Monthly Archives: January 2013

There is Hope

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Yesterday, the US Court of Appeals for the District of Columbia (the court of jurisdiction, for those who are interested in such things, because this is the appellate court for matters pertaining to the NLRB orders) ruled unanimously that President Barack Obama’s “recess” appointments to the National Labor Relations Board of Richard Griffin, Sharon Block, and Terence Flynn (the latter of whom resigned from the NLRB shortly after) were “constitutionally invalid” because the Senate was not in recess at the time of the appointments.

Writing for the court, Judge David Sentelle had this to say, according to Bloomberg at the above link:

Considering the text, history and structure of the Constitution, these appointments were invalid from their inception[.]

The court expanded on that point in equally clear terms:

…the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings [an adjournment].

…

The natural interpretation of the [Recess Appointments] Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”

The court noted further that the Senate was in session at the time of these…appointments.

…the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.

This also has implications for Richard Cordray and the Consumer Financial Protection Bureau he was “appointed” to chair, since he was put up in that same now known to be illegal batch of “appointments” as those NLRB folks.  The thousands of pages of regulations that board has already written now are of only questionable validity; although the question here isn’t so cut and dried: the CFPB had a quorum, and the matter here is the necessity of a formally seated chairman.  It also lends color to his nomination, for the current Senate’s consideration, to that same post.

Apparently, though, there are limits to Obama’s fiat governance.

OFA and Communications

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President Barack Obama and his fellow Progressives are reorganizing their Obama for America group into a tax-exempt group to be called Organizing for Action, whose purpose is to generate grass roots support for President Barack Obama’s policies and goals over the next four years.  This is relatively old news; John McKinnon and Colleen McCain Nelson have one description of this in a recent Wall Street Journal article.

The problem with this, IMNSHO, is not so much the potential for this group to facilitate Obama’s working his will on our nation.  It’s more centered on the Republicans’ reaction to it.  As McKinnon and Nelson write,

At a House GOP retreat this week, Republican leaders discussed their concern that Mr Obama’s group would be used to generate grassroots activism for Democratic issues.

Well, duh, as the kids say.  You guys are incompetent communicators.  Instead of whining that the Progressives are planning on talking to folks and generating grassroots support for their policies and goals (how unfair is that!?), you should be asking yourselves why you’re not talking to folks and generating grassroots support for your own policies and goals.

Then,

Republicans also say Mr Obama could overplay his hand by appearing to be more focused on campaigning than governing.  A spokesman for Senate GOP leader Mitch McConnell [R, KY] said the OFA announcement is “the next step” in a pattern of the administration campaigning while in office that Mr McConnell has criticized repeatedly.

Catch up and pay attention, Mitch.  That “campaign instead of governing” plaint was a major beef of Republicans all last summer and fall—and before.  Nobody cares.  Except the Progressives, for whom it’s been working for the last few years.

Quit bellyaching and start talking and start governing.  You control the House of Representatives.  You’re a powerful minority in the Senate.  Start acting like it.

An Out of Control CFPB?

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But we knew that would be the case with a budget funded by on-demand calls to the Treasury and a deliberate lack of Congressional oversight.  Here are three examples, from Skadden Arps, the “second best global law firm,” according to Spirit of Enterprise.  In each case, the Consumer Financial Protection Bureau imposed enforcement orders that charged both restitution payments and civil penalties for the miscreancies that wanted restitution.  Those miscreancies generally centered on “deceptive marketing and sales practices” and “deceptive debt collection practices.”

Capital One: Required to pay $140 million in restitution and a $25 million civil penalty.  The penalty was nearly 18% of the restitution.

Discover Bank: Required to pay $200 million in restitution and a $14 million civil penalty.  The penalty was 7% of the restitution.

American Express: Required to pay $85 million in restitution and a $27.5 million civil penalty.  The penalty was 32% of the restitution.

Assuming the restitution amounts are reasonable assessments of the severity of the banks’ misbehaviors, those civil penalties seem to bear no relation at all to the…crimes.  They seem, in fact, to be capricious and out of control—just a grabbing of what an unaccountable bureaucrat felt like taking.

Skadden’s complete report (it’s long and wide-ranging) can be seen here.

Technology Transfer

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Is this the administration’s new paradigm?  Barnini Chakraborty, writing for Fox News, reports

More than a decade of advanced American technology could be handed over to one of the country’s top economic rivals unless the government intervenes to stop the sale, lawmakers say.

The concerns surround the sale of A123 Systems—a firm backed for years by U.S. taxpayers—to a company run by a Chinese multi-millionaire with deep ties to the Chinese Communist Party.

Chakraborty understates the case, though.  More than mere economic rivals, the People’s Republic of China are our political and military foes, also, as events in the South China Sea demonstrate, as the PRC’s active blocking of meaningful steps to prevent Iran from getting nuclear weapons and to prevent northern Korea from spreading their nuclear weapon technology demonstrate, as the angry words and covert threats of the PRC leadership against the US whenever we protest their misbehavior demonstrate.

This particular technology transfer

would essentially transfer sensitive battery technology with “key military applications….”

And

…the technology behind [A123 Systems’] ultra-light lithium-ion phosphate batteries being bought will play a major role in modernizing the way electricity is generated and distributed. The new tech could also be used in key military operations and to power satellites and unmanned military drones.

This is one example, and it hasn’t yet played out.  The transfer may still be blocked, at least officially and legally.

There are other examples wherein this administration has acted positively to prevent such transfers to the PRC.  It’s entirely possible that this isn’t a new paradigm (although it’s hard to understand why the question still is an open one and the transfer not already blocked), but merely an example, alongside those others, that shows this administration…has no clue of what it’s doing with American technology.

More on Becoming a Dependent

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The Wall Street Journal‘s Law Blog reports that a

federal appeals court [the First Circuit] on Thursday [last] ruled that insurance companies can be required to pay long-term disability benefits to a recovering drug addict if the person would face a significant risk of relapse by returning to work.

The Law Blog expands:

The case…involved an anesthesiologist from Massachusetts…who became heavily addicted to Fentanyl, a prescription opioid used in her practice.

[The anesthesiologist] spent about three months at a treatment center, according to her attorney.  After she was discharged, her employee benefit plan that was administered by Union Security Insurance Company cut off her long-term disability benefit payments, totaling $4,000 a month.  Her therapist and other doctors feared that she had a high risk of relapse and cautioned her not to return to work where it would be easy to access the drug, the opinion said.

The anesthesiologist justified her suit by claiming that she shouldn’t have to fall off the wagon for her claim to be accepted.  She shouldn’t have actually to be disabled in order to collect disability benefits.  Never mind that there was no certainty of relapse asserted, by her or the Court, only a likelihood.  Never mind that her condition was entirely self-inflicted.  Never mind that she could have found work—even in the medical field—other than as an anesthesiologist.

Indeed, as the Appellate Court said quite clearly, she had not relapsed, and so she wasn’t back in her disability condition.  She was, though, out those $4,000 per month, payable for an actual disability.

The Court then noted in its opinion (cynically, say I)

The plaintiff’s risk of relapse was not merely theoretical.  In perhaps the most striking actualization of this risk, the plaintiff was arrested in May of 2005—some six months after her departure from [the treatment center]—for driving under the influence of alcohol[.]

Notice that.  She was driving under the influence of alcohol, not Fentanyl.  Some risk of relapse onto the drug.

The Court also noted in justification of its ruling (again cynically, say I) that the insurance company could have inured itself from this sort of…suit…by  “writing into the plan an exclusion for risk of relapse.”

The insurer, though, hadn’t included such an explicit exclusion because at the time they sold the policy they had no reason to believe a Federal Appeals court would rule so capriciously.  After all, the Fourth Circuit already had ruled differently on an identical case:

[The] Fourth Circuit…said the denial of benefits to an anesthetist addicted to the same narcotic was “reasonable.”

Now we know better.  If there’s a possibility of a disability occurring in the future, that disability exists presently.

Another brick in the wall of manufactured dependency.