Bipartisan Criminal Justice Bill Closer To Becoming Law After Congressional Approval | NPR

By Ayesha Rascoe

A bipartisan bill aimed at overhauling federal prisons and reducing recidivism has been overwhelmingly approved by Congress.

The legislation is now on the verge of becoming law, with the House’s approval on Thursday, the Senate’s passage on Tuesday and the backing of President Trump.

Republican Speaker of the House Paul Ryan previously voiced support for the legislative package, pledging that the House was “ready to get it done.” They later passed the measure by a 358-36 margin.

The Senate on Tuesday voted 87-12 in favor of the bill, known as the First Step Act. The passage of the bill by the chamber is a significant victory for advocates on the left and the right, who have pressed for Congress to take action to lower the prison population.

It’s also a big win for the White House and for Trump adviser and son-in-law Jared Kushner, in particular. Kushner has made overhauling the criminal justice system one of his top projects in the White House.

Trump called Congress’ action a “great bi-partisan achievement” and “a wonderful thing for the U.S.A.!!” in a tweet on Thursday afternoon.

For months, the fate of the legislation seemed to be in a precarious position. Republican Sen. Chuck Grassley, who helms the Senate Judiciary Committee, stressed that he wanted to include sentencing provisions, which had been left out of the version of the bill passed by the House in May.

For a while, it was unclear whether Trump would back measures to cut down on lengthy sentences. His first attorney general, Jeff Sessions, was staunchly opposed to the move.

But, with Sessions pushed out of the administration in November, Trump came out in favor of the more expansive Senate package.

Some Republicans, like Sen. Tom Cotton of Arkansas, still oppose the legislation, which they argue will free dangerous criminals.

Facing pressure from advocates and the White House, Senate Majority Leader Mitch McConnell agreed to bring the bill up for a vote during the lame-duck session after its sponsors agreed to certain changes.

Here are some highlights from the legislation:

Measures focused on changing U.S. prisons

-Provides more access to rehabilitation and training programs that are aimed at helping prepare prisoners for life after their release. Certain prisoners would be eligible for incentives if they participate, including credits that would allow them to spend up to a year of their sentences in facilities like halfway houses or at home under supervision.

Republican critics of these incentives argue that prisoners could commit crimes while on supervised release. But, the bill’s sponsors say only offenders considered low or minimum risk would be eligible and the legislation excludes certain prisoners, including sex offenders and fentanyl traffickers.

-Makes it against the law to use restraints on pregnant inmates, unless they are an immediate threat to themselves or others or a flight risk.

-Requires that prisoners be incarcerated no more than 500 miles from their primary residence.

Measures focused on sentencing

-Ends automatic life sentences under the three-strike penalty for drug felonies. Instead of life, a third strike would now be a mandatory 25-year sentence. The mandatory sentence for a second offense would be reduced to 15 years compared to 20 years now.

This change would not be retroactive, so it would not help people already in prison serving life sentences under the three-strike rule. Some opponents of the bill have argued it does not go far enough to help people already affected by these laws.

-Expands the “safety valve” that allows judges to avoid imposing mandatory minimum sentences in certain cases.

-Addresses prisoners who were sentenced before laws were changed in 2010 to lessen disparities between the penalties for crack cocaine and powder cocaine. It would allow these prisoners to petition the courts to review their cases in light of the updated law.

Source: NPR

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Alexandria Ocasio-Cortez is already pulling back the curtain on the inner workings of Congress | CNBC

By Carmen Chapell

Alexandria Ocasio-Cortez is already pulling back the curtain on the inner workings of the Capitol.

The New York Democrat, along with other incoming freshman lawmakers, is trying to usher in a culture of openness that is enabled by a vast social media following. With nearly 3 million followers combined on Facebook, Instagram and Twitter, Ocasio-Cortez has used the platforms to involve her supporters during the transition period before she takes office.

Her enthusiastic and often pugnacious transparency campaign has earned her praise from inside and outside the Beltway. Yet it has also drawn criticism from several corners, including from President Donald Trump’s eldest son. Ocasio-Cortez hasn’t given any indication that she will let up, however.

In a series of pictures and videos on Instagram dubbed “Congress Camp,” she gave an inside look into new-member orientation, from choosing an office to voting for House leadership, while also showcasing the unique quirks of life on Capitol Hill.

“Guys, there are secret underground tunnels between all of these government buildings!” she whispers in one video. In another post, she polls her followers on whether she should choose an office with more space or one “close to our friends.”

But Ocasio-Cortez isn’t just focusing on the novelty of her experience. Last week, she tweeted sharp criticism of an orientation for new members of Congress hosted by Harvard. The event featured corporate CEOs but no labor representatives.

“Our ‘bipartisan’ Congressional orientation is cohosted by a corporate lobbyist group. Other members have quietly expressed to me their concern that this wasn’t told to us in advance,” she tweeted. “Lobbyists are here. Goldman Sachs is here. Where’s labor? Activists? Frontline community leaders?”

Fellow freshman member Rashida Tlaib, D-Mich., echoed her criticisms. Tlaib said that Gary Cohn, former chief economic advisor to President Donald Trump and former Goldman Sachs executive, told the new members at orientation that they don’t “know how the game is played.”

“No Gary, YOU don’t know what’s coming – a revolutionary Congress that puts people over profits,” Tlaib tweeted.

‘Those little things are very real’

Ocasio-Cortez rose to the spotlight after defeating longtime incumbent Joseph Crowley in the Democratic primary for New York’s 14th Congressional District, which encompasses parts of Queens and the Bronx. A self-identified Democratic socialist, she ran on a liberal platform and chose to emphasize her identity as a young woman of color. The 29-year-old’s victory in the general election anointed her as the youngest woman ever elected to Congress.

Ocasio-Cortez’s comments about her new role have also renewed longstanding debates on the financial challenges facing members of Congress and their staff. She has made it personal by revealing her own insecurities about her finances during the transition period.

“I have three months without a salary before I’m a member of Congress. So, how do I get an apartment? Those little things are very real,” she told The New York Times in an interview.

Many lawmakers struggle with the cost of living in Washington, D.C., even on the $174,000 congressional salary, going so far as to sleep in their offices to save on rent costs.

Ocasio-Cortez has also made it a point to talk about the economic conditions of congressional staff. Last week, she tweeted: “It is unjust for Congress to budget a living wage for ourselves, yet rely on unpaid interns & underpaid overworked staff just bc Republicans want to make a statement about ‘fiscal responsibility.'”

Low salaries as well as the prevalence of unpaid internships, which are often the first step to a full-time role, are seen as barriers to a more diverse congressional staff. Ocasio-Cortez pledged to pay her office’s interns $15 an hour, inspiring other lawmakers to make the same commitment.

She has also shared experiences that reveal the growing pains of an increasingly diverse Congress. “People keep giving me directions to the spouse and intern events instead of the ones for members of Congress,” she tweeted during orientation.

The changing face of Congress

Ocasio-Cortez is just one of the 42 women, 38 of them Democrats, part of Congress’ freshman class. They are being heralded as the faces of a new “Year of the Woman.” Ilhan Omar, D-Minn., and Michigan’s Tlaib are the first Muslim women elected to Congress, while Ayanna Pressley, a Democrat, is the first black woman elected to represent Massachusetts. Ocasio-Cortez posted a picture of the four women together on Instagram last month, captioning it “Squad.”

As a result of her high profile, Ocasio-Cortez’s unabashed takes on congressional life have frequently come under fire.

Eddie Scarry, a writer for the Washington Examiner, disputed Ocasio-Cortez’s account of her financial hardships based on her clothing choices.

“Hill staffer sent me this pic of Ocasio-Cortez they took just now,” Scarry tweeted. “I’ll tell you something: that jacket and coat don’t look like a girl who struggles.” The tweet has since been deleted after widespread backlash.

Rep. Sean Duffy, R-Wis., condemned the media for what he viewed as preferential treatment in coverage of Ocasio-Cortez. As a freshman congressman in 2011, Duffy received negative reactions after telling a constituent that he struggles to pay his bills.

“Hmm which headlines and article does media give to GOP and which to a Dem?” Duffy tweeted alongside screenshots of articles referencing himself and Ocasio-Cortez.

Last week, Donald Trump Jr., the president’s eldest son, shared a doctored image on Instagram in which Ocasio-Cortez asks, “Why are you so afraid of a socialist economy?” In the post, President Trump responds, “Because Americans want to walk their dogs, not eat them.” Trump Jr. captioned the meme “It’s funny cuz it’s true!!!”

Ocasio-Cortez fired back, tweeting: “Please, keep it coming Jr – it’s definitely a ‘very, very large brain’ idea to troll a member of a body that will have subpoena power in a month.” Democrats have made clear that they plan to use their new subpoena power in the House to further investigate potential Russian interference in the 2016 elections.

The representative-elect has also received praise for revealing parts of the political system that are typically left in the shadows.

Actress Kerry Washington, who stars in the political drama “Scandal,” commended Ocasio-Cortez’s behind-the-scenes revelations, tweeting, “@Ocasio2018 speaking truth to power. Sharing the NEEDED #BTS of our democracy at work. So grateful.”

“I’m learning more details about how the House actually works over the past two weeks than I ever did in the past 20 years,” one follower tweeted in reply to Ocasio-Cortez.

“Thank you so much for giving us the window into the inside baseball of Congress,” another follower said.

Paul Musgrave, assistant professor of political science at University of Massachusetts Amherst, praised Ocasio-Cortez on Twitter for “treating voters as neither super-sophisticated DC insiders, nor as people who can’t be trusted to make up their own minds, but rather as people who are curious and intelligent but who aren’t experts in DC process.”

“Sometimes,” he added, “you don’t need a new theory of politics to make change, just a willingness to state the obvious.”

Source: CNBC

Trump administration says it won’t return children to immigrant parents in custody, but a judge orders families be reunited | LA Times

Hours after a Trump Cabinet member told Congress that the administration would not reunite migrant children with parents still held in immigrant detention facilities, a federal judge in San Diego ordered the government to begin doing just that.

In a preliminary injunction issued late Tuesday, U.S. District Judge Dana Sabraw ordered the government to reunite nearly all children under age 5 with their parents within 14 days and older children within 30 days.

The administration’s actions related to separating families “belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution,” the judge wrote. “This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children.”

The order appears to set the stage for a legal clash over a crisis that was created by the White House and has sown increasing levels of fear and confusion.

Earlier Tuesday, Health and Human Services Secretary Alex Azar, testifying on Capitol Hill, said the only way parents can quickly be reunited with their children is to drop their claims for asylum in the United States and agree to be deported.

If parents pursue asylum claims, administration officials planned to hold them in custody until hearings are complete — a process that can take months and in some instances years because of a backlog of several hundred thousand cases.

And while that process takes place and the parents are in custody, their children would not be returned to them, Azar said, citing current rules that allow children to be held in immigrant detention for no more than 20 days.

“If the parent remains in detention, unfortunately, under rules that are set by Congress and the courts, they can’t be reunified while they’re in detention,” Azar told the Senate Finance Committee. He said the department could place children with relatives in the United States if they can be located and properly vetted.

Azar’s department has custody of 2,047 children separated from their parents after they were apprehended crossing the border illegally since May. That’s when the Trump administration began enforcing a “zero tolerance” policy that required prosecution of all adults crossing the border — and separate detention of any minors with them.

His statement brought angry protests from Democrats and immigrant advocates.

“The administration is holding children hostage to push parents to drop their asylum claims,” Sen. Dianne Feinstein (D-Calif.) tweeted.

The uncertain fate of the children, and wrenching reports of their plight, has created a political firestorm for the White House and a nightmare for the families affected. In some cases, parents have been deported without their children, or infants and young children have been moved to distant states while their parents await court processing.

The “zero tolerance” policy already has run partially aground over a lack of resources. On Monday, Border Patrol officials announced they had stopped handing over immigrant parents for prosecution because they were running out of beds. The reversal means newly apprehended families, in theory, could be released pending their court dates.

The limit on how long children can be held in immigrant detention facilities stems from a 1997 court ruling known as the Flores settlement. The administration has asked a federal judge to modify those rules and allow families to be held together in custody for longer periods.The Obama administration made a similar request in 2015, but a judge refused.

The White House has also asked Congress to change federal law to allow longer detentions. That process is moving slowly, and President Trump has proved an uncertain ally for Republican leaders, vacillating as to whether he wants new legislation or not.

The House is scheduled to vote on a Republican-drafted bill on Wednesday that would overhaul the immigration system, but its prospects are dim — and it almost certainly would die in the Senate.

Last-minute arguments over what should be in the bill led one of its lead sponsors, Rep. Jeff Denham (R-Turlock), to declare the measure essentially dead.

“At the end of the day it is very clear that the Republicans cannot pass an immigration bill,” Denham said late Tuesday. “I think it’s a very clear message that Democrats and Republicans need to work together on an American solution. That’s the only way this is going to get done.

If the bill fails, as expected, the House may take up narrower legislation focused specifically on family separation. But Congress is set to recess on Thursday for an extended Fourth of July holiday, so the schedule will allow just hours to consider that proposal.

Trump signed an executive order last week that he said would halt the separation of parents and children by detaining families together. Since then, his administration has struggled to articulate a plan to reunite families.

Over the weekend, the departments of Homeland Security and Health and Human Services released a joint statement saying they had come up with a central database to link families and were working on ensuring children stayed in contact with their parents.

On a conference call with reporters Tuesday, Health and Human Services officials refused to say whether they were still receiving children taken from parents at the border. The government has not released data on the ages of children in custody, nor how many in total have been separated or released.

Jonathan White, head of the Office of Refugee Resettlement, a branch of the Health and Human Services Department, said only that the department was working with other agencies “to facilitate reunification with a child as soon as that is practical.”

He suggested the department’s sole responsibility for now “is to determine whether the child has a safe place to go.”

White said his office knew “the status, whereabouts and care of every child” in its custody. “We have always known where all the children are,” he said.

But Azar conceded in his Senate testimony that the department has not yet been able to put all the parents in communication with their children.

“We want every child and every parent to be in communication at least twice a week so that they’re talking, by Skype or by phone,” he said. “We want this to happen.”

He also warned that if parents remain in a detention facility and the agency gives custody of a child to someone else — a relative in the U.S., for example — the parents eventually might have to go to court to get the child back.

“We cannot sort of pull a child back from a relative. We don’t have the legal authority,” he said.

Lawyers decried officials’ decision not to reunite children with their parents in detention as inhumane.

Jodi Goodwin, a south Texas immigration lawyer who mobilized a rapid-response team of attorneys to aid immigrant parents detained at the Port Isabel Detention Center on the Texas Gulf Coast, said officials needed to release parents with ankle monitors or bond so that they can be reunited with their children.

“That’s the only way to end the tragedy that has happened,” she said.

Zenen Jaimes Perez of the Texas Civil Rights Project said parents were so desperate they would waive their rights, drop their asylum claims and agree to deportation, not understanding that even that choice does not guarantee they will see their children again. Of the 400 parents his organization has interviewed, only four have been reunited with their children, he said.

“We know a lot of people are making these decisions under duress, with no counsel, and that is particularly cruel,” he said.

As families grappled with that choice, 17 states — including California — and the District of Columbia filed suit against the administration over its detention policies. The case joins a growing pile of lawsuits against the administration’s policies.

The continued action in Congress and the courts will keep the emotion-charged family separations in the public eye as lawmakers return to their districts four months before the midterm election.

Trump has blamed Democrats for the stalemate in Congress, but he has given wildly mixed signals about what he wants from Republicans.

The president initially said he opposed the compromise bill, then told Republican lawmakers he was “1,000%” for immigration legislation, and then tweeted that Republicans “should stop wasting their time” by trying to pass an immigration bill before the November election.

House Republican leaders acknowledged that they still don’t have the 218 votes needed to pass the compromise bill despite holding 235 seats in the chamber. They blamed Democrats, however, for not supporting their bill.

“Why doesn’t a few Democrats move over? If they are honest about wanting to secure the border, here is the opportunity,” House Majority Leader Kevin McCarthy (R-Bakersfield) said Monday on Fox News.

Few Democrats are inclined to help rescue Trump from a crisis he created. Moreover, Democrats had no role in crafting the bill.

“It’s just a bad bill. It has nothing to do with even being locked out of the process — it’s just a bad bill,” Rep. Pete Aguilar (D-Redlands) said.

At his weekly news conference Tuesday, House Speaker Paul D. Ryan (R-Wis.) wouldn’t discuss a proposed bill targeting only the family separations. A Senate proposal would add 225 immigration judges and expedite court proceedings for families, and there are indications that plan could get a vote this week.

Ryan said he wants to “do as well as we possibly can” in Wednesday’s vote, adding, “If that doesn’t succeed, then we’ll cross that bridge.”

Source: LA Times

The California County That’s Leading the Way in Cutting the Banks Out of Its Economy | Alternet

By Robert Reich

MoneyWhat exactly does it mean for a big Wall Street bank to plead guilty to a serious crime? Right now, practically nothing.

But it will if California’s Santa Cruz County has any say.

First, some background.

Five giant banks – including Wall Street behemoths JPMorgan Chase and Citicorp – recently pleaded guilty to criminal felony charges that they rigged the world’s foreign-currency market for their own profit.

This wasn’t a small heist. We’re talking hundreds of billions of dollars worth of transactions every day.

The banks altered currency prices long enough for the banks to make winning bets before the prices snapped back to what they should have been.

Attorney General Loretta Lynch called it a “brazen display of collusion” that harmed “countless consumers, investors and institutions around the globe — from pension funds to major corporations, and including the banks’ own customers.”

The penalty? The banks have agreed to pay $5.5 billion. That may sound like a big chunk of change, but for a giant bank it’s the cost of doing business. In fact, the banks are likely to deduct the fines from their taxes as business costs.

The banks sound contrite. After all, they can’t have the public believe they’re outright crooks.

It’s “an embarrassment to our firm, and stands in stark contrast to Citi’s values,“ says Citigroup CEO Michael Corbat.

Values? Citigroup’s main value is to make as much money as possible. Corbat himself raked in $13 million last year.

JPMorgan CEO Jamie Dimon calls it “a great disappointment to us,” and says “we demand and expect better of our people.”

Expect better? If recent history is any guide – think of the bank’s notorious “London Whale” a few years ago, and, before that, the wild bets leading to the 2008 bailout – JPMorgan expects exactly this kind of behavior from its people.

Which helped Dimon rake in $20 million last year, as well as a $7.4 million cash bonus.

When real people plead guilty to felonies, they go to jail. But big banks aren’t people despite what the five Republican appointees to the Supreme Court say.

The executives who run these banks aren’t going to jail, either. Apologists say it’s not fair to jail bank executives because they don’t know what their rogue traders are up to.

Yet ex-convicts often suffer consequences beyond jail terms.

In many states they lose their right to vote. They can’t run for office or otherwise participate in the political process.

So why not take away the right of these convicted banks to participate in the political process, at least for some years? That would stop JPMorgan’s Dimon from lobbying Congress to roll back the Dodd-Frank act, as he’s been doing almost non-stop.

Why not also take away their right to pour money into politics? Wall Street banks have been among the biggest contributors to political campaigns. If they’re convicted of a felony, they should be barred from making any political contributions for at least ten years.

Real ex-convicts also have difficulty finding jobs. That’s because, rightly or wrongly, many people don’t want to hire them.

A strong case can be made that employers shouldn’t pay attention to criminal convictions of real people who need a fresh start, especially a job.

But giant banks that have committed felonies are something different. Why shouldn’t depositors and investors consider their past convictions?

Which brings us to Santa Cruz County.

The county’s board of supervisors just voted not to do business for five years with any of the five banks felons.

The county won’t use the banks’ investment services or buy their commercial paper, and will pull its money out of the banks to the extent it can.

“We have a sacred obligation to protect the public’s tax dollars and these banks can’t be trusted. Santa Cruz County should not be involved with those who rigged the world’s biggest financial markets,” says supervisor Ryan Coonerty.

The banks will hardly notice. Santa Cruz County’s portfolio is valued at about $650 million.

But what if every county, city, and state in America followed Santa Cruz County’s example, and held the big banks accountable for their felonies?

What if all of us taxpayers said, in effect, we’re not going to hire these convicted felons to handle our public finances? We don’t trust them.

That would hit these banks directly. They’d lose our business. Which might even cause them to clean up their acts.

There’s hope. Supervisor Coonerty says he’ll be contacting other local jurisdictions across the country, urging them to do what Santa Cruz County is doing.

Robert B. Reich has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He also served on President Obama’s transition advisory board. His latest book is “Aftershock: The Next Economy and America’s Future.” His homepage is www.robertreich.org.

Source: Alternet

Republican Judge Strikes Down Obama’s Immigration Order | ThinkProgress

By Ian Millhiser

AntiImmigrationIn an extraordinary opinion that transforms a routine sentencing matter into a vehicle to strike down a politically controversial policy, a George W. Bush-appointed judge in Pennsylvania declared President Obama’s recently announced immigration policy unconstitutional on Tuesday. Because the policy “may” apply to a defendant who was awaiting sentencing of a criminal immigration violation, Judge Arthur Schwab decides that he must determine “whether the Executive Action is constitutional.” He concludes that it is not.

Schwab spends just five pages discussing his rationale for this conclusion, an unusually short amount of legal analysis for a complex question regarding the scope of the executive branch’s power to set enforcement priorities. Notably, Schwab also spends nearly three pages discussing quotes from President Obama which, the judge claims, indicate that Obama once thought his present actions are illegal — even though Schwab eventually admits that these quotes are “not dispositive of the constitutionality of his Executive Action on immigration.”

Half of Schwab’s analysis of the Executive Action’s constitutionality is devoted to a strawman. Noting that Obama cited Congress’s failure to act on immigration in his speech announcing the new policy, Schwab devotes half of his analysis of the policy’s constitutionality to explaining that “Inaction by Congress Does Not Make Unconstitutional Executive Action Constitutional.” He’s right on this point, just as Schwab would be correct if he argued that President Obama’s authority to create this new policy does not come from a magic hat that Obama keeps in the Oval Office. But it’s somewhat curious that the judge feels the need to present Obama’s political rhetoric as if it were a constitutional argument and then tear that non-argument down.

The remainder of Schwab’s brief constitutional analysis concludes that the new policy “Goes Beyond Prosecutorial Discretion — It is Legislation.” Notably, however, Schwab cites no judicial precedents of any kind to support this conclusion.

One case that Schwab does not cite is Arizona v. United States, where the Supreme Court said that the executive branch has “broad discretion” in matters of deportation and removal. As Arizona explains, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Executive branch officials, moreover, “must decide whether it makes sense to pursue removal at all.”

Notably, Arizona also indicates that this broad discretion flows from federal immigration law — i.e. laws that were enacted by Congress. This matters because Schwab’s opinion concludes that Obama’s “unilateral” policy “violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause.” In essence, Schwab concludes that the president lacks the authority to act in the absence of authorization by Congress. Schwab does not even discuss the possibility that Obama’s actions may actually be authorized by Congress. Thus, even if Schwab’s reading of the Constitution is correct — itself a questionable proposition — the judge does not even discuss another major source of law that can justify the president’s actions.

Another problem Schwab does not address in his constitutional analysis is how, exactly, the executive branch is supposed to deport the many millions of undocumented immigrants in the United States if it is not allowed to set enforcement priorities among them. As the Justice Department explained in a memo discussing the legality of Obama’s policy, “there are approximately 11.3 million undocumented aliens in the country,” but the executive only “has the resources to remove fewer than 400,000 such aliens each year.”

The fact that Congress only provided sufficient resources to the Obama administration to remove a small fraction of the undocumented immigrants within the United States is itself a legislative judgment that most of these immigrants should not be removed. As the Supreme Court explained in Heckler v. Chaney, because federal agencies typically lack the resources to “act against each technical violation of the statute it is charged with enforcing,” they necessarily must set enforcement priorities. Moreover, these priorities generally should not be second-guessed by judges because “[t]he agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.”

So Schwab’s legal analysis is thin. He spends nearly as much time making what appear to be political attacks on the president as he does evaluating actual legal matters. And what little legal analysis he does provide fails to cite key Supreme Court decisions that seem to contradict his conclusion. Judge Schwab traveled far along a very thin branch to reach this decision, and he anchored his decision with little grounding in legal authorities.

Moreover, it’s not clear what effect, if any effect at all, this decision will actually have. The judge does not issue an injunction halting the new immigration policy. Nor does he even state with certainty that the actual defendant in the case before his court will benefit from an order declaring the immigration policy unconstitutional.

Yet, despite these weaknesses in his opinion, immigrant families would be wrong to write off the threat his decision could present. There was a time when the constitutional challenges to the Affordable Care Act were widely dismissed by legal experts — Ronald Reagan’s former solicitor general said he would “eat a hat which I bought in Australia last month made of kangaroo skin” if the Supreme Court struck the law down — yet these challenges rapidly gained momentum after a few Republican judges reached out to strike the law down. The same can be said about the legal theory in King v. Burwell, a lawsuit currently before the Supreme Court that seeks to gut much of Obamacare.

It remains to be seen whether Schwab’s opinion — thin though its reasoning may be — will also grant legitimacy to the case against the president’s immigration policy.

Source: ThinkProgress

 

Senator Professor Warren is Tired of Reasoning with You People | Esquire

By Charles P. Pierce

ElizabethWarrenIt may have escaped your attention, what with this week’s revelations that America’s foreign policy took a right turn at Torquemada and didn’t stop until it got to Vlad The Impaler — And it should be said, for the purposes of apt historical parallels, that Vlad used to impale his victims in the same manner in which the CIA apparently fed recalcitrant prisoners — but the Congress is preparing to give away the store. A “bipartisan” deal has been crafted to fund the government through next September. Please forgive any typos in this post, as it is difficult for me to type, having Krazy Glue’d my wallet to my hands.

“This bill fulfills our constitutional duty to fund the government, preventing damage from shutdown politics that are bad for the economy, cost jobs and hurt middle class families,” said Maryland Sen. Barbara Mikulski, a Democrat, and Kentucky Rep. Hal Rogers, a Republican, in a joint statement. “While not everyone got everything they wanted, such compromises must be made in a divided government. These are the tough choices that we must make to govern responsibly and do what the American people sent us here to do.”

Hang on. I’ll be back in a minute. I am now attaching the wallet to my palms with tenpenny nails.

This deal does a lot of things, many of them horrible. It is a veritable compost heap of Republican goodies. The IRS gets defunded, so that phony “social-welfare” political front groups no longer will be inconvenienced in their paperwork. The EPA takes a huge whack, so that conservative bundlers and the oligarchs whom they bundle no longer will be inconvenienced by people who wish to breathe, and who believe their water should be neither yellow nor flammable. But the real Saturday end of it is a provision that guts a key provision of the Dodd-Frank Wall Street reform bill that was passed so that it would be a little harder in the future for people to wreck most of the economy and then steal what’s left. Specifically, Congress is preparing to open the casino again.

At issue is the “swaps push-out” rule, which requires banks to move derivatives trading out of taxpayer-backed subsidiaries. Derivatives are risky financial instruments that contributed to the 2008 crash. Allowing banks to conduct those trades on the assumption that taxpayers would bail them out if the deals went sour was not only bad for taxpayers; it also raised the value of the trades and thus effectively acted as a subsidy for the banks. Financial institutions, obviously, weren’t thrilled with the new rule. In 2013, lobbyists for Citigroup gave lawmakers a proposal to exempt a wide array of derivatives, and it subsequently appeared in a bill approved by a House committee that year.

Derivatives are what nearly sank the whole thing the last time around. And now, the Congress has decided, in the same kind of “bipartisan” way that brought us the repeal of Glass-Steagall and the Commodity Futures Trading Act during the Clinton Administration, to let these guys gamble with taxpayer money again. This is such a spectacularly bad idea that it’s hard to believe that its supporters didn’t sneak it into the bill the way they did just as a goof, to see what they could get away with, those scamps.

“Hey, Bob. Let’s see if we can get them to pass the Free Smack Subsidy next! Somebody call Luntz and have him think up a name for it. The Opiate Liberation And Personal Freedom Liberty Act Of 2014, or something.”

The arrangement is the result of a “bipartisan compromise” engineered by Mikulski by which Wall Street gets to oil up the roulette wheel again in exchange for increased funding for the Commodity Futures Trading Commission, which is supposed to oversee things like derivatives training, and which the incoming, and more radical, Republican congressional majority surely will chloroform entirely the first chance it gets. Meanwhile, things are being arranged to put us all on the hook again for Wall Street’s gambling jones. And Senator Professor Warren, who can see a church by daylight, is having none of it.  She rose yesterday to excoriate the covert sellout and, by extension, the people in both parties who connived to bring it about. You want bipartisanship? This is bipartisanship.

“I come to the floor today to ask a fundamental question — who does Congress work for? Does it work for the millionaires, the billionaires, the giant companies with their armies of lobbyists and lawyers? Or does it work for all of us?”

I’m not entirely sure that she has the votes to stop this abomination. People want to go home for Christmas. Everybody’s drunk deeply of the egg nog in the rancid punchbowl of  “compromise” for its own sake.  Right now, she’s counting on the House to strip it from the bill, but a large portion of the House majority is crazy, and a large portion of the House minority is hiding behind the drapes, so I’m not optimistic. (Nancy Pelosi has gotten ferocious on the issue, though, so we’ll see.) It will be interesting to see if she exercises her right to talk the provision to death against what will be a well-organized counterattack by the Very Serious People who will sing in one voice the praises of “bipartisan” governance against this noisy obstructionist. Nothing in her career so far is as serious a gut check as this one is. The inserted provision strikes at the very heart of everything that made her a senator in the first place. It will be interesting to see how many people have her back.

And this is coming at the same time as her campaign against Antonio Weiss, the Lazard executive who’s the president’s nominee to be Undersecretary of The Treasury for Domestic Finance, something that has given severe agita to the financial press, especially Andrew Ross Sorkin of The New York Times, who’s carried so much water for some of these guys that you could fly him over a forest fire to help put it out. Part of Warren’s problem with Weiss is a going-away goodie he got from Lazard that surprised even my cynical mind. Lazard will pay Weiss a $21 million bonus just for taking the Treasury job, in which he’ll be intimately involved with the industry Weiss is now leaving, however temporarily. How does this not seem to be a form of pre-emptive bribery? Used to be you needed a quo for every quid. And both of these fights together are the best arguments I can think of for why MoveOn and Democracy For America, both of which are trying to dragoon Warren into a quixotic presidential run, should shut the fk up.

Even the shadow of the possibility of a presidential campaign makes it easier to characterize Warren’s positions here as political grandstanding. Oh, look. Here’s Chris Cillizza of The Washington Post to do that very thing.

Speeches like the one Warren gave Wednesday will just fuel chatter about why she should challenge Hillary Rodham Clinton in two years. And she knows it.

Yeah, it’s not that she’s ever been concerned about how the country’s fiscal policy is under the control of the forces that nearly demolished it, or that she understands what the reopening of the casino will mean. It’s all about the “chatter.” Stop it, all of you. She’s right where she belongs. You don’t put a lion in a horse race.

Source: Esquire

 

Proposed Federal Bill Would Prevent States, FDA, And Anyone Else From Informing Consumers Whether Food Is Bioengineered | Emord & Associates Blog

By Eric Awerbuch

EmordandAssociatesIn April, 2014, five members of Congress introduced a bill, H.R. 4432 (hereinafter “the Bill”) seeking to regulate, among other things, the labeling of bio-engineered food products.[i]  The Bill, also known as the “Safe and Accurate Food Labeling Act of 2014,” is remarkable in that it:  1) prohibits the States from regulating the labeling of bio-engineered foods; 2) gives the FDA the sole authority to regulate the labeling of bio-engineered foods, but severely restricts how the FDA can regulate the labeling of bio-engineered foods; 3) allows companies to voluntary label their products as bio-engineered when they so desire, subject to very few restrictions; and 4) prohibits under any circumstances the FDA’s ability to decide in the future whether bio-engineered foods are less safe than foods not bio-engineered.  Each of these points is discussed in detail below.

First, if the Bill passes, States will not be able to enact any laws regulating the labeling of bio-engineered foods.  Section 104(c) of the Bill explicitly states that:

No State or political subdivision of a state may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirements for the labeling of a food by virtue of its having been developed using bioengineering, including any requirements for claims that a food is or contains an ingredient that was developed using bioengineering.

The quoted language would have the effect of nullifying efforts in at least 20 states to require mandatory labeling for foods that contain genetically modified organisms.[ii]  For example, Vermont enacted a law, effective July 1, 2016, that will require foods produced from genetic engineering be labeled as such.[iii]

Instead of allowing states to regulate the marketing of bio-engineered foods, the Bill purports to give the FDA such authority.  However, the FDA’s authority to regulate labeling of bio-engineered foods is greatly restricted by the terms of the Bill.  Specifically, the FDA may only require bio-engineered food labeling when it determines that 1) there is a “material difference” between the bio-engineered food and its comparable marketed food, and 2) where that difference “is necessary to protect health safety” or to prevent false or misleading labeling.[iv]  Even if those two elements exist, the FDA can only require specific labeling that “would adequately inform consumers of such material difference.”[v]  Stated differently, not only can the States not require genetically modified foods to be labeled as genetically modified, the FDA cannot even require that labeling, unless the FDA can meet the two elements identified above.  Even where the FDA can meet those two elements, the mandatory labeling must be narrowly tailored to inform consumers of the specific “material” difference between the bio-engineered food and its similar, non-bio-engineered counterpart.

What exactly is a “material difference” requiring that companies inform consumers of the difference?  The bill provides three types of differences which are considered to be material.  The first type of “material difference” is a difference that “significantly alters the characteristics, including the functional or compositional characteristics, of a food, such that the common name no longer adequately describes the food.”[vi]   It is difficult to know when such a situation would arise because “significantly alters” is not defined.  Therefore, should the Bill pass, the FDA would be entitled to a great amount of discretion to determine whether or not a bio-engineered product is “significantly altered.”  See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (explaining that an agency’s construction of a statute it administers is owed deference when “the statute is silent or ambiguous” on the issue).  Given the FDA’s conclusions that there is no material difference between bio-engineered food and non-bio-engineered food, it is highly unlikely that the FDA would ever require mandatory labeling when left to their discretion.[vii]  Indeed, while the statute does not define differences that are not material, it does state that the “use of bio-engineering does not, by itself, constitute a material difference.”  Id. at § 424(e).

GMOCornFurthermore, even if there was such a material difference, given that the labeling must only “adequately inform consumers of such material difference,” this requirement could be met, for example, if the company selling the bio-engineered product simply markets the product in a different name than the “similar” non-bio-engineered product.  It seems that sweet and firm, bio-engineered “tomatoes” would be able to be marketed as “specially formulated sweet and firm tomatoes.”  That label would inform consumers of the material difference—that the new tomatoes are sweet and firm—without even revealing the fact that they are bio-engineered.

The second type of “material difference” is a difference that “results in a significantly different nutritional property in the food produced from, containing or consisting of the bio-engineered organism.”[viii]    Once again, given that the labeling must only “adequately inform consumers of such material difference,” a company could label bio-engineered corn with higher protein content than non-bio-engineered corn as “high protein corn,” without ever revealing the fact that the corn is bio-engineered.

The third difference resulting in a “material difference” is where the bio-engineered food contains an allergen that consumers would not expect to be present based upon the name of the food.[ix]  A company could simply label the product with a warning such as, “warning: this product contains [allergen.]”  Again, the company would not have to disclose the fact that the product is bio-engineered.  Indeed, given that the labeling must only “adequately inform consumers of such material difference,” it is likely that the FDA will never be authorized to require that companies disclose the fact that a product is bio-engineered when narrower labels adequately inform consumers of the material differences.

While mandatory labeling is allowed only in narrow circumstances under the Bill, companies would have great opportunity to voluntarily label their bio-engineered products as they so choose.  The Bill prevents the FDA from prohibiting persons “from disclosing voluntarily on the labeling of food developed with the use of bio-engineering the manner in which the food has been modified to express traits or characteristics that differ from its comparable marketed food.”[x]  Thus, a company is free to market the differences between their bio-engineered product and similar, non-bio-engineered foods. For example, a company selling bio-engineered tomatoes may claim that “our bio-engineered tomatoes benefit the environment more than non-bio-engineered tomatoes because our tomatoes consume less water during the growing process than non-bio-engineered tomatoes.”  Companies will also be free to voluntary advertise, other than in labeling, that the food was developed with the use of bio-engineering.[xi]

The Bill also regulates the labeling of foods that are not bio-engineered.[xii]  It explicitly prohibits the labeling of non-bio-engineered foods from suggesting that “foods developed without the use of bio-engineering are safer than foods produced from, containing, or consisting of a bio-engineered organism.”[xiii]  In a day and age where courts routinely defer to agencies because agency’s have “expertise” in certain, factual issues, see Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989) (explaining that the Court defers to the agency’s analysis when the issue requires a high level of technical expertise), it is alarming that, through the Bill, Congress is making a scientific determination that non-bio-engineered foods are not safer than bio-engineered foods.  While the FDA does not currently consider non-bio-engineered to be safer than bio-engineered foods,[xiv] the Bill prevents FDA from ever reconsidering that opinion.

The Bill will have the ultimate effect of keeping Americans in the dark about information they may deem material to their purchasing decisions.  By legislating that the fact that a food is bio-engineered is not per se material, without any supporting evidence, the Bill seeks to foreclose any opportunity for a party to prove with empirical evidence that, in fact, the fact that a food is bio-engineered is indeed material to consumers’ purchasing decision.  It is plausible that, if the Bill passes, no federal agency or any other governmental entity would be allowed to require companies to disclose the fact that their product is bio-engineered in any circumstances.  The Bill will act to, at best, fail to inform consumers that they are consuming bio-engineered products, and, at worst, mislead consumers into believing that there are no bio-engineered products on the market.


[i] See H.R. 4432, 113th Cong., 2d Sess. (2014), available at https://www.congress.gov/113/bills/hr4432/BILLS-113hr4432ih.pdf.

[ii] Jenny Hopkinson, GMO labeling bill would trump states, Politico (Apr. 9, 2014, 4:57 PM), http://www.politico.com/story/2014/04/gmo-labeling-bill-105548.html.

[iii] See 9 V.S.A. §§ 3043(a)–(b).

[iv] H.R. 4432, supra note 1, at § 104(c).

[v] Id. at § 424(e).

[vi] Id. at § 424(g)(4)(A).

[vii] See Draft Guidance for Industry Voluntary Labeling Indicating whether Foods have or have not been Developed using Bioengineering, 2001 WL 34768203 (F.D.A. Jan. 17, 2001), available at http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm059098.htm.

[viii] Id. at § 424(g)(4)(B).

[ix] Id. at § 424(g)(4)(C).

[x] Id. at § 425(b)(3)(A).

[xi] Id. at § 425(b)(3)(B).

[xii] See generally, Id. at § 425.

[xiii] Id. at § 425(a)(2)(C).

[xiv] See supra, note vii.

Source: Emord & Associates Blog