Newspaper column: Opinion says two-thirds vote not needed to extend taxes

Never tell the boss no.

This past week the Legislative Counsel Bureau, the Legislature’s attorneys, told Democratic Gov. Steve Sisolak and the Democratic majorities in both the state Senate and Assembly what they wanted to hear: Extending taxes scheduled by law to be reduced does not require a two-thirds vote of all lawmakers, just a simple majority.

In the 21-member Senate, Democrats are one shy of the 14 votes required to meet the two-thirds threshold established by a constitutional amendment approved by voters in 1994 and 1996, which states “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”

The governor pledged in his State of the State speech at the start of the legislative session that his $8.9 billion general fund budget contained no new taxes, but it does include a proposal to keep at the current rates two taxes that are scheduled to be reduced in June.

The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have. A tax on vehicle registration was also approved with the caveat that it would go down in June, the start of the fiscal year.

The scheduled reduction in the modified business tax would reduce annual revenues by $48 million a year, while the vehicle tax revenue would drop by $21 million a year — a total of $138 million for the two-year budget. 

Continuing that burden on taxpayers sure sounds like it “creates, generates, or increases” public revenue. It certainly generates.

But the LCB is telling lawmakers, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”

Not binding? How can something approved by a two-thirds majority be undone by a simple majority? 

Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.

Gov. Sisolak said he appreciated the decision. 

“Regardless, I am continuing conversations with legislative leaders of both parties about supporting my budget that would keep funding at our current levels in order to help fund our schools and educators, provide health coverage under Medicaid expansion for our families, and feed our seniors through Meals on Wheels,” his statement said. “As this legislative session comes to a close, I look forward to working with the Legislature to pass a budget that reflects our core values – making sure that Nevada’s economic recovery reaches every family, that our schools prepare every child to reach their potential, and that our health care system is there for every Nevadan who needs it.”

But several media outlets quoted Senate Minority Leader James Settelmeyer as calling the opinion “a work of legal fiction.”

He also said he does not believe any member of the Senate Republican caucus would break ranks and give the Democrats the one vote they would need to reach the two-thirds majority threshold. He also said that passage of the tax extensions by a simple majority would doubtlessly end in litigation.

“Unfortunately, it means that the majority party has decided to not try to reach compromise or discussions on issues, and unfortunately going down this road just guarantees legal challenge,” Settelmeyer was quoted as saying.

The Nevada Supreme Court did rule in 2003 that taxes could be raised by a simple majority vote if the lawmakers failed to adequately fund education as required by the Constitution, but that opinion was reversed in 2006 when the court ruled, “The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.”

If lawmakers try to continue to assess those two taxes without a two-thirds majority, it certainly should end up in court.

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: A day worthy of celebrating: Constitution Day

This Sunday, Sept. 17, marks the anniversary of one of the most propitious days in the history of this country. On that day in 1787, the representatives at the Constitutional Convention in Philadelphia signed the Constitution. It was ratified by the states and went into effect on March 4, 1789.

You remember the Constitution don’t you?

That’s the document that says the president “shall take Care that the Laws be faithfully executed …” Not waive, delay or ignore parts of laws the president doesn’t like, such as immigration laws, which the Constitution says: “The Congress shall have Power To … establish an uniform Rule of Naturalization …”

The Constitution also says, “All Bills for raising Revenue shall originate in the House of Representatives …”

But when it came to ObamaCare, which is replete with a panoply of revenue generating taxes to offset its expenses, the Senate grabbed an unrelated bill that had passed the House, cut the existing language and substituted the ObamaCare verbiage. The bill number was the only thing that originated in the House.

Yes, it’s those four-handwritten pages that give Congress the power “To regulate Commerce with foreign Nations, and among the several States …” Not to force people to engage in commerce by buying health insurance or pay a fine or a tax for not doing so.

That Commerce Clause also has been stretched to prohibit a farmer from growing grain to feed his own cattle because that affected demand for grain on the interstate market. The same rationale allows Congress to set minimum wages for jobs that have nothing to do with interstate commerce.

It also gave Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Some wars get declared, while others are just military exercises.

The instrument also says the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Not decide for himself when the Senate is in session. At least the judiciary slapped Obama’s wrist on that one.

During ratification the Founders added the Bill of Rights, including the First Amendment that says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” That probably means Congress can’t order a religion to pay for contraceptions, abortifacients and sterilization against its beliefs.

We’re pretty sure the document did not envision a president’s administration creating by regulation laws the Congress refused to pass — think immigration enforcement and rules promulgated by the EPA, FEC, HHS, HUD or USDA without the consent of Congress.

Another clause gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States …” though the foregoing powers and powers vested by the Constitution part is largely ignored.

The Constitution also gave Congress the power “To exercise exclusive Legislation in all Cases whatsoever … to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” And just when did Congress purchase and the state Legislature consent to turning over 85 percent of Nevada’s land mass to the federal government?

As James Madison said, “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations …”

Happy Constitution Day, while it lasts.

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.

Real reason the Faraday Future deal should never have been struck

For all the recriminations and navel gazing over the Faraday Future flop, no one is bringing up the real reason that the deal should never have been made in the first place.

Yes, it was an ill-conceived idea for gullible Nevada lawmakers in a special session in 2015 on blind faith alone to agree to dole out $215 million in tax abatements and credits to entice Faraday Future to build an electric car factory at the Apex industrial complex in North Las Vegas, though at the time it did not even have a prototype vehicle. The deal, struck by the Governor’s Office of Economic Development, also promised to spend $120 million on infrastructure improvements at the site — water, rail and widening of Interstate 15.

Faraday promised to build a $1 billion manufacturing facility, create 4,500 jobs and start producing cars as early as 2016.

After visiting China in 2016 state Treasurer Dan Schwartz, long a critic of the Faraday largesse by the state, told the press, “We’re increasingly more concerned than we were before that this is just a big Ponzi scheme.”

He and all the handful of other naysayers were right. Faraday has pulled the plug, tucked tail and run off.

But it wasn’t just naiveté or poor negotiating skills or poor judgment that made this a bad deal. It was blatant and arrogant flouting of the state Constitution. In fact, it was a double flout.

You see the Constitution has a Gift Clause, which states, “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

Self-styled economic development advocates have tried three times to amend the Constitution and remove the Gift Clause. The voters rejected those attempts all three times — in 1992, 1996 and again in 2000 by wide majorities.

The state Supreme Court has said that when the state provides something to a private entity without getting adequate compensation for the value, that is a gift and thus a violation of the Constitution.

Nevada’s high court has cited an Arizona Supreme Court ruling on that state’s nearly identical Gift Clause. The Arizona court said its Gift Clause “represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities, and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.”

Then there is the section of the Nevada Constitution that clearly states, “The Legislature shall provide by law for a uniform and equal rate of assessment and taxation …” It ain’t uniform or equal if a select few get breaks while others don’t.

Despite these clearly worded prohibitions the state doled out $1.3 billion in tax breaks to Tesla Motors to build a battery factory near Sparks. The projections on capital investment and number of jobs to be created have fallen far short. All it would take to make the whole deal go bust is a technological breakthrough that makes lithium ion batteries obsolete.

That $750 million to build a Las Vegas stadium for the Oakland Raiders football team on a site with woefully adequate parking spaces still could come up a piker.

But none of them should ever have been allowed in the first place.

The only car Faraday Future has made.

 

 

Trump still disparaging the very document he must swear to protect and defend

Quick, somebody get Donald Trump one of those pocketbook copies of the Constitution and Bill of Rights and read it to him aloud, slowly, starting with, “Congress shall make no law …”

On the campaign trail Trump has repeatedly disparaged the rights contained in the First Amendment and several others.

“We’re going to open up those libel laws,” Trump said in February. “So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they’re totally protected,” paying no heed to Supreme Court rulings such as Times v. Sullivan, which said public figures such as him had to show actual malice or reckless disregard for the truth to win damages.

He also suggested closing mosques because really bad things happen in them — another First Amendment diss.

Now, this week the president-elect took to his favorite forum, Twitter, to call for jailing and revoking citizenship for flag burners, paying no heed to 1989’s Supreme Court decision in Texas v. Johnson, which declared unconstitutional a Texas law making flag burning a crime or 1990’s U.S. v. Eichman, which did the same for a federal law passed after the Texas law was struck.

Justice William Brennan, who wrote for the majority in both cases, concluded in the Eichman ruling:

We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets … vulgar repudiations of the draft … and scurrilous caricatures …

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.

Someone should read that to Trump, too, though it is more than 140 characters.

The oath of office also exceeds Twitter limits:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” — Article II, SectionN 1, Clause 8

 

 

 

 

Harry Reid wants to strike free speech from the First Amendment

Freedom of the press belongs to those who own one.

Harry Reid — in full-throated anti-Koch brother rant — this week told the world he knows better than the Founders just how much free speech the citizens of this country should be allowed. He announced he is backing an amendment to the Constitution that would tear the heart out of the First Amendment.

Reid promised the Senate would vote soon on an amendment put forth by  Sens. Tom Udall, D-N.M., and Michael Bennet, D-Colo.

The amendment would allow Congress and the states to set limits on contributions to candidates and limits on how much of one’s own money could be spent in support of or opposition to a candidate.

It also expressly states: “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

Problem solved. The Koch brothers buy a press — or a television network or a string of radio stations or a website.

These days anyone with a computer owns a “press.” The size of the audience can vary wildly, of course.

That fundamental press freedom flaw aside, Reid’s whole argument that there must be equality imposed on speech by limiting the corrupting power of money is bogus. The rich may try to buy votes with their advertising buys, but any such transaction takes a willing seller.

In his prepared text Reid declares:

“The Supreme Court has equated money with speech, so the more money you have the more speech you get, and the more influence in our democracy. That is wrong. Every American should have the same ability to influence our political system. One American, one vote. That’s what the Constitution guarantees. The Constitution does not give corporations a vote. And the Constitution does not give dollar bills a vote. From what I’ve heard recently, my Republican colleagues seem to have a different view. Republicans seem to think that billionaires, corporations and special interests should be allowed to drown out the voices of Americans. That is wrong and it has to end.”

Might we remind the senator from Nevada that his vote in the Senate carries the same weight as those of the senators from California and New York and other states where far more “Americans” reside. So the Constitution does not guarantee one American, one vote.

Nor does the Constitution dictate equal outcomes for all people.

Have the voices of Americans been drowned out as Reid states?

In addition to being a senseless and futile gesture, such an amendment would require a huge bureaucracy to enforce, but, of course, this bureaucracy would be even handed like the IRS and efficient like the VA and responsive like the BLM.

Reid called campaign spending by concerned citizens “one of the greatest threats our system of government has ever faced.” Concluding in table thumping terms:

“It is unacceptable, that the recent Supreme Court decisions have taken power away from the American voter, instead giving it to a select few. Soon, Chairman Leahy and the Senate Judiciary Committee will hold a hearing on Senator Udall and Bennet’s constitutional amendment. The Senate will vote on this legislation after it is reported out of the Committee. I urge my colleagues to support this constitutional amendment – to rally behind our democracy. I understand what we Senate Democrats are proposing is no small thing – amending our Constitution is not something we take lightly. But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents’ faith in the electoral system, and let them know that their voices are being heard.”

No, the greatest threat is a massive Leviathan of a federal government that sweeps aside freedoms for self-serving reasons and spends our grandchildren into eternal, crushing debt.

The Koch brothers can spend every dime of their billions arguing for conservative policies, but it would be for naught if there is none willing to agree.

Corporations can spend millions selling New Coke and Edsels, but there have to be willing buyers.

Freedom of speech needs no ground leveling. The power to persuade is not the exclusive domain of the loudest, otherwise every debate victor would be the one with the biggest bullhorn.

If this democratic Republic is not a farce, the voters will, eventually, figure out the best route to a more prosperous future.

 

 

 

 

 

Tell me again how the federal government has the right to hold so much Nevada land

Does the federal government have the power to own and control vast land holdings within the sovereign boundaries of any given state? It obviously has the power, because it has controlled more than 80 percent to the lands in Nevada for nearly 150 years.

But does it have the right or moral authority?

Article IV, Section of the Constitution says: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Was it the intent of the Constitutional Convention to allow the federal government — under limited and enumerated powers —to hold open land in perpetuity and out of productive commerce?

Constitutional scholar Rob Natelson writes in a University of Colorado Law Review article:

“As understood at the time of ratification, the Constitution did not permit the federal government to retain and manage land  indefinitely for unenumerated purposes. Massive, permanent federal land ownership would have been seen as subversive to the constitutional scheme. The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers. To be sure, Congress would have considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion were not to be questioned. At the end of the day, however, all federal land not ‘necessary and proper’ to execute an enumerated power was to be disposed of impartially and for the public good. … Generally, though, the Constitution’s original meaning was that lands not dedicated to enumerated functions were to be privatized or otherwise devolved on terms that best served the general interest.”

Enumerated powers to create and hold such things as “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” not vast open range.

According to the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In 1828 the states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned Congress for the release of federal lands within their boundaries. Their argument was successful:

“When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time.  No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.”

Nevada and the rest of the West has been waiting impatiently for the disposal of those federal lands.

Numerous stories about the Cliven Bundy standoff with the Bureau of Land Management have mentioned the Disclaimer Clause in the statehood ordinance of Nevada —  in which the residents of the territory were required to “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.” — only one so far as I have seen mentions the voters of Nevada amended the Constitution in 1996 to repeal that clause.

And none mentions the part that reads: “That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

With Nevada it was not an implied engagement. It was a promise.

In the case of Pollard v. Hagan in 1845, the Supreme Court held:

“The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty of the 30th April, 1803, with the French Republic ceding Louisiana.

“Upon the admission of Alabama into the union, the right of eminent domain, which had been temporarily held by the United States, passed to the State. Nothing remained in the United States but the public lands.

“The United States now hold the public lands in the new States by force of the deeds of cession and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess or have received by compact with the new States for that particular purpose.

“That part of the compact respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new States whether they consented to be bound or not.”

Not binding on the people of the new states whether they consented to be bound or not. Besides, how could the residents of the territory bind the residents of the state of Nevada for 150 years?

Obama above the law and the Constitution

Today in The Wall Street Journal, Michael McConnell, a former federal judge and law professor, makes virtually the same point about President Obama as John Yoo, formerly of the Bush Justice Department and now a law professor, made this past October.

WSJ illustration

McConnell says that the Obama administration decision to suspend the employer mandate in the ObamaCare law for a year is a blatant abrogation of the constitutional obligation under Article II, Section, which states that the president “shall take Care that the Laws be faithfully executed.”

“This is a duty, not a discretionary power,” McConnell writes. “While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.”

Writing at Fox News in October, Yoo used the same constitutional citation to explain why it was wrong for the Obama to basically legislate by executive fiat a law Congress refused to pass — the DREAM Act.

“Obama has pursued a dangerous change in the powers of his office that disregards the Constitution’s careful separation of power between the branches of the federal government,” Yoo writes. “The Constitution imposes on the president two clear duties – to protect the national security and to ‘take Care that the Laws be faithfully executed.’ Obama is the first chief executive since Richard Nixon to ignore a duly-enacted law simply because he disagrees with it, in clear defiance of his constitutional duty.”

McConnell concludes with this:

“As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress ‘would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.'”

But Obama’s law breaking extends far beyond these two incidents.

As an extension of the suspension of the employer mandate in ObamaCare, his administration also suspended the requirement that individuals seeking subsidized health insurance prove their eligibility. Not to mention all those waivers from ObamaCare requirements for hundreds of unions and companies.

As with the DREAM Act, Obama is working to enact “law” to prevent climate change by unilaterally declaring war on coal. As he said in a letter to me and a few other of his closest friends:

“I told Congress in February that if they didn’t take action to fight climate change, then I would.

“Today, I announced a plan of action to make good on that promise.

“My administration is taking steps to cut carbon pollution, prepare our nation for the unavoidable impact of climate change, and put America’s best and brightest to work to solve this issue on a global scale.”

Even though the law requires foreign aid be cut off to a country that has undergone a coup, Obama’s administration refuses to halt the flow of $1.5 billion in U.S. tax money to Egypt.

Though the No Child Left Behind law contained no provision for waivers, Obama’s administration granted waivers.

Tough the 1996 Welfare Programs Act required people on welfare to work or prepare for a job in order to continue to receive federal benefits, Obama’s administration waived the requirement.

Then there was the Obama decision to tell Attorney General Eric Holder to not defend in court the Defense of Marriage Act.

Don’t forget the regulatory contortions the administration attempted to get around the fact ObamaCare unconstitutionally interferes with the First Amendment rights of the Catholic Church.

Obama missed four deadlines for submitting a budget to Congress. He missed the deadline to report on planned defense cuts. He missed the deadline to report on Medicaid costs.

In 1868, the House impeached President Andrew Johnson for defying the Tenure of Office Act, which prohibited him from firing anyone from Lincoln’s cabinet. Johnson fired Secretary of War Edwin Stanton anyway. The Senate refused to convict by a single vote.

The Constitution says:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

How many does it take? Nonfeasance of office is surely at least a misdemeanor.

Deriding shams, exposing pretentious falsities by creating shams and falsities

Some public relations genius at the Obama White House came up with a foolproof way to engender good will among the little people and make them think their voices are heard. So they created a section on the whitehouse.gov website called We the People where said people could directly “petition” the president over various issues, and, if enough people sign the petition, the president’s staff would reply.

But fools always find a way to thwart the best laid plans, as I relate in this week’s newspaper column available online at The Ely Times.

After Obama’s re-election, “petitions” started calling for various states to secede from the Union in protest over federal usurpation of powers not enumerated in the Constitution. That’s a poke in the eye with your own stick.

The website now has petitions for secession from all 50 states. Nevada has two.

One is a cut-and-paste from previous petitions. The other actually spells out reasons Nevada has a right to secede. (http://wh.gov/9sJs)

It reads in part:

“Whereas, the State of Nevada was admitted into the union under the presumption and presidential declaration that it would be on equal footing with every other state previously admitted, but was extortionately required to include in its charter that all unappropriated lands within the boundaries of the state — more than 85 percent of the state — be forever placed under the control of the federal government.

“Therefore, all laws and ordinances by which the State of Nevada became a member of the Union would be repealed and all obligations on the part of the State or the people thereof to observe the same would be withdrawn.”

As one-time Nevadan Mark Twain said of writers: “ours is a useful trade, a worthy calling; that with all its lightness and frivolity it has one serious purpose, one aim, one specialty, and it is constant to it — the deriding of shams, the exposure of pretentious falsities, the laughing of stupid superstitions out of existence … the natural friend of human rights and human liberties.”

Read the full column here.

Why do you think they call us rebels?