Power Plan as more than regulatory overreach, and it viewed it as an illegal power grab to shut down economic growth in the name of environmentalism. What is striking in this conflict between two administrations, is that the same law, the Clean Air Act, without any changes by Congress, was thought by the Obama administration, to be a massive source of executive power, while, a few months later, the Trump administration viewed it as an excessive use of executive power that placed illegal restrictions on the entire economy.

In a similar conflict concerning the application of the Clean Water Act, the Obama administration viewed the law as authorizing power to regulate almost all waters in the United States, no matter how small, including water in ditches. Again, the Trump administration viewed the same law as only regulating water bodies that had an impact on interstate commerce. Again, two diametrically opposed positions taken as the law of the nation within a short period and without any congressional action.

This dramatic conflict over the power of the Executive to change the scope, meaning and intent of a law passed by Congress, in a short time, raises a fundamental question about executive power and the meaning of the rule of law.  While the Clean Air Act and the Clean Water Act are high profile environmental regulations, similar regulatory U-turns regularly occur many times, in many areas of law, when new administrations take office.

This conflict over the scope of executive power to regulate (or what legislative powers can Congress delegate) must be resolved to avoid this nation becoming a banana republic. In the likely event the environmental community challenges the Affordable Clean Energy Rule; the U.S. Supreme Court will have the opportunity to provide guidance on the extent of legislative power (discretion) Congress can delegate to federal agencies. The court had the opportunity this term in Gundy v. U.S. to clarify this issue, but it left in place the eighty-five-year-old principle that as long as Congress can point to an “intelligible standard” in its delegation of power to agencies, the agencies have the discretion to legislate. Unfortunately, the term “intelligible standard” is just as vague as the congressional statutes being relied upon by the agency to issue regulations.

In the Clean Power Plan, the Obama administration expanded a complex statute that Congress intended for the regulation of the most harmful air pollutants, into a statute that regulated the most ubiquitous of air emission, carbon dioxide. This regulatory action, if upheld by the court, would allow the executive to regulate the entire economy, a power never intended by Congress. While the Trump administration is attempting to pull back the regulatory overreach, there is still a fundamental question that the court must address – how an agency determines the scope of the legislative authority delegated to it by Congress?

If this issue reaches the U.S. Supreme Court, its decision will be momentous as to how the federal government regulates climate change. But the decision will have a much greater impact on the power of the executive in using regulations to change the policy of the nation.

If the court sets clear limits on the expansion of agency power through regulation, it will limit radical policy swings, especially those occurring between administrations. Conversely, if the court ignores this issue, it is allowing policy swings between administrations that will denigrate the Article I, lawmaking power of Congress.

Follow Bill @WilliamLKovacs