My Reply to a Tea Party Congressman

Posted February 1, 2014 by Kenneth Hirsh
Categories: Uncategorized

Where I live in Ohio, I am at the western edge of the 2nd Congressional District, which has a large majority of Republicans. Our representative, Brad Wenstrup, is a Tea Party supporter who defeated Jean Schmidt in the primary two years ago and had only token opposition in the general election. Congressman Wenstrup published a guest column in the January 29 edition of several of the Community Press newspapers, and as generally fed up as I am with the Tea Party, his message pushed me to submit a reply to the paper’s editor. Since this is the platform that I have guaranteed access to, I am publishing my message here. I did send the message directly to the congressman at his official website.

Representative Brad Wenstrup’s guest column in the January 29 issue of the Milford-Miami Advertiser is so full of blatant falsehoods and misunderstandings of Constitutional law that I cannot let it go unanswered. It is a polemic that adheres to the standard Tea Party lines about following the Constitution while ignoring, as Tea Party members typically do, the most aspirational statement in that document’s Preamble, “to promote the general Welfare.”

To address his opening statement, the precise reason the case involving recess appointments to the NLRB is before our highest court is because this is not a settled point of law. In fact, presidents have been making such recess appointments since the founding of the republic. It is only in the last few years that the Senate has begun meeting in so-called pro-forma sessions, where there is nothing approaching a quorum of members present, that the facts have arisen allowing the plaintiff to bring the case that has now found its way to the Supreme Court. In fact, the historical precedent is so long that a key issue to be decided by the court is that if it rules the appointments invalid, will it apply that decision only to these appointments and prospective ones, or will it apply the decision retroactively, potentially invalidating nearly two centuries worth of recess appointments?

The remainder of the representative’s diatribe is either disingenuous or reflects his ignorance about the functioning of the executive branch. Congress typically adopts broad policies in its laws and leaves many of the implementation details to the President, through the adoption of regulations. Properly adopted regulations have the force of law, and are carrying out the intent of the Congress. The process for adopting regulation was set out by the Congress when it adopted the Administrative Procedure Act nearly seventy years ago. That act sets out the requirement for adopting regulations, which include giving proper notice to the public and allowing for submission of comments. Congress has amended the act since then to improve the rule-making process.

When the president, or more properly, the Secretary of HHS makes the changes to the Affordable Care Act as claimed by Mr. Wenstrup, in fact no one is changing the laws passed by Congress. Rather they are exercising the administrative authority explicitly granted to the executive by Congress. For example, regarding the dates for the guaranteed enrollment period under, section 2702 provides, “The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).” That gives the Secretary broad discretion in setting up the periods, including their dates. With regard to creating the exchanges, Congress has again give the Secretary power to regulate, this time in section 1311(c), “(1) IN GENERAL.—The Secretary shall, by regulation, establish criteria for the certification of health plans as qualified health plans. Such criteria shall require that, to be certified, a plan shall, at a minimum—…”

Rather than trampling upon and upending the Constitution, the President and Secretary are duly executing the laws as passed by the Congress. It is true that Mr. Wenstrup and the rest of the Tea Party members in the House of Representative were elected after the ACA was adopted, and have spent the bulk of their time since then voting to repeal the Act, when they are not otherwise engaged trying to default on the debt, shut down the government, and criticize the poor and unemployed for not lifting themselves up by their bootstraps. Fortunately for those of us who truly believe that important clause from the Preamble is so important, their efforts have failed thus far.

Kenneth J. Hirsh

Miami Township

New Developments in Open Access to Law

Posted December 18, 2013 by Kenneth Hirsh
Categories: Legal Education, Legal Information, Open Access

Tags: ,

As a signatory to the Durham Statement and a proponent of open access to scholarship and to law, I am pleased to bring two items to your attention.  Tom Bruce, co-founder and director of the Legal Information Institute, has announced the first issue of the Journal of Open Access to Law. Quoting liberally from Tom’s announcement: “Two ideas motivate JOAL.  The first is that there should be a place to present work about open access to law that can stand on its own.  Because it is so often imagined as “law-and” research, our work is communicated via the journals of other disciplines, and sometimes its unique flavor has been lost.  Too, open access to law touches and is touched by research on a number of levels:  work in information science that provides practical publishing, organizing, and retrieval techniques; policy research that addresses the “why” of open access to law;  and open access as a new-found agora in which the public is encountering legal information and, as a result, acting in ways that are very poorly understood.  The second idea is that academic research needs, most of all, to find an audience within the community of legal publishers who can make good use of it for practical ends.”

Second, I commend to you a post by Sarah Glassmeyer, law librarian by profession and Director of Community Development for CALI, titled “Give Open a Chance in Law.” Sarah’s post is a pretty quick read that nevertheless give a strong argument for the need for open access to legal information in advancing access to justice, legal education, and better legal practice. It’s an excellent primer on the need to push for open access.

The Value of A Professional Organization

Posted November 14, 2013 by Kenneth Hirsh
Categories: AALL, Law Libraries

I believe disclaimers should be in front of the text to which they relate. Otherwise, the reader may start out making an assumption that turns out to be wrong. Accordingly, I note that while I am a member of the AALL executive board, this blog post, as all others on this blog, represents solely my own writing and opinions. I am not authorized to speak for anyone other than myself. Now that you know that, you can decide for yourself how much my position colors my writing.

In one sense, this post returns to an earlier topic upon which I have written (here and here), the governance of organizations in the Internet age. But this post goes well beyond mere governance. I intend to lay out what I consider to be some important aspects of the association’s value to its members. Along the way I may mention its value to those beyond its membership. I hope that I will contribute to an important conversation about AALL’s future.

To begin with, AALL’s membership is diverse, and this is only fair, given that law librarians comprise people who are diverse in many ways: gender, race, ethnicity, age, type of employer. As one who has been fortunate to attend many annual meetings, I can attest to the diversity in visible member characteristics. Glancing at the report on Membership Statistics 2009-13 one verifies that membership is employed by law firms, academic institutions, courts and government agencies, and business corporations. The value of diversity in employer type is recognized by the association and inculcated in its bylaws. The bylaws contain a clear statement on nondiscrimination on the basis of race, color, religion, gender, age, national origin, disability, or sexual orientation. At its recent meeting the executive board approved a proposal to add gender identity to this list and the membership will soon have the opportunity to add this language to the bylaws.

This recognition of the value of diversity continues in the procedures for nominating candidates for office and the executive board. The charge of the Nominations Committee states that, “The Committee shall present a slate that, if elected, would maintain a balance on the Executive Board of members by library type, geography, sex, and minority representation to the extent possible.” Given the value that the organization places on diversity, it should come as no surprise that members do not hold the same opinion on every matter that becomes the business of the association. I am confident that nearly all the membership would agree with the object of the association as stated in the bylaws: “The American Association of Law Libraries exists to promote and enhance the value of law libraries to the public, the legal community, and the world, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy, in recognition that the availability of legal information to all people is a necessary requirement for a just and democratic society. ” Once we move into the particulars of achieving that object, members may well disagree on details. Members participate in establishing the means of working towards the object by serving on committees, participating in discussion in various fora, voting in elections, serving in office, and paying dues. Members who feel they want to change a particular strategy or goal may open discussion, submit resolutions, create new communities of interest, communicate directly with board members, and otherwise reach out to fellow members. Ultimately, of course, a dissatisfied member can leave the organization. That is the essence of any voluntary organization.

So what value does AALL give its members? To begin with, it provides much more than just lip service to achieving its object. AALL’s government advocacy staff represent association views before Congress and federal administrative agencies. Those staff work closely with AALL members to advance association aims before state and local governments across the country. AALL sponsors educational programs that are delivered at the annual meeting, through webinars, and member participation at chapter meetings. AALL helps members connect with each other. The Membership Development Committee recently launched Mentor Match (login required), a self-serve mentorship program. Participants can volunteer as a mentor or mentee, and can use the system to find an appropriate match.

AALL supports professional and personal networking of its members. Anyone who has attended an annual meeting can name at least one professional friendship started at such a meeting. Mailing lists and My Communities on AALLnet further the networking opportunities. Special interest sections allow like-minded members to gather around a common interest.

AALL supports professional growth. The management institute and leadership academy provide small group opportunities for developing skills and advancing one’s career. Members become sought-after speakers at annual meeting and chapter meetings. Members write articles in Spectrum and Law Library Journal. Members publish their photographs in the annual photo competition.

AALL relies on a relatively small but efficient staff to keep the organization running smoothly, and that staff ultimately reports to the membership, through the executive board.

In sum, members make up the association, and together with its staff, deliver value to fellow members every single day. Value abounds.

Yes, the Healthcare.gov site is awful, but…

Posted October 22, 2013 by Kenneth Hirsh
Categories: Uncategorized

Anything anyone has written or said on the subject since yesterday evening is simply piling on. Most general news sources are not telling us anything they haven’t already told us. Joe Scarborough leading with the story every morning simply repeats what he said the day before. He and others compare the site to a run-of-the-mill retail site, which is a big mistake. Disregarding the expected continual flood of anti-Obama and anti-Obamacare propaganda at Fox News, there has otherwise been thoughtful commentary, notably from Ezra Klein and Sarah Kliff at the Washington Post on Wonkblog, and explanatory articles on the New York Times and The Washington Post. The aims of the site are incredibly complex, probably made more so by policy/process decisions taken by members of the administration. No matter how many people are thrown at the site, it will take a month (in real-time, not a month of person-hours X N programmers) or more to resolve the major problems, and another couple of months to fine tune after that.

The President’s speech yesterday was, as any person who has been responsible for major system failures can tell you, too little, too late. Three weeks too late, as far as those using the site are concerned, and at least eighteen months too late in terms of setting up the development contracts and ensuring people who were overseeing them knew how to succeed in that endeavor. At this point, the press should dial back the outrage, because it won’t fix the site any sooner.  Maybe somebody could borrow Keith Olbermann’s words when he closed Countdown each evening. For many of the program’s years, he closed each broadcast by saying how many days it had been since George Bush started the war in Iraq. Then after the BP Oil disaster in the Gulf of Mexico in April, 2010, he ended by counting up how many days that oil had been spilling in the Gulf. Instead of pundits bloviating about the Healthcare.gov disaster, let’s just have another website that counts up the days from October 1 until a new Healthcare.gov site, one that works properly, debuts. And make no mistake about it: to fix this thing right, they need to conceptualize it as a new site, even if they can use the bulk of the existing code. I am not a programmer, and I am unqualified to say whether they should use it. But it will need to act like an entirely new site to build the confidence that both the Affordable Care Act and the American people deserve.

Why I can’t stand John Boehner

Posted October 16, 2013 by Kenneth Hirsh
Categories: Uncategorized

There are many reasons, but his statement today provides examples of a few. My comments are enclosed in [brackets.]

“The House has fought with everything it has to convince the president of the United States to engage in bipartisan negotiations aimed at addressing our country’s debt and providing fairness for the American people under ObamaCare. That fight will continue. But blocking the bipartisan agreement reached today by the members of the Senate will not be a tactic for us.  In addition to the risk of default, doing so would open the door for the Democratic majority in Washington to raise taxes again on the American people and undo the spending caps in the 2011 Budget Control Act without replacing them with better spending cuts. With our nation’s economy still struggling under years of the president’s policies, [No, the economy is struggling for two reasons: structural unemployment due to increased use of technology, and your party's steadfast, and in my view, largely racist opposition to his intended policies. Congress has not implemented the President's economic policies since the adoption of the stimulus in 2009.] raising taxes is not a viable option. [Your party wishes to cut taxes on high income individuals but supports the cutting of the social safety net, and eliminating protective regulations, such as those that try to preserve the environment.] Our drive to stop the train wreck that is the president’s health care law will continue.  [If you didn't use so much time demagoging it, you might have actually helped to improve it.] We will rely on aggressive oversight that highlights the law’s massive flaws and smart, [As the last two weeks demonstrate, there is nothing "smart" about Republican policy or strategy] targeted strikes that split the legislative coalition the president has relied upon to force his health care law on the American people.” [Congress adopted the law; the Supreme Court approved it. That is not the president forcing it on people; that is representative democracy at work.]

My suggested [permanent] resolution to the debt ceiling issue

Posted October 9, 2013 by Kenneth Hirsh
Categories: Uncategorized

Allow me to preface this post with the note that I am not a constitutional scholar. Although I have a J.D. and practiced law, long ago, for eight years, in constitutional matters I am not much more expert than an informed layperson. I also am a student of politics; in fact my undergraduate major was political science. I invite bona fide constitutional scholars to poke holes in my suggestions here. Having said that, here are the steps I would foresee:

1. Monday morning Secretary of the Treasury Jack Lew delivers a public statement that the debt limit will be reached on a given day later that week. He further announces that in order to avoid violating the law, i.e. 31 U.S.C. § 3101, the department will not pay any obligations of the United States after that time.

2. The Secretary identifies and publicizes that the payments that will not be made include outstanding bonds and appropriated monies, including payments to contractors, entitlement benefits, and salaries of government employees.

3. A small group of bond holders and public benefit recipients files suit against the United States in the District Court for the District of Columbia. The plaintiffs seek a declaration that the limit on the public debt on its face violates section 4 of the 14th Amendment. The plaintiffs seek preliminary and permanent injunctions against enforcement of the debt limit and a writ of mandamus directing the secretary to pay the appropriated funds.

Of course, at this point the issue is subject to the judgment of the courts, ultimately the U.S. Supreme Court. Here’s one optimistic way it could play out:

The district court issues a preliminary injunction, since the plaintiffs seem likely to prevail. The writ is issued. The President and the Secretary of the Treasury are complying with a court order to make the payments, and are therefore not committing any impeachable offenses. The House Republicans see the writing on the wall, agree to raise the debt limit, the issue is mooted and the case is dismissed.

A not-so-optimistic outcome: the courts rule against the plaintiffs at any level, despite the arguably plain language of the 14th Amendment. We’re pretty much in the dumper as a country if that were to happen.

The best outcome of all: The House Republicans seek to join the suit as they did in the Defense of Marriage Act case. The courts, including the Supreme Court, hold that the debt limit is unconstitutional. The debt limit is forever gone as a bargaining tool for either party. The Republican Party realizes it overplayed its hand. This last sentence is impossible given the current and likely near-term future makeup of the party. But the country knows it can thank John Boehner and the Tea Party for the end of the debt limit.

Let’s hope there is a light at the end of this tunnel.

Mr. Boehner, Stop Living in Your Fantasy World

Posted October 4, 2013 by Kenneth Hirsh
Categories: Uncategorized

John Boehner, Speaker of the House of Representatives, wants us to know that he’s angry. He insists, and apparently his House conference and right-wing media such as Fox News believe, that the President and the Senate owe it to him and his Republican colleagues to enter into negotiations over changing the Affordable Care Act, a.k.a. “Obamacare.” (Obamacare was originally coined with the intention of being pejorative.) Mr. Boehner and his colleagues in fact have suffered a break with reality. Since the Republicans took control of the house in January of 2011 they have voted to repeal, defund, or otherwise gut the ACA more than 40 times. But the Senate remains in Democratic hands, as does the presidency. As of October 1, that fact is still true. There is no rational reason for the President or Democratic senators to change a position they’ve held for more than three years at this particular moment, simply because Mr. Boehner insists on following a course that damages the government and those who rely on it every day, which is basically everyone within our borders. Mr. Boehner, get over it.


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