Newsletters

Newsletter 76 - Winter 2014

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•Constitution still matters
•Conservative Caucus speaker
•Clean Power Plan
•Executive amnesty
•National park for Delaware
•Video corner (Earth from space)

The Constitution still matters – Over the past six years, the current administration has often tested, and in some instances exceeded, the limits of its legal powers. For starters, the president’s “recess appointments” of three members of the National Labor Relations Board, which we decried from the start (About those recess appointments, 1/9/12), were stricken by the Supreme Court (9-0) in June 2014.

The high court will review an IRS decision to recognize tax credits for healthcare insurance policies purchased on federal exchanges, and not just policies purchased on state exchanges as the statute arguably requires, with a ruling expected in June. Supreme Court agrees to hear GOP challenge to Obamacare subsidies, newsmax.com,
11/7/14.

And two pending initiatives - the EPA’s Clean Power Plan proposal, and sweeping changes in enforcement of the nation’s immigration laws – exceed the executive branch’s discretion, in our view, and infringe on the legislative power vested in Congress. See the ensuing Clean Power Plan and “executive amnesty” stories for discussion.

Lest our reading of the Constitution be viewed as the prattle of disgruntled conservatives, note that some top tier liberals seem to be thinking along similar lines. Thus, a former mentor of the president, Harvard Law Professor Lawrence Tribe, has declared the CPP unconstitutional. He will be representing coal industry interests in this matter. Daily Caller,
12/5/14.

Georgetown Law Professor Jonathan Turley warns about the rise of “an uber presidency,” which “threatens the stability and functionality of our tripartite system of checks and balances.” Los Angeles Times,
3/9/14.

And White House claims that the administration’s actions on immigration harmonized with precedents set by previous administrations were stingingly rejected by the editorial board of a leading newspaper. Washington Post,
12/3/14.
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Conservative Caucus hears talk on political bias – The guest speaker for the CC of DE’s 19th annual banquet, held in Harry’s Savoy Ballroom on Sunday, October 12, was David Freddoso, a rising DC journalist and bestselling author. His most recent book, “Spin Masters: How the Media ignored the Real News and Helped Re-elect Barack Obama,” was published in 2014.

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As a starting point, Mr. Freddoso threw out a statistic from the 1992 presidential race. No candidate got close to a plurality that year, thanks to the third party run of Ross Perot, and winner Bill Clinton received only 43% of the popular vote. Yet according to a poll, 91% of top journalists voted for Clinton.

That’s not to say journalists intentionally report the news in a slanted fashion, although examples of malicious reporting do crop up from time to time. The bias tends to be subtler, and journalists may not even be aware of it.

Thus, if 90% of the people in the newsroom all feel the same way about a given personality or issue, the corrective effect of informal exchanges between reporters competing for stories and their editors tends to break down because there isn’t anyone around to say “no, that’s not a fair statement” or “you need to dig deeper and find out what is going on.”

In many ways, as is related in “Spin Masters,” the president has been getting a pass. It’s not that reporters have forgotten the rules of good journalism, but they primarily seem to follow them when covering conservatives.

•In the second presidential debate of 2012, for example, Mitt Romney stated that “it took the president 14 days before he called the attack in Benghazi an act of terror.” This was substantially correct, but moderator Candy Crowley dinged him for a supposed misstatement and the story got spun as a Romney gaffe. Only months later, when it no longer mattered, would Crowley admit that her comment had been off base.

•Remember how President Bush’s “mission accomplished” speech on the deck of an aircraft carrier kept being brought up as it became clear that the problems in Iraq were far from over. In contrast, President Obama’s premature announcement of a “recovery summer” in 2010 was quickly forgotten.

•Chris Matthews attacked former Secretary of Defense Leon Panetta for publicly trashing the president’s handling of Iraq and Syria; he feels that a period of loyalty should be observed, e.g., until the president leaves office.

The speaker closed by suggesting some reasons to hope the problem of journalistic bias will lessen. (1) The quality of conservative reporting is improving, which makes it tougher to ignore. (2) In some cases, liberal spin stories have reached the point of absurdity, leading self-respecting journalists to reject them. Thus in its endorsement of senatorial candidate Cory Gardner, the Denver Post characterized Mark Udall’s nonstop “war on women” attack as an insult to the public’s intelligence. (3) With relentless competition for public attention, journalists are starting to recognize that they need to be at the top of their game to succeed – which requires, among other things, a willingness to accept truths that aren’t in synch with their preferred viewpoints.
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Clean Power Plan – The CPP would impose a comprehensive scheme of carbon emission reduction targets from existing power plants on the several states. Many coal-fired power plants would be rendered uneconomic, and a major restructuring of the electric power sector would necessarily result. Hmm, sounds more like legislation (setting policy) than routine regulation.

SAFE’s reaction was conveyed to the members of Congress in a
6/16/14 letter and also reflected in our comments to the agency. EPA’s Clean Power Plan, 12/1/14 (part II, blue font). In sum, we urged withdrawal of the CPP because (1) the manmade global warming theory has not been proven, (2) far from providing a net economic benefit as claimed, it would represent a huge tax, and (3) it exceeds the executive branch’s authority under the Constitution (citing chapter & verse).

The foregoing would represent an exercise in making policy, not executing policies established by Congress, which would contravene Article I, Section 1 of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

Reliance on policy pronouncements of the president cannot save the CPP, as the president’s role under the Constitution is not to make the laws but rather (Article II, Section 3) to “take Care that the Laws be faithfully executed.”


Perhaps public criticism will slow the EPA down. The agency received some 1.6 million comments on the CPP, many just as critical as ours. The Hill,
12/1/14.

Longer term, however, the most promising strategy is to defeat this pernicious rulemaking in the courts. Good luck to Professor Lawrence Tribe and others who are willing to weigh in on the side of common sense!
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Executive amnesty – Sweeping exceptions to enforcement of the US immigration laws have been rationalized in various ways, e.g., Congress has never authorized enough money to deport all of the illegal aliens in the United States so enforcement priorities must be set and prosecutorial discretion exercised. As House Republicans failed to take up and pass comprehensive immigration reform legislation within a reasonable time period, moreover, they should not complain about the president’s decision to take action within his lawful authority to begin helping millions of illegal immigrants “living in the shadows” who deserve “a path to citizenship.”

Such arguments relegate the members of Congress to a secondary role, while giving great weight to the president’s views. Thus, the president should define what kind of legislation is needed, determine the boundaries of his own legal authority, etc. Also, the effect of executive amnesty on the strategies of new arrivals (if the requirements for legal immigration are onerous, why not cheat?) is ignored, which does not bode well for the future. Watch out for a power grab on immigration,
8/25/14.

Republican leaders have slammed the administration’s actions on immigration and promised a counterattack. And funding for the Department of Homeland Security was only extended on a short-term basis during the lame duck session, thereby preserving (at least in theory) the defunding option. When the chips are down, however, we doubt the GOP will make much headway by attempting to block executive amnesty in this manner.

A better bet might be to start passing affirmative legislation on immigration, which would supersede the administration’s rules and thereby put the president in a position of either going along or vetoing the legislation and teeing up issues for the 2016 elections. If that’s the GOP strategy, we hope it won’t end in a mushy “grand bargain” that does nothing to end the scourge of illegal immigration.
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A national park for Delaware – Senator Tom Carper has been working for years to sell this idea, and it appears that he and other members of Congress from Delaware have finally succeeded.

Buried in the “must pass” defense-spending bill for fiscal year 2015 was a series of completely unrelated provisions including adding 15 national parks or expansions. On a standalone basis, this proposal would have stood little chance of passage. Conservatives train fire on government “land grab” in key defense bill, Melissa Quinn, dailysignal.com,
12/4/14.

Unsurprisingly, one of the new national parks turned out to be in Delaware. Carper, Coons and Carney celebrate passage of Delaware national park bill,
12/12/14.

The legislation authorizes the First State National Monument in Delaware to become the First State National Historical Park and expands the current First State National Monument to include park sites in all three counties of Delaware.

For the record, here is SAFE’s take on the way in which this result was achieved. Delaware Chatter,
12/9/14.

Whatever the merits of the proposed “national park” for Delaware, and frankly we have been underwhelmed from the start, this kind of legislative shenanigans (hiding pork in defense bills) is not clever, it is shameful. No wonder people are losing faith in our political leaders.
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Transition - “As a senior victim of the Obama wrecking crew,” writes Clarence Ranslem of Arizona, “I’m forced to cut expenses.” In regretfully giving up his SAFE membership, however, he urged SAFE to “continue your GREAT WORK.” Copy that!

Video corner – The European Space Administration recently published these time-lapse photos (6:10) of the Earth from space with a musical sound track; they are eerie but stunningly beautiful.



SAFE Board
Andrew Betley, (302) 239-9679
Suzie Dickson
Edgar Fasig, treasurer, (302) 999-0611
Dan Kerrick, (302) 658-7101
Steve McClain, (302) 998-3910
Jerry Martin, (302) 478-5064
rycK Stout, (302) 478-9495
Bill Whipple, president, (302) 464-2688
For e-mail addresses see:
http://bit.ly/HM3UBn
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