Interpreting and Following the Law

Posted on June 28, 2016 by tesumner

Words Mean Something

Legislators write laws. Usually they write laws after something bad happens, not before. Since ex post facto laws cannot be used to punish crimes that weren’t originally crimes, they have a preventive effect on future activities, not on what already occurred. But words have meanings at the time they’re written.

Language evolves and “must needs” isn’t part of English any more (at least in modern English), and slang is often adopted into everyday usage, like “gay” changing from “happy” to “homosexual” or some words that have taken on connotations, both positive and negative. The “Good Samaritan” was actually a sarcastic epithet, but it has evolved to just “samaritan” and connotes good behavior. “Aggression” actually meant physical force in practice, but a newer terminology of “micro-aggression” has emerged to show feelings too subtle to register as anything other than speech that someone might be offended by.

So, what exactly did legislators mean when they said “examine” or “privacy” or “secure” in their legal writings?

Only Congress Legislates

Our Constitution grants the House of Representatives and the Senate the sole power to write laws. Of course, the President is charged with implementing the laws and enforcing them, and the Supreme Court may ultimately be responsible for determining if the law was followed or not. But neither the function of Executing the law or Adjudicating the law involve “interpreting” or “extending the law via regulatory power” as you know.

NOTE: Only the House may originate spending bills, but the Senate may offer amendments (only germane ones we have learned).

These functions of “interpretation” and “extension” are truly not what was envisioned by our Founding Fathers. The Law is the law, not subject to interpretation. Regulations are not the law, but they were originally believed to fill in the blanks, gaps and details missing from the laws, as written. Now, regulators have the judicial power of “administrative law” as judges of whether the regulations are being followed. And judges can change the scope of law to make it consistent with what they believe is right, regardless of how it’s written.

These non-existent powers to interpret and extend are simply wrong.

Overlooked Provisions and Unintended Consequences

None of us is perfect. When writing a law, some things may slip by that are slightly off, or some consequences of laws may be unpalatable to particular people, especially those in the judicial system, but the cure is not to allow Executive power to usurp the Legislative function, nor to allow Judicial power to usurp Legislative function either.

The “Living” Constitution

Judges may find that a law was not violated because the law itself violates some other law or a constitutional provision, but they cannot change the law. If plants can’t be brought into a geographic area without first having been vetted by agricultural inspectors for diseases, a judge can’t say that the law applies only citizens or only to foreigners or only to certain situations when it is convenient for compliance. Judges can, however, say that a violation by a person in a particular case did not occur because the Constitution does not include a power to submit objects for inspection, hypothetically.

The Constitution, like the law itself, isn’t “flexible”; it isn’t alive. It doesn’t change with each new generation of political thinking, even if some new words come into vogue or others leave the vernacular. Does “No Parking” change in meaning because cars are smaller? Does a firearm change its lethality because we invent a new word to it label with?

Executive Power

Presidents and executive administration officials under him may not like that every single person entering the US must show valid identification papers or else be sequestered until a determination of identity can be made, but it is the law. I may not like being the one detained at the border crossing, but to ignore the law for expediency or to interpret the law according to an arbitrary set of rules that is not passed by the legislators is simply wrong.

NPRM (notice of proposed rule-making) is a prime example of how Congress is bypassed in its legislative role. Regulators call in industry and interested parties to determine what rules the agency will implement – no, Congress is not consulted. After the rules are published, they have the effect of law, but Congress never ratified them, and may not have even been aware of the process, at least until published in the Federal Register.

Executive Orders and Regulations

If only Congress can write the laws, how do we get regulations done? Not by Executive Orders and not by Administration-written Regulations. If the administration wants a particular wording for rules empowered by public law, then the administration must submit its proposed writings to Congress for approval. The Legislative branch needs to be in charge of the writings that make up our law. They must approve every teensy-weensy bit of writing that is law.

The Executive is restricted to Enforcing the Law as written by Congress, not as the President feels it should be.

If only Congress knows what they meant in writing a law, how do we get judicial decisions that conform to the law? Not by interpreting the written word of law according to a judge’s set of prejudices and beliefs. When a judge misinterprets the law, Congress needs to be able to correct that misdeed.

The Judiciary is restricted to deciding if a law was violated or not. It cannot un-write laws or re-write them to suit its political agenda.

Amendment 36

Amendment 36: Bill of Disapprobation by Congress

In Congress’ Oversight Authority we discussed the need for oversight by Congress, our legislative branch, and Amendment XXXII was proposed to codify that role to limit the Executive from legislating. But if the President takes action via an Executive Order, we need a mechanism by which that Order can be disapproved, either by Congress. The several States need also to be empowered to exercise similar power over the Federal Executive, when a super-majority of States pass similar Bills of Disapprobation.

Amendment 39: States’ Bills of Disapprobation

In neither case using Amendment 36 or 39 does the President sign or approve in any way the disapproval of what he has already done. Obviously, he would never approve of disapproval of his works. Note that the Senate alone may disapprove “deals” or what normally would be called a Treaty for Constitutional purposes.

In both Amendments the President by not complying with Disapprobation is conducting himself in Misdemeanor (as mentioned in the Constitution, grounds for Impeachment).

Amendment 35

The Amendments above might address and out-of-control Executive, but how can we rein in an out-of-control Judiciary? Similar to the Bill of Disapprobation, we can have a Constitutional clause by amendment to disapprove what the Court has ruled. We could also do that in advance if we’re worried they’ll misinterpret either a law or the Constitution itself.

Amendment 35: Congress’ Bill of Verity to correct Judiciary

A Bill of Verity is similar to amicus curiae only stronger in that it carries the Constitutional weight of directing and correcting the Judicial branch.

As with the Bill of Disapprobation, if the Judiciary ignores the Bill of Verity, they’re conducting themselves in Misdemeanor. Impeachment applies to Federal officials charged with High Crimes and Misdemeanors.

States also need the power to correct the Judicial branch in case they have overstepped their bounds. Amendment 38 provides a Constitutional mechanism for a super-majority of States to correct the Court on judicial matters, in effect to rein them in when necessary.

Amendment 38: States’ Bills of Verity

With the power of Congress to rein in the Executive or the Judiciary plus the power of States to do the same via Bills of Disapprobation and Bills of Verity, we can expect the Federal officials to behave themselves with respect to legislating from the bench or in the oval office.

The last piece of the puzzle is to rein in the power of Congress itself when the States have observed that Congress needs to be corrected or constrained. Term Limits may provide some fear factor, but we also need to power to recall and the power to disapprove Congressional actions from The People or the States.

Beliefs, Creeds, and Religion

Image

…on the basis or race, color, creed or national origin…

What is the difference among these “prohibited” bases and religion for discrimination?

Race, Color (skin color) and National origin are rather obvious in their meaning, but what about Creed and Religion?

“Beliefs” are hypotheses that are:

provably true,
possibly true or
not provable (or provably false),

but they are things that an individual holds to be true. These beliefs may coincide with the beliefs of others, or they may be completely at odds with others’, or they may be matters that others hold no opinion in conflict and so feel neutral about or ignore.

Some beliefs:

The Moon is Made of Cheese
Guns cause Murder
Women are Inferior
Large Soda Drinks cause Obesity
Men are Insensitive
Everything was Created in 7 Days
Embryos and Fetuses are just Meat
Carbon Emissions will Melt the Polar Icecaps
Killing non-Believers is Acceptable

Obviously, beliefs are part of any religion. But believing in something doesn’t make a person religious.

Creed

A group may subscribe to a set of beliefs without believing in the creation by or control of a superior being, such as a god. This set of beliefs is often described as the “creed” of the group.

A religion has a creed but also some beliefs concerning the creation of the universe or its control. Religions all have creeds plus a belief in God or gods.

Obviously, creeds are also part of any religion. They are, however, separate and distinct from beliefs about a supreme being or beings and beliefs in an afterlife.

While a creed can be a part of a religion, it is not necessarily the whole of it.

Should our laws prohibit religions?

Beliefs that do not revolve around a deity and require no action that conflicts with law are not a valid area to enact prohibitive legislation. The principle of tolerance is a good basis for all religions to be treated equally so long as the portion of the religion’s creed not dealing with actionable beliefs is benign, and the portion requiring or advocating actions would violate no law.

For example, if a creed or religion demanded that all children upon reaching age 9 be sexually assaulted by a neighbor, we would be justified in prohibiting the practice of that belief, since it so contravenes our sense of the moral and lawful way to bring up children. By extension we can categorically state that any belief that violates the law should be proscribed and followers of the creed must swear to abrogate that portion of their creed or religion.

Oath to Place Law above Creed

President Franklin Roosevelt issued Executive Order 8802, reaffirming that as a matter of democratic principle that no one should be denied participation in the War Department. From 1947 through 1949, Congress adopted a series of laws renaming and reorganizing the American national military establishment to a more politically correct set of nomenclature, including renaming the War Department as the Department of Defense.

This concept of non-denial on the basis of Race, Color, Creed, or National Origin has stuck in the vernacular of political correctness. Some states, like Wisconsin, have expanded the list of protected classes to include “race, color, national origin, ancestry, creed, age, sex, disability, arrest or conviction record, marital status, sexual orientation, military status and use or non-use of lawful products away from work” in the name of egalitarianism.

On the face of it this state’s prohibition against considering any aspect of a person that might reasonably be used to indicate whether a potential employee could present a later threat, based on this lengthy list, might be short-sighted. “Creed” (belief) that violating our laws is justified might be something we should check for, especially in employment and even admission into the United States.

One could also argue that an arrest record or conviction record might reasonably indicate a more than a fleeting possibility of repeating past transgressions. But egalitarianism, the belief that none of us is any better than anyone else, and we’re all completely interchangeable, is a prime example of Belief Perseverance, a common affliction of Socialists. Belief Perseverance occurs in the face of irrefutable evidence to the contrary and often precedes vociferous emotionally charged accusations of bias.

Countering Unwelcome Beliefs

Joining any group from a volunteer group to a much larger society of a nation should involve more critical examination of beliefs than the cognitive bias demonstrated in FDR’s executive order 8802. We pledge allegiance to the flag and swear to protect and defend the Constitution, but no one wants to inquire into the creed of foreigners applying to live among us, because to do so would deny the value of multi-culturalism and abridge the rights of Americans to practice their creed, no matter how diametrically opposed to the principles in the Declaration, and specifically to current law.

We should and do welcome anyone who adopts the American way of life. Work Hard, Be Honest, Succeed – all solely on your own efforts. It may be tempting to believe that no one is any different from anyone else, that “you didn’t build that” or all cultures are the same, but reality belies these beliefs. The Socialist credo stands discredited and should be discarded.

If a foreigner wants to immigrate to live and work here, then he must want to adopt our culture, abandoning any creed that violates our laws or would reasonably engender an environment that destroys our culture of hard working, law-abiding, successful America.

There is nothing at all incompatible with American principles to ask and to verify of applicants for admission if they hold beliefs (whether they’re from a holy book they subscribe to or from the mouth of an ideologue) that are in opposition to American principles. Some creeds believe it is acceptable to deceive other creeds about their true beliefs. (So interviewers should belong to the same creed.)

If their creed advocates violence against others creeds, they don’t belong here. If their creed celebrates the subjugation of a class of people, then they don’t belong here. There can be no egalitarian society when one gender must follow behind the other, or when one religious group has to pay another group some special tax, or when martyrdom is more important than anything else, especially when it occurs in the act of murdering innocent people.

We Don’t Need a Religious Test – We Need a “Creed” Test

Immigration is not a Federal Power

Posted on June 14, 2015 by tesumner

[see the first companion article on State power over Immigration and the third companion article on States’ Actions on Immigration]

Supreme Court Basis

In 1875 an key case in immigration law was reviewed by the Supreme Court. Chy Lung v Freeman essentially established Federal supremacy over immigration issues. The Court’s reasoning was that a state could not supersede Federal power in regard to relations with other countries. Article I Section 8 enumerates powers of Congress, including

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” and

“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;”

The President is empowered in Article II Section 2

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;”

States are also prohibited in Article I Section 10

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin” and

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws:” and

“No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

However, in addition to these Constitutional provisions about Treaties, Alliances and to regulate Commerce that the Federal government does control with some exceptions, the Constitution leaves States with other powers, like the inspection of goods and persons entering into their states. The purpose of these inspections is two-fold:

Taxation, including inspection fees, the remainder for Federal coffers, and
Safety of things and people being imported so that they might be excluded (sent back)

The Supreme Court has reiterated the authority of states to protect its citizenry from unsafe people and things in Chy Lung v Freeman, and to prevent undue burden on the local communities and the state of those persons who might become a public charge:

“If a state law, in the absence of congressional legislation, is enacted to protect itself by necessary and proper laws against foreign criminals, it may be constitutional as long as it arises from a vital necessity.

… and in Henderson v Mayor of City of New York the Court did not rule, instead

“Whether, in the absence of such action, the States can, or how far they can, by appropriate legislation, protect themselves against actual paupers, vagrants, criminals, and diseased persons, arriving in their territory from foreign countries, we do not decide”

… but in Smith v Turner the Court clearly laid out for public health reasons

“9. That the States of this Union may, in the exercise of their police powers, pass quarantine and health laws, interdicting vessels coming from foreign ports, or ports within the United States, from landing passengers and goods, prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting commerce in its transit, are not regulations of commerce prescribing terms upon which merchandise and persons shall be admitted into the ports of the United States, but precautionary regulations to prevent vessels engaged in commerce from introducing disease into the ports to which they are bound, and that the States may, in the exercise of such police power, without [48 U.S. 283, 415] any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay to the State the cost of their detention and of the purification of the vessel, cargo, and apparel of the persons on board.” and in addition on paupers, vagabonds etc.

“examine whether any of them are lunatics, idiots, maimed, aged, or infirm, incompetent to maintain themselves, or have been paupers in any other country, and not permit such persons to be put on shore, unless security shall be given that they shall not become a city, town, or State charge. This is the exercise of an unquestionable power in the State to protect itself from foreign paupers and other persons who would be a public charge; “

The Supreme Court has reiterated “in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad“

Discussion

As previously described in another [article], the Congress is limited by Article I Section 9 when it comes to making Federal laws that override States’ ability to decide whom to admit (and limits their involvement to imposing a tax on bringing in such Persons):

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

While the intention of this clause in the Constitution was obviously directed at slaves, temporarily or more permanently brought into the US, for 20 years after the signing, it did introduce the precedent that the several States have a right to determine who would be proper to admit to their state. State laws, then, establish who would be properly admitted.

It can easily be seen that this restriction on Congress does not apply to apply to States admitted to the Union at the time of the signing. But does this mean that those new States could never be overridden by Congress or just that they could be prohibited before 1808 from importing slaves or others? The contentious question of slavery, even at the time of the signing, was not resolved, and would not be resolved for several more decades.

Indentured servitude, including to the state by convicts, was a recognized status for persons, but the egregious practice of treating the offspring of slaves as slaves and turning free men in other countries into slaves in the US, not by choice (indentured servitude) eventually led to the Presidential edict that slavery was over without compensation. Of course, this ignited the Civil War. If only Congress could have banned involuntary slavery from the inception of America.

All this discussion of States’ rights versus Federal powers in light of Supreme Court opinions leads us to conclude that while taxation of foreigners entering the US is strictly within the purview of Congress and that foreign dignitaries defined by Congress would be exempt from vetting or that treaties could override state laws for certain foreign persons meeting specific conditions, states do have the otherwise unrestricted right to inspect people to protect themselves from the unhealthy, criminals, and paupers or those who might become a public charge.

States may also claim compensation (charge those arriving) for these inspections, except of course for those persons exempted Constitutionally, although any excess “profit” must go to Treasury. If the State performs these inspections as an agent of and under authority of the Federal government, it is clear that the Federal government must compensate States for any functions the State performs on its behalf, if authorized.

Becoming a public charge is related to the economy and the job market as well as the capabilities and skills of the person under consideration. So, these employment factors must be considered in the location the person expresses his desire to be located. If the applying person immigrating or visiting is to be employed in an area where unemployment is high or the expressed skills of the person do match enough to make employment likely, the person may become a public charge.

A similar consideration should also be given to the health threat factor. It is not only about the current condition of the person but also the healthcare facilities in the geographic area the person expresses a desire to relocate into. A family or potential employer can commit to warranting that the person (or his charges and wards) will not become a public charge.

Lastly, in similar fashion housing and education, especially of the person’s charges or wards, should be considered in light of whether the person or his charges would become a burden on the public. While a family can commit or warrant they will give housing or needed education to the person and his wards, an employer can, too. This would deal with concerns about the person or his wards becoming a public charge.

Conclusions

This Court-recognized power to inspect arriving visitors and immigrants leads us to the conclusion that States have the power to reject and eject those found unsuitable, although those rejected may cure the reason for rejection by, for example, posting bond or having others post bond for them or commit to support the person and his wards otherwise.

Counting heads, determining ethnicity or race, allocating available places to nations or other interfering in claimed Federal powers is not necessary or proper for States, but the above-mentioned conditions that might lead to an admitted person becoming a public threat or public charge are legitimate State powers and supported by case law.

Note that sole Federal power over “an uniform rule of Naturalization” means that States still grant Citizenship (which in turn makes them US Citizens), but only according to the rules Federal law authorize which must be uniform, as described in the related [article].

On the other hand, Federal power cannot override these legitimate areas of State power, simply by claiming that sole power to regulate international relations lies with Federal authorities. Actually, in case of those exemptions that Federal authorities legitimately lay claim to: consuls, diplomats, etc., that sole power brings the sole responsibility for them not becoming a public threat or public charge.

If a diplomat should become criminal, Federal authorities must protect the public, not State authorities, for example, even though it may entail 24-hour surveillance on their part. This is not an optional obligation, although the Federal authorities may delegate such power with just compensation to the States. The same is true for health threats from exempted (diplomatic) foreigners, as well as housing and other areas of intercourse of those exempted classes with the State.

A gray area will remain in employment for family members or others accompanying a diplomat. If Federal authorities claim exemption for that party, State authorities cannot regulate them in employment, but Federal authorities must not interfere in proper effective operation of local laws. In effect, Federal agents become enforcers of State and local laws and regulations over their exempted individuals.

Immigration is a State Power

Posted on May 19, 2015 by tesumner

[see the companion article on Federal power over Naturalization & Immigration]

Processing Time vs Waiting Time

I don’t think it should take more than 90 days to decide if a state is going to accept an immigrant-applicant. Why does it take years?

If an applicant to visit or immigrate has a clean background (which doesn’t take years to verify) and has a guarantee of support (aka Affidavit of Support) from a relative or perhaps a business, the applicant’s application should be granted immediately.

The Federal Government inserted itself in Immigration

Yes, the Feds have imposed limitations on how many people from each country can come in to work and live here and (if it were their responsibility) they should verify the identity of the applicant and confirm that someone will keep them from being a burden on the local economy where they’re going to live.

So, not all of the 7 years now required to approve an immigrant visa is from processing. Instead, the queues for some countries are actually that long. If only 4,000 immigrants from some obscure place are allowed each year to enter the US per Federal law and 100,000 are on a waiting list, we can pretty well know it will take around 20 years for a visa to be approved.

This delay is despite the fact that a family may be able and willing to support a brother, a mother, a sister, a father or a cousin with housing, money, and social support.

[see also the companion article on Federal power over Naturalization and Immigration]

The Local Community has an Impact

So, the state where the person is planning on immigrating to should also look at housing to see if sufficient housing is available in the local market, to see if employment is feasible in the local market, and to see what government services would suffer adverse impact by the immigrant’s arrival in his desired target community, such as education.

But other factors also play a role like availability of healthcare and commercial businesses to provide goods and services and infrastructure for communication and transportation. It is the government’s job to provide this information to prospective applicants, but it is not the government’s job to solve any problems, unless the government accepts the applying immigrant.

The State writes the laws, publishes the regulations and administers these for the benefit of its citizens. It is solely responsible for advising communities if an applicant has a driving record, a drinking record, an employment record and so on that might bear on his integration into the community.

On the other hand the local employer knows if he has positions open and what skill sets he needs, the schools know if they’re at capacity or could handle 2 more elementary or secondary students, and so on. So, the locals have the responsibility to advertise when local conditions are conducive to immigration or not. This information belongs in the hands of the applicant, too.

Federal Bureaucrats vs State & Local Bureaucrats

Of course, so many people believe that the Constitution grants Congress the power over Immigration – it doesn’t. The Constitution lists an enumerated power to make all State naturalization laws uniform.

This shows where Congress has that power but you won’t be able to find in the Constitution the word “Immigration” or “Immigrant” or any other variation of those or other terms for those who want to come to America to live, anywhere. That’s because Immigration has always been a State power.

Back in 1789 Washington didn’t have Border Patrol agents located all along the newly independent colonies to administer an Immigration code. States were expected to decide whom they would allow in, whether they were criminals, whether they would be a burden on the local society, and so on.

States Grant Citizenship under Uniform Federal Rules

So, while the Feds could force all States to have uniform rules for turning an immigrant into a citizen, they didn’t ever have the power to grant admission to the US.

Even the oft-cited 14th Amendment makes it clear US Citizenship is a consequence of State Citizenship.

” All persons born or naturalized in the [several] United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. “

Being a citizen of Arizona makes a person a citizen of the United States, no matter where they move to, for example. But note that being a resident does not make one a citizen. And “just visiting” isn’t being resident, either.

So, how long must a visitor be present to be considered “resident” and how long must he be resident to become a “citizen”? States decide the former and the Feds can write a law for the latter.

Road Trip through Alabama

For example, if someone drives through Alabama on their way to Florida, they’re just visiting Alabama (and maybe Florida, too). Visitors are accorded equal protection under the law, the local law, but they obviously can’t vote. Visitors may also have less access to things, like borrowing books from the library.

If these visitors want to work, can the state restrict their employment? Legally, yes, but usually states don’t interfere in right to work states, if someone shows up from out of town and wants to wield a broom, so be it. What if the visitor is not a US citizen but someone from another country? Are they afforded the equal opportunity of employment of citizens? A Federal Attorney General has claimed they do. But that’s absurd.

At some point a US citizen residing in Alabama will become resident, and in the process gain the right vote, perhaps gain borrowing rights at the library and so on, but normally he must claim that bundle of rights by turning into an Alabama citizen. He surrenders his other worldly license to drive, say, Montana, and gets a shiny new AL driver license.

He may also get a voter ID card or other government identity card, like concealed carry permit. There is a peripheral issue here that one state may grant a concealed carry permit, while the adjoining state won’t recognize it, despite Constitutional assurance that legal actions in one state will be honored by other states. Guns in particular are a sticky matter since they may fall under the purview of the 2nd Amendment, where the right to bear arms shall not be infringed.

Concealed Carry is a State Law

Some 45 states (maybe more now) provide for open carry of firearms by citizens, but concealed carry is usually more restricted. This may cause some problems carrying a weapon across state lines, especially if concealed.

Immigration vs Naturalization

This means States decide on Immigration issues and can later naturalize that resident according to uniform rules prescribed by Federal law.
Who, then, protects borders from unfettered immigration?

Can the Feds take a busload of border-crossers from El Paso, Texas, to San Diego, California, in the process crossing New Mexico and Arizona without getting permission from the 4 states involved to bring those “children” in?

NO.

This is a gross over-stepping of Federal power.

State Immigration Crossing Centers

States have the right and power to set up Immigration gateways anywhere they like inside their state to enforce state immigration laws, including inside the US Border Station to stop ICE buses carrying illegal immigrants and force them to alight and return to the border.

At International airports if a passenger arrives who is not welcome because his visa is invalid, expired or perhaps non-existent, the common carrier who brought the passenger to the terminal is financially responsible for returning the passenger to the point of origin. This is why gate agents may ask a passenger to show not only their passport but also the visa for entering the country where they’re headed.

For walkers deportation involves passing them from the state transit area back to the border crossing they walked across.

State Processing of Deported Individuals

Similar to current Federal processing border-crossers one flow will spin off rejected individuals into a transit area sequestered from free exit. It is possible while in transit for a border-crosser to communicate with the outside world and rehabilitate his situation, but more than likely those rejected will be deported.

Assured Identity through Biometric Data Storage

However, it is critical that each and every person crossing have biometric identification data gathered. Whether the crosser is admitted or deported, that data will be stored. If the crossing person is advised not to cross until some condition has been met and then attempts crossing again, the biometric data will provide proof of prior warning not to attempt crossing.

Biometric data can also be stored not only in the network for immigration enforcement but also on a secure card issued to visitors and immigrants. Whether such cards are issued upon first entry to the US or prior to departure by US State Department personnel on behalf of a state granting a visa to visit or immigrate, a high-security counterfeit-resistant technology should be used.

As most 8th graders know the 10th Amendment last of the Bill of Rights reserves all powers not specifically granted to Congress and the Federal government to the States individually and if they exercise no authority the power is retained by the people.

This catch-all retention of states’ power embedded in the 10th Amendment is crucial to understanding the limitations of our Federal government.

Of all people an Attorney-General should clearly grasp the meaning of the words written into our Constitution.

Government Should Be More Business-like

Posted on February 26, 2015 by tesumner

You Don’t Need an MBA

So many people are afraid to try to figure out their own spending habits and make a budget. Young people don’t want to be restricted and never had the practice handling money to understand what “budget” actually means.

Before turning to government budgeting, let’s look at family budgeting. Whether you’re a single person living in an apartment or a multi-generational family living in a huge house, in order to avoid problems like calls from collection agencies or being evicted for non-payment you have to plan your monthly and annual spending so that at least you don’t run out and maybe you actually save some money.

Income vs. Outgo

Usually people try to figure it out the hard way – run out of cash or max out their credit cards, and then plan what they should have done instead. Maybe they can dig out at that point, maybe not.

Look at your paystubs. You earn so much every pay period, but there are deductions before you even see the paycheck. Mostly they’re taxes, but also things you have some control over, like insurance and retirement contributions. You might also have some other income from a stock account your parents gave you or you created yourself.

Look at your bills. Food, housing, car, auto insurance, entertainment, cellphone, electricity – the list is long. Most of the bills are monthly but some are daily or annually, and some are one-off, like buying a stereo for your living room.

You know that over the course of a year that total paychecks must not exceed total bills, plus you’d like to save a little for your retirement fund, or an emergency fund. When you’re first starting out in life, that can be really hard to do, even to balance the paychecks with the expenses. The tiniest emergency expense can deplete your meager savings and send you into a cycle of paying late on every single bill.

You have to have a balanced budget for your family finances

Unless you can literally tighten your belt by not eating as much, it may take a while to recover. If by some magic you have a credit account, you can load it up and then suffer just a little belt-tightening each month to pay back the borrowing.

Expenses, Assets, etc.

It may make sense to borrow money to buy a car. The car is a long-term asset and so an installment payment plan can also make sense. If the car will last 5 years, a loan for 5 years seems acceptable, but a 10-year loan would not be sensible. Why be paying for some asset that is no longer useful? Pay it off over its life or earlier, if possible.

What is really irrational is borrowing money to pay for daily expenses. Getting a car loan may be rational, but paying for last week’s groceries over 18 months is not. You should reduce your food expense to match your funds available for food, or else you will build up a sizable debt just for eating every day.

Your available funds for spending will shrink as you take on more loans to be repaid. This is the real meaning of budgeting. Yes, you can borrow, but eventually you have to pay it back, and you should only borrow to purchase assets that have a useful life – not something perishable or quickly consumed.

Businesses are like Families

Income-Expense Cash Flow to Net Worth

Businesses (because they’re run by people who budget their own family finances) learn early on in their existence to bring in more money than they spend – the leftover is “margin” not mad money. Margin must be dedicated to retained earnings, rolled over and set aside to pay for growth, improvements in equipment and paying stockholders and, yes, taxes on business income (note other taxes are expenses before margin).

When a business plans their budget, they must include their expenses of production or for services on a daily or unit basis, plus include the monthly lease, annual business insurance and the like. This is just like what families do. They have accumulate money to pay annual or quarterly bills in addition to paying the invoices that come on a monthly basis.

Master of Business Administration (MBA)

In business school MBAs learn to plan Cash Flow, one of the basic 4 accounting statements. When cash runs out, bills can’t be paid – so running out of cash is a crucial aspect of budgeting. A Cash Flow statement attempts to predict how much cash will flow in from Sales and how much will be needed to pay all the Expenses, both of these are normally done on a monthly basis looking forward 1 to 3 years.

In MBA school we learn that when cash is negative for one or more months, a loan must be taken out to cover the shortfall. If an asset is to be acquired and that “caused” the shortfall, then a bond could be sold to cover the gap. The bond has quarterly payments that cover the interest and eventually the whole face value of the bond (principal) must be paid off.

The quarterly payments are tacked onto the monthly “expenses” to re-calculate Cash Flow. Maintenance on the asset is also added to the list of expenses for Cash Flow calculation. A non-cash expense is the depreciation of the asset. The term of the bond is never longer than the useful life asset purchased.

Basic Accounting Statements

Cash Flow analysis is crucial to balancing a business budget. In addition to Cash Flow, a business has a Balance Sheet, which tracks Assets, Liabilities and resulting Net Worth. Liabilities are forward-looking obligations that must be paid. In the Cash Flow statement we must enter the monthly repayments and payments, but the total borrowing or other amounts the business owes are liabilities on the Balance Sheet, like the face amount of the bonds issued to borrow money.

Borrowing to balance income with outgo

When we subtract the Liabilities from the Assets, we know what the business is worth. This is what the Balance Sheet shows owners and shareholders. All of the Margin from Sales less Expenses is shown in the Income Statement.

The Income Statement feeds the cash into the Cash Flow statement where Depreciation increases cash and the result flows back into the Balance Sheet.

A Budget is just the planned figures that managers plug into each of these statements, starting with the Income Statement: Sales & Expenses. If Cash Flow analysis indicates a shortfall, borrowing can be done, but this increases liabilities and lowers Shareholder Equity.

Government Accounting Statements

Have anyone ever seen a Balance Sheet for the United States Government? Maybe there’s one, probably not understandable, but certainly not discussed. What does the US own, what liabilities are there to be paid off in the future, and are the income and outgo flows balanced?

When the government borrows to meet shortfalls, eventually those liabilities need to be paid off. Future Cash Flow must not leave a deficit (shortfall), else Treasury must issue bonds and sell them for cash in the international market. They become liabilities on our National Balance Sheet that future generations have to pay off.

Businesses know that temporary shortfalls can be filled with Working Capital loans. Those are paid back quickly, not over 30 years. If the government operated on a biennial budget, a working capital loan would be repaid within those 2 years.

Long-term borrowing is done by business for long-term assets. The repayment terms of borrowing for a piece of equipment is always less than the useful life of the equipment. No business borrows for 20 years to pay for a luncheon. There is no such thing as “investing” in consumables or disposables. Government needs to follow the same repayment rule for loans to acquire durable assets: pay it back within the useful life of the asset.

Accounting & Budgeting

Before a budget can be constructed for the next year, last year’s figures have to be gathered. Then the changes can be compared. Changes in spending or revenues have to added to the analysis.

We first need the basic 4 statements for government before we can analyze our current situation. The Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) do have figures but they are separate. You can find income tax figures, both estimated and actual, but not in an Income Statement form – they are disjoint to obscure how little income there is versus expenditures.

National Balance Sheet does not exist showing all the land Bureau of Land Management (BLM) manages or General Services Administration (GSA) owns are buildings, equipment, vehicles, furniture and so on. Never mind the assets the military possesses.

Biennial Budget with Borrowing for Assets

How can we manage a business as huge as the Federal Government when reports that Sarbanes-Oxley requires of all businesses aren’t even available? Worse, S-Ox requires CEOs to sign off on the veracity their financial reports, but no one swears even the Unemployment figures are accurate, much less the non-existent National Balance Sheet.

Making Big Data Understandable

No one can grasp the magnitude of the Federal government. It is, after all, $3,900,000 Million. A family household income of $50k is common – so a Million is 20 families’ households’ budgets. The Federal budget is 3.9M times 20 families’ budgets. It is nearly unfathomable.

In broad brush a normal person can understand a statement with up to about 50 or 100 items. A top-level budget would be better understood if it had items up to about $39B so that only 100 or so items appeared on it.

For management purposes those 100 entries should be further broken down in more detailed statements also consisting of around 100 items, or roughly $390M. And, in turn, those detailed breakdowns should be broken down further to chunks of $3.9M, making them less than the budget of 100 families’ household budgets.

If the most detailed breakdown had 1,000,000 line-items we would have sufficient detail to track down waste and fraud. But what about the income side?

Off-Budget vs. Budgeted Revenue

Seizures are a wonderful way to hide waste. If GSA can seize property and sell it at auction or IRS can seize assets and not have to go back to Congress to get permission to use those seized assets, how can Congress ever hope to control spending?

When TARP funds were repaid by bailed out companies, where did those funds go? Shouldn’t they have gone to reduce the deficit? They didn’t.

When the National Park Service or the Passport Agency in Immigration service collects funds, do those get deposited into the Treasury or are those funds held out as if they “belonged” to those respective departments? How can we manage a budget that doesn’t bring the revenue back to a single point, but allows independent autonomous funding or whatever self-funding the agency wants? The obvious single accounting point is the US Treasury. All funds must flow from or to Treasury – nothing hidden.

It is not necessary for all revenue to be a tax or a fee, the US Government can dispose of assets it owns or it can lease those assets out for additional revenue. A business would consider disposing of assets to fund its business plan.

Continuing Resolutions

It doesn’t make sense to plan one year and then not have a plan for 5 years. Circumstances continually change, each Congress was elected with an agenda in mind, and their budget should reflect that election. In limited situations it may take a while to resolve budget conflicts, but not the entire term of the Congress. If Congress cannot come to terms over the budget, then only a complete shutdown will apply enough pressure to reach a resolution.

At the beginning of each term of Congress, the President needs to propose a budget based on the current situation in the government and economically. If the President refuses to do his duty to propose, then it devolves to Congress to set a budget without his proposal. However, if the President continues to fail to propose a budget, then the Executive does not need to pay for his staff, who are not performing.

When sufficient time has passed and Congress must create a budget, with or without Presidential input, they also must do their duty to pass a budget law, establishing revenue and expenditure levels that the Executive must abide by. Should the Congress itself fail to perform its duty, then like for the Executive first Congressional staff should not be paid. If Congress continues to fail to resolve its differences then Senators and Representatives should lose their compensation.

The loss of compensation can simply be a delay in payment at first, then become a permanent loss of pay. Finally, once Congress has done its duty if the President fails to enact the law passed, the President himself (and his expense account) should permanently lose his compensation until a budget law is passed and signed.

If no budget law is ever passed as was the case under Senator Harry Reid, nothing should be paid out of Treasury at all, whatsoever. If a family could decide how to budget its money, they should just stop spending until they do decide. The same for government.

End Taxation on “Income”

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28th Amendment repeals 16th – Clarifies Not to Tax Incomes

For a century we have seen the unfettered rise in taxes levied on incomes. Taxes are “always” temporary and applied only to “bad things” or “bad people” or so the voters believe. This belief continues unabated even when good things and good people wind up paying the tax.

Disbelief is often suspended even when the amount of the tax, the rate of the tax, the things that are taxed all increase, and griping begins only when the time required to pay the tax after filling in the form(s) takes more than 3 minutes total.

Today 1040s and the associated schedules filed with Federal income tax reporting consumes an average of 9 work-hours to complete. Billions of work-hours are spent each year on gathering information, like 1099s, W-2s, and receipts of all types, to be used in completing the annual exercise, installing software or using web-based commercial services to compute the tax after submitting all the gathered information. We also spend an enormous amount of time trying to interpret whether a rule applies to us, what a definition means, and what additional information is needed to follow the complicated rules.

Income tax preparation software also sets us back some dough that we could use for our enjoyment. If we had a clue how to calculate the deductibility of a particular expense, we could have saved almost 20 minutes looking it up on-line or trying to read the IRS publication about it, after we searched through 4 other publications that might have the thing we’re wondering about. It dawns on all of us at some point, that the whole thing is a giant exercise in waste.

Is all this waste of time and money and effort that could be applied to something useful what Americans really want?

No, it’s not a good use of time and effort, and it’s counter-productive. Taxing incomes basically punishes success. A graduated tax rate (often called progressive) is actually worse than just punishment. Taxpayers will attempt to redefine some types of income as others or delay or advance income events to correspond to taxing periods, not economic milestones.

Federal versus State and Local Determination of Taxation

Do we really want a 1-on-1 relationship with the Federal government? Federal income tax is an attempt to bypass the states as the primary governance with individuals. The Founding Fathers envisioned the Federal government budgeting and presenting an invoice to each state, based on its population, for the the state’s share of the national budget. The state, then would decide how that bill would be paid.

The IRS circumvents this thinking by taking the money directly from individuals and businesses, regardless of whether they conduct affairs across state lines or not. Besides the enormous waste of time for individuals and expense of accounting/tax preparation software the income tax violates the principle of state’s paying its share and worse, it creates a direct link to individual citizens of each state to monitor them.

Taxes are punishment – so what do we want to punish? Success, failure, or mere existence? Maybe we want to punish consumption and reward saving or investment. After all, if someone saves for the future, there is less risk they’ll be dependent on the rest of us.

If everybody consumes less, we’ll all have a smaller carbon footprint, won’t we?

Non-Renewable, Non-Recyclable, Non-Recycled Consumption

But some consumption is of renewable items or from recycled leftovers of previous consumption. It doesn’t make sense to tax, for example, electrical energy produced from solar power. Neither does taxing food, at all, unless the food consumed can never be re-grown or renewed. Labor is also clearly renewable. Labor should never be taxed as consumption.

Plastic may be recyclable, but it took millions of years to produce the crude oil that plastic is originally manufactured from. So, the original act of producing plastic may be a good thing to tax as consumption, because the renewal period is so long. Wood, on the other hand, is renewable within a couple of decades, except of course for majestic trees like redwoods.

Tax All Consumption or Just a Some Things

But, should we punish the necessaries of life? Consumption of bottled water might be something we should cut back on, and what about red meat or cigarettes or gasoline?

Who gets to decide what should be taxed more than other things, just because they’re not the essentials? Maybe all food should be tax-free (as if obesity weren’t already a big problem). If everything we consume simply cost more, then maybe we’d prioritize spending on consumables better. Taxing consumption would certainly discourage it.

Bottled Water and Mixed Use Consumption

Taxing bottles of water might best be reined in by making the water tax-free but the bottle itself taxable with the tax determined by whether the whole container is recycled, recyclable, or brand new. So, some consumption should be tax-free and some taxable, but many activities are both at the same time.

But in line with our general principle that taxes should be used to repair damage caused by forces not accounted for in the free market, we have to ask what consumption taxes should be used for. What harm could consumption do that would not be accounted for by normal free-market forces?

By consuming a non-recycled or non-recyclable bottle did someone lose a job? Did the oil the plastic came from simply disappear – never to be recycled or re-used again? What actual harm was done by consuming oil for production of a plastic bottle? We might also ask what harm is done by depleting oil to be refined and used in transporting us around in gasoline-powered cars? Climate change acolytes could claim it will raise the temperature of the Earth. But really by consuming we’re choosing not to save for later consumption.

If using money is a choice between saving and consuming, maybe the mere act of consuming means a person is not saving. Savings allow a person to weather rainy financial times, to have something to draw on in case of unemployment, to invest in one’s own future, like education or even durable physical things, or to use when one turns old and gray or sick. So, these things are normally provided for by our setting aside savings and are legitimate possible uses for savings. We should promote, not tax, saving.

Saving for retirement clearly should never be taxed. What about gains in the savings due to appreciation or increase in value? Since no consumption was involved, NO. Taxing capital gains is ridiculous. The loss in value of an investment due to inflation is never considered, distorting the market by taxing government-induced inflation of asset values.

The Golden Rule and Retirement

You buy a bar of gold for $100 and the government debases the money supply, making the gold bar price rise to $1,000. If you convert it back into the debased money, the IRS wants to tax the “gain” in value of $900. This is just wrong.

Perhaps instead of 15.3% FICA we should have a 15.3% consumption tax allocated to Social Security-type programs. Or perhaps unemployment re-training and the like. What government uses the collected tax for is the key factor. Taking money from us just because they can is immoral and counter-productive.

Ending the taxation of incomes, no matter how defined, is extremely important. To that purpose the 28th Amendment is proposed.

Define Congress’ Power of Oversight

Posted on March 3, 2014 by tesumner

Power of Congress to Oversee Government Operations

The purpose of Congressional oversight is to verify that laws passed by Congress are being adhered to, being properly enforced, and whether any improvements to the legislation are needed. Note that this power is not specifically called out in the Constitution, although it should be.

The Supreme Court has ruled that Congress has this power, because the power to legislate includes the power to verify that legislation is actually implemented as intended by the Executive. It may be necessary to clarify the extent of this power and how it consummated.

Executive Over-reach

Complaints of Executive over-reach are really about the President or his administration twisting the intent or express provisions of law to do something other than what the law calls for. Regulations that implement a law are these days written by the Executive branch and then read into the Federal Register to publish them.

Of course, the President has the power to issue orders that clarify laws passed by Congress. Those Executive orders are not supposed to change the intention of a law, nor thwart the enforcement of law, because the President swears to uphold the laws of the United States and to defend the Constitution.

Amnesty via Executive Order

Recently, President Obama refused to enforce the Federal immigration laws by

Filing lawsuits against state and local police to prevent them from enforcing Federal statutes
Ordering border patrol officials not to detain certain persons arriving at the border without proper authorization to enter the US
Ordering the printing and distribution of forms for some of those unauthorized persons to apply for temporary authorization to stay and to work, despite existing laws prohibiting those actions
In addition, President Obama sent his Justice Department attorneys to threaten state officials with legal action if they refused to issue identification cards or driver licenses to those he “authorized” to stay without visas.

Drafting Federal Regulations for a Federal Law

Part A of 3 parts [see below]

Administration staffers and lawyers also have the task to write up instructions for Federal officials, designing and publishing any needed forms for gathering information or recording data, and written regulations for filling those forms, processing them and storing them. This regulatory authority is generally written into public laws. Some states specify the exact content of regulations as part of law, not the agency appointed to enforce the law.

Hearings Administrative and Civil

In addition to regulatory-drafting authority Federal agencies are also often authorized to conduct administrative hearings for those affected by the regulations. These hearings are intended to supplement individual judgment calls by officials to prevent misapplication of the regulations or the law in processing, basically to assure fairness and justice.

Often these administrative hearings can be appealed into the Federal civil court system (or possibly the criminal side of the courts). Generally, administrative hearings merely enforce the process as detailed in the regulations without referring to the actual written public law.

The civil court on appeal is then faced with trying to judge the intention of the law but as implemented via the regulations. The line between the words in the law and the provisions in the regulations often becomes blurred. The court can side with the more detailed regulatory process as documented, or it can try to read between the lines of actual law to determine what was intended.

The Need to Clarify Oversight into the Constitution

Part B [see Parts A, C]

Oversight is hampered when Congress doesn’t have the power to subpoena witnesses and evidence. Moreover, once subpoenaed witness need to be cooperative in order to get the testimony needed to evaluate the implementation of laws.

Congressional hearings are not criminal hearings, but a Supreme Court might hold that testimony given in a Congressional hearing could later be used in a criminal proceeding and therefore the 5th Amendment applies.

Constitutionally, an impeachment proceeding is not criminal, since the worst outcome of a successful impeachment hearing is removal from office. Of course, criminal charges might also be pursued later. But, if construction of oversight authorization limits outcome to the same as other impeachment proceedings and restricts the use of evidence gathered in Congressional oversight to at most impeachment, we may be able to compel appearance and to compel testimony under penalty of contempt of Congress.

Amendment XXXII

Part C [see Parts A, B]

Provide standing for members of Congress and States to challenge executive actions before the Supreme Court or other such inferior court as Congress may designate. While Amendment XXXII is somewhat lengthy, it does restore Constitutional checks of power against the Executive by the Legislative branch in

Granting the power to inquire into matters of conduct by the Executive with regard to the proper discharge of duties as prescribed by law or the Constitution
Granting subpoena power by any member of either House over all documents and information held by the Executive or its employees or agents and to enter upon any place over which Congress exercises legislative authority
Provide penalties for failure to appear or failure to produce, and to provide for removal from office and forfeiture of pay and pension, and disqualification to hold office as prescribed in Article I Section 3
Granting the power to review and to approve only by affirmative roll-call vote of at least 2/3 of those present in each House all actions, interpretations, orders and written regulations that implement laws passed by Congress

District of Columbia is NOT a State

Posted on February 10, 2014 by tesumner

33rd Amendment puts DC voters into Maryland for Federal voting purposes

When the District of Columbia was originally formed in 1791 as a 10-mile by 10-mile square, about half of the land was cut out of Maryland and half was cut from Virginia. The square of land was ceded by the two states and divided by the Potomac river, the original border between Virginia and Maryland.

Decades later (1846) Virginia took its portion back, which gave voting rights back to its residents. The Federal government maintained control of the remaining part of DC, but until the 23rd Amendment voting rights were somewhat in limbo.

In 1961 the 23rd Amendment gave DC voters 3 electoral college votes for Federal elections. The population is estimated at 600,000 total, making it the second smallest state (if it were one) in the US, ahead of only Wyoming in population. If DC population were part of Maryland for Federal elections, the state;s population would climb from 19th place to 17th place, gaining MD 1 Electoral College vote. Tennessee would lose 1 Representative, and Missouri would remain unchanged.

Because DC was not a state but was part of one before, it should not be allowed to garner more weight in the Electoral College than it would have had as part of its original state. Another troublesome matter is that the seat of any government tends to do things for itself that other cities or (in this case) states don’t do for themselves and can’t, like massive public works projects, unusually generous contracts, disproportionate generosity of all types.

DC should not get more than its fair share of Electoral voting power. The 23rd Amendment needs to be repealed and those voters who would be disenfranchised by the repeal need to be added to the voters in Maryland.