Jerry Moran does The Sidestep on Infrastructure

For those unfamiliar with "The Sidestep" please enjoy this YouTube clip from a scene out of The Best Little Whorehouse In Texas.

On Thursday, November 3rd Kansas' junior United States Senator, Jerry Moran, voted against the infrastructure package of President Obama's American Jobs Act.  That was S. 1769, the Rebuild America Jobs Act.  That bill was introduced by Minnesota's senior Democratic Senator Amy Klobuchar together with 23 cosponsors.  It was defeated on party line votes with Nebraska's Democratic-in-name-only Ben Nelson and Connecticut's turn coat so-called Democratic Joe Liebermann voting to keep the economy stalled. No Republican voted for this bill.

The Republicans, courtesy of Utah's Orrin Hatch, put up a bill, sort of, which alluded to infrastructure.  Their bill was S. 1786, the Long-Term Surface Transportation Extension Act of 2011.  I say sort of because there is no summary of the bill on Thomas, the web portal for the Library Congress.  Also, it is sort of not an infrastructure bill when you consider it is jam packed with the Republican lunacy of gutting every conceivable regulation possible.  Jerry Moran voted for this piece of art.

On Friday I went to Senator Moran's website and wrote that I thought his rejection of the infrastructure bill the day before was shameful.  Jerry wrote back, by e-mail, and does "The Sidestep" claiming that he supports the infrastructure bill he just voted against. 

Here is the letter:

Dear Michael:

There is no more important issue for Congress to immediately address than job creation. It is unacceptable that unemployment in the United States has been at eight percent or higher for 32 consecutive months. I share your frustration at the lack of job growth and I'm open to ideas from Republican and Democratic Senators to create an environment in which the private sector can create jobs.

Although I voted against the full bill, it is important to note that Congress will continue to consider aspects of the President's plan independently including revenue enhancements that are used to pay down our national debt. Two programs of his plan that I support are the infrastructure investments and the Returning Heroes Hiring Tax Credit. These two proposals will help put Americans back to work and should be passed as standalone provisions. In addition to those proposals, it is my belief that the key to job growth is unleashing American innovation. Between 1980 and 2005, companies less than five years old accounted for nearly all new job growth in the United States. Over the last three decades, these new companies have created 40 million new jobs.

To get America's economic engine roaring once again, entrepreneurs must be free to pursue their ideas, form companies, and hire employees. To that end, I plan to introduce legislation with Senator Mark Warner of Virginia to jump-start the economy through the creation and growth of new companies. Our legislation will remove barriers to the formation and growth of businesses, make it easier for new companies to attract investment so they can grow, and unleash the creative talent of Americans by facilitating the commercialization of federally-funded research. Many of these ideas are supported by the President's Council on Jobs and Competitiveness. I plan on working hard with Senators on both sides of the aisle to ensure passage of commonsense legislation that will lead to job creation.

I am grateful for the opportunity Kansans have given me to serve them in the United States Senate. If you are interested in learning more about my efforts on your behalf, I encourage you to visit moran.senate.gov. Please let me know if I can be of service to you or your family in the future.

Very truly yours, Jerry Moran

My e-mail address is only equipped to send messages. I encourage you to send me a message through my web site: http://moran.senate.gov/

When Jerry says "Although I voted against the full bill, it is important to note that Congress will continue to consider aspects of the President's plan independently including revenue enhancements that are used to pay down our national debt. Two programs of his plan that I support are the infrastructure investments and the Returning Heroes Hiring Tax Credit." he is doing The Sidestep shuffle.  He votes against the infrastructure bill and writes that he supports it. 

Watch that video again!

Here is the White House view of S. 1769.

EXECUTIVE OFFICE OF THE PRESIDENT

OFFICE OF MANAGEMENT AND BUDGET

WASHINGTON, D.C. 20503

November 3, 2011

(Senate)

STATEMENT OF ADMINISTRATION POLICY

S. 1769 – Rebuild America Jobs Act

(Sen. Klobuchar, D-Minnesota, and 20 cosponsors)

The Administration strongly supports passage of the Rebuild America Jobs Act, which will put hundreds of thousands of construction workers back on the job and modernize America's crumbling infrastructure. The President proposed this measure to Congress as part of the American Jobs Act as a way to create jobs and improve the Nation’s long term economic competitiveness by allowing goods and services to more efficiently reach domestic and global markets.

S. 1769 immediately invests $50 billion in the Nation's highways, transit, rail and aviation. This includes investments to improve the Nation's airports, support NextGen Air Traffic Modernization efforts, and provide resources for the TIGER and TIFIA programs, which target competitive dollars to innovative multi-modal infrastructure programs. S. 1769 will also take special steps to enhance infrastructure-related job training opportunities for individuals from underrepresented groups and ensure that small businesses can compete for infrastructure contracts. Together, these investments will rebuild America – upgrading 150,000 miles of roads, constructing and maintaining 4,000 miles of rail, and rehabilitating or reconstructing 150 miles of runway.

S. 1769 also includes an innovative American Infrastructure Financing Authority capitalized with $10 billion, in order to leverage private and public capital and to invest in a broad range of infrastructure projects of national and regional significance, without earmarks or political influence.

S. 1769 is fully paid for through a surtax on those Americans making over $1 million per year. What is most important is putting Americans back to work right now and making sure the debt is not increased over time – and doing so in a way that is fair. S. 1769 meets that test.

By enacting S. 1769, the Congress and the President can work together to put America back to work and lay a foundation for future prosperity, and the Administration urges prompt and favorable action.

* * * * * * *



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.

LYNN JENKINS AND KEVIN YODER AND Q C HOLDINGS - THE PREDATORY PAY DAY LENDER BUYING CONGRESS ONE REPRESENTATIVE AT A TIME

Will Kevin Yoder be a Lynn Jenkins clone? Follow the money to see how much they took from the same sources. I wasn't all that surprised to see these two feeding from the same trough.

The Center for Responsive Politics' OpenSecrets.org provides this eye opening data.

Lynn Jenkins' top contributor was Q C Holdings, the nefarious owner of predatory pay day loan operations. She got $17,250 from Q C Holdings, $12,500 from individuals, and $5,000 from their PAC. Kevin Yoder's top contributor was the same Q C Holdings. Yoder got $34,500 from Q C Holdings, $24,500 individuals, and $10,000 from their PAC.

A multicandidate PAC can give no more than $5,000 per election. General plus primary elections equals $10,000.  To read the FEC contributions limits chart for yourself go to http://www.fec.gov/info/contriblimits0910.pdf.

Q C Holdings' PAC gave Tim Huelskamp $4,500.

Lynn Jenkins took $7,250 from the Cerner Corporation, $7,000 from their PAC, and $250 from individuals. Kevin Yoder did better, he took $24,392 from the Cerner Corporation, $10,000 from their PAC, and $14,392 from individuals. Oddly enough Cerner, whose business is health care delivery say on their website that:

"The American Recovery and Reinvestment Act of 2009 (ARRA) provides approximately $787 billion in spending and tax cuts to stimulate the U.S. economy."

 See, http://www.cerner.com/About_Cerner/Stimulus_and_HITECH/.

In one moment Cerner praises the Stimulus while turning on its heels to support those who deny its efficacy. Being fair we have to acknowledge that Cerner wants to have their cake and eat it also; take the Stimulus and oppose Health Care Reform.

Cerner's PAC also gave Kansans Tim Huelskamp $2,500 and Jerry Moran $5,000. Cerner gave to Missouri Republicans. Sam Graves got $8,000, Jo Ann Emerson received $4,500, and Roy Blunt took $10,000.