Newspaper column: DACA rhetoric just muddies the waters

Pro-DACA gathering in Las Vegas earlier this month. (R-J pix)

The vitriol being spewed over President Trump’s suspension of Obama’s executive fiat to defer deportation of illegal immigrants brought to the United States as children is nothing more than pretentious and pointless political patronizing.

Nevada’s Democratic delegation to Washington was unmatched in its heated hyperbole.

Sen. Catherine Cortez Masto called Trump a racist and a xenophobe, firing off a missive declaring the “decision to end DACA protections for DREAMers is not guided by sound policy, but by xenophobia and myths. DREAMers who benefit from DACA know no other country other than the U.S. Denying them DACA protection unjustly rips away their future, exposes them to job loss, and threatens them with deportation from the only country they have ever known.”

For the acronym deprived, DACA stands for Deferred Action for Childhood Arrivals, the name given by Obama to an executive order to defer deportations of illegal immigrants brought to the U.S. as children. DREAMers is a derivation of the Development, Relief, and Education for Alien Minors Act, which has been pending in various forms in Congress since August of 2001 without passage.

When Congress failed to act, Obama took it on his own in June 2012 to do what Congress had not.

Even though Trump gave Congress six months to remedy his rescinding of DACA and pass the DREAM Act, Rep. Jacky Rosen declared it was wrong to invite “these young people to come out of the shadows, raise their hands, and make themselves known, the United States made a promise to those who came here as children. President Trump is now reneging on that promise …”

Rep. Ruben Kihuen, making the obligatory observation that he was once an undocumented immigrant brought here by his parents, said in an email that the decision tramples this country’s values and shatters the hopes and dreams of the 800,000 who have signed up for DACA. He called the decision “heartless and cruel.”

Rep. Dina Titus said, “Ending DACA appeals to xenophobic beliefs and goes against the founding principles of our nation” — ignoring the fact it was Obama who made a promise he had no power to make.

In a statement announcing the DACA decision, Attorney General Jeff Sessions said, “This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens.

“In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”

In contrast to Nevada’s Democratic delegates, its Republicans reacted by saying it is now time for Congress to do its job.

Sen. Dean Heller issued a statement to the Reno newspaper saying, “While I remain concerned about the way in which DACA came to life, I’ve made clear that I support the program because hard working individuals who came to this country through no fault of their own as children should not be immediately shown the door.”

Heller noted that he is a cosponsor of the Bridge Act, which provides legal status for so-called DREAMers while Congress works toward a permanent solution to immigration problems.

“Just as I have in the past, I’ll continue to work with my colleagues to reform our broken immigration system and that must start with securing our borders …” Heller’s statement continued.

Rep. Mark Amodei put out a statement noting that he is a sponsor of a bill called Recognizing America’s Children Act, which would provide a way for childhood immigrants to earn legal residency.

“Since I’ve been here, I’ve called on congressional leadership to act on immigration reform. I would always rather be criticized for attempting to move this issue toward a solution, than criticized for repeated inaction,” Amodei said in a statement. “Now, Congress has six months to do the job it’s supposed to do according to the Constitution. If we’re unable to do that job, then 800,000 immigrants will be affected.”

Amodei further noted that Congress has not passed any substantive immigration reform since Ronald Reagan was president, three decades ago, adding that if any blame is to be attached to this it is rightfully Congress’.

The Democrats’ rancorous rhetoric does nothing to move toward a compromise and might well jeopardize that goal, especially if they categorically reject border security as a part of the package.

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.

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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)

Newspaper column: Learn from the mistakes of the past, not erase them

Wheeler Peak (right) and Jeff Davis Peak (left)

This paroxysm of efforts to eradicate all monuments and place names that memorialize historic leaders of the Confederacy serves as merely a distraction from real problems, wasting time and money that could be devoted to worthy endeavors.

The latest target of this futile campaign appears to be the name of Jeff Davis Peak in Great Basin National Park.

According to the park’s website, the monicker was first attached to what is now Wheeler Peak, the tallest point in the park and the second tallest in Nevada. It was given that name by Lt. Col. Edward Steptoe of U.S. Army Corps of Topographical Engineers in 1855 while Jefferson Davis served as secretary of the War Department, a half dozen years before the Civil War began.

After the Civil War, during which Davis served as president of the Confederacy, an Army mapping expedition headed by Lt. George Montague Wheeler, named the peak for Wheeler and the Jeff Davis tag was shifted to a shorter nearby peak.

In May the Reno newspaper reported that, even though statues of Confederate leaders were being torn down in New Orleans, there was no clamor to erase the Davis name from the 12,771-foot peak. The penultimate paragraph of the account stated, “By today’s standards Jeff Davis is an unlikely choice that appears out of step with contemporary naming practices. But modern standards don’t undo prior names which means, for the foreseeable future, the name of a Confederate president will maintain a place of honor in Nevada.”

Actually, such a mountain top name change took place a couple of years ago. After bearing the name of President William McKinley for 98 years, the tallest peak in North America in Alaska was renamed to its original native American name Denali, which means “the great one” in Athabascan. The White House said the name change “recognizes the sacred status of Denali to generations of Alaska Natives.”

Earlier this month, the Las Vegas newspaper reported that there are now a couple of bids to remove the Davis name. It said two applications have been filed with the state and national naming boards to eradicate the Davis name and replace it with some other name.

The paper reported that one application called for renaming the peak for Las Vegas civil rights leader James McMillan or one of the Shoshone names for the peak. Another called for naming the peak for Robert Smalls, an escaped slave who fought for the Union.

This month’s meeting agenda for the Nevada State Board on Geographic Names lists an action item in which a peak in White Pine County could be named Smalls Peak. There is no mention as to what it is currently called, if anything.

According to Dennis Cassinelli in a recent newspaper column, political correctness has been whitewashing Nevada geographical names for years. Colorful names like Chicken Shit Springs and Squaw Tit Butte have disappeared from maps simply at the whim of squeamish government mapmakers.

Now squeamishness is being extended to those who fought for the Confederacy.

Yes, Davis was a slave owner who sought to continue what was euphemistically called “our peculiar institution” in the South.

But in the waning years of his life Davis was an advocate for reunifying the nation, saying in a speech in 1888: “I feel no regret that I stand before you this afternoon a man without a country, for my ambition lies buried in the grave of the Confederacy. There has been consigned not only my ambition, but the dogmas upon which that Government was based. The faces I see before me are those of young men; had I not known this I would not have appeared before you. Men in whose hands the destinies of the South land lie, for love of her I break my silence, to let it bury its dead, its hopes and aspirations; before you lies the future — a future full of golden promise; a future of expanding national glory, before which all of the world shall stand amazed. Let me beseech you to lay aside all rancor, all bitter sectional feeling, and to make your places in the ranks of those who will bring about a consummation devoutly to be wished — a reunited country.”

What’s in a name? History is not changed, just forgotten, perhaps along with the lessons that should’ve been learned? We could use more unifying and less dividing.

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: Federal judge dismisses overtime rule change

A Texas federal court judge has struck down a rule change by Obama’s Labor Department that would have cost employers $1.2 billion a year by requiring overtime for an additional 4.2 million workers — or in reality, however many workers actually still had jobs after the costs were imposed.

The legal challenge was spearheaded by Nevada Attorney General Adam Laxalt on behalf of 21 states and a number of business entities.

The overtime rule change would have increased the minimum salary level for employees exempt from overtime — due to being engaged in executive, administrative or professional duties, so-called EAP workers — from $23,660 a year to $47,476.

U.S. District Judge Amos Mazzant of Sherman, Texas, this past week ruled the salary qualification increase violated the clear intent of Congress when it passed the Fair Labor and Practices Act in 1938, which established minimum wages and required time-and-a-half overtime pay for hourly workers who work more than 40 hours a week. EAP employees were exempted from overtime requirements.

Judge Mazzant wrote, “This is not what Congress intended with the EAP exemption. Congress unambiguously directed the Department to exempt from overtime pay employees who perform ‘bona fide executive, administrative, or professional capacity’ duties. However, the Department creates a Final Rule that makes overtime status depend predominately on a minimum salary level, thereby supplanting an analysis of an employee’s job duties.”

He said nothing in the law allows the Labor Department to make salary rather than an employee’s duties determinative of whether an employee should be exempt from overtime pay.

“I applaud Judge Mazzant’s decision to permanently invalidate this Obama-era overtime rule that would have imposed millions of dollars of unfunded liabilities on the States and resulted in a loss of private sector jobs as well as onerous financial and regulatory burdens on small businesses in Nevada and around the country,” said Laxalt in a press release. “My office is proud to have led the charge towards a final ruling that brings clarity, certainty and closure to the business community and government alike.”

Additionally, Nevada’s senior Sen. Dean Heller, who has been challenging the overtime rule since it was proposed, put out a press release stating, “The former Obama Administration’s expansion of the federal overtime rule would have devastated Nevada’s business owners and job creators. Since the rule was issued last year, I have been strongly concerned about its impact because it would fundamentally change how employers compensate their workers, reducing Nevadans’ work hours and benefits. I’m pleased to see that a federal judge acknowledged the regulation’s harmful consequences and ruled it invalid today.”

Heller also commended Laxalt for leading the fight against the overtime rule change.

In addition to Nevada, the other states challenging the overtime rules were Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin. Missouri, Colorado, Montana and Wyoming filed friend of the court briefs backing the challenge.

In June, Trump’s Labor Department announced that it too wants salary level to count in deciding who is eligible for overtime pay, but it did not endorse the Obama administration’s salary level. The Labor secretary should heed Mazzant’s reasoning and the clear language of the law as it is currently written. If any changes are contemplated, they must be voted on by Congress.

This effort on behalf of Nevada’s state and local government employers, as well as countless businesses was well worth the time, effort and expense to save jobs and businesses.

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.

Newspaper column: What a difference a single word makes

Though the Nevada Constitution clearly states that any person serving in one branch of government may not perform “any function” of another branch, the Legislature’s lawyers, the Legislative Counsel Bureau (LCB), in 2002 penned a non-binding opinion that stated a person may serve in the Legislature if they do not exercise “any sovereign functions” in another branch.

The definition of the adjective sovereign is: “possessing supreme or ultimate power,” thus the LCB adulteration of the Constitution emasculates the plain language of the Separation of Powers Clause.

The Nevada Supreme Court will have the opportunity to clear up this matter.

State Sen. Heidi Gansert (R-J pix)

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

In that 2004 opinion, Sandoval noted that in the 1957 Supreme Court case cited by the LCB as the basis for its opinion, the court never got to the point of ruling on the Separation of Powers Clause and dismissed it on other grounds.

CJCL sued state Sen. Heidi Gansert because she also is an employee of the University of Nevada, Reno.

“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 10 lawmakers hold down state or local government jobs. As such, despite clear conflicts of interest, the lawmakers can vote themselves raises and hand out largesse to their employers — as Gansert did in this past session by voting for 2 percent raises for state employees and a capital expenditure budget that included more than $40 million for a new engineering building at UNR.

In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution, but the court ruled that the Constitution gives lawmakers the power 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.

Joseph Becker

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 Gansert on behalf of a person who wants her public relations job at UNR — 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.

The court should heed the words of U.S. Supreme Court Justice Louis Brandeis in a dissenting opinion from 1926, “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

Or they could turn to a 1967 Nevada Supreme Court opinion that flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

The words of the state Constitution should not be made meaningless by adding a word plucked out of thin air.

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: Judge orders more studies for water grab

It is not too often a judge’s ruling is greeted by all sides as a victory, but that is what happened after federal Judge Andrew Gordon issued a 39-page opinion in the fight over the Clark County water agency’s bid to tap groundwater beneath White Pine, Lincoln and Nye counties.

Judge Gordon said the Bureau of Land Management (BLM) could grant right-of-way for a 300-mile network of pipelines across public land, but first it has to address plans to mitigate the potential loss of wildlife habitat due to a draw down of the water table.

The suit was brought by White Pine County, the Great Basin Water Network (GBWN), several Indian tribes and environmental groups against the Southern Nevada Water Authority (SNWA) and the BLM.

The water agency issued a statement saying officials were pleased the judge rejected “the vast majority of the plaintiffs’ claims.”

A spokesman for GBWN called the ruling a victory because the judge is requiring a revision of the Environmental Impact Statement to add details on how damage to wetlands and wildlife habitat will be monitored and addressed.

“We now have multiple victories in state and federal court showing that this process hasn’t followed the requirements of science or law,” said GBWN’s Howard Watts. “Today SNWA has none of the water rights they’ve applied for with the state, and no permission to build the pipeline. After passing the buck at both the state and federal levels, SNWA and BLM can no longer kick the can down the road on developing specific plans to identify and prevent the severe environmental damage this project would produce.”

Gary Perea, a White Pine County commissioner, said, “SNWA has been told again they can’t prove they can build this pipeline without hurting the environment and the people that live in these areas.”

Marc Fink, an attorney for the Center for Biological Diversity, another plaintiff in the case, said, “The federal government has to go back to the drawing board and try to come up with some plan to compensate for the massive environmental damage that would be caused by draining these ancient aquifers.”

Considering that federal studies of the interconnected aquifers in the various valleys involved are already at equilibrium — water that is already being drawn from the aquifers is being replaced gallon for gallon annually with no leeway for additional withdrawal — mitigation might not be feasible.

Judge Gordon noted the importance of the case to both sides, “I am sensitive to the strong feelings and weighty interests at stake in this contest over Nevada’s water — after all, in the West, ‘whisky’s for drinkin’ and water’s for fightin’ over.’ There can be no question that drawing this much water from these desert aquifers will harm the ecosystem and impact cultural sites that are important to our citizens. On the other hand, southern Nevada faces an intractable water shortage.”

The very same issue of how to monitor and mitigate the draw down of the aquifers already is going to be addressed in hearings by the state engineer starting Sept. 25. The state Supreme Court ordered the engineer’s office to further address this issue before finalizing the approval of 84,000 acre-feet a year for SNWA. The outcome of those hearing could obviate the federal court ruling if the engineer finds there is no way to mitigate.

Simeon Herskovits, an attorney representing many of the plaintiffs in both state and federal courts, said, “We expect this fall’s hearing will more fully reveal the dangers posed by SNWA’s project to senior water rights and the environment in the affected region, as well as the flaws in their analysis of these problems to date.”

Time and money may be on the side of the opponents of the water grab.

It is estimated the groundwater project will take 40 years to complete at a cost of $15 billion — a cost that would require the tripling of water rates in Clark County. According to an SNWA resource plan the water is not needed until 2035.

Meanwhile, the state has cut a deal with Mexico that nets 54,500 acre-feet of additional Colorado River water for a mere $7.5 million.

Even though the SNWA claims it needs more water, it continues to issue “will-serve” letters to new residential and commercial developments.

Surely Clark County can find cheaper and less damaging ways to slake its thirst.

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.

 

 

Newspaper column: Time to release Bunkerville defendants on bail?

Bunkerville standoff (Reuters pix)

Whether you think the defendants in the Bunkerville standoff are a bunch of lunatic, dangerous gun-nuts who should be locked up and the key thrown away or upstanding patriots defending property and constitutional rights in the face of belligerent bureaucrats, it matters not what you think.

What matters is what jurors think.

So far jurors seem less than enthusiastic about embracing the pile of charges heaped on the first of the standoff defendants.

When Bureau of Land Management agents and their hired cowboys showed up at Cliven Bundy’s ranch in April 2014 to confiscate his cattle — for which he had refused to pay grazing fees for decades — hundreds of people showed up to exercise their First Amendment right to protest. Some also exercised their Second Amendment right to bear arms.

A year and half ago prosecutors filed charges of obstruction of justice, conspiracy, extortion, assault and impeding federal officers among other things against 17 of those protesters, including Bundy and four of his sons. Until this past week all remained jailed without bail.

The defendants were separated into three groups for trial. The first trial took place in April with the other two to follow shortly thereafter. But those plans went awry.

The April trial of six men ended with no one being convicted of conspiracy, the most serious charge. Two men were convicted of some of the charges and jurors hung on the remaining four. Jurors told defense lawyers after the trial they never came close to convicting four defendants, voting 10-2 in favor of acquitting two of them and splitting on the others.

Despite the majority of jurors in the first trial voting to acquit, all four were retried. This past week the jurors in that trial — despite not being allowed to hear defense arguments about constitutional rights or possible law enforcement excesses —reached not-guilty verdicts on 34 of 40 counts.

The six men and six women acquitted Ricky Lovelien of Oklahoma and Steven Stewart of Idaho of all charges.

The jurors could not reach a unanimous verdict on four counts against Eric Parker and two counts against Scott Drexler. Parker’s attorney told The Associated Press that a juror told him that votes were 11-1 for acquittal on those six counts.

Prosectors nonetheless have decided to retry Drexler and Parker on those six counts in September, meaning the remaining 11 defendants will have their trials pushed back yet again, even though the Sixth Amendment guarantees a speedy trial.

Drexler and Parker, both of Idaho, are being allowed to return home pending their third trial on ever dwindling charges.

Cliven Bundy’s attorney, Bret Whipple, and the attorneys for several other defendants have filed motions seeking to have their clients released pending trial.

“Our position has always been that it’s political instead of criminal,” Whipple told the Las Vegas newspaper. “And now it seems to be subjective instead of factual. There’s a whole fairness issue that I think is overlooked.”

Etched on the facade of the Supreme Court building in Washington is: “Equal Justice Under Law.”

In the Bunkerville standoff prosecution thus far two have been convicted of some charges, two acquitted of all charges and two face retrial on some charges, reportedly due to the intransigence of one juror.

Only one man has been sentenced, and his conviction may have had less to do with what he said and did at the standoff than what he said afterward.

Gregory Burleson, an avowed Arizona militiaman, told an undercover FBI agent posing as a documentary filmmaker, “I was hell bent on killing federal agents that had turned their back on we the people.”

Burleson testified, “Yes, I said a lot of crazy things. I’m ashamed of them actually. … Looking back at them, it’s like, ‘Wow, obviously I shouldn’t drink.’”

He was sentenced to 68 years in prison. For shooting off his mouth, not his guns?

Shortly after Cliven Bundy, 71, was arrested the prosecution argued that “Bundy is a danger to the community and poses a risk of non-appearance,” even though he agreed to any travel, firearm or GPS tracking restrictions the government might impose.

“Cliven Bundy is about as likely to hurt someone or to flee Nevada as a desert tortoise,” attorney Joel Hansen argued at the time. “It just isn’t going to happen.”

It costs nearly $90 a day to house a federal prisoner. Perhaps it is time the judge considers freeing the remaining defendants on bail pending trial.

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.

Update: According to the AP, a federal judge has scheduled jury selection to begin Oct. 10 for the trial of Cliven Bundy, two of his sons and four others — including two whose recent retrial ended in a hung jury on some charges.