You are here: Home / Archives for Law

John Swallow’s Attempt to Intimidate the Utah Legislature

June 15, 2013 by 1 Comment

Sometimes, when practicing as a lawyer, the most difficult arguments to respond to are the ones that are so ridiculous that you have a hard time even fathoming what to say.

I feel like John Swallow put me in that position last night, when the guys at Utah Political Capitol released a letter from John Swallow’s attorneys to John Fellows, the general counsel of the Utah legislature, on the subject of Swallow’s potential impeachment.

The substance of the letter tracks what John Swallow has been telling any (perceived) sympathetic or wavering ears lately: that there is no legal basis upon which to impeach him because he hasn’t been charged with or convicted of a crime and any other alleged ethical lapses occurred prior to him assuming the office of Attorney General.

The arrogance of this move astounds me — not just because the argument is obviously incorrect, which it is.  I’m astounded because this is such an insult to the legislature, the courts, and the people of this state.  It’s the very definition of refusing to accept responsibility, acting as a bully, and claiming to be above the law.

I try not to engage in hyperbole.  But I’m blown away by this.  And it’s got me ticked off.

Swallow’s letter (which he clearly wanted to get in the hands of legislators prior to their meeting on impeachment this coming Monday) was apparently written in response to the following statement by Mr. Fellows:

“Because impeachment is constitutionally vested in the legislative branch, courts have generally declined to interfere in the process, including declining to second guess the legislative branch on the meaning and scope of the terms ‘high crimes, misdemeanors, or malfeasance in office.’”

John Swallow doesn’t like that language because it suggests to legislators that, due to the principle of separation of powers, courts are not likely to second-guess their impeachment decision.  That’s true, and for good reasons that I’ll talk about below.

But it’s bad news for Swallow, who wants to initimidate legislators into refusing to impeach on the fear that they’ll be censored for overstepping their authority by the Utah Supreme Court.

The Letter.

So John Swallow has asked his attorneys to respond, and in this letter they go on to assure the legislature’s general counsel that “[w]e have researched Utah law on the grounds for impeachment” and ofer to “share the results of that research in hopes that the legislature will recognize that any such proceedings under the circumstances presented here, are unwarranted.”  (PS — I don’t blame Swallow’s lawyers, who are just doing their job, for any of this.)

Here’s what Swallow’s attorneys say:

“The Constitution of Utah, Article VI, Section 19, governs the impeachment of Utah State officers, including the Attorney General: ‘[t]he Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office.” . . . Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor.  The question is, whether or not, under Utah law, there is any credible argument that Mr. Swallow has committed “malfeasance in office” and whether the facts and circumstances at this point provide a basis for impeachment proceedings.”

Swallow’s attorneys simple waive away the “high crimes and misdemeanors” language with the statement that “Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor.”

And so they don’t examine that further (more on that below).  Instead, they focus solely on what they define as “[t]he question“:  whether John Swallow has committed “malfeasance in office.”

Despite acknowledging that “there are no reported cases involving legislative impeachment in Utah” (Translation: they admit that the Utah Supreme Court has never defined the extent of the legislature’s authority to impeach because the legislature has never impeached anyone before) Swallow’s attorneys go on to cite two cases involving the impeachment of a County Auditor and a Mayor in a judicial proceeding under authority delegated from the legislature by statute.

Let me summarize the opinions for you.

State v. Jones.

State v. Jones involved an attempt, initiated in 1965, to impeach the Salt Lake County Auditor solely on the basis that he had failed to file a tax return in 1959.  The whole basis of the complaint was simply that the auditor had committed a misdemeanor under federal law by not filing the return.  There was no allegation of fraudulent or improper motive; simply that the auditor had failed to file a return.

The Utah Supreme Court reasoned as follows:

If it had been intended that removal from office should result from committing just any crime, including all misdemeanors, that could have been achieved by simply stating the generality: that an official could be removed for any crime. . . . .

The term “high crime” as used in statutes such as this is generally understood to mean not only a serious offense, but one in which there is harm or injury directed against other persons and is thus a violation of the basic mores of society, e.g., robbery, burglary, larceny, embezzlement or some crime of a character which involves such moral turpitude or is so offensive to accepted standards of honesty or integrity that one guilty of such a crime is unfit for a public trust and should therefore be removed from public office. Considering the terms of this statute together in context and in the light of its purpose, it seems only reasonable to suppose that for a misdemeanor to work a forfeiture of office it should partake somewhat of the same character. This is necessarily so because it can hardly be credited that it was intended that a public official should be removed from office for any failure to comply with any requirement of the law down to jaywalking, improper parking, or spitting on the sidewalk, whether related to his conduct in office, or to his qualifications for it or not.

There are various considerations which have a material bearing on the question whether the offense here charged is of such nature that one guilty of it should be deemed unfit for public office within the intent of this statute. One . . . is that this offense does not include any imputation of falsification or fraud with respect to the defendant’s income tax, so that particular aspect of moral wrong is not present. Nor does it involve any harm or injury directed against any other person and is thus not an offense malum in se, that is, inherently and essentially evil or immoral. . . . .

We do observe that it is not our purpose or desire to condone or justify the defendant’s dereliction, nor to minimize the importance or the necessity of citizens filing their income tax returns on time and paying taxes justly due. It is of course desirable for everyone, especially public officials, to conform to the law in all respects, and in fact to live exemplary lives. But unfortunately public offices must be staffed with people beset with human frailties and we must deal with them as such. That the defendant did not live up to an exemplary standard is not to be questioned. But upon the basis of the various considerations set forth herein, it is our conclusion that the offense he committed is not shown to be within the class of crimes which it was intended under our statute that guilt thereof would demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.

And now let me quote in full the language that Swallow’s attorneys quote only in part:

Underlying the problem here dealt with, and supporting the conclusion we have reached, is the principle, fundamental in our democracy, that the privilege of choosing and electing public officials, and repudiating them if and when they so desire, belongs exclusively to the people; and that neither the courts nor any other authority should be hasty to encroach upon that right. There could be no more certain move toward the exercise of autocratic control and the disruption of our greatly valued balance of power than for one branch of the government to usurp prerogatives not belonging to it.  Out of our Constitutions, Federal and State, and the historical development thereon, there is reposed in the courts the responsibility of passing judgment upon the actions of public officials and the functions of the departments of government. Both experience and wisdom teach that the greater the power the greater the duty of exercising forbearance in its use. An awareness of the dangers that could come from courts arrogating to themselves arbitrary powers emphasizes the necessity of approaching such matters with caution and with judicial restraint; and of refusing to interfere with the orderly processes of government except under circumstances where it is clearly apparent that the legislative mandate or constitutional provision requires it to be done.

Before I analyze this opinion, I want to emphasize again that this is not an interpretation of the Utah Constitution.  This is an interpretation of authority delegated by the legislature to impeach by statute.  I’m only analyzing it because Mr. Swallow’s attorneys are relying on it.

But, putting aside that the Jones and Madsen cases don’t govern Mr. Swallow’s situation, at least three things are clear from this opinion.  First, the Utah Supreme Court views the purpose of the impeachment as expelling an officer for actions that “demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.”  Second, the phrase “high crimes [and] misdemeanors” means something different from “charged with and convicted of a crime,” otherwise the commission of a federal misdemeanor would have been a basis for impeachment.  Third, it is clear from the opinion that it is the Courts that are (and should be) reluctant to aggregate to themselves authority to impeach.  The legislature is constitutionally tasked with the obligation and given the authority to act when appropriate and need not (and should not) exhibit the same reticence with respect to overstepping authority.

Madsen v. Brown.

The second case cited by Swallow’s attorneys purporting to define “malfeasance in office” is Madsen v. Brown, which involved the impeachment of the Mayor of Grantsville for shooting a dog.  In the Madsen case, the impeached Mayor acknowledged shooting the dog, but claimed that it didn’t constitute “malfeasance in office” because it didn’t occur while he was performing an official duty of his office as Mayor.  The Court reasoned as follows:

Appellant’s arguments focus on the interpretation of the requirement that the acts or omissions relate to the duties of the office. He contends that in order to establish the offense of malfeasance in office, the acts or omissions must occur in the course of some specified official duty as defined by statute or ordinance.

The standard urged by appellant does not coincide with the commonly understood meaning of the term “malfeasance in office” or the intent of removal statutes to protect and preserve the office and to free the public of unfit officers.

There is a range of conduct that can occur while an officer is acting under color of office, but outside any specified official duty as defined by statute or ordinance that sufficiently relates to the duties of office so as to taint the office itself or establish that a particular officer is unfit to retain the public trust. This range of conduct is included in the commonly understood meaning of malfeasance in office. R. Perkins, Perkins on Criminal Law 487 (2d ed. 1969) states that malfeasance in office can occur when an officer exercises official duties or acts under color of office. The term “under color of office” is further defined in R. Perkins, supra, at 483: “The act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office.”

The object of the requirement that the act or omission relate to the duties of the public office is to ensure that an official is not removed for malfeasance in office when the alleged wrongful acts or omissions occurred while the officer was acting in his private capacity as opposed to his capacity as a public officer. This requirement has not been interpreted to preclude removal where the official was acting in his public capacity outside specifically defined duties of his office. The question as to whether the alleged misconduct occurred while the accused was acting in his public, as opposed to his private, capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specific duties as created by statute or ordinance.

Again, the Utah Supreme Court emphasizes its view of the purpose of impeachment:  ”[T]o protect and preserve the office and to free the public of unfit officers.”

And the Court takes an expansive view of the definition “in office.”  (And as a side note, I will note that, even before he was ELECTED Attorney General, John Swallow would have still be eligible for impeachment as a Deputy Attorney General under the statute referenced in the Jones and Madsen decisions for malfeasance in office.  In other words, “in office” also means more than just “in elected office,” at least under the state statute relied on by Swallow’s attorneys.)

But perhaps most interesting to me is the following statement: “The question as to whether the alleged misconduct accurred while the accused was acting in his piblic, as opposed to his private capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specified duties as created by statute or ordinance.”

Hmm . . . “decided by the trier of fact” . . . and just who is the trier of fact when it comes to impeachments?  The Utah legislature.

In short, the two cases provide very little — if any at all — support for Mr. Swallow’s position that the legislature can’t act to impeach unless he’s been charged with a crime.  Indeed, it is the legislature’s constitutional obligation to act if they believe further investigation is needed.  Any interpretation of legislative authority that requires a decision by someone else (whether a US Attorneys’ Office, a County Attorney, or anyone else) is an interpretation that denies the Utah legislature full authority over impeachments.

Really, John Swallow?

Does Mr. Swallow really expect the legislature to believe that nothing he has done — if it does not lead to the charging or conviction of crime — prior to the time he entered elective office as the Attorney General provides a basis for impeachment?  And this coming from the the man who is the primary authority on which people in the state will be charged with crimes?

The arrogance of this position is remarkable.

There are lots of reasons an accused person may not be charged with committing a crime.  One, the charging authority may believe that the accused person hasn’t done anything wrong.  Or, they may believe he is guilty as sin but lack corroborating evidence.  Or, they may have corroborating evidence that may not be admissible under applicable rules of evidence.  Or, they may simply determine their limited resources are better used elsewhere.  (And who knows this — or should know it — better than Mr. Swallow, our Attorney General?)

For heavens sake, Josh Powell was never charged with or convicted of a crime!  Does Mr. Swallow believe that, were Josh Powell serving as our Attorney General he would not be subject to impeachment for murdering his wife?  What if Josh Powell had previously been acquitted of murdering his wife, and then, in reliance on the double jeopardy provisions of the United States Constitution had written a book admitting it all?  Still no impeachment because he was cleared by the courts?  Come on.

There is a judicial doctrine that precludes interpretation of a statute (or a Constitution, for that matter) when it would lead to an absurd result.  Here it is.

The evident purpose of our impeachment statutes is to provide for removal from office a person who has violated the public trust.

The United States Constitution.

I think everyone acknowledges that the “high crimes and misdemeanors” language in our Utah Constitution was modeled from the United States Constitution, which states as follows: “The President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Careful readers will note here that bribery is specifically included in the meaning of the broader term “high crimes and misdemeanors.”

The reference made to “conviction” in the Constitutional language refers to conviction by the Senate in a trial of impeachment.  It can’t mean conviction in a judicial proceeding.  If it did, that would take the sole authority to impeach out of the hands of Congress (and Hamilton, in the Federalist 65, wrote a lengthy defense of Congressional Authority to impeach).

The authority to impeach  – both in the United States Constitution and the Utah Constitution – lies solely with the legislative branch.  John Swallow’s self-interested reading of the Utah Constitution would require first either: (1) a decision to charge by the executive branch, or (2) a decision to convict in a proceeding under judicial authority.  In other words, it would result in at least a partial delegation of that authority to the other two branches.  That’s nowhere in the Constitution.  And it turns the principle of separation of powers on its head.

Utah Legislature:  Don’t be Intimidated!

What’s John Swallow going to do if the legislature institutes impeachment proceedings?  Is he going to file an action seeking to enjoin the legislature from fulfilling its constitutional duty?  I mean, not even Nixon did that, right?

Or is he just bluffing?

Well, I still think he’s bluffing.  I still think he’s just trying to intimidate the legislature into not acting.

So my message to the Utah legislature is — don’t be intimidated.

John Swallow wants to scare you enough that you’ll decide to wait on the results of an investigation that may or may not result in a decision to charge.  He knows that his best chance is for you to wait, for the Salt Lake Tribune and pesky bloggers to get tired of his situation, and cross his fingers that he won’t be charged.  Then, if everything works out he’ll claim victory and dare you to try to impeach an “innocent” man.

Do you really want to put yourself in that situation?  Because if you don’t commence impeachment proceedings now, there’s a good chance that’s where you’ll be.

Ask yourselves — how much more do you need to know before you start impeachment proceedings?

Hasn’t he already done enough damage to the Attorney General’s Office through his questionable conduct and poor judgment?

The most valuable quality a lawyer can possess is the quality of judgment.  It’s ultimately what we like to see in our Attorney General.  Yet — even if we assume the very best about John Swallow — he has time and time again, has exhibited extraordinarily poor judgment in acting in questionable ways and then refusing to take any responsibility for those actions.

And now he’s threatening you with a lawsuit if you tre to impeach him.  How else do you read this letter?  He’s threatening to drag all three branches of the government through messy and uncomfortable legal proceedings to prolong his political career.

The man’s in trouble.  And despite the fact that he feels as though he’s been persecuted by people at the Salt Lake Tribune, it’s all trouble of his own making.

Don’t be intimidated.

I posted on Twitter the other day that John Swallow is fully engaged in a game of chicken with the legislature.  This just ups the ante.  You know everything you need to know about this man.  You know that he has shown no respect for his office, for the other branches of government, or, most sadly, for the people who put him them.  You know he has bad judgment.  You know he places his personal political well-being above the well-being of the people of this state.  You know that he has sabotaged the standing and effectiveness of the Attorney General’s office and the attorneys who work there — people for whom I personally have a great deal of respect — and that he will continue to do so to promote his own personal gain.

If you’re worried about setting precedent by acting to impeach, realize you’re going to be setting precedent no matter what you do.  Think:  What kind of a precedent would you be setting if you didn’t move to impeach?  If you waited until Mr. Swallow was charged with a crime you’d be cementing his interpretation as the only available precedent — that the grounds for impeachment are equivalent with the conduct punishable as a criminal offense.

Take the necessary action.  Call John Swallow’s bluff.  And put this matter to rest once and for all.

Filed Under: Law, News, Opinion Tagged With: , , , , ,

What Does the John Swallow Debacle Say About Utah?

January 17, 2013 by 15 Comments

Since the Salt Lake Tribune broke the story about John Swallow’s troubling connections to disgraced philanthropist Jeremy Johnson last Saturday, calls for Swallow’s resignation have trickled in.  Over the last 24 hours, that trickle has become more of a flood.  It seems like everyone agrees that Swallow’s got to go.

I commented after my initial post that I didn’t think this would take him down, unless it got more messy (which it has).  Well, now we’ve got other federal investigative targets associated with Swallow and a deathbed affidavit that appears to have been prepared in a panic and has done nothing but make the scandal worse.  The whole thing stinks of an amateur hour attempt at Chicago-style pay to play politics.

I’m revising my opinion.  Swallow’s done.  The sooner he realizes it the better for all concerned.  There are plenty of attorneys in Utah (and within the AG’s office) who would do a fine job as Attorney General.  Let’s get one of them in and move forward.

But while we should all be happy that we’re about to be rid of John Swallow (provided we keep the pressure on), we should also be quite concerned.

Utahns — and especially our state delegates — really need to ask themselves . . . how in the world did this guy get elected?  Because it’s not as if any of this should have taken us by surprise.

Daniel Burton of PubliusOnline, put up an excellent post this morning summarizing John Swallow’s political career in headlines — none of which were positive.  The only news the average Utahn had about John Swallow was about sketchy campaign tactics, a history of inappropriate lobbying procedures, and exaggeration regarding his legal abilities.

The information was front and center for everyone to see.

And plenty of people saw it, believe me.

Most of my Republican political associates saw it.  My attorney friends saw it.  In fact, every attorney I know opposed John Swallow for AG — regardless of whether they supported Dee Smith (the Democratic candidate) or Sean Reyes (the primary opponent).  Folks, it was really almost that universal among the man’s peers!

I opposed him repeatedly.  So did many, many others I know.  Swallow’s primary opponent, Sean Reyes, raised concerns in an official complaint (which was covered in the press) and got ridiculed for playing dirty — oh the irony!

But maybe we didn’t speak up loud enough, because the man nearly skated through convention as the GOP choice without a primary in a system that’s designed to be an equalizer for qualified candidates without money or name recognition.

Maybe people just don’t care about the race for attorney general when they’ve got a Presidential election and race for U.S. Senator.

But regardless of whether the position of Attorney General is as politically sexy as Governor or Senator, a man with John Swallow’s track record should not have gotten elected.  It’s a black eye for the state and undermines the good work done by the attorneys at the AG’s office — even the good work (and I’m sure there was some) done by Swallow himself as a Deputy AG.

I know many of liberal friends are talking this week about dominant party democracy and LDS political hegemony.

But I think we all just need to talk about law enforcement, ethics in politics, and out state’s very troubling refusal to engage with these issues on any adequate basis.  Because, people, if we (and I’m speaking broadly here) can’t even do our homework on a guy with issues as obvious as John Swallow’s, then situations like this are going to be the predictable end result.

What does this debacle say about Utah?  It says we’re too complacent when it comes to demanding transparency and upright conduct in our political leaders . . . even though we talk about it an awful lot.

We need to do two things.

First, we have a legislative session coming up, and we need to demand action from our legislature to put in place safeguards designed to reduce the likelihood that this happens again.  Second, and more importantly, we need to hold ourselves and our our neighborhood representatives accountable.  If you had a state delegate who voted for John Swallow you need to ask them why, and if you can’t get a satisfactory answer, well, then, you know what to do . . . .

Lets keep on this one.

 

 

Filed Under: Election 2012, Law, News, Opinion Tagged With: , , , , , , , ,

Brief Thoughts on John Swallow, the Tribune Article, and the Attorney General

January 12, 2013 by 9 Comments

Robert Gehrke, Utah’s best political reporter (IMHO), broke a story this morning that will have Utah politicos talking and arguing for a while:  Indicted Businessman Ties Swallow to Alleged Scheme.

The story contains allegations from indicted Utah businessman/philanthropist Jeremy Johnson that John Swallow, recently elected as Attorney General, worked with Johnson to help him try to bribe Harry Reid (through a third-party lobbying firm) in an attempt to stop an FTC investigation into Johnson’s business interests.

As you work your way through the article, the names of Utah’s legal-political elite appear everywhere, and no one comes away unscathed — with the exception, perhaps, of Dee Smith, the Democratic Candidate for Attorney General, who appears to have been brought (at least partially) up to speed on this in the days before the election and, despite obvious political self-interest, showed remarkable restraint by uttering nary a word (at least publicly).

The article reads a bit like a tragic comedy, with the characters working frantically on what seems to be an entirely quixotic effort to stall an FTC investigation by influencing a United States Senator who likely didn’t know that most these individuals existed until the Tribune’s story was published this morning.  The players come off as inept and naive, sincerely uncertain about just what it is that they’re doing, or have done, and its legal consequences.

People who follow this blog, or follow me on Twitter or Facebook, know that I actively (well, as actively as a blogger does) opposed John Swallow for Attorney General.  My concern was never about his character as much as his legal competency.  From my — admittedly very limited — interactions with him, he seemed much as he comes off in this article, as a nice, sincere person in over his head — whether with his claim to be “running” the Obamacare lawsuit despite having only the most rudimentary understanding of the legal principles involved or his sloppiness in continuing to lobby on behalf of friends while a Deputy Attorney General.

There may be additional facts that will cast the story in a different light.  We can assuredly expect attempts at character rehabilitation from all the main players, which will muddy the waters further before things start to become more clear.

All this will work itself out in time.

But there is one thing that I think is clear right now:  Utahns need to take more seriously the post of Attorney General and our responsibility to elect this state’s chief law enforcement officer.

Filed Under: Election 2012, Law, News, Opinion Tagged With: , , , , , , ,

John Roberts and Election 2012

December 28, 2012 by 2 Comments

Fiscal cliff . . . blah, blah, blah . . . dysfunctional government . . . blah, blah, blah.

I know it’s important.

But I just can’t bring myself to talk about it, other than to say that the posturing is idiotic and that it is more obvious than ever that everyone who is “serious” about solving [INSERT PET CRISIS HERE] is apparently only serious about doing it on their own terms, which is an approach that always works well.

Blah, blah, blah . . .

Oops, even I slipped into it there for a second — sorry!  You don’t really want to here any more about that, right?

OK . . . how about I talk about Chief Justice John Roberts instead?

I am, after all, a lawyer.  Sigh . . . .

I saw the following headline this morning that got me thinking:  John Roberts is the Person of the Year.

If the approaching new year has you looking about for “most influential” types, then look no further than the Chief Justice, a lawyer’s lawyer, who, intentionally or unintentionally, almost certainly had more influence on Election 2012 then all the millions of dollars in hounds-of-hell SuperPACs he unleashed on the unwitting public via Citizens United (which, interestingly, I haven’t heard a peep about since early November . . .).

While people were awaiting the Court’s decision on Obamacare, both sides were a bit ambivalent on the political consequences.  After all, if conservatives lost at the Supreme Court, they could run against both an unpopular law and activist judges.  As for President Obama, if he lost he could run against both the wealthy and an antiquated, out-of-touch, white male judiciary (+ Clarence Thomas).

In fact, the best political outcome for both sides was probably a loss, right?  Right??!!  Just look at the expanded list of villains!!

Ha ha.

All that ambivalence was just a bunch of posturing.

The reality was that both sides really wanted an Obamacare win.  And President Obama really needed an Obamacare win.

If you can remember all the way back to late June this year, you’ll remember that it wasn’t a great time for the President.  The economy wasn’t doing well . . . for the fourth summer in a row . . . and there were few signs of improvement.  There was the debt ceiling debacle.  His image as a pragmatic compromiser was being, well, compromised.  His list of accomplishments — despressingly short already given (probably unfair, but largely self-inflicted) expectations — was posed to grow even shorter.  Although liberals were still sanguine about the election, Republicans were licking their chops, sure that the President’s signature domestic policy accomplishment was about to be dismantled by the Supreme Court.  ”Just what has he done the last four years?,” they would say.  ”Passed an ineffective stimulus bill and an unconstitutional healthcare law?”  ”Saved Solyndra and wasted all his time trying — unsuccessfully, thanks to us — to subvert the Constitution by undermining the quality of your healthcare?”

And what would President Obama’s response have been?  ”Well, when it comes to jobs, we’re *almost* back to where we started?”  ”Blame it all on the Wall Street, Congressional Republicans, and the Supreme Court?”  Ouch.  Though we might all have been saved some of the rhetoric about birth control . . . or not.

Would the election have turned out differently?  I don’t pretend to know.  But even if the result was the same, the election surely would have been different.  And I think there is a decent chance that things would have turned out differently.

Maybe that’s all wishful thinking. :)

But I struggle to think of anyone else as politically influential in 2012 than our Chief Justice.

In his own version of the Switch in Time that Saved Nine, John Roberts fundamentally changed the anticipated direction of the electoral conversation and, I think, had more influence on Election 2012 than anyone else.

I don’t think John Roberts is an activist judge (if that phrase has any meaning at all).  I don’t think he aspires to be a political power player.  I think he’s pretty much the ultimate lawyer’s lawyer.

In fact, I’ve been pretty open about the fact that I think our Chief Justice’s Obamacare decision was motivated primarily by a desire to keep the Supreme Court out of politics rather than to inject it into the middle of another Presidential election — whether you think that’s a legitimate judicial consideration or not.

But that’s the long-game, and sometimes you have to take some short term hits to get where you ultimately want to be.

So, whether he wanted it or not, John Roberts has my vote for most politically influential of 2012.

Now that he’s no longer kept in suspense, he can get back to scheming over how to incense half the country over affirmative action.

And with that, I return you to the fiscal cliff . . . .

Filed Under: Election 2012, Law, Opinion Tagged With: , , , , ,

Judicial Retention: Utah’s Forgotten Elections

November 1, 2012 by 1 Comment

Folks, for those of you (like me) who haven’t yet voted, either because you want to stick it out to the bitter end or you just like going to the polls on election day, let me raise an important issue that gets almost no publicity — judicial retention.

In Utah, our judges are appointed to their positions.  But to remain in their positions, they must be re-elected in periodic, unopposed retention elections.

It’s in the Utah Constitution:

Article VIII, Section 9.   [Judicial retention elections.]
Each appointee to a court of record shall be subject to an unopposed retention election at the first general election held more than three years after appointment. Following initial voter approval, each Supreme Court justice every tenth year, and each judge of other courts of record every sixth year, shall be subject to an unopposed retention election at the corresponding general election. Judicial retention elections shall be held on a nonpartisan ballot in a manner provided by statute. If geographic divisions are provided for any court of record, the judges of those courts shall stand for retention election only in the geographic division to which they are selected.

If you’ve voted before, you’ve probably seen the questions on the ballot: “Should Judge X be retained?”  At which point you probably thought to yourself something like, “Crap, I’ve never even heard of Judge X and there’s not even a party affiliation for me to go by,” and then either: “Throw them all out,” or, “I’ll just vote yes.”

I offer it as my personal opinion that retention elections are a bad idea.  I much prefer the federal model of life tenure subject to impeachment.  By and large the judges that we have in our state do a fine job.  There are some that are exceptional.  But regardless of whether a judge is exceptional, or less than so, it is not helpful to a judge’s work to be concerned about retention when making rulings.  Judges have it hard enough, and no judge should be thrown out just for getting a ruling wrong, or, heaven forbid, getting an unpopular ruling right.  Remember, every decision that a judge makes alienates someone, or some large, influential public interest group.  Often, decisions alienate everyone involved.  And retention elections invite punishment for a judge just doing the job we sent him or her to do.  A judge who abuses his or her office is more likely to be punished via impeachment than through a retention election.  The retention mechanism is unnecessary and invites problems.

To those who would say “throw them all out, every time,” I really don’t know what to say to you.  If you believe that the best thing for Utah’s judicial system is the regular destruction of institutional memory and indiscriminate punishment for public service . . . well, we probably just don’t have much to say to each other.

Commentary and unsolicited opinion aside, we have these elections in Utah and their continuation is mandated by our Constitution.  So, we should at least try to do this all intelligently, right?

In an effort to try and provide voters some basis for casting their retention votes, Utah has created a Judicial Performance Evaluation Commission, which “rates” judges on the basis of interview questionnaires filled out by attorneys and litigants.  You can access the information at http://judges.utah.gov.

Take some time to read through it before heading out to vote.

Filed Under: Election 2012, Law, Opinion Tagged With: , , , ,

On Corporate Personhood, Balanced Budgets, and Constitutional Amendments

October 22, 2012 by Leave a Comment

In the 220+ years since it was drafted and ratified, the United States Constitution has been amended 27 times.  The first 10 amendments were actually adopted prior to Vermont’s ratification of the Constitution itself (Vermont was the last of the 13 colonies to ratify), as part of a strategic concession by Federalists to secure ratification.  Two of the remaining 17 amendments cancel each other out, as the 21st Amendment was adopted specifically to repeal the nationwide prohibition of alcohol established by the 18th.  Another 3 amendments — the 13th, 14th, and 15th — are direct results of the Union victory in the Civil War, while the 16th (authorizing a national income tax) and the 26th (lowering the voting age to 18) are quite clearly the indirect results of two other wars — World War I and the Vietnam War, respectively.  Finally, the 27th Amendment, ratified in 1992, was actually proposed in 1789 and is therefore best viewed as part of the initial pre-1804 amendments.

[Continue Reading...]

Filed Under: American Constitution Post-1787, Law, Opinion Tagged With: , , , , , , , , , ,

Foreign Policy and Election 2012

October 15, 2012 by Leave a Comment

One thing that becomes clear when reading the Constitution and the minutes from the Constitutional Convention is that our Founding Fathers didn’t really know what to make of the American President.

Article II generally speaks in vague terms about the President, unless it’s referring to primarily procedural matters outlining the method of election, length of term, oath of office, criteria for impeachment, and obligation to provide Congress information regarding the state of the union.

Even by the standards of our intentionally sparse Constitution, there’s not much to go on when it comes to the President’s substantive authority.  Indeed, in comparison, the authority of Congress is spelled out in great detail.  The President?  He has “the executive Power,” is the Commander in Chief, can grant pardons, make treaties, appoint ambassadors, and must faithfully execute the law.

But as vague as Article II is, it makes one thing clear: the President has a substantial role to play when it comes to the foreign affairs of the United States.  Indeed, one of the primary embarassments of the Articles of Confederation was the utter inability of the United States to prosecute a coherent foreign policy.  Everything that Congress did (or tried to do) was subject to the whims of individual states, and, as a result, the “United States” (when they could negotiate treaties) weren’t able to fulfill their obligations.

And so the Founders, with all their intentional vagueness about the President made clear that he would *the guy* (even if not the sole guy) when it came to foreign affairs.

And the area when individual Presidents have most clearly impacted the history and development of the United States (things domestically are usually much more fuzzy when it comes to attributing responsibility) is in foreign policy.

But Presidential elections don’t often turn on questions of foreign policy, even if they should.

And this election doesn’t appear to be an exception to the rule.  Despite all the obfuscation and intentional vagueness, the domestic policy positions of President Obama and Mitt Romney are relatively well-defined.

Not so when it comes to foreign affairs.

With President Obama, we know a few things: (1) he killed Osama bin Laden, (2) he pulled American forces out of Iraq, (3) he put more troops in Afghanistan, (4) he favors greater diplomatic engagement, (5) his administration panicked about the recent terrorist attack in Libiya and latched onto a storyline that just wasn’t credible, (6) the whole thing about the NDAA, and (7) he will pull American forces out of Afghanistan by 2014.  We don’t know much about what he’d do when push comes to shove with a nuclear Iran.

But with Mitt Romney we know almost nothing.  And, while this is a relatively common complaint from Democrats when it comes all aspects of the Romney/Ryan ticket, the vagueness about foreign policy is the only vagueness concerns me a bit.  When it comes to the economy, when it comes to healthcare reform, when it comes to balancing budgets and bipartisanship, Mitt Romney has a strong record of accomplishment.

But when it comes to foreign affairs, he stands where President Obama did four years ago (minus one anti-Iraq War vote — which was all that candidate Obama had to recommend him).

Romney’s tried to differentiate himself from the President when it comes to military spending, on free trade, talking tough with China, on Israel, and on the Benghazi debacle.  And in advance of the upcoming foreign policy debate, he gave a speech that didn’t say much, striking a different tone instead of drawing many significant substantive contrasts.

My opinion is that the reason we haven’t heard much about the details of a Romney/Ryan foreign policy is because it would likely mimic much of what President Obama has done and has promised to do.  Foreign policy, like everything else, suffers in an intensely political climate (witness both campaigns’ dismal responses to Benghazi:  Mitt with a press conference to condemn the President, with the President, in a moment of political panic, starts peddling an unbelievable story and then persists in the error long after it’s utterly discredited), and I think Romney’s not saying much because the President has done a much better job when it comes to foreign affairs than he has to the United States’ domestic challenges.  And, frankly, it’s difficult to give details about complex international issues when the precise contours are still developing.

But still, the area where the President can most clearly affect the immediate direction of the United States is foreign policy, and I’d like to see both candidates pressed and provide some details (to the extent they can).  It’s probably too much to expect them in the upcoming debates, but anytime prior to November 6 is good enough for me.

Filed Under: Election 2012, Law, News, Opinion Tagged With: , , , , , , ,

Some Follow-up Thoughts on the Significance of the Tenth Amendment and National Government

September 10, 2012 by 2 Comments
constitution-slider

* This post is a follow-up to a brief post on the Tenth Amendment from last summer.

In the months between Abraham Lincoln’s election and the start of the Civil War on April 12, 1861, Americans became embroiled in something of a philosophical conversation about their relationship to their own national government.  Was the American Union nothing more than a collection of states — a “club,” so to speak, that states voluntarily joined and could leave at any time and for any reason?  Or was it something more — a creation of the people designed to perpetuate intact despite the desires of the people of any one state?

Abraham Lincoln addressed this issue in his First Inaugural Address as follows:

It is seventy-two years since the first inauguration of a President under our National Constitution. During that period fifteen different and greatly distinguished citizens have in succession administered the executive branch of the Government. They have conducted it through many perils, and generally with great success. Yet, with all this scope of precedent, I now enter upon the same task for the brief constitutional term of four years under great and peculiar difficulty. A disruption of the Federal Union, heretofore only menaced, is now formidably attempted.

I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

And going back approximately four score and seven years, James Madison, in Federalist 45, spoke on the subject in response to Antifederalist concerns about how adoption of the Constitution would affect the rights of states:

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.

It took a bloody Civil War over the extension of slavery to enshrine Lincoln’s vision of a Constitution that created a perpetual union and placed the states in a position clearly inferior to the national government of the people.  But though you might think the issue was conclusively settled in 1865, if you listen carefully, you’ll hear echos — some subtle, some not so subtle — of the controversy persisting today.

Arguments about states rights, federalism, and even overregulation, have roots in the ongoing debate over the nature of the Union created by the Constitution.  So is the (somehow) revived debate about the merits of state nullification of federal law.

Ultimately, the Constitutional language and the history are ambiguous enough on this matter (as on many others) that it’s impossible to know exactly what the Framers intended when they created the Constitution.  Almost certainly, they collectively had a number of intentions, and even more certainly, some of them changed their minds over time about just what it was they had done.  And whatever intentions were for America at the start, the whole American experiment was substantially redone in the 5 years following the end of the Civil War.

But despite the general ambiguity, we do have some clues.  And, one of those clues is, I think, the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The 10th Amendment speaks conclusively about the reservation of powers not delegated to the national government–but it speaks ambiguously about to whom the non-delegated powers are reserved:  ”to the states respectively, or to the people.”

The Articles of Confederation contained a similar provision to the 10th Amendment, which stated:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

While its Articles of Confederation equivalent is written in the active voice, from the perspective of a state, the 10th Amendment is fully passive.  The 10th Amendment is also less agressive in that it does not expressly declare each state’s independence and sovereignty, and omits the word “expressly” when referring to delegated powers (presumably to comport with the existence of the Necessary and Proper Clause in the Constitution).  Finally, the 10th Amendment speaks about “the people,” whereas the Articles of Confederation provision referred only to states.

As an aside, Wikipedia — citing an article by Henry Rollins (!) describing his visit to the National Archives in Washington D.C. – asserts that the phrase (“to the people”) was added to the 10th Amendment as a handwritten edition as the draft amendment circulated between houses of Congress . . . suggesting, I’m not sure what, exactly.  But it is fascinating.

I’ve long been puzzled by the existence of the “or to the people” clause of the 10th Amendment.  What should we make of it?

If it was the states that formed the Constitution, and therefore the states that delegated power to the national government, why mention the people at all?  If it was the people, as a national whole, who formed the national government and delegated its powers, why mention the states?  Maybe the drafters and ratifiers of the 10th Amendment (and we should remember, we’re technically talking Congress in 1791, not the Constitutional Convention) conceived of the national government is a creation of the people, who have delegated some power to their state and local governments and some power to their national government, and, as a result, retain whatever powers they have not delegated.  Therefore, to the extent people have not already delegated power to any particular level of government, that power resides in the people.  Or maybe the phrase “or to the people” was added simply to make it clear that the 10th Amendment encompassed all rights — rights that the people could delegate to their government (i.e., rights involving the exercise of coercive authority) and rights that they really couldn’t because they are conceived of as residing in individuals (e.g., the rights to speak and worship).  Of course, the ambiguity could always be a matter of political expediency — perhaps the ratifiers couldn’t agree on what to put in the 10th Amendment and therefore comprised by including both the states and the people as the beneficiaries of reserved powers?

But — to me — the fact that the 10th Amendment mentions both the states and the people counts for something.

How much significance does this all have?  I’m not sure.  But it seems to me that the 10th Amendment’s ambiguity lends support Lincoln’s conception of the American Union (even pre-Civil War) and whatever consequences that may have.

Filed Under: American Constitution Post-1787, Law, Opinion, Slider Tagged With: , , , , , , , , , , ,

Obamacare and Chief Justice Roberts

June 28, 2012 by 6 Comments
obamacare-feature

Who is Chief Justice Roberts?

Is he the methodic, calculating, conservative revolutionary, that Obama had the foresight to oppose for confirmation to the Court based on his inability to discern what was in the now-Chief Justice’s heart?  Is he the pragmatic conservator of the Court’s institutional capital at the expense of the Court’s obligation to make authoritative constitutional pronouncements?  Or is he yet another conservative appointee driven ever left by mysterious unidentifiable substances in the Washington D.C. water supply?

And what to make of the Court’s decision today upholding Obamacare as a valid exercise of Congress’ taxing power?

Is it an unmitigated disaster that spells inevitable socialistic decline for America — assuming of course Mitt Romney and Orrin Hatch can’t team up on Democrats using the Senate Finance Committee and Oval Office? ;)  Is it a secret long-game win for conservatives masterminded by the Chief Justice at the expense of the unwitting liberals now praising his name?

So many questions to answer, so little time.

Rather than bore you with a treatise, I’ll just give you a few of my thoughts after reviewing the opinions (and trust me, this will be long enough).

1.  This decision is an unqualified loss for conservatives.  Though Roberts may have something of a long game in mind here (see point 4 below), it’s really hard to spin this as a win for conservatives.  Overall, the thrust of the opinion is, “you can find a way to uphold congressional action, even when it’s an unprecedented extension of federal power.”

To be fair, Roberts did throw conservatives some bones in his opinion. For example, it’s clear that he purposefully reached the Commerce Clause issue unnecessarily, in order to send a message about mandates.  His explanation to the contrary was unpersuasive (to me, anyway):

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that § 5000A can be upheld under the taxing power. Post, at 37.  But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command  that it is necessary to reach the taxing power question.  And it is only because we have a duty to construe a statute to save it, if fairly possible, that § 5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

So it’s a tax only because it’s not a penalty?  Pretty weak . . . and that means he reached the issue to send a message.  Whatever his reasons for upholding, he obviously wanted to make clear that federal efforts to mandate conduct as a way of bootstrapping in to Commerce Clause authority are non-starters.

And one has to acknowledge that Roberts did refuse to countenance an extension of Congress’ spending/commandeering power.  Ultimately, however, it’s hard to see how that does much for federalist types when the practical thrust of his opinion is that even statutes that are written as exercises of the Commerce Clause authority, and exceed that authority, are nonetheless constitutional taxes (even when not denominated that way and denied publicly).  This allows Congress to avoid the political consequences of enacting taxes while pretty much giving Congress the type of unbridled legislative authority rejected under the Commerce Clause.

2.  Robert’s opinion will not make it procedurally easier to repeal Obamacare politically.  Today’s decision may very well have the effect of galvanizing conservatives for the upcoming elections (apparently it’s been a monetary windfall for Mitt), but those claiming (and I’ve seen a few posts on this today) that Justice Roberts judicially declared Obamacare a tax in order to ensure that, under the Democrats own congressional rules, efforts to repeal would be immune from filibuster (that captures the substance if not the precise form of the argument), clearly didn’t read Justice Roberts careful parsing of the difference between statutory and constitutional tax status:

Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.”  Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.

Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.”

The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate.

The desperate efforts of conservatives to label this decision a “win” for them remind me of Democrats attempts to rationalize President Obama caving to Republicans on the debt ceiling as grand liberal strategy.

3.  Roberts tax opinion is more persuasive than conservatives want to admit.  Although all the focus leading up to the case was on the Commerce Clause, Roberts’ opinion boils down to this:  constitutional authority to legislate depends on the substance of the legislation and not congressional magic words.  That’s a familiar principle, and persuasive in a number of contexts.  The effect of my contract depends on the written language and the intent of the contracting parties, not on the use of precise words to accomplish specific functions.

Should this be any different?  Well, we do have this sense that Congress should be allowed to use the tax designation as both a sword (justification for enacting authority) and a shield (insulation for political consequences of raising taxes).  But since when has Congress been estopped from legislating?  It’s also a bit surprising that Roberts went different ways on the Anti-Injunction Act and Taxing Power (see quote language above) . . . one felt that if the Court reached the merits of the case it would do so based on the finding that Obamacare was not a tax and therefore would be forced to decide the issue on Commerce Clause grounds alone.  But Roberts neatly worked around that dilemma by  holding that the individual mandate was indeed a tax, just not a tax to which Congress intended the Anti-Injunction Act would apply.

4.  Even though this is a loss for conservatives, there is something of a silver lining.  Between Roberts’ opinion and the Joint Dissent, there is a 5-member majority in support of unusually strong language on Commerce Clause federalism.  The language is so strong, in fact, that it likely forecloses any attempt at “compelled commerce” regulation in the near future.  This means that, if, down the line, conservatives are able to chip away at the rather deferential constitutional construction of a tax and/or expand on the Chief Justice’s anti-commandeering rationale, the field for Congressional action will have been limited.  It seems like Roberts’ opinion might also spawn some new Republican political strategy, like citing judicial authority to justify characterizing every regulation as a tax, or inserting punitive penalties into regulatory laws to sabotage them constitutionally . . . maybe I’m just reaching here, but no question congressional Republicans are committed and creative :)

5.  Roberts v. Scalia.  In case anyone doubted the sincerity of his commitment to judicial restraint (especially after Citizens United), Roberts’ opinion should allay that doubt (for now).  While Scalia’s commitment is, first and foremost, to originalist interpretation, Roberts’ jurisprudence is (in my opinion) guided to a significant extent by his beliefs about the role of the Court vis-a-vis the political branches and, to a lesser extent, preservation of its institutional capital.  I really think that this is the best way to look at his decision.  Which is the better approach?  I’ll leave that for you to decide . . . . ;)

6.  Another “switch in time”?  Although there is already a healthy ongoing debate over this, it does look (to me) as though Chief Justice Roberts changed his vote relatively late in the process.  It is hard for me to avoid the conclusion that the Joint Dissent (Scalia, Thomas, Kennedy, and Alito) was written by Scalia as a majority opinion.  It contains numerous references to “the dissent,” despite itself being a dissent.  It is also written, like a majority opinion, using the plural “we,” as opposed to the singular “I.”  Here’s an example:

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank.”  Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.

Why were these references left in?  It could because of a last minute switch . . . but I doubt it.  Justice Roberts had to have time to write his opinion, and the Justices and clerks who write Supreme Court opinions are some of the very brightest people around — these edits could have been made no matter how late the change.  So, were they left in purposefully, as a signal to the world of a betrayal by the Chief Justice?  Well, I kind of doubt that as well . . . .  But whatever the explanation, it’s certainly interesting.

7.  Let’s get political!  Thus far in the battle over Obamacare, both sides have alternated being overly optimistic.  Prior to oral argument, quite a few Democrats were contemptuous of the merits of the legal challenge.  After oral argument, conservatives were prematurely dancing on Obamacare’s grave.  Liberals rejoicing today should take into account that it looks (if my sense if correct) like Obamacare was headed down to defeat and was saved only by a last minute defection (that was, in all likelihood, not wholly based on the merits of the case).  Furthermore, there is still a long way to go in the war over national health insurance in America, despite today’s decision.  And, while the Supreme Court will have more of a role to play, Roberts’ opinion, consistent with his commitment to circumscribing the judicial role, ensures that, going forward, this battle will be fought primarily politically from here on out.

Anyway, I’d love to hear your thoughts, whether on the opinion or my own commentary.  Type away — I can take it :)

Filed Under: Fun, Law, News, Slider Tagged With: , , , , , , , , , , , , , , , , , ,

H.B. 351, Opt-Out of Order on White House Rural Council — Rep. Ivory

February 28, 2012 by 2 Comments
rural-utah-slider

After a long, work-induced hiatus from blogging, Utah Political Summary returns today with some brief commentary on H.B. 351, a bill sponsored by Representative Ken Ivory.

H.B. 351 is part of our legislature’s ongoing effort to step federal government meddling in local government by preemptive state meddling in local government.  Specifically, it’s a response to Executive Order 13575 (“EO13575″), which was issued by President Obama last June and creates a White House Rural Council (“WHRC”) to “enhance Federal engagement with rural communities.”

EO13575

The WHRC would be chaired by a representative of the Department of Agriculture, comprised of a representative of every other federal department, and tasked with the mission of “coordinat[ing] development of policy recommendations to promote economic prosperity and quality of life in rural America,” and “coordinate[ing] [the Obama] Administration’s engagement with rural communities.”

Specifically, the WHRC will:

  • Make recommendations to President Obama on how to streamline and leverage the impact of federal investment dollars in rural communities;
  • Coordinate and increase the effectiveness of federal engagement with rural America’s stakeholders; and
  • Identify and facilitate rural energy development, outdoor recreation and conservation-related opportunities.

On its face, EO13575 appears to be nothing more than an attempt to coordinate efforts across departments, to make the administration’s “rural policy” more cohesive and effective.

But it’s got Representative Ivory up in arms.  In fact, he refers to it on his Facebook page as an order creating “White House zoning and planning authority over all ‘rural America.’”  So he’s crafted H.B. 351 — a legislative response consistent with his apparent alarm.

H.B. 351

Representative Ivory’s bill, which was passed out of committee on February 27, 2012, would require any “department or agency of the state” that wants to implement a “directive” of the White House Rural Council created by EO13575, to file a report to the legislature’s Natural Resources, Agriculture, and Environment Interim Committee containing the following information:

(3) (a) The report required under Subsection (1)(a) shall include:

(i) the directive from the White House Rural Council; and

(ii) a description of:

(A) the requirements imposed by the directive and how the agency would implement the directive;

(B) the effect of implementing or not implementing the directive;

(C) the cost to the state or its citizens of implementing the directive; and

(D) the consequences to the state if the state does not comply with the directive.

(b) The report required under Subsection (1) may include an analysis by the agency or department that addresses whether a directive from the White House Rural Council:

(i) affects the distribution of power and responsibility among the state and national government;

(ii) limits the policymaking discretion of the state;

(iii) impacts a power or a right reserved to the state or its citizens by the Ninth or Tenth Amendment to the United States Constitution; or

(iv) impacts the sovereignty rights and interest of the state or a political subdivision to provide for the health, safety, and welfare of, and to promote the prosperity of, the state’s or the political subdivision’s citizens.

The required report is designed to give the legislature an opportunity to legislate in opposition to the “directive,” if it so chooses.  In fact, after receiving the report from the “department or agency of the state,” the Natural Resources, Agriculture, and Environment Interim Committee can recommend to the legislature that it enact legislation that either specifically authorizes or prohibits compliance with the “directive.”

The supreme irony in the whole situation?  Representative Ivory’s bill would be codified  at Utah Code Ann. 63M-1-1607 et seq., as part of Utah’s already existing Rural Development Program, which is operated out of the Governor’s Office of Economic Development through the Office of Rural Development, which in conjunction with the Rural Coordinating Committee, provides support to the Governor’s Rural Partnership Board.

And the mission of the state’s Rural Development Program?  Here’s a bulleted list:

  • Facilitate within the Governor’s Office of Economic Development implementation of the strategic plan;
  • Work to enhance the capacity of the Governor’s Office of Economic Development to address rural economic development, planning, and leadership training challenges and opportunities by establishing partnerships and positive working relationships with appropriate public and private sector entities, individuals, and institutions;
  • Work with the Rural Coordinating Committee to coordinate and focus available resources in ways that address the economic development, planning, and leadership training challenges and priorities in rural Utah; and
  • Coordinate relations between the state, rural governments, public/private groups engaged in rural economic planning and development, and federal agencies.

Some Thoughts

I think it’s pretty clear that Representative Ivory sees the White House Rural Council as another front on the war over western state lands.  Perhaps it is.  I don’t know.  But there’s nothing in EO13575 or the duties set out for the WHRC authorizing it to make “directives” to local governments, and certainly nothing in it that authorizes it to engage in nationwide zoning.

President Obama, like other Presidents before him, undoubtedly has a “plan” for rural America, and will go about implementing his “plan” in whatever way he can, including, presumably, by conditioning the receipt of federal funds on local governments implementing plan objectives.  But it’s questionable whether such “incentives” can fairly be characterized as “directives.”  Thus, to have any effect, it appears that Representative Ivory’s bill would require all “departments or agencies of the state,” any time they want to implement a suggestion or recommendation originating from the WHRC, to first create a burdensome report for the state legislature.  This is turf-war level of micromanagement that would do the most overreaching federal agency proud.

Now, Representative Ivory may believe that the Constitution grants the state exclusive authority to make recommendations to local governments and rural America.  After all, Article II of the Constitution is pretty sparse . . . .  But at some point, he, and the other members of the Utah GOP’s club of constitutional crusaders need to contemplate the extent to which their near myopic obsession over their own version of constitutional federalism is turning them is seriously undermining their core conservative governing principles.

If President Obama issues an order emanating from the WHRC that unconstitutionally dictates to rural Utahns what they may or may not do, then legislate against it or fight it in court as appropriate.  But why borrow trouble and micromanage just out of antipathy toward one particular administration?  President Obama will eventually leave office, the WHRC he created will be dissolved, and a Republican will be elected President again . . . but legislation persists.  H.B. 351 is unnecessary, misguided, and not worth our legislature’s time.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: , , , , , , , ,
«Older Posts