Wednesday, June 30, 2010


This is Lynn Jenkins, she does not represent us

Lynn Jenkins hasn't told the truth about Health Care Reform. On the floor of the House she made outlandish claims that Health Care Reform was a plan that increases premium costs for Kansas families by more than $2,100 annually. That's both wrong and deceptive. According to FactCheck.Org premiums for those in Group Plans remains largely the same. Those who buy Individual Plans will see an increase of 10% to 13%. That's because those with individual plans will get a better package of benefits.

Scaring old folks ought to be a crime, and Lynn Jenkins should be tried and convicted of fear mongering among senior citizens. Ironically seniors give her a lot of money. Contributing to Lynn Jenkins must be like geezers paying to go to a haunted house! Only her votes are real!

Lynn Jenkins said Health Care Reform cuts Medicare by more than $520 billion. Well, back to FactCheck.Org, they said " Whether these are "cuts" or much-needed "savings" depends on the political expedience of the moment, it seems. When Republican Sen. John McCain, then a presidential candidate, proposed similar reductions to pay for his health care plan, it was the Obama camp that attacked the Republican for cutting benefits. Whatever you want to call them, it’s a $500 billion reduction in the growth of future spending over 10 years, not a slashing of the current Medicare budget or benefits.

It’s true that those who get their coverage through Medicare Advantage’s private plans (about 22 percent of Medicare enrollees) would see fewer add-on benefits; the bill aims to reduce the heftier payments made by the government to Medicare Advantage plans, compared with regular fee-for-service Medicare. The Democrats’ bill also boosts certain benefits: It makes preventive care free and closes the "doughnut hole," a current gap in prescription drug coverage."

On taxes Lynn Jenkins' claim was that this new law increases taxes by nearly $570 billion. The St. Petersburg Times' looked at the tax consequences of the new law. No doubt we have to pay for this bill, but it isn't $570 billion. says In all, the Joint Committee on Taxation estimates various revenue-generating provisions in the health bill will bring $437 billion over the next 10 years. That's the kind of $133 billion error I wouldn't think a C.P.A. would make, yet Lynn Jenkins did!

The St. Petersburg Times' reported that according to Jim Horney, director of federal fiscal policy at the left-leaning Center on Budget and Policy Priorities, thinks it makes the most sense to look at the last year of the 10-year CBO projections for the health care reform bill. By then, the plan is fully phased in, including the full effect of all the tax cuts and tax hikes. In that year, the total revenue increase is estimated to be $104 billion. That comes to a little less than 1/2 percent of the projected GDP that year.

Horney notes that that's slightly smaller than the tax effect in the fifth years of the Omnibus Budget Reconciliation Act of 1990 (a tax increase signed by President George H.W. Bush) and the Omnibus Budget Reconciliation Act of 1993 (a tax increase signed by President Bill Clinton), as a percentage of the GDP at the time. And it's less than half of the tax increase (again as a percentage of GDP) from the Tax Equity And Fiscal Responsibility Act signed by President Ronald Reagan.

Lynn Jenkins fear mongering on Health Care Reform includes demagoging our Veterans. She said this "plan that, according to the national commander of the Veterans of Foreign Wars, is ``betraying America's veterans.''

That just isn't so. I turned to the Denver Post for the truth on this one. They reported that these claims are false. "The bill was never written to affect benefits for veterans, and the amendments have clarified that. Veterans receiving health care benefits from government programs will not be penalized under mandates that exist in the current version of the House bill."

Lynn Jenkins harps that the majority of Americans don't want Health Care Reform. She's going all strange with her math. A New York Times CBS News Poll showed that Health Care Reform was favored by 72% and opposed by 20%. That was a June 2009 poll. Polls around the time of the bill's passage showed a closer margin with those opposing in the majority. What Lynn Jenkins doesn't tell you, or hasn't figured out is that 40% of those opposing were against the bill because it didn't go far enough.

Tuesday, June 29, 2010

The Abortion Cases Part Thirteen

The Court revisits Partial Birth Abortion

In Gonzales v. Carhart and the companion case of Gonzales v. Planned Parenthood Federation of America the Court again tackles the gruesome topic of Partial Birth Abortion. This time a federal statute, the Partial-Birth Abortion Ban Act of 2003.

This Act, 18 U.S.C. § 1531, differs from the Nebraska statute in Stenberg v. Carhart. First the Act does not regulate the most common method of abortion used during the first trimester of pregnancy. Second the Act does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

Congress made findings that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.

Attorney General Alberto Gonzalez

In the principal case, Gonzales v. Carhart, Carhart made a facial challenge to the constitutionality of the Act. Carhart's claimed the Act was void for vagueness, or in the alternative, it was constitutionally infirm because it placed an undue burden based on a woman's right to abortion based on the Act's overbreadth or lack of health exception.

Associate Justice Anthony Kennedy wrote the Court's 5 - 4 opinion. He was joined by Chief Justice John Roberts, and Associate Justices Scalia, Thomas, and Alito. Associate Justice Clarence Thomas wrote a separate concurring opinion joined by Justice Scalia.

Associate Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Associate Justices Stevens, Souter, and Breyer.

Associate Justice Anthony Kennedy

For the majority Kennedy begins by distinguishing the case of Planned Parenthood v. Casey. Kennedy writes "Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life — would be repudiated were the Court now to affirm the judgments of the Courts of Appeals."

Kennedy concluded that the Act in this case was not void for vagueness and did not impose an undue burden from any sense of overbreadth. The facial challenge to the Act failed.

It is important to note that the Act applies without regard to whether the fetus is pre or post viable. "The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.  We do not understand this point to be contested by the parties.”

The Act’s definition of partial-birth abortion requires the fetus to be delivered “until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” §1531(b)(1)(A).  The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’”—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply.

Third, to fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.” §1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus’ death must be separate from delivery. And the overt act must occur after the delivery to an anatomical landmark. This is because the Act proscribes killing “the partially delivered” fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark.

Finally the Court discusses mens rea, "Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks. §1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind."

Associate Justice Clarence Thomas continues to claim that there is no right to an abortion under the Constitution. He deftly notes that the question of whether abortion is permissible under the Commerce Clause is not before the Court. The Act makes specific reference to the Commerce Clause of the Constitution.

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
We must be alert to attempts to derail the decision of Roe v. Wade by those who argue that no fundamental right to Liberty exists and thus there would be no right to privacy.

Associate Justice Ginsburg protests the short shrift given stare decisis in the Court's opinion. She wrote:

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health. 
I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.
Justice Ginsburg's point is well taken. Here is the applicable part of the Act.

(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The exception does not apply to the woman's health.

Recall that the Partial Birth Abortion cases apply to only a narrow percentage of all abortive procedures. It is readily apparent that neither side is giving much credence to the other side when it comes to fashioning a consistent rule of law guiding late term abortions. However, the majority, minus Justice Thomas, affirmed the essential holding of Roe in this case.

The Abortion Cases Part Twelve

Nebraska's Dr. Leroy Carhart

A Nebraska law criminalizing late term abortions was the focus of the Supreme Court's decision in Stenberg v. Carhart. The Court's majority consisted of five Associate Justices Stephen Breyer, who wrote the opinion and was joined by Associate Justices Stevens, O'Connor, Souter, and Ginsburg. Justice Stevens wrote a concurring opinion, in which Justice Ginsburg joined. Justice O’Connor filed a concurring opinion. Justice Ginsburg filed a concurring opinion, in which Justice Stevens joined.

There were four in dissent, Chief Justice Rehnquist, and Associate Justices Scalia, Thomas, and Kennedy.

Breyer's opening volley lays to rest any notion that the landmark decision of Roe v. Wade would be overturned. He said: 

Associate Justice Stephen Breyer
"We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. Roe v. Wade; Planned Parenthood of Southeastern Pa. v. Casey. We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case."
The Court considered three established principles in making that application. "First, before 'viability … the woman has a right to choose to terminate her pregnancy.'”

 "Second,'“a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability' is unconstitutional. An “undue burden is … shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

"Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"

The Nebraska statute §28—328(1) provided “No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

Partial Birth Abortion was defined as “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” §28—326(9).

The law further defines “partially delivers vaginally a living unborn child before killing the unborn child” to mean the “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.”

In Nebraska, a person found guilty of violating this law would be guilty of a felony "carrying a prison term of up to 20 years, and a fine of up to $25,000. §§28—328(2), 28—105. It also provides for the automatic revocation of a doctor’s license to practice medicine in Nebraska. §28—328(4)."

The Court found Nebraska's law unconstitutional, affirming the decision of the trial court and the Eighth Circuit Court of Appeals. The original action was brought by Dr. Leroy Carhart seeking declaratory relief.

Nebraska law prohibited one method of abortion. For clarity the Court discussed several different abortion method. About 90% of all abortions occur in the first trimester of pregnancy, before 12 weeks of gestational age, using a method called vacuum aspiration. The procedure’s mortality rates for first trimester abortion are, for example, 5 to 10 times lower than those associated with carrying the fetus to term. Complication rates are also low."

About 10% of all abortions take place in the second trimester, gestational age weeks 12 - 24. In the 1970's second trimester abortions tended to employ the saline injection method, as discussed in Danforth v. Planned Parenthood. Since then "the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called “dilation and evacuation” (D&E)."

D&E “refers generically to transcervical procedures performed at 13 weeks gestation or later.” American Medical Association, Report of Board of Trustees on Late-Term Abortion.

“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the uterus to removal fetal and placental tissue. Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.”

After 15 weeks: "Because the fetus is larger at this stage of gestation (particularly the head), and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue.”

After 20 weeks: “Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E (after 20 weeks), to facilitate evacuation.”

There are variations in D&E operative strategy; compare ibid. with W. Hern, Abortion Practice 146—156 (1984), and Medical and Surgical Abortion 133—135. However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.

There were two fatal flaws in the Nebraska law. First, the criminal statute did not provide any exception for the health of the mother. Second, the act imposed an undue burden on a woman's ability to choose a D&E abortion, thus unduly burdening her right to choose an abortion.

Justice Stevens said that it made no sense for Nebraska to choose one method of abortion over another. Roe v. Wade's "[h]olding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

Justice O'Connor probably could not believe her ears when counsel for Nebraska said that the late term "procedure will not, in some circumstances, be “necessary to preserve the life or health of the mother" She said "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional" in her view.  My bet is that a lady as mature as Justice O'Connor can recall from personal experience a number of women whose deaths were attributed to maternal mortality.  I know I can, and I am a little younger than this distinguished jurist.

Associate Justice Ruthe Bader Ginsberg

Associate Justice Ginsburg quoting the Chief Judge of the Seventh Circuit Court of Appeals, Richard Posner, in the case of Hope Clinic v. Ryan said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.”

Chief Judge Richard Posner of the Seventh Circuit

Chief Justice Rehnquist deferred to the analysis of Justices Kennedy and Thomas in their dissents.

Justice Scalia, who as we recall cannot find the concept of Liberty in the Constitution, attacked the Court's opinion as "policy-judgment-couched-as-law."

Justices Kennedy and Thomas dissents violently clash with the Court's majority opinion in general and Justice O'Connor's opinion in particular. Rehnquist, Scalia, Kennedy, and Thomas would give great deference to Nebraska. They find Justice O'Connor's view that the statute would pass constitutional muster with an appropriate exception for the health of the mother disingenuous.

When the Rehnquist branch of the Court write the opinion they are seen as substituting policy for judgment couched as law. When they are in the minority they hurl that barb at the majority. Abortion remains a contentious issue on the Court.

The Court seldom airs its internal conflicts as openly as it does in these cases.

Monday, June 28, 2010


Twice before this blog has written about H.R. 5175 the DISCLOSE ACT. First on May 26th in a blog about the case of Citizens United v. Federal Elections Commission. Next, on June 4th in a blog about Judicial Review and this bill.

H.R. 5175, known as the DISCLOSE Act, (Democracy Is Strengthened by Casting Light on Elections Act). The issue here is simple. Does Lynn Jenkins stand for the people or Corporate wealth? She stands for those fat cats she's been voting to protect since she got to Congress. Lynn Jenkins voted against real people and for the fiction of the Corporation as a person on roll call 391.

The Abortion Cases Part Eleven

Abortion remains a volatile issue on the Court

In Planned Parenthood of Southeastern Pennsylvania v. Casey the Supreme Court eked out another close decision fractured even as to who authors what part of the opinion. It was a 5-4 decision. Associate Justice O'Connor, Associate Justices Kennedy and Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V E, in which Justice Stevens joins, and an opinion with respect to Parts IV, V-B, and V-D.

Associate Justice Stevens concurred in part and dissented in part from the majority opinion.

Associate Justice Blackmun concurred in part, concurred in the judgment in part, and dissented in part. Blackmun joined parts I, II, III, V-A, V-C, and VI of the majority opinion.

Chief Justice Rehnquist concurred in the judgment in part and dissented in part. He was joined by Associate Justices Scalia and Thomas.

Associate Justice Scalia wrote an opinion dissenting in part, he was joined by Chief Justice Rehnquist and Associate Justices White and Thomas.

Five sections of the Pennsylvania Abortion Control Act of 1982 were at issue in this case.
  1. §3205 requiring a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed;
  2. § 3206 mandating the informed consent of one parent for a minor to obtain an abortion, but providing a judicial bypass procedure;
  3. §3209 commanding that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;
  4. §3203 defining "medical emergency" by which compliance with the foregoing requirements are excused;
  5. §§ 3207(b), 3214(a), and 3214(f), imposing certain reporting requirements on facilities providing abortion services.
This case mounts another facial challenge to the constitutionality of a State law on abortions. Here the petitioners, five abortion clinics, a pro se physician, and a class of doctors who provide abortion services brought suit for declaratory relief asking that the several sections listed above were unconstitutional; they also sought injunctive relief.

The District Court held all the provisions unconstitutional and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the balance.

The opinion said "After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed"

O'Connor wrote: "Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest."

Associate Justice Sandra Day O'Connor addresses the self-evident tension in Roe between a woman's unfettered right under the Fourteenth Amendment to terminate her pregnancy and the State's interests in protecting potential life. She said:
"That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.

We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at ___, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.

The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U. S., at 163. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.

The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce."
The majority rejected the trimester rule established by the Court in Roe. "The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers."

The Court's majority deftly addresses the interests of the States in these cases. "The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty."

Feathering out the dimensions of the undue burden standard O'Connor wrote that "[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.

"Some guiding principles should emerge," the majority said. "What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden."

Abortion is not an unfettered right

Addressing the particular clauses of the Pennsylvania statute listed above O'Connor begins with point four, §3203 defining "medical emergency."

That section says a medical emergency is "[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function."

The opinion said that §3203 imposed no undue burden on a woman's abortion right.

The Court next addressed §3205 requiring a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed.

Informed consent continued to be a focus of a State's limits in expressing its preference for live childbirth. O'Connor wrote "To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the 'probable gestational age' of the fetus, those cases go too far, are inconsistent with Roe's acknowledgment of an important interest in potential life, and are overruled."

Upholding §3205 the Court said "Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e. g., Doe v. Bolton, 410 U. S., at 189. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right."

Evidence at trial demonstrated a litany of harms that present themselves to a woman where she is required by law to get the husband's consent as §3209 mandates. In striking down this provision the Court said "The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases"

O'Connor traced the legal history of marriage back to a time when women had no rights and were seen only as extensions of their husbands. She wrote "Section 3209 embodies a view of marriage consonant with the common law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that §3209 is invalid"

The Court rejected, again, the notion that parental consent violates a minor's rights under Roe where a judicial bypass is provided by the statute. The Court said "We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure"

The Court affirmed part and invalidated part of the record keeping requirements of the Pennsylvania law. "Subsection (12) of the reporting provision requires the reporting of, among other things, a married woman's "reason for failure to provide notice" to her husband. § 3214(a)(12). This provision in effect requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman's choice, and must be invalidated for that reason."

Associate Justice Stevens wrote an opinion which concurred in part and dissented in part. He was concerned that more clarification was needed to guide the States as to when their interest in maternal health and live childbirth could override the privacy interest of the woman to make the choice to terminate her pregnancy.  The counterpoise from the States' interest in potential life was the liberty interest of the mother.

Pennsylvania's Governor Robert P. Casey, Sr. depicted as a Pope

He was also concerned that State law reflected secular, avoiding any violation of the First Amendment's Establishment Clause. "First, it is clear that, in order to be legitimate, the State's interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest."
Stevens rejects the Court's decisions in Akron and Thornburg He wrote "Those sections require a physician or counselor to provide the woman with a range of materials clearly designed to persuade her to choose not to undergo the abortion. While the State is free, pursuant to § 3208 of the Pennsylvania law, to produce and disseminate such material, the State may not inject such information into the woman's deliberations just as she is weighing such an important choice."

Associate Justice Blackmun, appreciative of the affirmation of the Court's decision in Roe, nevertheless expressed concern about the hostile judicial activism mounting on the Court to the landmark case. He wrote "I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

He continued " Make no mistake, the joint opinion of Justices O'Connor, Kennedy, and Souter is an act of personal courage and constitutional principle. In contrast to previous decisions in which Justices O'Connor and Kennedy postponed reconsideration of Roe v. Wade, 410 U.S. 113 (1973), the authors of the joint opinion today join Justice Stevens and me in concluding that "the essential holding of Roe should be retained and once again reaffirmed." In brief, five Members of this Court today recognize that "the Constitution protects a woman's right to terminate her pregnancy in its early stages."

Chief Justice Rehnquist, ironically anchored his rebuff of the Substantive Due Process Rights of a woman's liberty under the Fourteenth Amendment to the case of Bowers v. Hardwick. The Bowers case dealt with Georgia criminalizing sodomy; oral and anal sex between consenting adults. I say ironic because the Supreme Court managed to overrule Bowers seventeen years later in a similar case from Texas, Lawrence v. Texas. Rehnquist generally assails the majority in his somewhat rambling dissent.

Associate Justice Nino Scalia, in his dissent, said that he does not believe that our "Liberty" is not protected by the Constitution. "The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed."

Associate Justice Antonin Scalia

Apparently Nino Scalia has never read the Constitution which begins with the Preamble. "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Saturday, June 26, 2010


This is Lynn Jenkins, she does not represent us

H.R. 5486 is bill to amend the Internal Revenue Code of 1986 to provide tax incentives for small business job creation, and for other purposes. It is known as the SMALL BUSINESS JOBS TAX RELIEF ACT OF 2010.
Among the features of this bill are these provisions:

  • Amends the Internal Revenue Code to increase from 50% to 100% the exclusion from gross income of the gain from the sale or exchange of qualified small business stock acquired after March 15, 2010, and before January 1, 2012.

  • Increases the tax deduction for trade or business start-up expenditures from $5,000 to $20,000 in 2010 and 2011.

  • Revises the definition of "qualified nonrecourse financing" to include qualified nonrecourse real property or Small Business Investment Company financing as amounts at risk for purposes of determining the deductibility of losses from certain investment activities, including farming, leasing, and energy exploration.

  • Excludes from gross income any amount paid for a borrower under the Small Business Administration (SBA) borrower assistance program.

  • Revises rules for valuing assets in grantor retained annuity trusts to require that the right to receive fixed amounts from an annuity last for a term of not less than 10 years, that such fixed amounts not decrease during the first 10 years of the annuity term, and that the remainder interest have a value greater than zero when transferred.
The Republican argument on this bill was that it was not large enough and that it spent too much money. Michigan's Republican Representative was the minority's primary antagonist on H.R. 5486. He said "First, while the tax relief in here is welcome, it's not enough and won't actually help small businesses create the jobs we need to reduce our stubbornly high unemployment rate. While I would certainly support further lowering taxes on small businesses, the last thing they need is higher taxes, which is exactly what they are facing from this Congress." And with that the Party of No said no to small business.

This is like looking at a hungry person and telling him you've got a ham sandwich and a bag of chips, but he is too hungry for that. No, you won't give him a snack, he's got to wait for the big meal. Of course when the big meal comes along you then tell him, wait, I can't afford to feed you this big meal!

Camp went on to say "Second, this bill, like others before it, provides a stark reminder of the majority's view of the Ways and Means Committee as an ATM machine to fund other spending. Here, the majority is seeking to generate $7.1 billion in additional tax revenue but would only provide $3.6 billion in tax relief over the next decade. The rest of the money raised will be used to offset the cost of another bill, H.R. 4297, which was reported by the Financial Services Committee, that creates another TARP-like program. Some might call it TARP III."

H.R. 4297 is the RURAL DISASTER ASSISTANCE IMPROVEMENT ACT of 2009. My friends you have just witnessed a Congressional Smoke Screen. H.R. 4297, introduced by New York City's Democratic Congressman Paul Hodes, languishes in the House Committee on Transportation and Infrastructure; specifically in the Subcommittee on Economic Development, Public Buildings and Emergency Management. There has been no action on Representative Hodes' bill.

Secondly Mr. Camp seems to live in a very simple world, that of his own mind. Representative Camp wants you to believe that perfect offsets exist between tax cuts and revenue generation. If you cut taxes by $10 then you cut spending by $10 and it all evens out.  The Republican goal is simple, no government. Tax cuts are supposed to generate revenue. Tax cuts are supposed to stimulate the economy, create jobs, and get folks buying things.  A tax cut is supposed to raise revenue through increased productivity.  It doesn't always work because it is based on assumptions like full or near full employment. The Republicans can't seem to wrap their simple minds around this concept.   Oh, and for the record, Mr. Camp voted for TARP. the Emergency Economic Stabilization Act on October 3, 2008.

Lynn Jenkins and the Party of No voted against Small Business Tax Relief and Job Creation on roll call 363

The assault on Small Business continued with H.R. 5297 the SMALL BUSINESS LENDING FUND ACT of 2010. In these times Small Businesses need access to credit. This bill gives an infusion of cash flow to the one sector of the economy that creates the most jobs, Small Business Here is a letter to the Congress from the National Association of Realtors about this bill.

Washington, DC, June 15, 2010.

Washington, DC.

DEAR REPRESENTATIVE: On behalf of the 1.1 million members of National Association of REALTORS , and their affiliates, I ask for your support of H.R. 5297, the ``Small Business Lending Fund Act of 2010,'' introduced by Representative Frank (D-MA). This bill will create the Small Business Lending Fund Program (SBLFP) that would increase the availability of credit to our nation's commercial real estate and small business sectors.

Nearly $1.4 trillion of commercial real estate loans will mature over the next several years, with a very limited capacity to refinance. If not addressed, the swelling wave of maturities could place further stress on already fragile financial markets and slow our nation's economic recovery. In addition to addressing the issues facing the commercial real estate industry, improving access to capital for small businesses--widely acknowledged as a critical part of growing the American economy--is also greatly needed. In fact, the percentage of small business owners holding a business loan or credit line fell almost 20 percent last year. Unappreciated is the fact that a significant portion of commercial real estate is owned, leased, and operated by small businesses.

Unlike the Troubled Asset Relief Program (TARP), the SBLFP contains lending provisions that help ensure community banks have both the incentive and greater capacity to increase total loans to small businesses by decreasing the dividend cost on the capital investment as lending grows.

Additionally, we support Amendment #4 (Minnick, D-ID), which would allow commercial real estate loans for properties for lease to be eligible in the SBLFP. As H.R. 5297 is currently written, only owner-occupied commercial real estate loans qualify for this program, which excludes commercial real estate loans on properties for lease--a significant portion of small businesses that need refinancing assistance.

In order to help spur small business hiring and growth, NAR urges you to pass this important legislation.

2010 President, National Association

Friday, June 25, 2010


This is Lynn Jenkins, she does not represent us

Lest we forget America remains at war, actual armed conflict where the members of our Armed Forces put their lives on the line every day. We have an obligation to the troops to support them with a robust effort. H.R. 5136, the NATIONAL DEFENSE AUTHORIZATION ACT for fiscal year 2011 is how we make sure our military has what it needs to get the job done.

H.R. 5136 Authorizes appropriations to the Department of Defense for: (1) procurement, including for aircraft, missiles, weapons and tracked combat vehicles, ammunition, and shipbuilding and conversion; (2) the Joint Improvised Explosive Device Defeat Fund; (3) Defense Production Act purchases; (4) research development, test, and evaluation; (5) operation and maintenance; (6) military personnel; (7) Working Capital Funds; (8) the National Defense Sealift Fund; (9) the Defense Coalition Acquisition Fund; (10) chemical agents and munitions destruction; (11) drug interdiction and counter-drug activities; (12) the Defense Inspector General; (13) the Defense Health Program; (14) the Armed Forces Retirement Home; (15) overseas contingency operations; (16) chemical demilitarization; (17) the North Atlantic Treaty Organization (NATO) Security Investment Program; (18) National Guard and reserve forces facilities; (19) military base closure and realignment activities; and (20) overseas contingency operations military construction.

Military Construction Authorization Act for Fiscal Year 2011 - Authorizes appropriations for FY2011 for military construction, military family housing, and energy conservation projects.

Sets forth provisions or requirements concerning: (1) military personnel policy; (2) education and training; (3) military pay and allowances; (4) acquisition policy and management; (5) DOD organization and management; (6) DOD financial matters; (7) civilian personnel; (8) matters relating to foreign nations; (9) the National Defense Stockpile; and (10) military construction.

Establishes the Refined Petroleum Products, Marginal Expense Transfer Account for DOD purchases of refined petroleum products.

Since there is no Republican in the White House Lynn Jenkins and the Party of No have turned their backs on America's military. She voted against H.R. 5136 on roll call 336.

Thursday, June 24, 2010

The Abortion Cases Part Ten

In Rust v. Sullivan the Supreme Court took a look at funds for Family Planning under Title X of the Public Health Service Act. The opinion of the Court was handed down by Chief Justice William Rehnquist. He was joined by Associate Justices Byron White, Anthony Kennedy, David Souter, and Nino Scalia.

Unlike their official portrait, the 1991 U.S. Supreme Court was sharply divided

Associate Justice Harry Blackmun wrote a dissenting opinion in which Associate Justice Thurgood Marshall joined and in which Associate Justice Sandra Day O'Connor joined as to Part I. Associate Justice John Paul Stevens joined Blackmun's opinion as to Parts II and III. Associate Justices Stevens and O'Connor filed separate dissenting opinions.

Facial challenges to a statute's constitutionality must demonstrate that the statute is constitutionally infirm as to any and all circumstances. A successful facial challenge to the constitutionality of a law renders that law void. Facial challenges are contrasted to "as applied" challenges which makes the case that the law as applied to a particular plaintiff or set of plaintiffs would be unconstitutional.

Rust v. Sullivan is a case about a facial challenge to the Department of Health and Human Services (HHS) regulations limiting the ability of Title X fund recipients to engage in abortion-related activities. The United States Court of Appeals for the Second Circuit upheld the regulations, finding them to be a permissible construction of the statute as well as consistent with the First and Fifth Amendments to the Constitution.

Here the majority affirms the Court of Appeals.

Congress enacted Title X of the Public Health Service Act (Act) providing for federal funding for family-planning services. The Act authorizes the Secretary of Health and Human Services to "make grants to and enter into contracts with public or non-profit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services." Grants and contracts under Title X must "be made in accordance with such regulations as the Secretary may promulgate." Section 1008 of the Act, however, provides that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." That restriction was intended to ensure that Title X funds would "be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities."

The regulations attach three principal conditions on the grant of federal funds for Title X projects. First, the regulations specify that a "Title X project may not provide counseling concerning the use of abortion as a method of family-planning or provide referral for abortion as a method of family planning."

Second, the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning." 59.10(a). Forbidden activities include lobbying for legislation that would increase the availability of abortion as a method of family planning, developing or disseminating materials advocating abortion as a method of family planning, providing speakers to promote abortion as a method of family planning, using legal action to make abortion available in any way as a method of family planning, and paying dues to any group that advocates abortion as a method of family planning as a substantial part of its activities.

Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.

Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. Respondent is the Secretary of the Department of Health and Human Services.

The Court found the language of Title X ambiguous. We need not dwell on the plain language of the statute because we agree with every court to have addressed the issue that the language is ambiguous. The language of 1008 — that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning" — does not speak directly to the issues of counseling, referral, advocacy, or program integrity. If a statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."

Addressing "Program Integrity" Rehnquist said it was permissible for separate facilities and record keeping be maintained as a way to insure that federal funds were only used in a manner prescribed by the rules imposed by the Secretary of Health and Human Services.

The Court's majority also rejected, by tiptoeing through a long line of cases, the argument that the rules advanced here violated the First Amendment. The opinion said "The regulations, which govern solely the scope of the Title X project's activities, do not in any way restrict the activities of those persons acting as private individuals. The employees' freedom of expression is limited during the time that they actually work for the project; but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority"

Finally the Court summarily dismissed any claims predicated on denial of a woman's Due Process Rights under the Fifth Amendment. "Under the Secretary's regulations, however, a doctor's ability to provide, and a woman's right to receive, information concerning abortion and abortion-related services outside the context of the Title X project remains unfettered. It would undoubtedly be easier for a woman seeking an abortion if she could receive information about abortion from a Title X project, but the Constitution does not require that the Government distort the scope of its mandated program in order to provide that information."

The fact that this program was applicable to indigent women did not disturb the majority. "The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortion, but rather of her indigency."

Associate Justice Harry Blackmun's called the majority's opinion disingenuous. He said: "Because I conclude that a plainly constitutional construction of 1008 is not only `fairly possible' but entirely reasonable,' [he] would reverse the judgment of the Court of Appeals on this ground without deciding the constitutionality of the Secretary's Regulations"

Blackmun rejected the majority's analysis regarding the First Amendment and Fifth Amendment claims.

In the dissent by Associate Justice Stevens, he said: " I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals."

In her dissent Associate Justice Sandra Day O'Connor said: " In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of 1008 compels the Secretary's interpretation, and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.

Rust v. Sullivan was decided in 1991

Wednesday, June 23, 2010


This is Lynn Jenkins, she does not represent us

The America COMPETES Reauthorization Act H.R. 5116 America COMPETES Reauthorization Act of 2010 - Establishes, revises, and extends specified science, technology, education, and mathematics (STEM) programs, as well as engineering, research, and training programs. In this posting we look at the impact of amendments on the bill, including one insisted on by Lynn Jenkins, she gets the amendment, of course she votes against the bill. 

Here are the amendments.

H.Amdt.656, offered by Tennessee's Democratic Representative Bart Gordon. Introducing the Amendment he said on the floor of the house "The amendment makes a handful of technical and clarifying changes and a few substantive additions to the underlying bill. Most of the changes were the result of negotiations with our Republican colleagues following our full committee markup." Amendment 656 passed on roll call 262 by a vote of 417 to 6, Lynn Jenkins voted in the affirmative.

H.Amdt.658, offered by Texas' Republican Representative Ralph Moody Hall. Representative Hall used to be a Democrat. Hall represented Texas' 4th Congressional District for 24 years before switching to the Republican Party. When introducing his amendment, Hall's would "strike title V of this bill, which creates bigger government and calls for more spending in areas that go well beyond research and development and authorize potentially inappropriate and duplicative programs," he said. The Amendment failed on roll call 263 with Lynn Jenkins voting for the amendment.

H.Amdt.641, introduced by Massachusetts' Democratic Representative Edward Markey establishes a program to support the development and commercial application of clean energy technologies through a Clean Energy Consortium selected competitively by the Secretary of Energy.  This Amendment passed with Lynn Jenkins voting against it on roll call 264. Apparently her "all of the above" approach excludes Clean Energy!

H.Amdt.642, introduced by California's Democratic Representative George Miller requires public institutions of higher education, with respect to employees who are represented by labor organizations and who work on activities or programs supported by this Act, to maintain a policy to respond to union information requests, for information to which the union is legally entitled, on a timely basis in order to be eligible to receive facilities and administrative costs provided by any of the funding sources authorized by this Act. Failure to comply with such a policy results in suspension of payments to the institution for facilities and administrative costs until compliance is achieved. This Amendment passed the House on roll call 265. Lynn Jenkins voted against making universities comply with lawful request from labor unions. Lynn Jenkins does not represent working people.

H.Amdt.643, introduced by Texas' Democratic Representative Silvestre Reyes has two purposes according to Reyes. "First, it would require the Science, Technology, Engineering and Math Coordinating Committee under the Office of Science and Technology policy to describe in their 5-year strategic plan the approaches that each STEM agency will take to conduct outreach designed to promote widespread public understanding of career opportunities in STEM fields.

Second, the amendment requires the establishment and the maintenance of a publicly accessible online database, or a, if you will, of all federally-sponsored STEM education programs. would be a one-stop shop where teachers, students, and researchers would be able to access information on all of the opportunities available in STEM fields. Currently, all STEM programs are listed in different places online with different programs, and this amendment would simply consolidate the information for easier access in one location. "

The Reyes Amendment passed on roll call 266, with Lynn Jenkins voting for the Amendment.

H.Amndt646, introduced by Ohio's Democratic Representative John Boccieri increases the authorization level for funding for Federal Loan Guarantees for Innovative Technologies in Manufacturing from $50 million to $100 million.

Credit is tight in this economy, American industries need help in gaining "access to capital, to help them move forward to retool their current manufacturing process with the newest technologies, to help make the high-quality components for the military, heavy truck, construction equipment and material handling equipment, industries that they are known for, and to help put them in a better position to be able to capture their share in the global economy," according to Michigan's Democratic Representative Mark SCHAUER.  This Amendment passed on roll call 267 with Lynn Jenkins voting against the ability of American businesses to have greater access to credit.

H.Amdt.648, introduced by Illinois' Democratic Representative Debbie Halvorson. She describes this as a simple amendment which would " help expand career opportunities in science and engineering for veterans of our armed services. As the only Member from my State that serves on the House Committee on Veterans' Affairs, I am proud to stand up for the brave men and women who have served our country and our military. It is important for us to stand up for them not only when they are on Active Duty, but also when they return home."  This Amendment passed on roll call 268 with Lynn Jenkins voting for the amendment.

H.Amdt.650, introduced by Arizona's Republican Representative Jeff Flake was not controversial in nature and only added a "sense of the Congress" effect to the bill. The purpose of the Amendment is that Congress wants those educated in American colleges and universities in the areas of Science, Technology, Engineering and Math to stay working here in America. Flake said: " According to the National Science Foundation, foreign students receive about half of all doctorates in engineering, mathematics, computer sciences, physics, and economics that are awarded in the United States. Unfortunately, growing backlogs in processing applications hamper the flexibility of U.S. employers to hire foreign-born talent with advanced degrees from American universities. These hurdles affect even doctoral graduates in STEM fields trained at U.S. universities, who either return home or seek employment in a country with a more welcoming immigration system. The loss of Ph.D. talent, trained at U.S. institutions and due to immigration red tape, to our competitors makes little sense, and it harms our economy".  This Amendment passed on roll call 269, with Lynn Jenkins voting for the amendment,

There were eight amendments presented to the House on this bill. Lynn Jenkins voted with the majority of the House four times and with the losing side four times. You'd have to argue that she got half of what she wanted in the presented amendments.

Roll 270 was a Motion to Recommit with Instructions, it is usually a way to kill a bill.  Not this time. Here the Congress was upset with federal employees wasting government time and money watching porn on-line via their government computers.

Lynn Jenkins took to the floor, she said: " If you're a government employee, and you are disciplined for viewing, downloading, or e-mailing pornography, including child pornography, on government computers or during work hours, you will no longer be paid. You will be fired. If you think a couple of days of suspension, a reprimand, a transfer is the right response when someone uses government computers to spread pornography, then vote against this motion. But if you think spreading pornography with a government computer is an act that should lead to dismissal, then vote for this motion."  The motion to recommit with instructions passed and the bill went back to committee.

When the House resumed consideration of H.R. 5116 another series of amendments were proposed. House Amendment 678 was divided into votes on its pertinent parts.

First came a proposed striking of section 228 from the bill. Section 228 permits awarding innovation inducement cash prizes in any area of research which give priority to high-risk, high-reward research challenges solving problems whose solution could improve the economic competitiveness of the United States.  This Amendment failed on roll call 326. Lynn Jenkins thought it was a bad idea to incentivize creative solutions to our lack of technological and economic competitiveness. She voted to strike section 228 on roll call 326..

The next amendment sought to strike§§ 406(b) and (c). Section 406 (b) gives authority for an innovative services initiative to assist small and medium sized manufacturers reduce their energy usage and environmental waste to improve profitability and accelerate the domestic commercialization of new product technologies, including components for renewable energy systems.

So this Amendment wants to prohibit assisting small and medium sized manufacturers and seeks to not speed up commercialization of new products in the field of renewable energy. Who'd vote for that? Lynn Jenkins on roll call 327. The Amendment failed.

The third part of this amending procedure sought to amend §702 of the bill adding language. Section 702 deals with persons with disabilities and disabled veterans. The amendment instructed agencies receiving funds under this section. This part of the amendment failed on roll call 328. Lynn Jenkins vote for amending §702.

Roll call 329 deals with that question of pornography which propelled Lynn Jenkins to the House floor. A new section, was added that said there would be no salaries for viewing pornography. This passed by a vote of 409 to 0.

Roll call 330 proposed adding a section that would make ineligible those institutions of higher education that violate §983 of title 10, United States Code. That section is applies if the college or university prevents ROTC access or military recruiting on campus and denies grants and contracts to such institutions. This amendment appears duplicative. The measure passed on a vote of 348 to 68. Lynn Jenkins voted for this amendment .

Roll call 331 sought to impose alternative funding authorizations. This failed on a vote of 181 to 234. Lynn Jenkins voted in the affirmative to trim the money for this bill.

Remember that on the first set of amendments Lynn Jenkins got half of what she wanted. On the several votes on House Amendment 678 she was with the winning side 3 out of 7 times. She got exactly what she wanted with roll call 329.

On Passage Lynn Jenkins voted no. That was roll call 332. When Lynn Jenkins says Republicans are blocked out of presenting their ideas by the Democrats, she is full of hot air. Lynn Jenkins does not want to help small and medium sized businesses, efforts at green energy, or America's efforts with Science, Technology, Engineering and Math. Lynn Jenkins does not represent us.  So, is she still against pornography?

Tuesday, June 22, 2010


Kris Kobach, purveyour of gobbledygook 

Democrats need to start debunking the intellectual fraud espoused by F.A.I.R., Kris Kobach, and Arizona's infamous SB 1070 papers please law. Kobach is apparently the brain trust behind F.A.I.R. and their puppet Arizona State Senator Russell Pearce. Pearce, apparently with Kobach's counsel now plans to introduce another Draconian bill, this time denying the so-called Anchor Babies born in Arizona a birth certificate.

Apparently Kobach's big argument is that those Arizona illegal immigrants and their children are not "under the jurisdiction" of the United States. The first case they talk of was In re Thenault, see this blog's posting for May 27th. Here Kobach is mixing his applesauce with chicken manure. Thenault speaks to the citizenship of children born to parents of a foreign power who are in the diplomatic service of their country.

Both John McCain and Barrack Obama are American Citizens

This rule also applies to children whose parents are in the armed forces of their country, kids like that pesky John McCain, who was born in Panama, yet is not Panamanian but American!

Thenault has diddly squat to do with persons not in the employ and or service of their country who come to America and produce a child. It does not follow that either these so-called Anchor Babies or their foreign national parents are beyond the jurisdiction of the United States or any of the Several States of the Union.

How is that Kris Kobach and his puppet Russell Pearce believe that illegal aliens are not subject to the jurisdiction of the United States or the State of Arizona? If they are not subject to American and Arizonan jurisdiction then SB 1070 and their forthcoming nightmare Anchor Babies Bill would be null and void ab initio. That's because if they are not under American jurisdiction they are not subject to our laws and all the laws Kobach wants passed wouldn't apply. Kobach speaks gobbledgook.

Kris Kobach should know that jurisdiction is not just some word about which politicians gather for demagogue parties. Jurisdiction is a term of art in the law. Jurisdiction means the place where the law speaks. In the United States our law speaks to everyone located within our boundaries, with the notable exception of diplomats, who are present in the U.S.A, and possess diplomatic immunity, that's called Territorial Jurisdiction.

The part where the law applies to every person found here, or with significant contacts here, is called Personal Jurisdiction. The Court's have Subject Matter Jurisdiction over cases properly brought before them.  A case can even go to court where no person is involved. The government can sue a car, or a plane, or a tract of land using In Rem Jurisdiction.  Kobach shouldn't have to be tutored on jurisdiction, he is supposed to be a law professor!

So far as SB 1070 and the forthcoming Anchor Babies Bill, Kobach & company's contention that illegal aliens and or their Anchor Babies are not subject to the jurisdiction of the United States or of the Several States of the Union is absurd. Here Kobach & company state no valid legal theory, it's all gobbledygook.

It gets worse. Russell Pearce, and maybe I heard Tom Tancredo say this too, trying to explain their Wing Nut Legal Theory said it took an act of Congress to establish citizenship of the native American peoples.


What the Wing Nut Law Department forgot was the basic difference between American Indians and Illegal Aliens. That's so like when they tried to blur the distinction between the children born to diplomats and children born to illegal aliens. But it gets worse.

American Indians, according to Chief Justice John Marshall, do not belong to a foreign sovereign state. They are sui generis, a class unto themselves. Marshall, in Cherokee Nation v. Georgia, called them "domestic dependent" nations. That case was decided in 1831. American Indians are not coming from another foreign country. They were not considered citizens of the United States, or of any other nation.

So the Snyder Act, also known as the Indian Citizenship Act of 1924 came about to define the legal relationship of Native Americans with the United States of America. Prior to the Snyder Act American Indians were stateless persons. The illegal aliens subject to Kobach's suspect laws are citizens of Mexico, or Costa Rica, or Panama, or any of the nations south of the American border. They are not stateless persons.

It is so easy in difficult economic times to scapegoat persons who are essentially economic refugees.  Doing so runs counter to our core values of radical hospitality and an expansive future.  Each time America has accepted waves of immigrants America has gotten the best of the bargain.  This wave of immigration is no different.

We need Comprehensive Immigration Reform we do not need blowhards like Kris Kobach.   We can do better than advance Kobach's agenda of intellectual fraud.

Monday, June 21, 2010


This is Lynn Jenkins, she does not represent us

Homes in America account for over 20% of America's carbon pollution.. Existing technologies and practices can cut home energy use by up to 40%. The HOME STAR ENERGY RETROFIT ACT of 2010, H.R. 5019, addresses making America's homes more energy efficient, and produce American jobs in the process. This bill is a win win!

Home in America account for 20% of our Carbon Pollution

This legislation, more than anything, is about jobs. When enacted and funded, Home Star will create 168,000 new jobs here in the United States. These are jobs that won't be outsourced overseas. They are construction jobs in our neighborhoods and our communities. And they're manufacturing jobs for workers at factories in America. Nearly one in four workers in the home construction and services industry has been laid off. Passing Home Star says, ``Help is on the way.'' according to Representative Ed. Markey a Massachusetts Democrat, one of 44 cosponsors to this bill introduced by Vermont Democrat Peter Welch.

Home Star will establish a rebate program for the installation of energy-efficient home upgrades. These rebates will encourage homeowners to hire contractors to install new, efficient heating and air conditioning, to insulate their homes, and to replace drafty windows and doors. It's an approach that can benefit every contractor in this country, from small independent businesses to contractors associated with large home improvement store chains.

There appears to be a strong correlation between money and votes

Republicans speaking on the floor of the House against H.R. 5019 include Florida's Cliff Stearns who has received $256,544 from Electric Utilities during his career on the Hill. OpenSecrets.Org,, says he has taken $336,400 from the Energy and Natural Resources Companies.

Next up is a California career politician Republican Thomas Miller McClintock II. He, like Lynn Jenkins, is a freshman member of the House having been elected in 2008. During this abbreviated career McClintock has taken $88,300 from the Oil and Gas Industry, and is credited with taking more than $106,600 from the Energy and Natural Resources sector of the economy. See,

Then came Ohio's two term Republican Representative Bob Latta. OpenSecrets.Org says, , he has gotten $40,500 from Electric Utilities and $37,500 from Oil and Gas. He's credited with a total take from Energy and Natural Resources sector with a haul of $88,600.

Now comes the Minority Leader, Representative Tom Boehner of Ohio. Here's a man that's been sucking on the corporate teat for a long time. According to OpenSecrets.Org,                                                         , he has gotten to the Electric Utilities for $432,030 and Oil and Gas for $258,350. He's added over $896,000 from the Energy and Natural Resources sector. That's a lot of money!

California's 7 term Democratic Representative Anna G. Eschoo summed up the bill: " At its heart, the bill is simple--it will provide rebates to homeowners who make energy efficiency improvements to their homes. But the effects of this simple legislation will be anything but modest. Homeowners who participate in the rebate program will purchase American energy efficiency products and employ American workers to install these products, creating almost 170,000 jobs in the construction and clean technology industries."

Oh, in those 14 years she's gotten only $125,100 from the Energy and Natural Resources sector. She didn't take enough from Electric Utilities or Oil and Gas to even register on OpenSecret.Org's charts, Follow the money baby, follow the money.

Compare Representative Eschoo's 14 year total to Lynn Jenkins' 2 year total. Jenkins has taken, $95,350 from Oil and Gas, and totaling $118,700 from the Energy and Natural Resources Sector,

Now guess how Lynn Jenkins voted. Follow the money baby, follow the money. She voted no on you being able to lower your utility bill, no to Americans going back to work, no to reducing carbon pollution. That was roll call number 255.