ObamaCare: How can states ‘lose’ what they never had?

So, your boss promises to give you a raise next year, prompting you to make plans for how to spend that windfall. In the meantime, that boss is fired and replaced with a new boss, who nixes the raise. That means you “lost” money, right?

That’s how it works in Washington-speak.

According to Modern Healthcare, “Two nonpartisan analyses of the Graham-Cassidy bill show that many states represented by Republican senators would lose billions of dollars in federal healthcare funding through 2026 and far larger amounts after that.”

The morning paper says Nevada would lose $2 billion from 2020 to 2026.

Nevada Republican Gov. Brian Sandoval was one of 10 governors signing a letter opposing Graham-Cassidy, while Nevada Republican Sen. Dean Heller is a sponsor of the bill.

According to The Wall Street Journal, Graham-Cassidy would address the huge inequities in ObamaCare Medicaid funding between the states.

“According to the proposal’s authors, Washington in 2016 sent states anywhere from about $400 (Mississippi) to over $10,000 (Massachusetts) per beneficiary whose annual income was between 50% and 138% of the federal poverty level,” the paper reports. “In contrast, the size of the Graham-Cassidy block grant would not depend on whether a state chose to expand its Medicaid program. Thus, it would equalize the base per-person amount the federal government gives states. In 2026 it would be about $4,400 for each qualified beneficiary. The bill then adjusts these payments to compensate for factors such as demographic differences and various levels of illness among the states.”

So, some states will lose all ill-gotten windfall from ObamaCare.

Sen. Bill Cassidy at a health-care news conference in Washington earlier this month. (Getty Images via WSJ)

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Separation of Powers Clause interpretation going to state Supreme Court … again

What a difference a single word makes.

The Nevada Policy Research Institute’s (NPRI) legal arm, the Center for Justice and Constitutional Litigation (CJCL), this week filed notice with the Nevada Supreme Court that it is appealing the decision of a Carson City judge dismissing its lawsuit against a state senator for violating the state Constitution’s Separation of Powers Clause.

“Defying the clear language of the Nevada constitution, Nevada Supreme Court precedent, and a 2004 Attorney General Advisory Opinion by then-attorney-general Governor Brian Sandoval, Judge (James) Russell relied upon a non-binding opinion from the Legislative Counsel Bureau in his ruling from the bench — but we believe the actual words of the state constitution should matter more,” declared CJCL Director Joseph Becker in an email press release.

CJCL sued state Sen. Heidi Gansert because she also is an employee of UNR.

The Constitution says any person serving in one branch of government may not perform “any function” of another branch. But the Legislature’s lawyers, the Legislative Counsel Bureau (LCB), back in 2004 penned a non-binding opinion that stated a person my serve in the Legislature if they do not exercise “any sovereign functions” in another branch.

The word sovereign, whatever definition one may ascertain, is nowhere to be found the Separation of Powers Clause.

But apparently the judge accepted the LCB’s rewrite over the original as law.

“We believe the plain language of the constitution should take precedent over a non-binding LCB opinion, or the preferences of the ruling class,” commented Becker. “And we look forward to the appeals process finally giving further legal clarity on the issue.”

This fight has been going on for years.

There have been years in which nearly half the lawmakers in Carson City were either government employees or the spouses of government employees. In some years every Senate and Assembly leadership post was held by a public employee. Currently nearly a dozen lawmakers hold down state or local government jobs.

In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution. Heller asked the court to find that service in the Legislature by unidentified executive branch employees violates the concept of separation of powers and to direct the Legislature to enforce the Separation of Powers Clause.

But the court ruled that doing so would violate — wait for it — the Separation of Powers Clause, because the Constitution also states that the Senate and Assembly are to determine the qualifications of their members, thus the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause. Got it?

Never mind that the reason for separation of powers is not to allow each branch to stand totally autonomous and unanswerable to anyone, but to provide checks and balances when one branch runs amok.

But the court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”

Under that guidance, the CJCL first sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the Public Utilities Commission. A judge declared the case moot when Denis resigned his PUC job.

NPRI’s lawyers came back with a similar suit against state Gansert on behalf of a person who wants her public relations job at the University of Nevada, Reno — a job that yields $210,000 a year in pay and benefits.

Now that the district court judge has ruled that the Separation of Powers Clause is meaningless, it is back to the Supreme Court.

In a 1967 case, the Nevada Supreme Court flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

That was 50 years ago.

 

Newspaper column: Court ruling puts state water rights in jeopardy

Nevada is taking the lead in challenging a recent 9th U.S. Circuit Court of Appeals opinion that has the potential to obliterate more than a century of state water rights law.

The office of Nevada Attorney General Adam Laxalt this past week filed an amicus brief with the U.S. Supreme Court, in conjunction with nine other states, asking the court to hear the case on appeal.

The 9th Circuit ruling granted groundwater rights to the Agua Caliente Band of Cahuilla Indians, whose reservation is in California’s arid Coachella Valley, though the local water district had held those rights for years and sold water to the reservation and other communities. The court held that state water rights are preempted by federal reserved rights, implying that water under any federally controlled land could be wrested from existing water rights holders.

Agua Caliente reservation

“As the driest state in the nation, Nevada has a paramount interest in the rules governing the management and allocation of the scarce water resources within its borders,” the 19-page amicus brief notes. “Nevada has the highest percentage in the nation of land under federal ownership or control, with a large portion of that land subject to possible claims of federal reserved water rights.”

The other states signing onto the legal action are Arizona, Arkansas, Idaho, Nebraska, North Dakota, South Dakota, Texas, Wisconsin and Wyoming.

Among other things the brief argues that under the Tenth Amendment states retain substantial sovereign powers with which Congress may not easily interfere. In fact, the Supreme Court itself has stated that if Congress attempts to preempt a traditional and essential power exercised by a state that “it must make its intention to do so ‘unmistakably clear in the language of the statute.’”

Laxalt was quoted in a press release as saying, “By filing this brief, my office encourages the Supreme Court to take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference. As I have consistently demonstrated throughout my tenure as Nevada’s attorney general, my office stands ready to defend our state from unlawful federal overreach regardless of the source.”

Compounding the problem created by the 9th Circuit water usurpation is the fact that in Nevada, as in other Western states, many of the groundwater aquifers are already fully appropriated and have been for nearly 100 years. Any new claim for water under federal land would result in an overallocation, possibly requiring the relinquishing of long-held water rights used by ranches, farms, manufacturing, mining and communities — in some cases depriving families of their livelihoods.

“Current rights holders may see their investment backed decisions evaporate,” the court document relates.

Another argument is that groundwater rights could not have been assumed to be part and parcel of any federal land holding since at the time of its acquisition the technology to economically access groundwater was virtually nonexistent.

But somehow the 9th Circuit judges managed to contort a 1908 Supreme Court ruling that barred the damming of a river that flowed through a Montana Indian reservation as also bestowing groundwater rights. The judges asked whether the water was “envisioned as necessary for the reservation’s purpose at the time the reservation was created,” and answered with a totally implausible affirmative.

The Agua Caliente case has already been wielded in federal court as an argument against Nevada’s longstanding practice of allocating groundwater through the state engineer’s office.

During a hearing a couple of weeks ago on lawsuits over the Southern Nevada Water Authority’s attempt to tap groundwater in valleys in White Pine, Lincoln and Nye counties, an attorney representing various Shosone tribes cited the 9th Circuit ruling as giving the reservations priority groundwater rights despite the state engineer’s granting of water rights to SNWA.

The states’ amicus brief challenging the presumptive federal water rights argument concludes: “Courts cannot simply presume that Congress considered, let alone intended, to displace the States’ traditional authority over groundwater when (1) not only is the enabling act creating the reservation silent about water rights, but also (2) it was not even feasible, much less contemplated, that groundwater would be used.”

Much is at stake in this case, especially here in Nevada, where the federal government already controls 85 percent of the land and also would control much of the water underneath that land if this ruling is not reversed.

The lives and livelihoods of thousands of Nevadans, especially rural Nevadans, could be in jeopardy.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Here’s another chance to repeal the Commerce Tax

In 2014 Nevada voters rejected by 79 percent to 21 percent a proposed margins tax, effectively an income tax on state businesses. Despite this unequivocal rejection at the ballot box, lawmakers a few short months later passed a similar, though currently somewhat smaller, tax called the Commerce Tax.

The Commerce Tax passed with a two-thirds majority in the Republican-controlled Assembly and Senate and was signed by a Republican governor.

In 2016 a group called RIP Commerce Tax filed an initiative petition to place repeal of the Commerce Tax on the 2016 ballot, but the effort stalled when, with only a month left until the deadline for gathering signatures, the courts ruled the wording of the petition failed to sufficiently warn voters that a tax repeal would unbalance the state budget — like that would come as a startling development to anyone.

This past week the same group, this time with a new moniker, Repeal the Commerce Tax, filed another petition, fixing the wording to satisfy the courts, and plans to begin gathering signatures.

The group is still headed by state Controller Ron Knecht, as president, and former Las Vegas City Councilman and state Sen. Bob Beers, as secretary-treasurer.

Knecht noted the group has started its petition drive earlier in order to allow for expected legal challenges. He said their lawyers advised them to use exactly the language the courts told them to use the last time.

“Essentially, we are saying here’s what the Legislature passed, do you all agree?” Knecht said in a recent interview. “Do you want to vote for it or against it. If you vote for it, you get the Commerce Tax. You vote against it, you repeal the Commerce Tax. You have the final word.”

The petition includes the entire text of the Commerce Tax law as well as a 200-word description of effect that mirrors the courts instruction to explain the impact repeal would have on the state budget. “They said use exactly what the two courts said and that’s what we did,” Knecht said. “That should make the description of effect pretty much bullet proof.”

By the time the Nevada Supreme Court ruled in 2015, the RIP Commerce Tax had already gathered 20,000 signatures of the 55,000 needed, but they had only a month left to gather signatures, and those 20,000 were ruled invalid.

Knecht said this time the group has joined with Americans for Prosperity for assistance in gathering signatures.

“It is true we have to gather twice as many signatures this time due to turnout in the two elections,” he noted. Petitioners must collect signatures equal to 10 percent of the total votes cast in the most recent general election in each of the state’s four Congressional Districts.

Because the 2016 election was a presidential one and twice as many votes were cast than in 2014, Knecht said the group must gather 112,000 signatures — 28,000 in each Congressional District — but they plan to gather 160,000 signatures to allow for signers who might not be qualified.

“Once the thing gets onto the ballot, the issue is going to be real simple: One, this is about jobs,” Knecht said. “The Commerce Tax is a job destroyer. Repealing it will be a real help. And, secondly, for all those people who think, oh, this is just about corporate taxes and fleecing the millionaires and billionaires, et cetera. Well, you’re wrong. As economists have proven many times over, business doesn’t pay tax, it collects it from its customers. This is about jobs and the burden on Nevada families and businesses.”

According to the petition’s new description of effect, the Commerce Tax is expected to generate about $102 million in the coming fiscal year, which Knecht noted is only about 1 percent of the state’s total revenues. The description notes that such a shortfall can be offset by cutting spending, drawing down the state rainy day fund, raising other taxes or some combination. Somehow the state managed to survive when the recession axed the state revenues by $536 million from 2008 to 2009.

The Commerce Tax imposes a gross receipts tax on all businesses grossing more than $4 million a year. It has different tax tables for 27 different industries — ranging from a low of 0.056 percent for mining to a high of 0.362 percent for rail transportation in 67 different levels of revenue. Those rates could easily be increased.

We urge Nevadans to sign the petition and to vote to repeal this end run on the state’s constitutional ban on an income tax.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Controller Ron Knecht, left, talks to attorney Craig Mueller during a 2016 court hearing on an effort to repeal the Commerce Tax. (R-J pix)

Bunkerville defendant kicked off the witness stand by judge for, well, defending himself

First Amendment area cordoned off by BLM.

The judge in the trial of four defendants in the 2014 Bunkerville standoff with BLM agents attempting to confiscate rancher Cliven Bundy’s cattle has made it clear she will not allow a defense based on First or Second Amendment rights or claims that BLM misbehavior provoked the protest.

On Thursday she cut short the testimony of defendant Eric Parker after he tried to mention in his defense testimony a “First Amendment area” the BLM had set up to isolate protesters — an area that Gov. Brian Sandoval said “tramples upon Nevadans’ fundamental rights under the U.S. Constitution” — and attempted to mention where a BLM sniper was positioned.

BLM snipers?

The judge told Parker to step down without completing his testimony.  Reportedly there will be no cross examination and no jury questions.

Now, if Parker can’t even mention the First or Second Amendment, can he mention the Sixth?

You know, the one that guarantees the right to a speedy and public trial, rather than one that takes place a year and a half after an arrest; the one that guarantees an impartial jury, rather than one stacked by the prosecution to remove anyone who has ever even heard the phrase “jury nullification”; the one that guarantees the right to obtain witnesses in his favor, rather than having witnesses testify without the jury present, as happened earlier in the week.

This is the text of the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

No need to mention the Eighth’s prohibition against excessive bail and cruel and unusual punishment, nor the Fifth’s double jeopardy clause since the first trial ended in a hung jury, probably due to all that nonsense about constitutional rights to free speech, assembly and bearing arms that this jury will not hear.

Protesters outside courthouse. (R-J pix)

 

 

Newspaper column: Separation of Powers Clause being ignored

Frankly, it sounds like a self-contradictory argument. Or circuitous at best.

Until the 1960s, it was largely agreed that public employees could not also serve in the Nevada Legislature.

This was because the Separation of Powers Clause in the state Constitution stated that no one who exercised power in one branch of state government — legislative, executive or judicial — could “exercise any functions” in another branch, no matter how menial.

But along the way a couple of non-binding legal opinions found that it was OK for someone to exercise legislative powers so long as that person did not exercise “powers” — rather than the all-inclusive “any functions” — in another branch.

With the flood gates open, there have been years in which nearly half the lawmakers in Carson City were either government employees or the spouses of government employees. In some years every Senate and Assembly leadership post was held by a public employee. Currently nearly a dozen lawmakers hold down state or local government jobs.

Recognizing the growing problem, in 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution. Heller asked the court to find that service in the Legislature by unidentified executive branch employees violates the concept of separation of powers and to direct the Legislature to enforce the Separation of Powers Clause.

But the court ruled that doing so would violate — wait for it — the Separation of Powers Clause, because the Constitution also states that the Senate and Assembly are to determine the qualifications of their members, thus the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause. Got it?

Never mind that the reason for separation of powers is not to allow each branch to stand totally autonomous and unanswerable to anyone, but to provide checks and balances when one branch runs amok.

But the court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”

A couple of years ago the libertarian-leaning think tank, Nevada Policy Research institute, did just that. It sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the Public Utilities Commission. A judge declared the case moot when Denis resigned his PUC job.

NPRI has come back with a similar suit against state Sen. Heidi Gansert on behalf of a person who wants her public relations job at the University of Nevada, Reno — a job that yields $210,000 a year in pay and benefits.

This past week Carson City Judge James Russell ruled from the bench against the NPRI suit.

NPRI’s attorney, Joseph Becker said in a press release, “Essentially, we were told that in order to sue Senator Gansert for a constitutional violation, the Plaintiff must file similar suits against every other potential violator,” which is precisely what the Supreme Court said Heller could not do.

The judge has two weeks to put his ruling in writing, after which Becker said NPRI and its client will decide what to do next.

From what the judge said it court, Becker said it appeared Russell ignored the legal arguments but chose to embrace a non-binding opinion from the Legislative Counsel Bureau, which is the Legislature’s lawyers, who have a history of telling lawmakers what they want to hear.

“Apparently the non-binding LCB opinion held more weight with Judge Russell than the actual text of the Nevada constitution or the Nevada Supreme Court opinions, which interpreted that constitutional provision in Plaintiff’s favor,” Becker said.

That LCB opinion said “the separation-of-powers provision in the state constitution does not prohibit a member of the Legislature, during his term, from occupying a position of public employment in another department of state government, because a person in a position of public employment does not exercise any sovereign functions appertaining to another department of the state government.”

The word “sovereign” is not in the Constitution. It just magically appeared.

It is hard to win when the rules keep changing in the middle of the game.

In a 1967 case, the Nevada Supreme Court flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

That was 50 years ago. Yet, while lawyers and judges dither, the flouting of the concise words of the state Constitution continues, resulting in a farce and a canard.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Judge holds that lawmakers can hold down government jobs at the same time

A Carson City judge has thrown out a lawsuit brought by the Nevada Policy Research Institute in an effort to force compliance with the Separation of Powers Clause of the Nevada Constitution.

In order to establish standing as a party, NPRI sued state Sen. Heidi Gansert on behalf of a client, Doug French, who wanted to seek her job as executive director of external relations at the University of Nevada, Reno.

Article 3 of the Nevada Constitution states: “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

Judge James Russell tossed the suit from the bench and has two weeks to issue a written ruling explaining how on earth a person exercising the powers of the Legislature can also exercise any functions of the executive branch.

State Sen. Heidi Gansert (R-J pix)

NPRI attorney told The Nevada Independent the group will wait for the judge’s written ruling before deciding what step to take next.

This is the second time NPRI has sued to try to get lawmakers to follow the plain language of the Constitution. Earlier it sued state Sen. Mo Denis because he also was an employee of the state Public Utilities Commission, and had been for 17 years. Denis immediately resigned from his $56,000-a-year state job in order to maintain his part-time $10,000-every-other-year state senator post, and a judge declared the lawsuit moot, despite strong arguments from NPRI that there is a public-interest exception to mootness.

Gansert’s university job yields $210,000 a year in pay and benefits.

There are nearly a dozen current lawmakers who also hold jobs in state or local government. Since Nevada operates under the Dillon Rule, which limits the power of local governments to those expressly granted by the Legislature, local governments are basically subsidiaries of the state. Arguably employees of local governments are serving in the executive branch of state government, and also would be barred from serving as a lawmaker under the Constitution.

When he filed suit against Gansert, Becker issued a statement saying, “Gansert’s continued employment in the state’s executive branch, as Executive Director of External Relations for the University of Nevada, Reno, puts her in direct violation of Nevada’s Separation of Powers clause, now that she is also serving in the state senate. As a senator, she can simply not continue her employment in the executive branch without violating this clearly worded constitutional provision.”

In a counter statement Gansert called the suit meritless and said, “Nevada has an unambiguous precedent of legislators taking time off from their jobs in higher education to serve the people of the state.”

That unambiguous precedent only dates from 1964, as newspaper columnist Vin Suprynowicz pointed out in a 2011 column. Suprynowicz said even school janitors were not allowed to sit in the Legislature. This was chipped away by a couple of attorney general rulings until in 1971 Attorney General Bob List opened the flood gates. List held that a person could “exercise powers” as a legislator so long as he didn’t “exercise powers” in one of the other branches. Never mind that the constitutional criteria is “any function.”

Suprynowicz also related, “In 2004, Attorney General Brian Sandoval — now our governor — issued an opinion holding that state workers should not be allowed to sit in Carson City. But it has never been tested in the courts and is widely ignored.”

But the lawmakers’ lawyers at the Legislative Counsel Bureau issued a different opinion two years earlier and said “the separation- of-powers provision in the state constitution only prohibits a member of the Legislature, during his term, from holding a constitutional office or a nonconstitutional office in another department of state government, because a person who holds a constitutional or nonconstitutional office exercises sovereign functions appertaining to another department of the state government. However, it is also the opinion of this office that the separation-of-powers provision in the state constitution does not prohibit a member of the Legislature, during his term, from occupying a position of public employment in another department of state government, because a person in a position of public employment does not exercise any sovereign functions appertaining to another department of the state government.”

Nope, no conflict there, other than being able to hold life and death sway over the budget of one’s own boss.

Thomas Jefferson wrote in “Notes on the State of Virginia” in 1784: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. … An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”