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  • The Judgment Fund – The Mother of all Slush Funds

The Judgment Fund – The Mother of all Slush Funds

William L. Kovacs

January 2022

The Judgment Fund – The Mother of all Slush Funds

Remember when the media reported the Biden administration was contemplating paying illegal migrant families $450,000 per person as a settlement for separating the children from their parent(s). Did you ever ask where would the money come from? Did Congress ever enact a specific appropriation for its payment? The answer is simple – it comes from the Judgment Fund which is the mother of all slush funds. Nothing in the world is comparable to it other than dictators stealing the treasury of a nation. In the U.S., Congress has made such secret payments legal and routine.

The Judgment Fund pays judgments against the United States and settlements agreed to by the Department of Justice. It is a fund that does not disclose the receipt of the payments or settlements even when the actions establish major agency policy or when requested by congressional appropriators. It is a fund without accountability or transparency since the federal agencies making the payments will not provide Congress or taxpayers information about who was paid by the fund.

How does the Judgment Fund work? It is a permanent, indefinite, and unlimited congressional appropriation continuously available to pay money judgments entered against the United States and settlements of cases in or likely to be in litigation with the United States. As an indefinite appropriation, it is so secret that Congress no longer even debates what the amounts are for. The amounts are appropriated, no matter what the amount. The Department of the Treasury just pays the claims when the proper paperwork is presented to it.

How did such a fund come about? Prior to 1956 Congress actually appropriated funds to pay for every single judgment against the United States. Under this procedure, Congress was actually aware of what claims were being made against the United States and was able to evaluate the actions of the agencies being sued.

In 1956 Congress passed the Judgment Fund Act to provide for payment of most judgments against the United States without the need for individual appropriations. The congressional justification was to enhance the efficiency of the appropriations process. In 1961 Congress amended the statute to pay for settlements in addition to judgments but with a ceiling on such payments of $100,000. In 1977 Congress eliminated the ceiling and now the fund is available to pay any covered judgment or settlement, regardless of amount.

The Judgment Fund functions as an automatic withdrawal from the nation’s treasury. Moreover, the payments made to satisfy a judgment against the US or to settle the alleged illegal activity of the agency, do not come out of the agency’s budget.  There is no penalty to the agency for misconduct or illegal activity since payments do not have to be reimbursed unless Congress appropriated funds to the agency for such payments. Simply, agencies are not required to pay for their misconduct or unlawful activities.

What payments have been made under the Judgment Fund? While the Department of the Treasury provides a list of payments and the amounts, it does not identify who received the payments. In a 2016 article, Politico described how federal agencies, using the Judgment Fund, hid more than $4.3 billion in payment to settle sexual harassment complaints. In 2020, the Judgment Fund paid out nearly 7,500 payments totaling over $14 billion.

Even after the House and Senate, Committees on Appropriations requested details concerning the names of claimants, the amounts to be paid and a description of the facts, the Treasury continued its refusal to provide the information to Congress. Moreover, the Obama administration settled over sixty lawsuits with environmental groups. It is likely it utilized the Judgment Fund since there was no other money appropriated to Environmental Protection Agency (“EPA”) to settle lawsuits. Unfortunately, it is impossible to know since the EPA, like all federal agencies, refuses to release the names of the recipients

Are there limits to these secret payments? Unless there is a specific statute authorizing payments in a different manner, there are no limits to payments from the Judgment Fund. According to a September 7, 2016, House Judiciary Committee report, Subcommittee on the Constitution and Civil Justice, the Obama administration likely used the Judgment Fund to settle the $1.7 billion payment to the Islamic Republic of Iran for claims made on the sale of military equipment before the 1979 Iranian Revolution. This is the incident in which the US flew planeloads of cash, in foreign currencies, to Iran as part of what could be termed a ransom payment for American prisoners.

It is time for Congress to take seriously one of its main legislative responsibilities; its control over the nation’s purse as required by Article I, section 9, clause 7 of our Constitution. It can no longer leave the Executive branch with blank checks to be used when needing money to make secret payments, most times for wrongdoing. It is time for our government to be honest with us about what it spends and the recipients of its spending. After all, it is our money!

William L. Kovacs has served as senior vice-president for the U.S. Chamber of Commerce, chief-counsel to a congressional committee, a partner in law D.C. law firms, and his book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change.

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  • Constitution Guarantees Defense of Invaded States, So Do It! 

Constitution Guarantees Defense of Invaded States, So Do It! 

William L. Kovacs

October 2021

Constitution Guarantees Defense of Invaded States, So Do It! 

Biden’s refusal to enforce our national immigration laws or control illegal immigration across an open Southern border immediately harms the health, welfare, economic and civic fabric of Texas and Arizona. As millions of more illegals cross the open border and settle in all parts of the U.S., they will need costly social services in a nation massively in debt. Drug cartels, sex traffickers, and organized crime are disrupting cities and the drugs are killing hundreds of thousands of Americans. Biden’s failure to defend Texas and Arizona today is a breach of our Constitution’s Article IV Guarantee Clause. Over time, Biden’s failure to defend the border states will break the bonds of the union.

Article IV of the U.S. Constitution, its “Guarantee Clause,” mandates the United States, as an entity, to guarantee every state a Republican form of government and to protect each of them against invasion. Unfortunately, Article IV is likely the least analyzed and litigated provision in the Constitution. First, the Supreme Court in Luther v. Borden, (1849), held the guarantee of a Republican form of government is a non-judiciable, political question to be decided by Congress. This decision has allowed Congress to ignore the issue for 173 years.  Second, until now, there has never been a need for the federal government to defend a state from invasion.

Since every state in the union elects its officials, all qualify as “Republican forms of government.” There is no need to address this issue., The question arises, however, what constitutes an invasion that triggers the federal government’s duty to protect states?  Is Biden’s open southern border policy allowing millions of immigrants to illegally enter this county, sufficient to constitute an invasion? More than a few members of Congress call it an invasion.

Unlike other provisions in the Constitution that assign responsibilities to specific branches of government, Article IV mandates the entire federal government, all three branches, act to protect states that are invaded. Scholars assert the Guarantee Clause, “… exist[s] solely for the benefit of the guaranteed sovereign [states]. If the millions of illegal immigrants flowing into the U.S. is an invasion, the Constitution obligates Congress, the courts, and the Executive to act. While the president should be the lead since the Executive controls the military, Biden has not only abdicated his responsibility; he has encouraged the illegal invasion. As such, Congress and the courts, are obligated to act. Congress could immediately declare the invasion a war and send the military to close the border. Congress could also implement laws that require employers to only hire citizens and authorized holders of work permits, to cut off part of what is attracting the illegals. Additionally, Congress could withhold appropriations sought by the president until he enforces the law, or the House could impeach and the Senate convict the president, thereby removing him from office.

The courts could expedite lawsuits on the issue and hold non-compliant administration officials in contempt. “Jail time for politicians” would catch the attention of these oath breakers.

The difficulty, however, in determining whether there is an invasion on the southern border, is neither the Constitution nor federal statutes define “invasion.” There is scant discussion of the issue in the Federalist Papers or the records of the Constitutional Conventions, other than the founders’ expressions of support for the provision. Moreover, since the issue has never been litigated, there is no judicial guidance. Therefore, determining what is an “invasion” involves understanding and resolving any differences between the meaning of the term in the late 18th century and today

fain What is an invasion?

Around the time of the Constitution, 1787, “…the English language lacked a widely-used set of standard definitions on English words.” The 1785 version of Samuel Johnson’s History of the English Language, defined the word “invasion” as the hostile entrance upon the rights or possessions of another; or hostile encroachment; or armed invasion.

Today’s Cambridge Dictionary defines “invasion” as an army using force to enter and take control of another country, or an occasion when a large number of people come to a place in an annoying and unwanted way; or an action that affects someone’s life in an unpleasant and unwanted way.

Since no one knows what the founders intended, both definitions are broad enough to find the uncontrolled illegal immigration of millions of people into this country to be an invasion. The support for this assertion is that if the U.S. is a nation, it must possess sovereignty, the ability to operate with international independence, and the right and power to regulate its internal affairs without foreign interference. Uncontrolled, massive influxes of foreigners, drug smugglers, and sex traffickers is a country lacking sovereignty.

Misoprostol on line  Early commentaries discuss the federal government’s duty to defend invaded states

The earliest of the commentaries to address Article IV is “Blackstone’s Commentaries: with Notes of Reference (1803) by St. George Tucker.  He was a Virginia jurist, professor of law at the College of William & Mary and his Commentaries were the first annotations of the Constitution. In Volume I, Miscellaneous Provisions, his notes on the Guarantee clause:

The possibility of undue partiality in the federal government in affording its protection to one part of the union in preference to another, which may be invaded at the same time, seems to be provided against, by that part of this clause which guarantees such protection to each of them. So that every state which may be invaded must be protected by the united force of the confederacy.

While the millions of illegal immigrants may cross at the southern border, they distribute themselves nationwide. Since Biden ceased construction of the border wall and refuses to enforce the Immigration laws,  his policies place Texas and Arizona, at greater risk of harm than interior states. This is a perfect example of the federal government showing bias against one part of the union, the Republican-leaning red states, clearly the concern of our founders.

 

http://solent-art.co.uk/urban/ Failure to enforce immigration law a breach of officials Oath of Office?

The president, every member of Congress, and every judge takes the original, 1787, oath to uphold the Constitution and laws of the U.S. and to faithfully discharge the duties of the office. While some officials cynically believe the oath is a hollow formality, the swearing of the oath is both their first act as a government official and required before being allowed to serve.

While our government officials have discretion in how they discharge their duties, they cannot refuse to discharge all of their duties in a particular area of great concern to the nation. While a president can, for example, pardon specific individuals, a president cannot abolish all law that makes certain actions a crime. Biden’s actions on the southern border demonstrate a refusal to discharge his oath to faithfully execute valid immigration laws passed by Congress. While the president violates his constitutional duties, Congress and the judiciary sit and watch the undefended southern border, a failure of the entire federal government to support the Constitution.

It is unacceptable to place the border states at risk of being overrun by millions of illegals that state governments cannot manage or support. An open border tears the fabric of society apart. It makes governing impossible. Our federal government is watching the proverbial pot boil until the content rises up and flows over the edge causing a mess. The edge in this instance is civil society. The mess is an inability to govern millions of illegal people operating in-country. The pot is boiling. If the federal government fails to turn the heat down by protecting the southern border, it risks the pot boiling over into dramatic conflict.

 

William L. Kovacs, author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens, Winner of the 2021 Independent Press Award for Social/Political Change. Former senior vice president, U.S. Chamber of Commerce.

 

 

 

 

 

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  • Not So Fast Pennsylvania: There are Limits on Judicial Power

Not So Fast Pennsylvania: There are Limits on Judicial Power

William L. Kovacs

November 2020

Not So Fast Pennsylvania: There are Limits on Judicial Power

Notwithstanding factual issues of fraud, dead people voting, and observers not able to observe, there is a real legal issue putting at risk all votes Pennsylvanians cast after the polls closed on November 3rd. An issue four U.S. Supreme Court justices indicate needs review. The facts are not in dispute. The legal question is whether Pennsylvania’s Supreme Court can extend the time for voting beyond that set by the state legislature?

It must first be noted the election was not called by any official government entity. It was called by CNN, a cable television channel. CNN awarded Biden twenty electoral votes, “making” him our 46th president. In 2000 CNN called the disputed election for Gore and had to withdraw its “call” in under 2 hours. Cable tv gave Gore 37 days to litigate his case.

Unfortunately for Pennsylvania, there is a federal Constitution that has supremacy over its courts and a state attorney general who tweets before the polls close, like the fix is in – “If all the votes are added up in PA, Trump is going to lose.”

Pennsylvania voters cast over 6.6 million votes. Joe Biden is ahead by around 45,000 votes or about 7/10th of one percent. Every vote counts if it’s legal and received by the deadline set by the legislature.

In 2019 the Pennsylvania legislature passed what Governor Wolf called “the most significant improvement to Pennsylvania’s elections in more than 80 years.” It expanded who could vote by mail and allowed voters to secure mail-in ballots as far out as 50 days before the election.

It also extended the deadline for election officials to receive absentee ballots, from 5 p.m. on election day to 8 p. m. November 3. What this clear legislative provision means, may determine who is our next president.

The state’s Democrat Party asked the Pennsylvania Supreme Court to extend the legislatively mandated deadline, by three days, for receiving mail-in ballots due to the pandemic related delays. Republicans opposed the extension request.

The Court extended the deadline for 3 additional days, until 5 p.m., November 6th. The court conceded that the judiciary “may not usurp the province of the legislature by rewriting [statutes]; the statute was unambiguous, constitutional on its face and not in need of interpretation. Notwithstanding such findings, the Court decided, due to the pandemic and postal mail delays, to balance broad language of the Pennsylvania Constitution (the electoral process in Pennsylvania is open and unrestricted to voters) against the mandate in the U.S. Constitution that state legislatures establish the times and manner of holding elections.

Using its balancing approach, the Pennsylvania Supreme Court asserted “Extraordinary Jurisdiction” to “[e]xtend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters.”

The Pennsylvania Republican Party sought a stay of the counting from the U.S. Supreme Court. The stay was denied on October 19, 2020, but four justices noted they would grant the application. As the “legal jockeying…intensified” the Republicans, on November 6, 2020, asked the U.S. Supreme Court to segregate the mail ballots delivered after election day. That evening Justice Alito ordered county boards to keep separate the ballots arriving after election day. He gave the state a day to respond.

It is unknown how many mail ballots were received between November 4 – 6, 2020. What is known is that the mail ballots in Pennsylvania were running 78% for Biden and that the margin of difference between Biden and Trump is around 45,000 votes. Using these numbers, if more than 60,000 ballots, out of 6.5million ballots, came in after the election, there a significant possibility that a U.S. Supreme Court reversal of the Pennsylvania court decision, could invalidate all votes received after November 3rd.

The U.S. Supreme Court should decide whether an admittedly unambiguous, constitutionally crafted statute, enacted by the state legislature to set the times and manner of elections, is the established election procedure; or whether the Pennsylvania Supreme Court has “Extraordinary Powers” to overrule the state legislature on setting the times and manner of elections?

While it is likely, Joe Biden will be the next president, the U.S. Supreme Court must address the Pennsylvania court’s claim to hold “Extraordinary Powers.” Either state legislatures set the time and manner of elections or they do not. This issue is capable of repetition. If the Supreme Court avoids this clear question of law, future state courts will claim “Extraordinary Powers” to control elections. The chaos resulting from such a decision will undercut the legitimacy of our electoral process.