Free Markets, Free People

Legal Affairs

NLRB appointments indicative of Obama’s desire for executive rule

Here’s a story not getting much attention, but is indicative of how President Obama tends to use executive power when he can’t get his way with Congress.  Rule by executive fiat.

What am I talking about?  As you may recall, Obama made appointments to the National Labor Relations Board (NLRB) during a supposed Congressional recess.  Except it wasn’t really a recess.  Congress was not between sessions (that constitutes a recess), but was instead it was on an intrasession break, one of many Congress takes during any session.  Never have those been considered recesses of the type in which recess appointments could be legally made.

That is until this administration.  That’s precisely how the vacant slots on the NLRB were filled with Obama appointees.

Enter Cablevision.

Over the past year, Cablevision has been in the midst of a brutal public battle with the Communication Workers of America over pay for technicians and allegations of union-busting. In May, Cablevision sought the intervention of an appeals court to stay proceedings at the NLRB, and now, the company is hoping that the high court will take up the issue of the NLRB’s authority.

The point, of course, isn’t particularly about the dispute.  It’s one in a long line of management and labor disputes. The question is whether or not the NLRB is legally constituted given the way the appointments were made.  It’s about the rule of law.  When citizens see the government flout the law or ignore it, it doesn’t set a good precedent.  Yet that’s precisely what has happened in this case.

And that’s what Cablevision is questioning.  How is there legitimacy in an illegally appointed board?   And why, should their rulings be obeyed, given the circumstances of the board’s recent constitution. Here’s the point:

“The role of Congress is to ensure a balanced NLRB and the Obama Administration bypassed Congress in order to stack the NLRB in favor of Big Labor. Two different federal courts — the D.C. Circuit and the Third Circuit — have established that the NLRB is illegally constituted and has no authority to take action. The NLRB continues to ignore these rulings, and we ask the Supreme Court to compel the NLRB to immediately halt its unlawful proceedings against Cablevision.”

Shades of Hugo Chavez’s Venezuela – Chavez kept the institutions of a democracy, but he packed them with his loyal appointees that shared the same ideology and agenda.  With what has happened with the IRS and the EPA, etc, that’s not as big a stretch as one might imagine.

~McQ

Is the IRS overstepping its authority in ObamaCare enforcement?

This should be interesting to watch:

A group of small business owners (and individuals) in six states today are suing the federal government over an IRS regulation imposed under the Affordable Care Act (Obamacare), which will force them to pay exorbitant fines, cut back employees’ hours, or severely burden their businesses. Complaint can be viewed here.

The Affordable Care Act authorizes health insurance subsidies to qualifying individuals in states that created their own healthcare exchanges. Those subsidies trigger the employer mandate (a $2,000/employee penalty) and expose more people to the individual mandate.  But last spring, without authorization from Congress, the IRS vastly expanded those subsidies to cover states that refused to set up such exchanges.  Under the Act, businesses in these nonparticipating states should be free of the employer mandate, and the scope of the individual mandate should be reduced as well.  But because of the IRS rule, both mandates will be greatly enlarged in scope, depriving states of the power to protect their residents.

Michael Carvinpartner at Jones Day, who co-argued the Supreme Court Obamacare cases in March, 2012 and who represents the plaintiffs in this lawsuit, stated: “The IRS rule we are challenging is at war with the Act’s plain language and completely rewrites the deal that Congress made with the states on running these insurance exchanges.”

33 states have refused to set up these exchanges.  The IRS, per the complaint, is ignoring that ability given by the states by the law and proceeding as if it didn’t exist.  The argument is the IRS is overstepping it’s authority.

“Agencies are bound by the laws enacted by Congress,” said Sam Kazmangeneral counsel of the Competitive Enterprise Institute (CEI).  “Obamacare is already an incredibly massive program.  For the IRS to expand it even more, without congressional authorization and in a manner aimed at undercutting state choice, is flagrantly illegal.”  CEI is coordinating the lawsuit.

We’ll see.  Given the way the law is interpreted anymore, I wouldn’t at all be surprised to see the IRS upheld (or the suits be dismissed out of hand).  Such is the lack of respect and confidence I hold for our “legal system” anymore.

~McQ

NY soda ban: You can always find someone to defend the indefensible

In the case of Michael Bloomberg’s overreach in banning a specific size of soda drink, the defender is some fellow named Lawrence Gostin.  The headline of the article he’s written is “Banning large sodas is legal and smart”.

Really?  Legal and smart?  His defense of the indefensible has him channeling Paul Krugman, or at least emulating him.

As I’ve said before, it’s always wise to check the premise on which someone like this operates.  In this case, the premise is, as you might expect, flawed and the reasoning thin.   It all comes down to a word – “imminent” – and the author’s obvious belief that it is the job of government to save us from ourselves.   You have to dig through the article a bit, but here’s where Gostin’s claim of legality comes from:

Admittedly, the soda ban would have been better coming from the city’s elected legislature, the City Council. But the Board of Health has authority to act in cases where there is an imminent threat to health. Doesn’t the epidemic of obesity count as an imminent threat, with its devastating impact on health, quality of life and mortality? In any event, the Board of Health has authority over the food supply and chronic disease, which is exactly what it has used in this case.

Members of the Board of Health, moreover, are experts in public health, entitled to a degree of deference. The fact that the proposal originated in the mayor’s office does not diminish the board’s authority and duty to protect the public’s health. Many health proposals arise from the executive branch, notably the Affordable Care Act.

Uh, no, obesity doesn’t qualify as an “imminent” threat such that a Board of Health can arbitrarily declare something “banned”.  Why not king size candy bars?  Why not New York cheese cake?  Why not a whole plethora of sugar soaked products?  Well, if you’re paying attention, I’m sure you’ve realized that if this had flown, such bans were likely not far behind.

But back to Gostin.   Here’s his real argument:

First, the ever-expanding portions (think "supersized") are one of the major causes of obesity. When portion sizes are smaller, individuals eat less but feel full. This works, even if a person can take an additional portion. (Most won’t because they are satiated, and it at least makes them think about what they are consuming.) Second, sugar is high in calories, promotes fat storage in the body and is addictive, so people want more. The so-called "war on sugar" is not a culture war, it is a public health imperative backed by science.

So, there is good reason to believe New York’s portion control would work. But why does the city have to prove that it works beyond any doubt? Those who cry "nanny state" in response to almost any modern public health measure (think food, alcohol, firearms, distracted driving) demand a standard of proof that lawmakers don’t have to meet in any other field.

Because we don’t, in his opinion, “demand a standard of proof” from lawmakers in any other field, we shouldn’t, apparently, demand that standard in this field.  After all it is a “public health imperative” which is “backed by science”.  Where have we heard that before (*cough* global warming *cough*)?

So we shouldn’t ask lawmakers to prove that a) obesity is an imminent threat and b) banning large sodas will defeat that threat?  Because that’s certainly the premise.

In fact, we should do precisely the opposite of what Gostin says.  We should demand “a standard of proof” from out lawmakers that requires they prove whatever bill they’re contemplating is in fact necessary.  Want to ban “assault weapons”.  Prove to me that such a ban will “curb gun violence”.  Stats seem to indicate it will have no effect.  The lapse of the previous ban showed no appreciable increase in gun violence and we’ve seen an overall decrease in violence as a whole.

In this case, the ban Gostin tries to defend and contrary to his headline claims, was neither legal or smart.  It was arbitrary and poorly thought out (if it was thought out at all – seems more like it was a capricious act grounded in an inflated belief in the power Mayor Bloomberg thought he had).  And according to a NY state judge, it wasn’t legal either.

Of course Gostin tries a transparently obvious bit of nonsense by blaming the failure on “Big Food” and a compliant judge buying into their arguments.  It is the usual fall back position for someone who has nothing.  And his trump card is to compare the food industry to, you guessed it, the tobacco industry.  “Big” anything to do with business or industry is a liberal boogyman invoked when arguments are weak.  And Gostin’s is about as weak as they come.  His attempt to fob this off on the “usual suspects” is, frankly, laughable.

I note this particular “defense” by Gostin simply to point out that there are people out there, people others consider to be rational and intelligent (and, apparently, who can get things published on CNN) that can rationalize curbing you freedoms and liberties through the use of force (law and enforcement) because they actually believe they know what is best for you and have the right to act on that on your behalf.

What we need to do, quickly, is find a way to dissuade the nannies of the world from that belief.  They need to understand that freedom means they’re free to act on what they believe in circumstances like this but they’re not free to decide that others must do it too, because they’ve decided that’s the “smart” thing to do.  Freedom means the right to fail, get fat, do stupid things (that don’t violate the rights of others), etc.  We’re issued one mother in our lives.  And it’s not the state.

~McQ

State court says no to Bloomberg’s large soda ban

As it should:

A state judge on Monday stopped Mayor Michael Bloomberg‘s administration frombanning the sale of large sugary drinks at New York City restaurants and other venues, a major defeat for a mayor who has made public-health initiatives a cornerstone of his tenure.

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” wrote New York Supreme Court Judge Milton Tingling, blocking the rules one day before they would have taken effect. The city’s chief counsel, Michael Cardozo, pledged to “appeal the ruling as soon as possible.”

In halting the drink rules, Judge Tingling noted that the incoming sugary drink regime was “fraught with arbitrary and capricious consequences” that would be difficult to enforce with consistency “even within a particular city block, much less the city as a whole.”

“The loopholes in this rule effectively defeat the stated purpose of the rule,” the judge wrote. (Read the full text of the ruling.)

Under a first-of-its-kind prohibition approved by the city Board of Health last year, establishments from restaurants to mobile food carts would have been prohibited from selling sugary drinks larger than 16 oz. After a three-month grace period, the city would have started fining violators $200 per sale.

So the nanny gets told “no”.

Does anyone really believe this will stop him?

~McQ

The law? Something for thee, not me

Or so says the executive branch in many, many cases.

In this particular case, the National Labor Relations Board, NLRB, has simply decided to ignore a ruling of a US Court of Appeals:

Only a few hours after the U.S. Court of Appeals for the District of Columbia Circuit issued a decision that the National Labor Relations Board does not have a legal quorum to act, the board’s chairman, Mark Pearce, issued a press release announcing the board’s intent to ignore it.

The timing and content of Pearce’s statement show a board so fixated on serving the interests of organized labor it no longer knows its place nor weighs the consequences of its actions on the public interest. Although Pearce may believe that the president has the authority to make recess appointments over a three-day break in ongoing Senate sessions — or over lunch, for that matter — it is not the place of the NLRB chairman to disagree with a circuit court on a constitutional question that goes to the heart of the political appointment process and one in which he has a partisan interest.

The answer to that is to ignore the NLRB and anything it says, does or declares.

If they can play that game, so can we.

~McQ

Dear CO and WA – good luck with those marijuana legalization laws

The imperial “federal” government knows better than you what is good for “the people”:

“This is a symbolic victory for (legalization) advocates, but it will be short-lived,” Kevin Sabet, a former adviser to the Obama administration’s drug czar, told reporters.

“They are facing an uphill battle with implementing this, in the face of … presidential opposition and in the face of federal enforcement opposition,” Sabet said.

Because everyone knows we are a country in which state’s rights exist and the people get to decide.   And we certainly know prohibition worked extraordinarly well in the 1920s.

Let freedom ring.

Forward.

~McQ

Benghazi bottom line

Two things we now know the President didn’t do.  First from CBS:

CBS News has learned that during the Sept. 11 attack on the U.S. Mission in Benghazi, the Obama Administration did not convene its top interagency counterterrorism resource: the Counterterrorism Security Group, (CSG).

“The CSG is the one group that’s supposed to know what resources every agency has. They know of multiple options and have the ability to coordinate counterterrorism assets across all the agencies,” a high-ranking government official told CBS News. “They were not allowed to do their job. They were not called upon.”

The second from a former SEAL officer who knows the protocol necessary to launch a rescue from outside Libya:

No administration wants to stumble into a war because a jet jockey in hot pursuit (or a mixed-up SEAL squad in a rubber boat) strays into hostile territory. Because of this, only the president can give the order for our military to cross a nation’s border without that nation’s permission. For the Osama bin Laden mission, President Obama granted CBA for our forces to enter Pakistani airspace.

On the other side of the CBA coin: in order to prevent a military rescue in Benghazi, all the POTUS has to do is not grant cross-border authority. If he does not, the entire rescue mission (already in progress) must stop in its tracks.

So, bottom line – He didn’t convene the CSG which would have been the lead agency to coordinate an attempted rescue from outside the country and he apparently never gave the CBA (which only he can issue) necessary to do so.

Or, in other words, he lied about doing everything necessary to save and protect the lives of those in combat in Libya.

Finally, the cover-up and attempting to deflect the blame:

Leon Panetta is falling on his sword for President Obama with his absurd-on-its-face, “the U.S. military doesn’t do risky things”-defense of his shameful no-rescue policy. Panetta is utterly destroying his reputation. General Dempsey joins Panetta on the same sword with his tacit agreement by silence. But why? How far does loyalty extend when it comes to covering up gross dereliction of duty by the president?

Great question.  Don’t expect an answer anytime soon.

~McQ

Someone’s in trouble

The Los Angeles Times was there when the LASO came to pick up the "Innocence of Muslims" filmmaker for a "voluntary interview".

arrest

As the Times put it:

Just after midnight Saturday morning, authorities descended on the Cerritos home of the man believed to be the filmmaker behind the anti-Muslim movie that has sparked protests and rioting in the Muslim world.

Sheriff’s officials could not be reached by The Times, but department spokesman Steve Whitmore told KNBC News that deputies assisting the federal probation department took Nakoula to the sheriff’s substation in Cerritos for interviewing.

Apparently, they’re concerned about a possible probation violation, because he wasn’t supposed to access the Internet. But now his horrible movie is on YouTube, so he may in trouble. Hence, brown-shirted men showed up at midnight to "escort" him to a "voluntary interview".

There’s no free speech issue at all to be concerned with here. Move along citizen.

Instapundit has a round-up of reaction.

~
Dale Franks
Google+ Profile
Twitter Feed

There is no voter fraud, except when there is voter fraud

Like in the MN Senate race that put Al Franken in office and provided Senate Democrats with their 60th vote.

Byron York provides the short version of the story and what was found subsequently:

In the ’08 campaign, Republican Sen. Norm Coleman was running for re-election against Democrat Al Franken. It was impossibly close; on the morning after the election, after 2.9 million people had voted, Coleman led Franken by 725 votes.

Franken and his Democratic allies dispatched an army of lawyers to challenge the results. After the first canvass, Coleman’s lead was down to 206 votes. That was followed by months of wrangling and litigation. In the end, Franken was declared the winner by 312 votes. He was sworn into office in July 2009, eight months after the election.

During the controversy a conservative group called Minnesota Majority began to look into claims of voter fraud. Comparing criminal records with voting rolls, the group identified 1,099 felons — all ineligible to vote — who had voted in the Franken-Coleman race.

And what has happened since?

And so far, Fund and von Spakovsky report, 177 people have been convicted — not just accused, but convicted — of voting fraudulently in the Senate race. Another 66 are awaiting trial. "The numbers aren’t greater," the authors say, "because the standard for convicting someone of voter fraud in Minnesota is that they must have been both ineligible, and ‘knowingly’ voted unlawfully." The accused can get off by claiming not to have known they did anything wrong.

Still, that’s a total of 243 people either convicted of voter fraud or awaiting trial in an election that was decided by 312 votes.

And, of course, the probability is these felons absolutely knew they were breaking the law and fraudulently voted anyway.

Obviously making a connection between them and Democrats is likely impossible, but it does point to something that the left consistently denies – the existence of voter fraud.

It exists.  Denying it exists, as the left does, only damages their credibility. 

Many times it is the system itself which enables fraud to be carried out.  Incompetence and inefficiency within government agencies charged with supervising voting are as much the problem as the frauds.  For instance:

The Houston-based True the Vote said it has identified 160 counties across 19 states with more registered voters on their rolls than eligible live voters. This chart highlights the 19 states and how they voted in the 2008 election.

Keeping the voter roles current and ensuring all registered voters are eligible would seem to be a primary mission of any state’s voter bureaucracy, wouldn’t it?

Yet what did we recently see – the Obama DoJ go after the state of Florida for doing its job and purging it’s voter roles of the dead and ineligible.  You’d think that they’d encourage such an action because it helps guarantee the integrity of the voting system.

But instead, it tried to stop it.

There is all sorts of fraud.  That like York points out.  That like this case in Miami:

It’s a shady world, as the case of 56-year-old Deisy Cabrera in Hialeah shows.

Cabrera was charged Wednesday with a state felony for allegedly forging an elderly woman’s signature on an absentee ballot, and with two counts of violating a Miami-Dade County ordinance banning the possession of more than two filled-out absentee ballots.

Much of the fraud takes place within the early voting venues.  As the above case illustrates, preying on nursing home residents is only one of many ways fraudulent ballots are cast.

However the Democrats contend that voter ID laws are a means of stopping a problem that doesn’t exist.  They claim there is very little if any fraud to be found in same day voting.  Of course that’s hard to substantiate when voter roles are larger than the pool of eligible voters in many areas and no on is asked to prove who they are. 

The other complaint is that voter ID laws “disenfranchise” minorities and the poor.  Yet Georgia’s experience directly contradicts that claim with minority and overall voter turnout increasing in the elections following the implementation of a voter ID law.

Bottom line: the integrity of the voting system is paramount to instilling confidence in the citizenry that their voices are being truly heard.   If ever there seemed to an issue that should be truly bi-partisan, this would be it.  Yet there are very clear battle-lines drawn with one side claiming fraud doesn’t exist (and they’re factually incorrect about that) and the other saying it does and something should be done about it.

Guess which side I come down on?

~McQ

Twitter: @McQandO

Obama campaign moves to restrict military voting in Ohio

Breitbart’s Mike Flynn reports:

President Barack Obama, along with many Democrats, likes to say that, while they may disagree with the GOP on many issues related to national security, they absolutely share their admiration and dedication to members of our armed forces. Obama, in particular, enjoys being seen visiting troops and having photos taken with members of our military. So, why is his campaign and the Democrat party suing to restrict their ability to vote in the upcoming election?

On July 17th, the Obama for America Campaign, the Democratic National Committee, and the Ohio Democratic Party filed suit in OH to strike down part of that state’s law governing voting by members of the military. Their suit said that part of the law is "arbitrary" with "no discernible rational basis."

Currently, Ohio allows the public to vote early in-person up until the Friday before the election. Members of the military are given three extra days to do so. While the Democrats may see this as "arbitrary" and having "no discernible rational basis," I think it is entirely reasonable given the demands on servicemen and women’s time and their obligations to their sworn duty.

Flynn cites the National Defense Committee which reports:

[f]or each of the last three years, the Department of Defense’s Federal Voting Assistance Program has reported to the President and the Congress that the number one reason for military voter disenfranchisement is inadequate time to successfully vote.

So here is a law actually trying to provide a little extra time to address the problem cited (btw, the members of the military would most likely have to show their military picture ID to be granted the opportunity to vote during that “extra time”).  Why the resistance from the Obama campaign and Democrats?   Why the intent to disenfranchise military voters?

If the polls are to be believed concerning how the military is likely to vote, it wouldn’t favor Obama or the Democrats.  And, of course, Ohio is a swing state.  So they want no extra time allowed for the military to vote (and don’t expect the DoJ to jump in here and take the side of the military either).

Mystery solved.

But hey, the military is still useful as props during photo ops and when they help burnish the C-i-C’s rep by killing bad guys like Osama.  Voting?  Yeah, not so much.

~McQ

Twitter: @McQandO