Gone to Die?

The first session of the 115^th Congress is begun.  Bills are filling the hopper of the Clerk of the House so quickly that congress.gov cannot get the text of them published because of a backlog at the Government Printing House, (GPO).  This issue will not be problematic for long.

Bills often die in committee.  I am suggesting that most, if not all, of the following bills will suffer that fate.  Of course the Representative filing the bill still has fodder for the campaign trail.  Sometimes these bills are a shell game.

In the Age of Trump; Fascism in America, there will no doubt be a strong need for Whistleblowers and enhanced Whistleblower Protections.  So it appears the list begins with reintroduction of a bill from the last Congress.  This time it is called H.R. 69: “To reauthorize the Office of Special Counsel, to amend title 5, United States Code, to provide modifications to authorities relating to the Office of Special Counsel, and for other purposes”.  The short title is "Thoroughly Investigating Retaliation Against Whistleblowers Act"

In the 114^th Congress the bill was numbered H.R. 4639 introduced by Rep. Rod Blum [R-IA-1] and cosponsored by Rep. Mark Meadows [R-NC-11], Rep. Gerald E. Connolly  [D-VA-11], and Rep Elijah Cummings [D-MD-7].

Detailed information about the bill as filed in the 114^th Congress is available at: https://www.congress.gov/bill/114th-congress/house-bill/4639.

When this bill is published we can compare the new version with the old. 

On a less happy note I offer you Representative Darrell E. Issa [R-CA-49] and his reintroduction of the Midnight Rules Relief Act. This year it is H.R. 21. Last year it was H.R. 5982.  It appears that Issa thinks the Congress has too much work to do. Too much in fact to take any decent amount of time to consider the work it is does.  After all in 2016 Congress met for 111 days.  That’s great part time work for the millionaires in power.   

Anyway, when the Congress takes up dreaded federal regulations it takes too much time to reject them one at a time.  Issa wants to reject them speedily (so Republicans can say “Yes that was a good Regulation. Unfortunately you have to keep all those bad regulations to keep the one you like Mr. Ms. or Mrs. Constituent.”  At least in the last year of a President’s term. 

When this bill gets out of the GPO it will appear on line and get a proper review. 

Make a note H.R. 5982 received five Roll Call votes and passed the House on Roll number 585 on November 17^th 2016.  It did not in survive the Senate. Read more about the former version at: https://www.congress.gov/bill/114th-congress/house-bill/5982

GOOGLE FIBER SAYS NO TO LEAWOOD, KS [or why egalitarianism bites the 1%]

Google Fiber came first to Kansas City, Kansas and then to Kansas City, Missouri with the egalitarian promise of leveling the playing field by bridging the digital divide.  Now the service is becoming available to Metro suburbs.  Today Google Fiber announced that it is indeed egalitarian because it has told Leawood, Kansas they can't have their service.

Leawood, especially the new Leawood south of Interstate 435 is the enclave of the 1%, or as my generation called them Yuppie scum.  They have used zoning laws to position themselves as a fortress keeping the riffraff away.  Recently a favorite grocery store of these wealthy spoiled citizens told them they were leaving town because the city was inflexible in using tax money to assist in the refurbishment of their store.

Leawood's affinity for zoning itself into oblivion struck again in Google Fiber's decision to bypass this golden ghetto.  It simply costs too much money for Google to develop the infrastructure to serve Leawood.  Oh their homes are big, and spread apart, the lot sizes tend to be described as estates.  The bottom line calculation for installing the impressive infrastructure for Google Fiber must go something like "x number of houses to the block, y number of blocks to the city = n number of potential customers".  Then you'd figure out how many customers you'd likely obtain and there is a break even figure in that math.  Leawood doesn't have enough customers to justify the cost of building the network in their city.

Plus there is the problem with digging ditches in the pristine lawns of Leawood.  You know that those people won't be satisfied with the trench being refilled and grass seed being spread and watered once or twice.  Nor would placing a coat of excelsior over the disturbed area suffice.  No, in Leawood Google Fiber would have to hire George Toma, or at least a golf course grass guru, to assure the continuity and beauty of the lawns of  Leawood.

So the whiny little rich kids will have to play their bleeding edge, high tech, and mind numbing electronic games on the back alleys of the internet highway system.  If they're parents need to wheel and deal on global markets they can rent office space in Kansas City, Missouri or Kansas; but they can't have it at home.  And the serious students will have to do their learning the old fashioned way.  They'll fall behind, but that tends to happens when the poorest become a little more equal in obtaining access to education with the richest.  When the average is raised in the arena of opportunity some win and some lose. The kids of the two Kansas Cities win this round.

KANSAS v. CHEEVER, feathering the reach of the Fifth Amendment

Today the Supreme Court hears a Kansas case called Kansas v. Cheever.

In 2005 Scott Cheever, high on methamphetamines, brain addled by long term abuse of methamphetamines, intentionally shot and killed Greenwood, Kansas County Sheriff Matt Samuels.  Cheever was convicted of murder.  The Kansas Supreme Court reversed.  The State appealed and the case is being argued before the United States Supreme Court.

You'd think that it would be an open and shut case, what with Cheever having confessed to the homicide.  It isn't.  Cheever offered expert testimony that his use of the illegal drug prevented him from being able to form the required mental state necessary to commit the crime.  Kansas responded with the testimony of a court appointed expert who likewise had examined Cheever. 

Let's remember that for a crime to be a crime it takes two parts the actus reus [or the criminal act] and the mens rea [the culpable state of mind].  

Cheever did not raise the defense of mental disease or defect, which would not have applied to a case of self-intoxication. Cheever raised the issue of mens rea.  That distinction now takes this case to the Supreme Court.  On appeal the issue is whether or not the Fifth Amendment proscription against self incrimination applies to the facts of this case. 

The law, as it stands today, is that when the criminal defendant raises the mental disease or defect defense then the state may rebut that defense with the testimony of a court appointed expert.  That is because the defendant raised the issue and when the court appoints the expert the defendant waives the Fifth Amendment rights. 

Here, the Kansas Supreme Court reasoned, Cheever made only the mens rea defense and thus the state cannot use the court appointed expert, violating the rule against self incrimination.  What avenues were open to the state?  Did the defendant provide MRI evidence to demonstrate the necrotic synaptic junctions that addled his brain to the point where Cheever couldn't form the adequate mens rea standard required by statute?  If so that type of evidence can be reviewed and rebutted by the state.  There is no Fifth Amendment violation because the defendant raised the issue and presented the defense.  

It is a fine point of law in the balance of which the life of Scott Cheever hangs.  The alternative to demanding Cheever's execution is called LWOP, that is a life sentence without the possibility of parole.  If his brain is as damaged as he claims he will no doubt serve out his days in a place like the State Hospital in Larned, Kansas.  

The way methamphetamine works on the brain is that it causes a rapid download of neurotransmitters like serotonin, GABA, dopamine, norepinephrine, and epinephrine.  These are the chemicals that permit communication between the brain and the body.  The rapid download is called the rush.  The addict craves the rush and consumes increasingly greater quantities of the drug.  Methamphetamine and cocaine work in virtually the same way on the brain. 

As the addict consumes greater quantities of the illegal drug the reuptake of the neurotransmitters are blocked.  This leaves high concentrations of the drug congesting the synaptic junctions of the brain. This leads to areas of necrosis in the brains of addicts.  These areas of necrosis can be revealed by an MRI or a CAT scan.  The brain of the addict under these circumstances appears to resemble Swiss Cheese, where the holes in the cheese represent the dead areas of the brain.

The link to the briefs in this case are located at http://www.americanbar.org/publications/preview_home/12-609.html.

The briefs frame the issues of the case for the Supreme Court in the "QUESTION PRESENTED" section of the brief.  Here are the questions for this case. 

1. When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the State violate the defendant's Fifth Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant?

2. When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant?

The Grand Old Plan

Once upon a time in America the bankers and Wall Street tycoons got so greedy that they wrecked the economy.  Their greed precipitated a time called the Great Depression.  In response to hunger, homelessness, and hopelessness America elected a Democratic President named Franklin Delano Roosevelt.

 

Prior to Roosevelt the Supreme Court followed a judicial theory called Substantive Due Process, or in terms of the Lochner Era economic due process.  During this time, the Lochner Era, courts struck down laws regulating the workplace as violating the substance of the Contract Clause. 

 

In Allgeyer v. Louisiana, 165 U.S. 578 (1897), which is considered the foundation of the Lochner Era cases, the Supreme Court ruled that a state may not legislate in a manner designed to deprive its citizens of the rights guaranteed under the Due Process Clause of the 14th Amendment.  The Louisiana Constitution prohibited foreign corporations from doing business in Louisiana, unless they had a place of business and an authorized agent within the state.  A New York Company was selling policies in Louisiana. Allgeyer bought a policy to cover goods being shipped by sea from the port of New Orleans.  He was convicted in the state court.  In this case the Supreme Court chose to address the problem by ruling on behalf of the citizen, not the state or the corporation.  Hence, Allgeyer, while providing a basis for Lochnerism is distinguishable from that case.

Lochner v. New York, 198 U.S. 45 (1905) is about a state law passed by New York which said bakery employees could not work more than 60 hours a week or 10 hours a day.  The state justified this law, as a valid exercise of the Police Powers, because it protects the health of the workers.  The Police Powers stem from the Tenth Amendment and is used by the states and local governments to preserve and protect the safety, health, welfare, and morals of the community.  

The Supreme Court sided with the bakery owner and said the law violated the bakery owner's right to contract protected by the 14th Amendment.  The Court held that the law was not justified on the basis of protecting the health of the employees.

Adair v. United States, 208 U.S. 161 (1907) is a case in which the Court struck down a federal law prohibiting Yellow Dog Contracts.  These contracts were used by railroad companies and required, as a condition of employment, that the prospective employee agree not to join a union.  Here the Court sided with the railroads saying the law was an "invasion of personal liberty, as well as of the right of property, guaranteed by the Fifth Amendment to the Constitution of the United States, and is therefore unenforceable as repugnant to the declaration of that amendment that no person shall be deprived of liberty or property without due process of law."

Another Yellow Dog Contract case, this time striking down a state law, came from the Sunflower State.  In Coppage v. Kansas, 236 U.S. 1 (1915) Kansas found the Yellow Dog Contracts to be coercive.  The Supreme Court did not agree.  The Court said, in part, "since a state may not strike down the rights of liberty or property directly, it may not do so indirectly, as by declaring in effect that the public good requires the removal of those inequalities that are but the normal and inevitable result of the exercise of those rights, and then invoking the police power in order to remove the inequalities, without other object in view."

Next the Court struck down a Washington state law, written with the support of the Department of Labor, that prevented privately owned employment agencies from assessing fees for their services.  The Court, in Adams v. Tanner, 244 U.S. 590 (1917) held that the Washington law "is arbitrary and oppressive, and that it unduly restricts the liberty of appellants, guaranteed by the Fourteenth Amendment, to engage in a useful business."

Child Labor Laws were ruled unconstitutional in Hammer v. Dagenhart, 247 U.S. 251 (1918).  And here boys and girls is where today's Republican Party wants to return, pay close attention.  Congress passed a law prohibiting "transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal there from, children under the age of 14 years have been employed or permitted to work, or children between the ages of 14 and 16 years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M." 

 

In a world view repugnant to our contemporary view of humanity, citizenship, and decency the Supreme Court said "In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed."

Attacking Unions was the theme of Duplex Printing Press Co. v. Deering, 41 S. Ct. 172 (1921).  Here the Court examined the Clayton Antitrust Act and determined that a prior ruling in Lowe v. Lawlor, 208 U.S. 274 (1908) which prohibited secondary economic boycotts to violate the Sherman Antitrust Act.  The Union and its members were held collectively and individually accountable.  Mr. Justice Brandeis saw it differently in his dissent, which in part he said: "The voluntary adoption of a rule not to work on nonunion made material and its enforcement differs only in degree from such voluntary rule and its enforcement in a particular case. Such a determination also differs entirely from a general boycott of a particular dealer or manufacturer with a malicious intent and purpose to destroy the good will or business of such dealer or manufacturer."

Child Labor Laws were again ruled unconstitutional in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). At issue was the 1919 Child Labor Tax Law.  The law, in pertinent part said, SEC. 1200. That every person (other than a bona fide boys' or girls' canning club recognized by the Agricultural Department of a State and of the United States) operating (a) any mine or quarry situated in the United States in which children under the age of sixteen years have been employed or permitted to work during any portion of the taxable year; or (b) any mill, cannery, workshop, factory, or manufacturing establishment situated in the United States in which children under the age of fourteen years have been employed or permitted to work, or children between the ages of fourteen and sixteen have been employed or permitted to work more than eight hours in any day or more than six days in any week, or after the hour of seven o'clock post meridian, or before the hour of six o'clock ante meridian, during any portion of the taxable year, shall pay for each taxable year, in addition to all other taxes imposed by law, an excise tax equivalent to 10 percentum of the entire net profits received or accrued for such year from the sale or disposition of the product of such mine, quarry, mill, cannery, workshop, factory, or manufacturing establishment."

Harkening back to their ruling in Hammer v. Dagenhart the Court said Congress could not impose a penalty in an area in which they lacked authority to regulate.

Minimum Wage Laws for women and children were ruled unconstitutional in Adkins v. Children's Hospital, 261 U.S. 525 (1923).  Here the Court held the law violated the individual rights to contract and the liberties guaranteed to the parties under the 5th and 14th Amendments.  The Court neatly equated the bargaining positions of individual women and children as being comparable. Clearly they were not

. 

Food Security wasn't even a notion, the way we consider it, when United States v. Butler, 297 U.S. 1 (1936).  Nonetheless, the Court ruled that "Regulation and control of agricultural production are beyond the powers delegated to the Federal Government." Can you imagine a world in which the USDA did not protect the food supply?

 

Minimum Wage was a main issue with the Bituminous Coal Conservation Act, also known as the 1935 Guffey Coal Act.  Congress  regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. The Court ruled the mining of coal was not commerce and the establishment of minimum wages was a price fixing scheme.

The switch in time that saved nine refers to a Court-packing plan by President Roosevelt which would have added sufficient seats to the Supreme Court to change the jurisprudence of the Court.  It happened when Associate Justice Owen J. Roberts moved away from Substantive Due Process in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), a minimum wage case, which excluded men.

From the syllabus:

1. Deprivation of liberty to contract is forbidden by the Constitution if without due process of law, but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process.

2. In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.

3. The State has a special interest in protecting women against employment contracts which through poor working conditions, long hours or scant wages may leave them inadequately supported and undermine their health; because:

(1) The health of women is peculiarly related to the vigor of the race;

(2) Women are especially liable to be overreached and exploited by unscrupulous employers; and

(3) This exploitation and denial of a living wage is not only detrimental to the health and wellbeing of the women affected, but casts a direct burden for their support upon the community. Pp. 394, 398, et seq.

4. Judicial notice is taken of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved.

5. A state law for the setting of minimum wages for women is not an arbitrary discrimination because it does not extend to men.

6. A statute of the State of Washington (Laws, 1913, c. 174; Remington's Rev.Stats., 1932, § 7623 et seq.) providing for the establishment of minimum wages for women, held valid. Adkins v. Children's Hospital, 261 U.S. 525, is overruled; Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, distinguished. P. 400. 

   

And why you ask is this important now?

It is because Senator Tom Coburn has dropped his “Enumerated Powers Act of 2013,” into the hopper.  This bill is cosponsored by “Senators Ayotte (R-NH), Barrasso (R-WY), Blunt (R-MO), Boozman (R-AR), Burr (R-NC), Chambliss (R-GA), Coats (R-IN), Corker (R-TN), Cornyn (R-TX), Crapo (R-ID), Cruz (R-TX), Enzi (R-WY), Fischer (R-NE), Flake (R-AZ), Graham (R-SC), Grassley (R-IA), Hatch (R-UT), Heller (R-NV), Inhofe (R-OK), Isakson (R-GA), Johnson (R-WI), Lee (R-UT), McCain (R-AZ), McConnell (R-KY), Moran (R-KS), Risch (R-ID), Roberts (R-KS), Rubio (R-FL), Scott (R-SC), Sessions (R-AL), Thune (R-SD), Toomey (R-PA), Vitter (R-LA), and Wicker (R-MS).”

Think Progress has an excellent article which blueprints the Grand Old Plan to return to the days of Substantive Due Process.  They write: "To translate this language a bit, in the late 19th Century, the Supreme Court embraced an unusually narrow interpretation of the Constitution’s provision enabling Congress to 'regulate commerce . . . among the several states.' Under this narrow reading, which lasted less than half a century, the justices said that they would only permit federal laws that regulated the transport of goods for sale or a sale itself. Manufacturing, mining, production and agriculture were all held to be beyond federal regulation. This theory was the basis for several decisions striking down basic labor protections, including a 1918 decision declaring a child labor law unconstitutional.

The article is at http://tinyurl.com/mbbjkwl.

ONLY 415 DAYS TO THE NEXT KANSAS DEMOCRATIC PRIMARY

There are 415 days before the Kansas Democratic primary.  Democrats wanting to replace Sam Brownback as Governor, Jeff Colyer as Lieutenant Governor, Kris Kobach as Secretary of State, Derek Schmidt as Attorney General, or Ron Estes as Treasurer need to start doing their homework now.  Also Insurance Commissioner is up for election.  Sandy Praeger's final term is up, and the Kansas City Star opines that she no longer fits into today's more radicalized Republican Party.  Also up are the 125 seats in the Kansas House, where the GOP leads 92 to 125

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Whether you want to run for a statewide office or for a House seat, now is the time to start building your team.  Loyal Democrats tend to head up the county organizations.  Some of these local party operations are well organized but most are not.  Do not be discouraged.  Your job between now and then, especially in the House Districts is to build your team, and you have time.

An effective way to make sure you have great contact information for the Democratic and Unaffiliated voters in your district is to go out and speak with them.  While you are going through this introductory phase of your campaign put the focus on the voters, find out what their interests are.  When they begin to realize that you'll go to Topeka and work for them and not just the rich people or the corporations then they are going to remember who you are. 

 

One big mistake candidates make, and they tend to do this because they are desperate for money to run the campaign, is the nonstop request for money.  Politicians sound like tired kids demanding candy in the checkout lines of the local grocery store.  Don't lead with a fundraising component.  But ask if they are on Facebook or Twitter.  Get their information and friend or invite them.  If not ask for the email so you can stay in touch.

One county chairman, an old timer who has served a decade or more in this role, after absolving himself of all responsibility for the defeat of all Democratic candidates asked if it would be alright to mail all the Democrats in the county a letter asking for their phone numbers.  No, I wanted to scream.  Get off your lazy keister and go knock on doors, I wanted to interject.  But something in Scripture about casting pearls before swine ran through my mind.

If you want to run for office you need to go knock doors.  You will others who will work for your campaign.  Here's an idea.  If you have a bunch of go-getters on your team why not have them file to run for the committeemen and committeewomen positions on your county's central committee.  This way you have your team making the whole party stronger.

Don't forget to ask if there are additional unregistered voters at the house.  Our numbers tend to take a dive when it comes to younger voters.  By getting the social networking and email contact information in your database you are better poised to reach these new voters.

So you think you want to run for office?  That's great, now go start talking to people.  Tell them who you are and what bothers you about state government.  Ask them what bothers them.  Take notes.  Find out who is on your central committee and introduce yourself to them.  Start attending their meetings.  Get a Facebook and a Twitter set up to explore your candidacy.  If in doubt what to do next, go knock on a door in your district.