H.R. 359, REPUBLICANS WANT TO END PUBLIC FINANCING OF PRESIDENTIAL ELECTIONS AND NOT RETURN THE MONEY

H.R. 359 is a prime example of where the Republican controlled 112th Congress wants to cut spending. This is a bill with a long title, it is called the "To reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions" bill.

By golly that's right, let's cut federal spending, especially when that spending comes from the taxpayers, and is earmarked by the taxpayers to be used for the specific purpose of financing Presidential Elections.  In the wake of the Supreme Court's terrible decision in Citizens United and the tsunami of dark money in last year's election, why allow the bulwark protecting Presidential Elections to stand?  Republicans know they can get tons of cash from persons who don't have to identify themselves to flood the 2012 Presidential Election.

Public financing of Presidential Elections doesn't come from the general fund. This money comes from ordinary taxpayers who mark a box at the end of their IRS tax form saying they want to contribute a dollar to this fund. It's called the taxpayer checkoff.

You can read the brochure the Federal Elections Commission has printed to explain how Public Funding of Presidential Elections works at: http://www.fec.gov/pages/brochures/pubfund.shtml#anchor688095. The brochure explains:

To qualify for public funding, Presidential candidates and party convention committees must first meet various eligibility requirements, such as agreeing to limit campaign spending to a specified amount. Once the Federal Election Commission determines that eligibility requirements have been met, it certifies the amount of public funds to which the candidate or convention committee is entitled. The U.S. Treasury then makes the actual payments from the Presidential Election Campaign Fund. This fund consists of dollars voluntarily checked off by taxpayers on their federal income tax returns. (In 1993, the taxpayer checkoff was increased from $1 to $3. Public Law 103-66) The checkoff neither increases the amount of taxes owed nor decreases any refund due for the tax year in which the checkoff is made. [Emphasis Added.]

H.R. 359 is the first bill emerging from the House Rules Committee that deals with the 112th Congress' Republican pledge to cut spending. But don't they have it backwards? Didn't the people vote to have this Congress cut Congressional spending instead of cutting off the voluntary dollars of American citizens being spent at the express direction of the American people?

H.R. 359 amounts to larceny. The bill, introduced by Oklahoma Republican Tom Cole, with 18 cosponsors, wants to pillage the hard earned dollars Americans put into this fund. Rather than do the accounting necessary to return the unspent money to the American people, this band of thieves wants to steal the money and put it into the general fund. The bill directs that "The Secretary shall transfer all amounts in the fund after the date of the enactment of this section to the general fund of the Treasury." So everyone who voluntarily gave a dollar to keep the Presidential Election free from the undue influence of special interest money gets taxed by these Republicans.

The Republicans are shadow boxing with the issue of cutting governmental spending. They can't do it. Congress and the Administration will have to work together to make the hard choices on reducing the government's budget. Knee jerk solutions like H.R. 359 will not get the job done.

It's time to end the shadow boxing and knee jerking. It's time for the 112th Congress to put up or shut up.

THE CASE AGAINST LYNN JENKINS CHAPTER 57 - H.R. 339, A LAME BILL THAT DOESN'T END LAME DUCK SESSIONS AND IGNORES THE CONSTITUTION

This is Lynn Jenkins, she doesn't represent us, and she doesn't understand the Constitution

Having invented a new Holocaust,

And been the first with it to win a war,

How they make haste to cry with fingers crossed,

King's X—no fair to use it any more!

                                               -Robert Frost

H.R. 339, the much ballyhooed Lynn Jenkins opus, the End the Lame Duck Act has been filed in the House.  Jenkins managed to get 26 other Members of Congress to sign on to this poorly crafted bit of propaganda.  It is as though these 27 Representatives are waving a flag proclaiming their utter ignorance of the Constitution.  This is not a good bill.

The bill starts off with a big exception. We are going to adjourn sine die if we are properly adjourned on election day. Even a blind elephant can stumble around that exception. So this is the end the Lame Duck Session Maybe Bill. Of course Jenkins didn't really mean to say that the lame duck session would be ended. Of course not, she wrote in even more exceptions.

The first exception shines a bright light on Jenkins' failure to understand the Constitution and the Congress as an institution. Her first formal exception deals with counting electors. Gee, that's great. Jenkins wants the lame duck Congress to cast votes in the archaic process of formally electing the President and Vice President.  The language of her bill says "(1) COUNTING OF ELECTORS- Nothing in subsection (a) shall be construed to prohibit the Congress from meeting to count electoral votes pursuant to section 15 of title 3, United States Code."  Read the full text at Thomas, the web site for the Library of Congress at: http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.339:.


Two problems with Lynn's Lame Bill. The first problem takes us back to the Twentieth Amendment to the Constitution. That was the change to the Constitution where the start of the new Congress was accelerated to January 3rd following the general election for a new Congress every two years and for President and Vice President every four years. Remember that date, January 3rd.

The second problem, again of Constitutional dimension, is that the counting of the votes of the electoral college are governed under the Twelfth Amendment to the Constitution . This Amendment does not allow the former Congress to have any authority in the counting of the votes of the electors. What is really pathetic about this section of Jenkins' opus is that she correctly references the federal statute codifying the appropriate provision of the Twelfth Amendment, 3 U.S.C. § 15.  That law begins: 

"Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer."

If the new Congress starts on January 3rd, as the Twentieth Amendment says it does, and the Congress meets on January 6th to perform their roll in counting the votes of the electors of the Electoral College, then H.R. 339 doesn't make any sense.  H.R. 339 doesn't make any sense.  You'd think a person claiming to be a Certified Public Accountant would be good enough at math to know that 6 follows 3. 

Which goes to show that you can read the Constitution on the floor of the House but you can't get Members to understand it. The new Congress, not the former, counts the votes of the electors. Jenkins just gets it wrong, as usual.

Now when Jenkins says the Congress is to adjourn sine die she didn't really mean it. She meant that it would adjourn for good if and only if the:

the Speaker of the House of Representatives and the majority leader of the Senate, or their respective designees, acting jointly and with the written agreement of the minority leader of the House and the minority leader of the Senate, may notify the Members of the House and Senate, respectively, to reassemble if each determines that it is in the interest of the United States to do so.

So if those in the driver's seat just got tossed out, then maybe they'd see it in the nation's interest to keep legislating up to the bitter end. That way they can get everything done they want to get done.

Of course Jenkins wouldn't want the government to have any money problems while the Congress is dormant. That's why she provides for AUTOMATIC CONTINUING APPROPRIATIONS in her bill. This section seems to undercut the reasoning for not having lame duck sessions. Consider that the electorate, We the People, may be fed up with the spending habits of a given Congress and vote to throw the rascals out. What good is it to have thrown out the rascals only to have their spending policies put on automatic pilot?

H.R. 339 reminds me of Robert Frost's poem Kings X. Jenkins' crosses her fingers and cries "Kings X" only we can end the lame duck session when and if we want to end the lame duck session. And the money keeps getting spent on automatic pilot. "King's X, only kidding, didn't really mean it" is what Jenkins seems to be saying. HR. 339 is a really bad bill.

THE CASE AGAINST LYNN JENKINS CHAPTER 56 - SHE WOULDN'T KNOW THE TRUTH IF IT KISSED HER ON HER LYING MOUTH

This is Lynn Jenkins, she does not represent us

Lynn Jenkins wouldn't know the truth if it walked up to her, looked deeply into her eyes, and gave her a long tender kiss on that lying mouth of hers. She just lacks the capacity to discern and convey truth. She is full out, and in the terms of steam technology, balls to wall when it comes to spewing propaganda.

Jenkins represents the problem with Washington. Rather than be honest about the contents of any given law, or bill, or proposal, our Members of Congress go straight to lobbyist prepared talking points. The cadre of spin doctors frame the debate so that future campaign funds can be solicited.

Take a look at OpenSecrets.org. Look up Lynn Jenkins. Look at the tens of thousands of dollars she gets from Health Insurance Companies. Then weigh that cash against her votes. When it comes to serving the people of the Second Congressional District she comes up short. When it comes to serving the richest of the rich, serving the corporate interests, and following the party line Jenkins is a super star.

Today Lynn Jenkins left a questionnaire in my e mail. She asks  "Do you support the repeal of the new Government run health care package?" And that question my friends is a pile of pure propagandized poop, because America does not have a new Government run health care package to repeal.

From today's Washington Post:

"Certainly, the law bolsters government regulation of the health-care system, such as forcing insurance companies to no longer deny coverage to people who have existing medical conditions. People who do not have insurance will be required to buy it. But the core of the health-care system in the United States will remain the private insurance market."

Read the full article at:

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/18/AR2011011806519.html.

Another tidbit about Jenkins' survey is the requirement to subscribe to her newsletter. Consider that as she cites the results of the poll. She is primarily polling her base. Polls lacking proper statistical foundation are good only for the purposes of propaganda.

The other day I told a friend that I'd like to be represented in Congress by someone like Gabby Giffords of Tucson. When asked why I had to explain that Giffords, unlike Jenkins, has half a brain. How true it is.

H.R. 2 - WELL PAID REPUBLICANS REPAYING THEIR MASTERS BY PRETENDING TO REPEAL HEALTH CARE - AND THE DEMOCRATIC AMENDMENTS TO THAT PIECE OF WORK

Some things change and some things don't. Yesterday the first six votes of the 112th Congress were cast. The constant change, that doesn't matter a whit, is that the majority party is always reported by Thomas in Roman typeface while the minority appears italicized. Independents remain underlined. This appears to be one thing about which the parties choose not to make a fuss.

Roll Call # 1 was the Call to Quorum of the 112th Congress. If, in the next two years, you get lost in your research and can't recall whether the Member who introduced such and such a bill is a Republican or Democrat then you can go back to Roll Call # 1, or you can check and see if on a recorded vote if they appeared in Roman or italics. There are supposed to be 435 Members of the House of Representatives, Roll Call # 1 counted only 434 with all Members voting.

Roll Call # 2 was the election of the Speaker. Then came four votes on the Rules Package H. Res. 5. The tables are turned and it is now the Democrats role to offer the dilatory motions. That's another constant change, that doesn't matter a whit. The minority party is perpetually opposing everything the majority does.

The Rules Package, do however matter. The Republicans have made available a section by section analysis of the changes to the Rules Package, through the Rules Committee website at: http://www.rules.house.gov/RulesRepMedia/file/PDF/HRes%205%20Sec-by-Sec.pdf.

The Republicans have gutted the long standing statutory PAYGO provisions with the more trendy sounding CUTGO rules. Under these rules any bill that has the effect of increasing net spending must be accompanied by cuts in other spending.  But tax cuts don't apply in the equation. 

That sounds budget neutral, but it ain't! The first breach of the Republican's Rules Package by the Republicans will come with their pretending to repeal Health Care Reform. Repealing that law will have the effect of increasing the deficit by more than $100 billion in the next ten years, and by increasing the deficit by more than $1 trillion dollars over the next two decades. And the cut required to offset this increased spending is zero. The Republicans break their promise with the first bill up.

Speaking of the first bill up, it looks to be Virginia Republican Eric Cantor's H.R. 2. The official title of that bill is "To repeal the job-killing health care law and health care-related provisions in the Health Care and Education Reconciliation Act of 2010."

Whatever else you may think about the effect of having everyone in the United States covered by Health Insurance you know that it is creating a lot of jobs. You can read the full text of Representative Cantor's bill at http://rules-republicans.house.gov/Media/PDF/HR__-Repeal.pdf. The bill is also available at: http://thomas.loc.gov/cgi-bin/bdquery/D?d112:1:./list/bss/d11/2HR.1st::.

Democrats have offered nine amendments to Cantor's bill. Arizona's Raul Grijalva wants to keep changes to the Indian Health Care Improvement Act, a law not updated since 1992.

Texas' Sheila Jackson-Lee offered 3 amendments, although her second amendment appears to be a revision of her first. She proposes to prohibit repealing Section 2 unless the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) certify that repeal will not reduce Medicare and Medicaid fraud and abuse prevention. Her second revised amendment adds the qualifier that OMB and CBO will certify that it will preserve the number and funding of community health centers. Her final proposed amendment prohibits repeal of Section 2 unless OMB and CBO certify that repeal will not increase insurance rates.

Wisconsin's Gwen Moore proposed two amendments. The first preserves expansion of eligibility for Medicaid for individuals under the age of 65 with income up to 133 percent FPL (federal poverty level). This amendments preserves the increase in the federal medical assistance percentage (FMAP) for the States, helping them finance coverage for the newly eligible population. Moore's second amendment is similar to Jackson-Lee's third amendment. This amendment preserves the ban on higher premium charges based on gender, health status, or occupation (only allowing for regulated premium variations based on age and tobacco use).

New York's Jerrold Nadler suggests two amendments. They should seriously print his amendments with pink ink. Nadler wants to make sure that women over the age of 40 have access to screening mammograms and that women who are at high risk of breast cancer have access to screening MRIs (magnetic resonance imaging). Nadler's second amendment requires OMB, in consultation with CBO, to certify to Congress that the repeal of the health care law will not reduce the affordability of, or access to, breast cancer screening and prevention, including mammography and MRIs.

Eighteen Democrats offered the final amendment, they are Massachusetts' John Tierney, Ohio's Dennis Kucinich, Michigan's John Conyers, New York's Maurice Hinchey Illinois' Jesse Jackson Jr. Minnesota's Keith Ellison, Hawaii's Mazie Hirono, New York's Gregory Meeks, Massachusetts' John Olver, Ohio's Betty Sutton, Maryland's Chris Van Hollen, New York's Paul Tonko, Arizona's Raul Grijalva Massachusetts' Niki Tsongas, Pennsylvania's Mike Doyle, Maine's Chellie Pingree, Texas' Silvestre Reyes, and New York's Yvette Clarke.

Their amendment preserves the medical loss ratio (MLR) requirement as set forth through the Affordable Care Act which requires insurance companies in the individual and small group markets to spend at least 80 percent of the premium dollars they collect on medical care and quality improvement activities and insurance companies in the large group market must spend at least 85 percent of premium dollars on medical care and quality improvement activities.

When watching the 112th Congress don't forget to follow the money. The Center for Responsive Politics' OpenSecret.org reports that new House Majority Leader Eric Cantor got a lot of money from insurance companies and health professionals, those who stand to lose a large chunk of change with Health Care Reform.  In fact these two groups were two of Cantor's largest contributors by industry classification. For Campaign 2010 the Insurance Industry gave Cantor $286,850 and Health Professionals gave him $228,750. See, http://www.opensecrets.org/politicians/summary.php?cid=N00013131

Eric Cantor, the best Majority Leader Money Can Buy.

The section in the Rules Package exempting Health Care Repeal says:

Exemptions. Subparagraphs (h)(1) through (7) authorize the Budget

Committee Chair, prior to the adoption of a budget resolution, to exempt from estimates the budgetary effects of the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Jobs and Growth Tax Relief Reconciliation Act of 2003. It also exempts the budgetary effects of the repeal of the Patient Protection and Affordable Care Act and Education Affordability Reconciliation Act of 2010. The budgetary effects of AMT relief, estate tax, trade agreements and small business tax relief are also exempted. The exemption is limited to measures which do not increase the deficit or revenues over the ten-year budget window, except for increases in revenue which meet certain specific criteria.

DARRELL ISSA WANTS TO DISMANTLE THE "EFFLUENT RULE" - MORE SEWAGE FOR EVERYONE COURTESY OF THE REPUBLICAN PARTY!

Politico is reporting that the incoming Chairman of the House Oversight and Government Reform Committee, Republican Representative Darrell Issa has begun pandering to big business as he looks for things to investigate. See, http://dyn.politico.com/printstory.cfm?uuid=4EF9419A-BEB3-7585-05E2D9D88A6E95A1.

One of Issa's issues centers around the "Effluent Rule" which Issa says will cost America "$810.8 million annually, resulting in the closure of 147 construction firms and the loss of 7,257 jobs."

That sounds terrible until you think it through. Are these construction firms really saying that they'd rather close their doors than not let sewage run into the public waterways? Darrell Issa is providing the nation of a perfect example of that which trickles down, and it isn't wealth or prosperity.

The Environmental Protection Agency's Civil Enforcement Division has published an online example of a construction site that did not comply with EPA guidelines. The case is called Richmond American Homes and can be found online at: http://www.epa.gov/compliance/resources/cases/civil/cwa/richmondamericanhomes-infosht.html. Richmond American Homes is owned by M.D.C. Holdings, Inc., which entered into a settlement with the United States, and the States of Maryland, Colorado, Utah and Nevada, and the Commonwealth of Virginia.

Here is a list of some of the typical problems found on construction sites owned and operated by M.D.C. according to the EPA.

The types and severity of alleged violations vary for each site but generally include: discharge of polluted storm water to storm sewers or waterways without obtaining an NPDES permit; failure to develop an adequate Storm Water Pollution Prevention Plan (SWPPP) for minimizing the amount of sediment and other pollutants in storm water runoff from the sites; failure to install or implement appropriate storm water controls or best management practices (BMPs) required by the SWPPP (for example: silt fences were not installed in all required areas; BMPs to prevent sediment from entering storm drains were not installed; no BMPs were installed at construction entrances to prevent offsite trackout of dirt; concrete washout basins were not installed to prevent concrete from flowing into storm drains; portable toilets were located directly on top of storm drain inlets without BMPs to prevent spills from entering the storm drain); incorrect installation of BMPs (for example: silt fences were not properly trenched in; sediment ponds were not completed prior to commencing site grading); failure to keep BMPs in effective operating condition (for example: silt fences and storm drain inlet protections were full of sediment and no longer effective; silt fences had fallen down or had holes; construction entrances needed additional rock); failure to adequately or routinely inspect BMPs to ensure proper operation and maintenance.

M.D.C. paid a fine of $795,000. Apparently Darrell Issa has no problem with port-a-potties being parked over storm drain inlets. After the construction firms let concrete and or mud flow into those drains they aren't of much use anyway. And it isn't the job of the construction industry to be good corporate citizens, to protect the environment, or to build in a responsible manner. Darrell Issa will have them build down and dirty, throw it up quick and cheap, make the profit and move on.

The choice is being made clear by the Republicans of the 112th Congress. They are letting us know in the clearest terms that they are the party of the big business interests. Rather than expect construction firms to do their jobs correctly, Issa wants to let business run wild and ignore the rules protecting the water flowing into our rivers and lakes. That's the water we eventually use to drink, cook, and bathe.

I can just see it now, as Darrell Issa takes credit for all the new jobs our nation's underfunded municipal waterworks will have to create to clean this effluent out of our water and rebuild our concrete and mud clogged infrastructure.

JERRY MORAN, LYNN JENKINS, & DAN BURTON HAVE GOT THE PREEMPTION DOCTRINE WRONG - USA v. ARIZONA, THE SB 1070 CASE

Kansas' Republican Senator-elect Jerry Moran, Second District Representative Lynn Jenkins, and Indiana's Fifth District Republican Dan Burton weighed in to the Arizona SB 1070 with an amicus curiae brief. They joined the Washington Legal Foundation (WLF), the Allied Educational Foundation (AEF), Concerned Citizens and Friends of Illegal Immigration Law Enforcement (CCFILE) [ § 501 (c) (3) organizations], and the National Border Patrol Council (NBPC) [ a § 501 (c) (5) organization.].

Their opening volley is that the federal government's failure to establish a "pervasive" scheme as to employing illegal immigrants means that preemption cannot apply. It is one of the weaker arguments I have read in the many briefs competing for the attention of the Ninth Circuit Court of Appeals.

Take another case which employs the "pervasive" standard, Gustafson v. City of Lake Angelus, 76 F.3d 778, which was decided by the Sixth Circuit Court of Appeal in 1996. This is an aviation noise case from Michigan. Explaining when a statute may be preemptive, the Sixth Circuit said:

"A statute may be construed as preemptive under three circumstances.... First, Congress, in enacting a federal statute, may express a clear intent to preempt state law. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Common, 461 US. 190, 203 (1983). Second, absent express preemption, federal law may have an implied preemptive effect if Congress revealed this intent by "occupying the field" of regulation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). There is implied preemption when there is a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" or "because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Fidelity Federal Savings & Loan Assn, 458 US. at 153. There is a third type of preemption when state law actually conflicts with federal law. Such conflict occurs where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, (1941)."

The Hines case is the most important one to focus on because Judge Bolton relied on the case for as precedent and because it speaks directly to the topic which these Amici argue.

The current SB 1070 case on appeal to the Ninth Circuit, U.S.A. v. Arizona, is almost like an echo of the Hines case. The Commonwealth of Pennsylvania enacted an Alien Registration Act in 1939. That law required everyone over the age of 18 to "to register once each year; provide such information as is required by the statute, plus any:

other information and details "that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or any agent of the Department of Labor and Industry; and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one. The Department of Labor and Industry is charged with the duties of classifying the registrations for "the purpose of ready reference," and furnishing a copy of the classification to the Pennsylvania Motor Police. Nonexempt aliens who fail to register are subject to a fine of notmore than $100 or imprisonment for not more than 60 days, or both. For failure to carry an identification card or for failure to show it upon proper demand, the punishment is a fine of not more than $10, or imprisonment for not more than 10 days, or both.

In short, this statute was an earlier version of Arizona's papers please SB 1070 law.

What Moran, Jenkins, Burton, and their tax-exempt cohorts fail to recognize in their brief is that the Constitution gives the Congress absolute authority to regulate in the arena of immigration. Had their learned counsel fully read Hines, instead of picking and ignoring selected text, perhaps they wouldn't have found themselves out on the proverbial limb. What they want is for the Ninth Circuit to agree that this case is about an area where either the federal government or the states may regulate and ignore that silly old Constitution.

The Hines court went on to say:

Our conclusion is that appellee is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law. We proceed therefore to an examination of Congressional enactments to ascertain whether or not Congress has acted in such manner that its action should preclude enforcement of Pennsylvania's law.

In Hines the Supreme Court found that Pennsylvania Act could not be enforced. In finding that the United States is likely to succeed on the merits of the case, Judge Bolton said, in part, that SB 1070 "is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” [citing Hines.] ... Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established."

Judge Bolton added the following footnote 7:

The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallel legislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, J., concurring in plurality opinion in part and dissenting in part) (collecting cases where burden of state regulation on federal government was amplified by aggregate potential of multiple states following suit).

While it is clear that the Constitution gives the federal government sole authority over immigration Congress may invite the assistance of the States in the enforcement of those laws. That is essentially the argument made by SB 1070's author Secretary of State-elect Kris Kobach. What Kobach and the SB 1070 brain trust overlooked was the permissive nature of that cooperation. In a classic case of being offered an inch and taking a mile the Kobachian version is that when Congress opened the door to the States then all bets were off. You'd think a guy like Kobach would have a greater understanding of Constitutional Law than to come up with that goofy notion.

Gustafson v. City of Lake Angelus was a different sort of case from either Hines or U.S.A. v. Arizona. The latter two cases directly involved an area which the Constitution says the federal government has supreme control, but in Gustafson the Sixth Circuit said: "[W]e believe the United States' sovereign regulation of the airspace over the United States and the regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land (or, in the present case, water) use."

There are three ways in which the preemption doctrine can apply. First is the case of express preemptions, where " . . . Congressional intent to preempt must be unambiguous and cannot be inferred from (the) mere fact that (the) federal statute is detailed and complex or because state legislation touches an area of predominantly national concern." Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, (9th Cir. 1981) 659 F.2d 903.

Second is the case of implied preemptions, where ". . . When a federal statute does not explicitly prohibit state regulation in the same field, congressional intent to preempt may be inferred from nature of federal regulatory scheme or from subject matter being regulated . . . (Pacific Legal Foundation).

" . . in a preemption test the fundamental inquiry is whether local legislation will conflict with national policy . . .; if the activity is of predominantly local interest then state action may be permissible, but if a uniform national rule is necessary then federal preemption will be implied." California v. Zook, (1949) 336 U.S. 725, 728.

The third case is where the state law conflicts with federal law. This is where the instant case belongs. " . . . a conflict between state and federal law . . may arise when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, (1941) 312 U.S. 52, 67, as cited in Ogden Environmental Services v. City of San Diego, 88 Daily Journal D.A.R. 15264, 15266-15267.

" . . . Even if Congress did not intend to preempt all state legislation in a given field, a state law must be held invalid to (the) extent that it actually conflicts with federal law . . . (Pacific Legal Foundation, supra.).

" . . . State regulations are preempted when a conflict would arise if compliance with both federal and state regulations were impossible or if state regulations stood as an obstacle to achievement of congressional objectives . . . (Pacific Legal Foundation, supra.).

Moran, Jenkins, and Burton are trying to lead the Ninth Circuit down the wrong path, that of express preemption. They seem unable to reconcile themselves to the fact that the Constitution places this case in the third area, that of conflicts.

They will not win their point in an appellate court. The question remains if in the 112th Congress they will try to grant the States the power to regulate in the field of immigration. There is no way the President would sign a bill like that. It would, however, set up another interesting legal battle, the intentional abdication of federal responsibility by Congress. In other words, can Congress, by statute, let the States regulate where the Constitution says the States may not regulate?

Yes, Virginia, we seem to be returning to the Articles of Confederation. And no, Virginia, they didn't work so well before.