LETTER TO EDITOR IN SUPPORT OF POSTAL WORKERS

From the Topeka Capital-Journal

Letter: Support postal workers

Posted: September 14, 2011 - 8:30pm
http://cjonline.com/opinion/2011-09-14/letter-support-postal-workers

The U.S. Postal Service is not broke. The USPS made a $226 million profit in the first quarter of 2011.

The organization’s financial woes result from a 2006 law, the Postal Accountability and Enhancement Act, requiring USPS funding 75 years of pension benefits in 10 years and prepayment of health benefits to postal workers’ retirement dates.

Postal workers and the USPS have overpaid the pension by at least $50 billion and up to $80 billion. The USPS must spend $5.5 billion each year as it aggressively prepays years ahead for the health benefits of thousands of workers.

Not one red cent of these billions of dollars is taxpayer money. Postal workers make contributions through paycheck deductions which are matched by the USPS with money from the sales of stamps.

The USPS isn’t getting credit for complying with this law. House Republicans are planning post office closures, Saturday postal delivery curtailment, and the firing of thousands of postal workers. Their bill is H.R. 2309. Kansas has 135 post offices slated for closure.

Contact Rep. Lynn Jenkins, R-Kan. Ask her to oppose H.R. 2309, demand a fair and accurate accounting of the health and pension funds belonging to postal workers, and to support our postal workers.

MICHAEL BOX,

OSAWATOMIE

1267 bridges in Kansas Second Congressional District Require Work

A 2009 report by the Federal Highway Administration lists the number of subpar bridges by State and County.  Here, by County are the raw numbers of bad bridges in the Second Congressional District.  782 of the District's bridges are Structurally Deficient, 485 of them are Functionally Obsolete, and that is 1267 reasons to reinvest in America and the Second Congressional District.  Here are 1267 reasons for Lynn Jenkins to vote for the American Jobs Act, S. 1549.

The DOT report by the Highway Administration report can be read on line at: http://www.fhwa.dot.gov/bridge/nbi/county09a.cfm#ks.

 County                 Structurally Deficient              Functionally Obsolete

Riley                              30                                            22     

Pottawatomie                 27                                            28

Jackson                          30                                            9

Brown                            67                                            15

Doniphan                       37                                            14

Atchison                        56                                            19

Jefferson                        31                                            11

Douglas                         12                                            40

Shawnee                        45                                            87

Osage                            32                                            30

Franklin                         21                                            8      

Miami                            76                                            33

Coffey                            8                                             7

Anderson                       18                                            12

Linn                               11                                            14

Woodson                       30                                            12

Allen                              33                                            24

Bourbon                        45                                            13

Wilson                           43                                            15

Neosho                          25                                            19

Crawford                       33                                            16

Labette                           24                                            24

Cherokee                        48                                            13

Contact Lynn Jenkins and ask her to support the American Jobs Act, S. 1549.  Clearly there is a difference between spending and investment.  Rebuilding America's roads, bridges, and schools is investment in vital infrastructure that puts American workers back to work now.  Tell Lynn Jenkins to PASS THIS BILL!

AN OBSERVATION ON IMPLEMENTATION OF THE BOWLES-SIMPSON CAT-FOOD COMMISSION

Help Lynn Jenkins help seniors break the horrible culture of dependence.  Collect coupons for products like these and mail them to Lynn Jenkins at the address below.  

AND

For crying out loud Lynn Jenkins tells us that America doesn't want old folks engaged in a culture of dependence.  So please send your coupons to  Lynn Jenkins! 

Do it now.  Clip those coupons from your paper.  Save, peruse, and use the coupons the grocers send to you in the mail.  Obliterating Social Security won't be easy, and we don't want to bother the wealthiest 2% by asking them to pay their fair share. 

Do It Now!  Help Lynn transition to the pre-Truman days when people just got old, sick, and died, without becoming a bother to Republicans.  Send the coupons to:

Representative Lynn Jenkins

Room 1122

Longworth House Office Building

Independence Avenue and South Capitol Street

Washington, DC 20003

THE CASE AGAINST LYNN JENKINS - CHAPTER 58: I don't know what Lynn Jenkins is smoking, but it can't be legal!

I don't know what Lynn Jenkins is smoking, but it can't be legal.  The Second District Congresswoman just sent me an e-mail confirming that she doesn't have a clue about history.  She excels at making propaganda points and is a spin doctor's star pupil.  To see how far afield she is from fact based truth I'll start with her conclusion.

Jenkins, speaking somewhat mindlessly about federal spending said:  "This plan is not perfect, but it took us more than 230 years to get into our current fiscal mess and with a Democrat Senate and President Obama in the White House it is an important step as we continue to fight to reform Washington and get our nation on a course toward financial accountability."

As reported previously on this blog (http://ideas-observations--mentalmachinati.blogspot.com/2011/07/reckless-republicans-poised-to-ruin.html), during the Clinton Administration, employing those Clinton Era Tax Rates,  we had a Budget Surplus ($237 billion), the single largest three year pay down of the Public Debt ($363 billion), paid for Social Security, and reduced the interest payment on the debt by $125 billion.

 

Reality to Lynn Jenkins:  This problem is clearly rooted with a Republican President not using his veto pen while the Republicans in Congress were spending like crazy, plus the predictable negative effects of deregulation of Wall Street - which critically wounded the economy,  and George Bush waging two wars off the books.  America got into the current fiscal crisis for these reasons and not because of our 230 year history.  Rather than demagogue the issues why can't Lynn Jenkins just tell the truth?  Because she can't handle the truth!

Even MicroSoft Word found Representative Jenkins' grammar questionable.  But I can live with bad grammar better than with bad logic.  Jenkins' rambles in the beginning of her letter.  "This change we seek, from a Washington, D.C. culture of spending and increased government dependence toward a culture more consistent with Eastern Kansans that encourages opportunity, not dependence, takes time."   

I think what Jenkins is trying to say is that those who rely on funds from the government are dependent on the government.  That dependence, Jenkins believes, runs counter to the values of Eastern Kansas.

Gee, that sure sounds good.  But Lynn, when America is borrowing money to pay for the Bush Era tax cuts (and we are), then doesn't that throw a rod in the engine of your argument?   And who is it that Lynn thinks is too dependent on the government?   Well, I bet she doesn't think its these folk.  Ending the "Bush Era" rates will cost the Koch Brothers $2 billion, the Wal-Mart Walton family $7 billion, the Campbell Soup Dorrance Family more than a half a billion dollars, and the family at the center of the Mars Candy Co. fortune will lose a $2.5 billion savings on their estate taxes. 

And she doesn't think that Defense Contractors are dependent on the government dole.  Jenkins voted for H.R. 1473, the Department of Defense and Full‐Year Continuing Appropriations Act, 2011.  That measure outspends Budget Authority on Defense spending by $72,116,000.  That's just the nonemergency spending! To be fair every category got outspent from its Budget Authority.

Jenkins then turns our attention to the Draconian budget passed by the Republicans in the House,  H.Con.Res. 34.  The first confusing thing we see about the Republican Budget is that despite cuts it still perpetuates deficits.  Jenkins voted for these Budget Deficits: 

Fiscal year 2012: $1,081,462,000,000,

Fiscal year 2013: $787,260,000,000.

Fiscal year 2014: $578,441,000,000.

Fiscal year 2015: $523,938,000,000.

Fiscal year 2016: $574,365,000,000.

Fiscal year 2017: $499,984,000,000.

Fiscal year 2018: $463,988,000,000.

Fiscal year 2019: $492,064,000,000.

Fiscal year 2020: $467,907,000,000.

Fiscal year 2021: $439,622,000,000.

When Bill Clinton left office we had a Budget Surplus.  The Republicans can't get us back to zero with a ten year plan.

The Republicans want to spend more on Defense.  They plan, despite the winding down of the Middle East Wars, to ramp up spending for the Military-Industrial Complex.  Here are those numbers:

Fiscal year 2012:

(A) New budget authority, $582,626,000,000.

(B) Outlays, $593,580,000,000.

Fiscal year 2013:

(A) New budget authority, $600,283,000,000.

(B) Outlays, $597,211,000,000.

Fiscal year 2014:

(A) New budget authority, $616,451,000,000.

(B) Outlays, $606,903,000,000.

Fiscal year 2015:

(A) New budget authority, $628,847,000,000.

(B) Outlays, $618,837,000,000.

Fiscal year 2016:

(A) New budget authority, $641,976,000,000.

(B) Outlays, $635,475,000,000.

Fiscal year 2017:

(A) New budget authority, $653,695,000,000.

(B) Outlays, $643,275,000,000.

Fiscal year 2018:

(A) New budget authority, $665,679,000,000.

(B) Outlays, $650,246,000,000.

Fiscal year 2019:

(A) New budget authority, $677,884,000,000.

(B) Outlays, $666,959,000,000.

Fiscal year 2020:

(A) New budget authority, $690,273,000,000.

(B) Outlays, $679,088,000,000.

Fiscal year 2021:

(A) New budget authority, $702,903,000,000.

(B) Outlays, $691,494,000,000.

The Department of Energy, where we pay for our nuclear weapons, gets consistent overspending treatment for the next five years by the Republican Budget.

Fiscal year 2012:

(A) New budget authority, $6,996,000,000.

(B) Outlays, $16,174,000,000.

Fiscal year 2013:

(A) New budget authority, $3,850,000,000.

(B) Outlays, $10,053,000,000.

Fiscal year 2014:

(A) New budget authority, $1,215,000,000.

(B) Outlays, $4,547,000,000.

Fiscal year 2015:

(A) New budget authority, $1,101,000,000.

(B) Outlays, $1,360,000,000.

Fiscal year 2016:

(A) New budget authority, $1,021,000,000.

(B) Outlays, $340,000,000.

Fiscal year 2017:

(A) New budget authority, $1,010,000,000.

(B) Outlays, $460,000,000.

Fiscal year 2018:

(A) New budget authority, $1,075,000,000.

(B) Outlays, $539,000,000.

Fiscal year 2019:

(A) New budget authority, $1,211,000,000.

(B) Outlays, $497,000,000.

Fiscal year 2020:

(A) New budget authority, $1,179,000,000.

(B) Outlays, $470,000,000.

Fiscal year 2021:

(A) New budget authority, $1,195,000,000.

(B) Outlays, $476,000,000.

The Republicans begin to show their true colors when you look at the deep cuts they plan for Commerce and Housing Credit.

Fiscal year 2012:

(A) New budget authority, $14,317,000,000.

(B) Outlays, $16,275,000,000.

Fiscal year 2013:

(A) New budget authority, $4,040,000,000.

(B) Outlays, $2,611,000,000.

Fiscal year 2014:

(A) New budget authority, $508,000,000.

(B) Outlays, -$13,986,000,000.

Fiscal year 2015:

(A) New budget authority, -$2,609,000,000.

(B) Outlays, -$19,417,000,000.

Fiscal year 2016:

(A) New budget authority, -$3,260,000,000.

(B) Outlays, -$23,459,000,000.

Fiscal year 2017:

(A) New budget authority, -$293,000,000.

(B) Outlays, -$23,592,000,000.

Fiscal year 2018:

(A) New budget authority, -$261,000,000.

(B) Outlays, -$25,981,000,000.

Fiscal year 2019:

(A) New budget authority, -$222,000,000.

(B) Outlays, -$17,547,000,000.

Fiscal year 2020:

(A) New budget authority, -$128,000,000.

(B) Outlays, -$17,992,000,000.

Fiscal year 2021:

(A) New budget authority, -$196,000,000.

(B) Outlays, -$19,650,000,000.

The silent killer in this budget is found at §502 of  H.Con.Res. 34.  Social Security is not funded out of General Revenues.  Social Security has  its own revenue stream and is not, by law, allowed to borrow money.  The Republican Budget wants to micro-manage Social Security, on an annual  basis, to permit an expedited process for cutting Social Security.  That is something new. That is something bad, very, very bad.

Paul Ryan's template for slicing and dicing Social Security, and Lynn Jenkins is on board with this, is the Bowles-Simpson proposal.  That came from the Fiscal Commission, otherwise known as the Cat-food Commission, because it will force senior citizens to rely on generic Kibbles and Bits for nutrition.

 

Now remember that Congress can't just cut benefits, but for any year where Social Security is out of a 75 year balance, then they bring out the butcher knives.  And Bowles-Simpson wants to cut benefits for the poorest, they want to slash benefits for 60% of the very low wage earners.  Republicans  want to raise the full retirement age to 69, with earliest eligibility at age 64.  Bowles-Simpson and the Republicans want to negate cost of living inflation by using a new statistical tool called the Chained Consumer Price Index (C-CPI) by the Bureau of Labor Statistics(BLS).

The BLS says this C-CPI "index employs a superlative Tornqvist formula and utilizes expenditure data in adjacent time periods in order to reflect the effect of any substitution that consumers make across item categories in response to changes in relative prices."  Well, that's about as clear as mud!  What is lucid is the Republican plan to use the C-CPI to slash $108 billion in benefits over the next decade.

No thanks Lynn, you see the poor, the underemployed, the elderly, those needing housing, or seeking an education as dependent on the government.  I see them as citizens. I see them as persons.  I see them as "We the People" and your plan to cut their Social Security is despicable.

 

Representative Jenkins then tries to tell me how good H.R. 2560, the Cut, Cap, and Balance Act of 2011, is.  Please.   This is the knee jerk Balanced Budget Amendment bill.  It is a rotten idea.  Please read the Washington Post's article in the Post Partisan section written by Robert J. Samuelson on July 18, 2011, http://www.washingtonpost.com/blogs/post-partisan/post/a-balanced-budget-amendment-bad-idea-for-many-reasons/2011/07/18/gIQAZ8nNMI_blog.html.

Or listen to the short and simple advice from  The Incidental Economist who agrees that the Balanced Budget idea doesn't hold water, http://theincidentaleconomist.com/wordpress/balanced-budget-amendment-is-a-bad-idea/.

The Baltimore Sun, on its opinion page says "Amending the Constitution won't move us toward a balanced budget anytime soon, and it will rob us of needed flexibility in hard times."  Read Phillip Joyce's op-ed at http://articles.baltimoresun.com/2011-07-21/news/bs-ed-budget-amendment-20110721_1_budget-amendment-balanced-budget-balance-act.

The people know what the answer is.  Eliminate the Bush Era tax cuts for adjusted net incomes above $250,000.  Make responsible cuts to every department in the government.  Pass jobs bills now to get people back to work now.  Quit taking the American economy hostage by partisan stunts such as refusing to raise the debt limit.  The debt limit is never about new spending,  it is always about paying for what we've already spent. 

The difference between Lynn Jenkins and the mainstream of Eastern Kansas voters is clear and stark.  In my memory I can still hear the weekly call from my pastor, before we passed the collection plate.  "Where your heart is there also is  your treasure."  Good logic tells me if I follow the money going into Lynn Jenkins war chest that I'll find that which fuels her heart.  You can review that information at http://www.opensecrets.org/. 

From where I am standing, it sure looks like Lynn Jenkins could benefit from a heart transplant.

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.

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.