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“Executive Order” Versus “Executive Action” Such As A Memorandum

“Executive Order” Versus “Executive Action” Such As A Memorandum

 Most of the news media has reported that President Donald J. Trump has signed four “executive orders” involving extending unemployment benefits at a $400 rate, deferring (or ending?) payroll taxes for Social Security (opposed by both parties in Congress), extending a ban on evicting renters, and extending student loan deferments.  An important detail not mentioned in most reports that of these three of them are not actual orders but rather memoranda, which can count as “actions,” that essentially implore others to do something that requires Congressional action in order to be done, basically the first two of these, or is already happening (deferment of student loans, although this is complicated).  Only one of them is an actual order that must be followed, the one regarding evicting renters, although all this order does is to make HUD “consider” extending the ban on evicting renters.  The order itself does not actually do it.  In short, these orders amount to a campaign list of wannabe actions, no actual real actions.

This is all obviously the brainchild of the incompetent and brainless Chief of Staff, Mark Meadows, who is apparently incapable of making any deals and totally focused on the reelection campaign.  So he “blew up” the two-week negotiations with Congressional leaders by most accounts by making rigid demands.  I am not going into details, but there were obvious compromises available, just to pick one on the total size of the relief package.  The Dems were proposing $3 trillion based on what the House passed months ago while the White House and some GOPs held to $1 trillion. Reportedly the Dems offered the obvious compromise of $2 trillion, but that was blocked by Meadows who simply made demands and warned if they were not accepted, Trump would issue “executive orders” to do what he wants.  But, as careful analysis shows, only one of these is ab actual order and even the one that is an order that only orders a department to consider doing something.

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Can A President Appropriate Funds for a Program?

With regard to Trump’s three memos and one Executive Order.

We did go through this one time before with the ACA and funding for the Risk Corridor Program as I wrote “Risk Corridor, Healthcare Premiums, Companies Leaving the Exchanges, and Republicans.” The GAO said the President can not appropriate funds for funding of programs. Only congress can do so as stated in a letter to then Senator Jeff Sessions. However, a president can transfer funding from one program to another.

“Questioning whether the Risk Corridor payments were being appropriated correctly, the Appropriations Panel forced the HHS to make changes in how they appropriated funds allowing Congress to stop all appropriations. As stated in this letter, the PPACA could no longer appropriate the funds as they were subject to the discretion of Congress. The GAO issued an opinion on the legality of what the HHS was doing with funds.

GAO Letter to Senator Jeff Sessions. September 30, 2014: Discussion; “At issue here is whether appropriations are available to the Secretary of HHS to make the payments specified in section 1342(b)(1). Agencies may incur obligations and make expenditures only as permitted by an appropriation. U.S. Const., art. I, § 9, cl. 7; 31 U.S.C. § 1341(a)(1); B-300192, Nov. 13, 2002, at 5. Appropriations may be provided through annual appropriations acts as well as through permanent legislation. See, e.g., 63 Comp. Gen. 331 (1984). The making of an appropriation must be expressly stated in law. 31 U.S.C. § 1301(d). It is not enough for a statute to simply require an agency to make a payment. B-114808, Aug. 7, 1979. Section 1342, by its terms, did not enact an appropriation to make the payments specified in section 1342(b)(1). In such cases, we next determine whether there are other appropriations available to an agency for this purpose.”

Further down in the GAO letter, the GAO leaves the HHS an out of using other already available appropriations for the Risk Corridor payments to insurance companies. Classifying the payments as “user fees” was another way to retain the authority to spend other appropriations already made by Congress. Otherwise if revenue from the Risk Corridor program fell short, the administration would need approval for addition appropriations from Congress. As it was, the HHS could no longer appropriate funds to make Risk Corridor payments unless the funds were already appropriated by Congress or Congress approved new funds which was not going to happen with a Republican controlled House.”

The transfer of funding from another healthcare program to the PPACA Risk Corridor Program was blocked by the insertion of Section 227 of the 2015 Appropriations Act (dated December 16, 2014) which escaped notice by Congressional Representatives Kingston and Upton. In the 2015 Appropriations Act (Cromnibus), the sentence inserted said no “other” funds in this bill could be used for Risk Corridor payments. See: Risk Corridor

What is reprehensible is the total alliance by Senator “Moscow” Mitch McConnell and his sycophants’ who have locked stepped in accordance with a psychotic president in the White House blocking any economic help to the citizens of this nation during a catastrophic event. It remains to be seen if the Senate comes back to reality to stop this president. And McConnell? McConnell shall definitely be remembered in history as something.

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Interpol Supports Murder Charge Against MbS

Interpol Supports Murder Charge Against MbS

 In today’s Washington Post David Ignatius reports that Interpol refused a request from Saudi Crown Prince Mohammed bin Salman (MbS) to extradite Saad Aljabri to Saudi Arabia from Canada in 2017. MbS had been trying to entice Aljabri to return and had arrested his children, who remain arrested despite complaints from the US government and basically the entire rest of the world. Aljabri was the top aide of MbS’s rival, the former Crown Prince, Mohammed bin Nayef (MbN), who was overthrown by MbS in a coup. Aljabri and MbN were highly regarded by officials in the US of several administrations, as well as other governments, and apparently was personally responsible for blocking a serious possible terrorist attack in the US.

After Interpol refused to extradite Aljabri from Toronto, MbS sent a crew to kill him. This was two months after MbS sent such a crew to Istanbul to kill and dismember Kamal Khashoggi, a columnist for the Washington Post.  Aljabri warned the Canadian government they were coming and the team was detained at the Toronto airport, where they were found to have exactly the same implements that were used to dismember Khashoggi.

Aljabri is now suing MbS in US courts for trying to kill him.  MbS has claimed that Aljabri stole funds, but Aljabri says this is a false claim.  Ignatius notes that MbS will have to produce his claims, and the big deal here is that up until now the Interpol report was not public.  They refused MbS’s extradition request on this claim, and their report makes it clear that much lies behind their decision, including massive violations of human rights in Saudi Arabia by the murderer, MbS.

Barkley Rosser

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Just Some Conversation

Republicans finally get “death panels,” Hullabaloo, Tom Sullivan, July, 26, 2020

Dr. Jose Vasquez, the health officer for Starr County, Texas located on the US-Mexico border “The situation is desperate.” At the only hospital in the county, over 50% of patients are testing positive for the COVID-19 virus — 40 new coronavirus cases were reported Thursday. Starr County Memorial Hospital in Rio Grande City made plans to set up a committee to decide which patients to send home to die. The hospital will ration its resources to patients with the best chances of surviving  (CNN).

Texas
Fri, July 24, 2020
126 died this day
5 002 total deaths
391 609 tot. confirm cases
7 947 new confirmed
2.1% daily growth

The hospital quickly filled the eight beds in its Covid-19 unit, so it expanded to 17 and then 29 beds, Vasquez said. About 33 medical workers, including medical practitioners and lab technicians, were deployed by the state to assist the hospital.

“Unfortunately, Starr County Memorial Hospital has limited resources and our doctors are going to have to decide who receives treatment, and who is sent home to die by their loved ones,” Starr County Judge Eloy Vera wrote in a Facebook post on Thursday. “This is what we did not want our community to experience.”

Republicans screamed about ACA death panels  deciding whether citizens could have treatment under its regime.

Does Gun Ownership and Concealed Carry Deter the Frequency of Mass Shootings and Firearms Homicide?,” Justice Quarterly, Emma E. Fridel, July 23, 2020

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Dig Him Up!

Dig Him Up!

by

Ken Melvin

On our TV and computer screens we saw right-winged protesters armed with semiautomatic weapons displaying swastikas, nooses, and replicas of supposed confederate battle flags guarding the entrance and filling the chambers of Michigan’s State Capitol. How did they get by with this? Does the Second Amendment of the US Constitution give them the right to try to intimidate a duly elected Governor, government, with assault weapons and hate symbols? Has the Supreme Court now decided that assault weapons are a form of speech, or are maybe even citizens, and thus are protected under the First? Though Patrick Henry argued that armed militias were necessary for the ‘purposes’ of the state; there’s no evidence he thought they should be used against the state.

The Second Amendment to the Constitution:

A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.

The First Amendment of the Constitution

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

The First guarantees their right to protest, but neither amendment gives them the right to protest with the implied threat of shooting anyone who stands in their way. What am I missing? If we had been armed in our protest of the Vietnam War, they would have shot us; did anyway. If we had been armed in our protest of the Invasion of Iraq, they would have fabricated a reason to have shot us. Extending armed protests to its logical conclusion, we are looking at the possibility of open warfare between armed protesters and any opposition, including law enforcement; the possibility of the use of arms to overthrow a legitimately elected government. Does the constitution give them that right?

 

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Covid litigation and immunization

(Dan here…a note for reality)

Full liability release for businesses and hospitals

It’s necessary, Mitch McConnell and his colleagues say, because of a “flood” of frivolous lawsuits crushing businesses and threatening economic recovery. So it’s important to say this clearly and out loud: there is no crisis of COVID-19 litigation. It’s made-up, it doesn’t exist, it’s a ploy to get businesses out of paying for compliance. That’s entirely it.

We have all the evidence we need on this. Hunton Andrews Kurth, a law firm, has been dutifully tracking COVID-19 complaints at its website for all to see. As of today, it shows 3,521 “complaints,” but the majority of those involve petitions for prisoner release and fights over insurance claims, as well as consumer and contract disputes. Under “labor and employment” there are a grand total of 302 cases, total, across the entire country.

There are 616 “civil rights” claims, and while most of those are challenges to stay-at-home orders, a couple of those might be business-related. At least one high-profile workplace case, against Tyson and JBS meatpacking plants, is being contested under the Civil Rights Act. The claim is that the largely Black and Latino workforces were not protected due to racial discrimination, compared to the mostly white managers. But that’s a very particular situation.

If you’re talking about the kind of cases that McConnell claims are “flooding” courts—“conditions of employment” cases alleging wrongful death, exposure to COVID-19, or a lack of personal protective equipment—there are 67 such cases. There are 33 wrongful death cases in the “Health/Medical” section but almost all of them have been filed against nursing homes. There are 6 malpractice cases, only one a COVID-19 misdiagnosis that resulted in death (three others are about nursing homes). There’s exactly one (1) miscellaneous wrongful death tort case outside the labor and health sections.

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Being Targeted

Being Targeted

Arguably this is paranoia, but the mayor and police chief of my city do not think so and have officially reacted with a formal response.  What a sign that I am an old whatever, praising local law enforcement, but, well….

So the issue is that late last evening a truck full of masked white men, and no, we are not talking health masks but ones that cover ID, with flags waving including the Confederate battle flag, were going up and down our block taking photos of certain houses, including ours.  What did these objects of this photographic effort find consistent?  We all had posters on our property declaring “Black Live Matters.” Many on our block became upset over this, including my wife, and now the City of Harrisonburg, VA  police are especially watching our block. I note that both the mayor and police chief of our city happen to be Black, for which at this time I am grateful.

Background here is that I have been living where I am for 32 years with my wife, Marina, in a block in Old Town of Harrisonburg, VA, where most of the houses are somewhat over a century old, and we are five minutes from the central square, as well as being 20 minutes from offices at James Madison University.  Where we are is given by the 2004 prez election.  There are 5 precincts in Harrisonburg, but ours, closest to JMU, was the only precinct in the entire Shenandoah Valley that went for Kerry over Bush. Yes, we are an island of “liberalism,” with Harrisonburg later in 16 going strongly for Bernie.

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George Floyd and the Costs of Racial Capitalism

George Floyd and the Costs of Racial Capitalism, LAWCHA, Ken Estey, June 10, 2020

Some History

A little bit about LAWCHA. The “Labor and Working Class History Association” is an organization of scholars, teachers, students, labor educators, and activists who seek to promote public and scholarly awareness of labor and working-class history through research, writing, and organizing. It grew out of the conversations among labor historians over the course of a couple of years between 1996 and 1998 about the importance of giving labor history greater visibility nationally in both academic circles and public arenas.

Introduction

With all the news on the murder of George Floyd in Minneapolis, little is being said about George other than his demise at the hands of the police. Ken Etsey writes on George’s background as a person and why so many other Black Americans like George arrive at a similar point in time where they can lose their lives over so minor as a “supposed” counterfeit 20 dollar bill. Many others like George struggle in what is described as a Racial Capitalist economy which values flexibility to “hire and fire” and profit over Labor stability and good pay. It is a good read. James McElroy at  LAWCHA gave AB the go-ahead to post Ken Etsey’s commentary about George and a May economy in which there are gains in white employment while black and Latinx unemployment still rises.

George Floyd’s Story

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SCOTUS Blocks Census Citizenship Question

Writing for the Majority (5-4):  Chief Justice John G. Roberts Jr. said the explanation offered by the Trump administration for adding the question “appears to have been contrived.” Justice John Roberts did leave open the possibility of change if the Administration could provide an adequate answer.

Executive branch officials must “offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

NYT

USA Today has a good version of the SCOTUS decision. John Roberts and the liberal block rule against 2020 census citizenship question (for now) handing Trump administration a major defeat. Others have said there will probably not be another submission to SCOTUS on the Citizenship question. The only one who might change their “yea” vote would be Roberts if a reasonable answer was supplied by the Administration.

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Another Look

Another Look

by

Ken Melvin

In the wake of riots following the Police murders of George Floyd, Breonna Taylor and too many other Black Americans, and Trump’s earlier installation  the likes of Jeff Sessions and Bill Barr as Attorney General; let US Cities find now to be a particularly good time to look anew at what they, the people, think should be the proper role of Police in America. It is time and time to rethink Policing in America. Any and all changes made need be made nationwide, else we would wind up forever dragging around this same Policing Model, a model purportedly somewhat based on some interpretation of the Old Testament of the Bible, a Model with ties to Slavery and Servitude. It is time and time that Policing in America broadly reflects current American values and thinking.

Police being an inclusive term; including all law enforcement agencies.

Much of what we now have was brought forward from 17th Century English Laws premised on protecting the property of the landed gentry, including the Monarch, since modified as required to allow for the added responsibility for public safety, … Today, many Police and Sheriff Departments are Economic and Political Fiefdoms. In December 2019, Barr said, “They have to start showing, more than they do, the respect and support that law enforcement deserves, … And if communities don’t give that support and respect, they may find themselves without the police protection they need.” Safe to assume that Sessions would have agreed. Here we are two generations into the Age of Technology with an Administration out of the 1960s and before. Taking off from Albert Camus’ Absurdism, we past Absurd quite a long ways back. Houston, we have hit bottom.

In times like these, the question must be: 

What should be the role of the Police?

 

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