Sunday, March 25, 2012

The land of the subjugated

Is a new American revolution needed?

What would you do if you came across someone on the street that had not had anything to eat for several days? Would you give that person some food? Well, the next time you get that impulse you might want to check if it is still legal to feed the homeless where you live. Sadly, feeding the homeless has been banned in major cities all over America. Other cities that have not banned it outright have put so many requirements on those that want to feed the homeless (acquiring expensive permits, taking food preparation courses, etc.) that feeding the homeless has become “out of reach” for most average people.

Some cities are doing these things because they are concerned about the “health risks” of the food being distributed by ordinary “do-gooders”. Other cities are passing these laws because they do not want homeless people congregating in city centers where they know that they will be fed. But at a time when poverty and government dependence are soaring to unprecedented levels, is it really a good idea to ban people from helping those that are hurting?

This is just another example that shows that our country is being taken over by control freaks. There seems to be this idea out there that it is the job of the government to take care of everyone and that nobody else should even try.

But do we really want to have a nation where you have to get the permission of the government before you do good to your fellow man?

It isn’t as if the government has “rescued” these homeless people. Homeless shelters all over the nation are turning people away each night because they have no more room. There are many homeless people that are lucky just to make it through each night alive during the winter.

Sometimes a well-timed sandwich or a cup of warm soup can make a world of difference for a homeless person. But many U.S. cities have decided that feeding the homeless is such a threat that they had better devote law enforcement resources to making sure that it doesn’t happen.

This is so twisted. In America today, you need a “permit” to do almost anything. We are supposed to be a land of liberty and freedom, but these days government bureaucrats have turned our rights into “privileges” that they can revoke at any time.

The bureaucrats are officially out of control. In America today, it seems like almost everything is illegal. One church down in Louisiana was recently ordered to stop giving out water because it did not have a government permit.

Well, I don’t know about you, but I sure am going to give a cup of cold water to someone if they need it whether I have a permit or not. It is as if common sense has totally gone out the window in this nation.

Over in New Hampshire, a woman is being sued for planting flowers in her own front yard.

This is the kind of thing that makes me glad that I have moved to a much more rural location. People in the country tend to be much more relaxed.

Sadly, those that love to micro-manage others continue to get the upper hand in America. Back in January, 40,000 new laws went into effect all over America. The politicians continue to hit us with wave after wave of regulations and laws with no end in sight.

All of this is making America a very unpleasant place in which to live.



Troubling Provisions Being Added to the Violence Against Women Act: Due Process Rights Threatened

Provisions are being added to the 1994 Violence Against Women Act that could undermine due process on campus and in criminal cases, as civil liberties groups like the Foundation for Individual Rights in Education (FIRE) and civil libertarians like former ACLU board member Wendy Kaminer have noted. The changes are contained in a reauthorization of the act that is likely to pass the Senate over objections from some Republican senators like Charles Grassley of Iowa, who has also objected to the lack of safeguards against fraud in the law and the misuse of millions of dollars in taxpayer money. (Even if the Senate’s reauthorization does not pass the House, programs set up by the 1994 law will continue to operate.)

William Creeley of FIRE, and Wendy Kaminer, say that the Senate reauthorization would effectively result in a form of double jeopardy for accused students. Moreover, they point out, it would implicitly reinforce Education Department “guidance” demanding that colleges water down due process protections in campus disciplinary proceedings (a demand criticized by lawyers like Robert Smith, Jennifer Braceras, Ilya Shapiro, and Harvey Silverglate; leading law professor and former University of Chicago law dean Richard Epstein; the American Association of University Professors; and many civil libertarians and journalists. I am a former Education Department attorney who practiced education law for years, and I discussed why the Education Department’s guidance was legally unjustified under Title IX and federal court rulings here, here, here, here, here, and here).

One provision they do not address, but which Senator Grassley understandably objects to, is a provision in the VAWA reauthorization that would subject non-Indians to Indian tribal courts in domestic violence cases. Historically, Indian tribal courts have only had jurisdiction over members of their own tribe. Moreover, defendants in tribal courts are not constitutionally entitled to the protections of the Bill of Rights, unlike state or federal courts (see Santa Clara Pueblo v. Martinez ) — although tribal courts have, in theory, been subjected to some of the strictures of the Bill of Rights pursuant to the Indian Civil Rights Act. As lawyer John Hinderaker notes, courts have ruled “that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments.”

Federal judges have lamented the bias shown by some Indian tribal courts against non-Indians, as in cases where Indian tribal courts imposed hundreds of millions of dollars in damages on railroads over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the low thousands, suggesting a flagrant violation of Supreme Court decisions like BMW v. Gore. (See Judge Andrew Kleinfeld’s dissent in Burlington Northern Railroad Co. v. Red Wolf, dealing with a $250 million judgment imposed on a railroad by a tribal court.)

Given that courts sometimes issue unfounded domestic violence sanctions on people who don’t even live in their jurisdiction — as was illustrated by a New Mexico judge’s restraining order erroneously issued against David Letterman after a local woman falsely accused him of harassing her across the country through his TV show — giving a tribal court jurisdiction over outsiders raises serious questions of due process and jurisdictional overreaching.

Even the original 1994 version of the Violence Against Women Act had its problems, suggesting inadequate vetting. It contained a provision struck down by the Supreme Court because it exceeded Congress’s powers under the Fourteenth Amendment and the Interstate Commerce Clause. That invalid provision created a tort remedy for gender-motivated domestic violence that essentially duplicated state laws (all states ban domestic violence, and take such crimes seriously).

VAWA also contains another provision that appears to violate due process (see, e.g., 8 U.S.C. 1367(a)). It lets certain immigrants receive specified government benefits by making a “prima facie” allegation of domestic violence, an allegation that the accused is expressly forbidden to rebut; the Vermont immigration office reviews and approves all such applications for benefits, as long as the allegations are sufficiently specific as to constitute a “prima facie” case, which is the legal term for allegations, regardless of their truth or falsity, which are sufficiently detailed and internally consistent to adequately allege a legal violation (the “evidence” that demonstrates a prima facie case is generally just the complainant’s detailed allegation).

As Natasha Spivak noted in Roll Call, under VAWA, the federal immigration agency “Citizenship and Immigration Services deems a person accused of domestic violence to be a ‘prohibited source.’ So the CIS, in Kafka-esque manner, refuses to accept any documentation that might reveal the immigrant to be a criminal, welfare cheat or perjurer.”

When such benefits are granted, the government can then proceed under other provisions of federal law to recover the cost of such benefits from the accused. But as cases like Sacharow v. Sacharow and Tyree v. Evans illustrate, the government cannot award benefits at the expense of a private party without giving that party a subsequent opportunity to defend himself. In the Sacharow case, the New Jersey Supreme Court, which is perhaps the most sympathetic court in the nation to domestic violence complainants, nevertheless ruled that a father accused of domestic violence had a right to defend himself before his ex-wife was put into the Address Confidentiality Program, which would have made it more difficult for him to maintain his relationship with his child. In Tyree v. Evans, the D.C. Court of Appeals ruled that a man was entitled not only to the opportunity to defend himself against domestic violence charges before a year-long restraining order could be granted to his accuser, but also the ability to cross-examine her, before the court could impose a Civil Protection Order against him.

These flaws in the statute may reflect lawmakers’ reluctance to scrutinize its provisions due to its crowd-pleasing name (no one wants to be perceived as soft on criminals who commit “violence against women”). Many counterproductive laws come with appealing names that are designed to shut down debate and prevent careful evaluation of their provisions — like laws named after dead children. Veteran civil-liberties lawyer and former ACLU board member Harvey Silverglate says that “Any time you have a statute named after a victim, it’s not a good law.” “In order to get it passed, you have to depend on sympathy for somebody rather than seeking to remedy a real problem in the system.”

Some have argued that VAWA promotes inflexible mandatory arrest and prosecution policies that backfire on women by taking away their ability to obtain police assistance in situations where the victim does not want a formal prosecution because it could result in job losses or other economic injuries. Harvard University’s Radha Iyengar and Jeannie Suk have concluded that mandatory arrest and prosecution policies result in more deaths among women.

One women’s group cites Harvard’s Iyengar for the proposition that “Intimate partner homicides increased by about 60% in states with mandatory arrest laws.” The group Stop Abusive and Violent Environments argues that mandatory arrest laws lead to higher fatalities here, citing a Harvard study that “found enactment of state mandatory arrest policies increased intimate partner homicides by 57%. ”

(If a wife fears calling the police for help in a domestic dispute because her husband, the family breadwinner, will automatically be arrested and prosecuted regardless of her wishes or the lack of physical injury, it may be that she will never call the cops, leading to domestic violence escalating over time. As Carol Iannone noted at National Review, a wife who understandably called police during a domestic dispute involving her husband, a deputy mayor, regretted doing so because police arrested him and caused him to lose his job, resulting in enormous embarrassment for her family. People like that may be less likely to seek police help in cooling down a domestic situation that might otherwise escalate if they fear they will lose all control of the consequences).



ObamaCare’s 5,931 Pages Of Regulations. Happy 2nd Anniversary!

And you thought the actual legislation was a tome. But the number of pages of regulations being released due to ObamaCare is beginning to make the initial bill look like a pamphlet. By IBD’s count, the regulations are up to 5,931 pages.

That includes small, two-pagers that counsel employers to give sufficient break time for nursing mothers, to the recent 644-page behemoth on the health insurance exchanges.

A few thoughts:

First, Obama told us that his reform would make health care more accessible and affordable. Lucky for him he didn’t say it would result in less paperwork.

Second, as this blog recently noted, ObamaCare requires private insurers to make sure the information about their policies runs no more than six pages. Clearly, this is more proof government doesn’t have to follow the rules it sets for everyone else.

Finally, a great deal of frustration and worry must be in store for physicians, nurses, hospitals, and many other providers. After all, it’s not that hard to be in violation of at least a few rules when there are over 50,000 pages of them.

Indeed, we’ve already seen what trouble these regulations can cause with the recent kerfuffle over birth control. One can only wonder what else will eventually emerge.

Or, you can try to find out for yourself. Here is the list of the regulations that IBD has compiled. All except the first one (the 644-pager on exchanges) can be downloaded at the Federal Register.



Obamacare, Two Years Later

This week marks two years since of the passage of the Patient Protection and Affordable Care Act, and if the Obama administration has chosen to all but ignore the second anniversary of Obamacare, the rest of us should pause and reflect on just what a monumental failure of policy the health-care-reform law has been.

What’s more, it has been a failure on its own terms. After all, when health-care reform was passed, we were promised that it would do three things: 1) provide health-insurance coverage for all Americans; 2) reduce insurance costs for individuals, businesses, and government; and 3) increase the quality of health care and the value received for each dollar of health-care spending. At the same time, the president and the law’s supporters in Congress promised that the legislation would not increase the federal-budget deficit or unduly burden the economy. And it would do all these things while letting those of us who were happy with our current health insurance keep it unchanged. Two years in, we can see that none of these things is true.

For example, we now know that, contrary to claims made when the bill passed, the law will not come close to achieving universal coverage. In fact, as time goes by, it looks as if the bill will cover fewer and fewer people than advertised. According to a report from the Congressional Budget Office released last week, Obamacare will leave 27 million Americans uninsured by 2022. This represents an increase of 2–4 million uninsured over previous reports. Moreover, it should be noted that, of the 23 million Americans who will gain coverage under Obamacare, 17 million will not be covered by real insurance, but will simply be dumped into the Medicaid system, with all its problems of access and quality. Thus, only about 20 million Americans will receive actual insurance coverage under Obamacare. That’s certainly an improvement over the status quo, but it’s also a far cry from universal coverage — and not much bang for the buck, given Obamacare’s ever-rising cost.

At the same time, the legislation is a major failure when it comes to controlling costs. While we were once told that health-care reform would “bend the cost curve down,” we now know that Obamacare will actually increase U.S. health-care spending. This should come as no surprise: If you are going to provide more benefits to more people, it is going to cost you more money.... This failure to control costs means that the law will add significantly to the already-crushing burden of government spending, taxes, and debt....

Next week, Obamacare will slouch its way to the Supreme Court. How the justices decide will be based on questions of constitutional law. Their decision will set a crucial precedent in setting the boundaries between government power and individual rights. But regardless of whether the Court upholds Obamacare or strikes it down, in whole or in part, we should understand that, simply as a matter of health-care reform, Obamacare is a costly and dangerous failure.




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