Tag Archives: regulation

Agency Fees

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These are fees unions in a raft of jurisdictions are allowed to charge non-union members as a condition of those workers’ right to work at all.  Ostensibly, the fees are for the unions’ labor efforts in negotiating wages, benefits, and working conditions for everyone in the workplace.  The Supreme Court is considering a case, Janus v AFSCME, concerning whether such fees are constitutional.

It’s already the case that

Agency fees already are forbidden from paying for advocacy and other political activity.

Money is fungible, though, and even though agency fees might be barred from the purpose, the existence of the fees allows unions to reallocate equivalent money from other sources to the purpose—making it impossible actually to say that agency fees aren’t being used for the illegal purpose.  After all, if a union has $100, it can’t afford to engage in political activity.  If the union also collects a $10 agency fee from a non-union member, it now has $110, and it can afford to spend $10 on political activity, even if it’s forbidden by dollar bill serial tracking from using the non-union member’s $10 for the purpose.  Those ten bucks went illegally, however indirectly, to the political activity.

Moreover,

…plaintiffs in the Supreme Court case argue that negotiating with public agencies requires taking positions on government’s size and scope, which is a political question, so forcing employees to pay for the negotiations violates the First Amendment.

There’s the crux of the matter.  Agency fees are eminently unconstitutional, but I’m not sanguine that the Court will see it that way.  Both CJ Roberts and J Kennedy have shown themselves unreliable defenders of the Constitution, and the four Liberal Justices are a rock-solid bloc.

Statutes, Judges, and DoJ

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The Supreme Court last Tuesday heard a case between Microsoft and DoJ concerning whether the emails of an alleged drug dealer must be turned over to the government pursuant to a search warrant to that effect.  The catch is that the emails are stored exclusively on servers in Ireland—nominally beyond the reach of the US’ long arm of the law.

The statute in question is the Stored Communications Act, enacted 30 years ago before email and similar electronic communications were available.

Microsoft handed over some account data that was stored in the US but said it shouldn’t have to hand over the emails, which were stored on a server in Ireland.
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The Second US Circuit Court of Appeals sided with Microsoft, ruling the 1986 law didn’t apply beyond US territory.

DoJ and the participating States’ Attorneys General argued that the appellate decision, if left intact, would hamper the government’s crime-fighting ability.  That’s likely accurate, but there are two things about that.  One is that the convenience of government is not an excuse for limiting individual liberties either directly or through the companies we own. Some of you have heard that from me before.

The other thing, though, is that extending the statute to reach beyond our borders is a political decision, not a legal one.  Only the political arms of our government—Congress and the President acting together (or with Congress overruling a veto)—can make that decision; only the political arms of our government can extend the Act or write a new one to fill the apparent gap.

There’s this bit of disingenuousity, too, from Solicitor General Noel Francisco:

Microsoft’s employees could prepare that disclosure without leaving their desks in the United States[.]

They could prepare such disclosures without leaving their desks in the US in 1986 when the Act was passed, too.  All they had to do was write letters to the managers of the overseas storage facilities.  Nothing has changed here except that email has replaced gofers and the mail room.  Nor has the status of the material stored overseas changed.

On the other hand, Microsoft and other massive tech companies also are raising red herrings.

Microsoft, Google, and other technology companies say…the case could threaten American dominance in the $250 billion cloud-computing industry, because foreign clients won’t use US firms if their data isn’t protected.

That also may be true, and it’s also not relevant.  That’s a question that’s strictly a business matter and not a legal one.  To the extent government help is useful in filling this business gap, it’s also a political question, and these businesses need to seek their recourse through those political arms of our government.

Finally, there already is an alternate route to getting the emails, as admitted by DoJ in their filings:

There is a diplomatic process, governed by legal assistance treaties, that allows the US to request that foreign law-enforcement counterparts share sought-after data, but it can be slow and ineffective, the department said.

There’s that convenience thing, again.

What does the text of the Act say? That’s what the Justices must apply, not a phantom Act that doesn’t exist but that does represent what Justices or DoJ officials might wish the Act to say.  Article I, Section 1, is quite clear about who gets to write the statutes in our system of government, and extending the reach of an existing statute is law-making that is beyond the reach of any member of the judiciary or of the DoJ.

Unnecessary

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The Treasury Department wants to keep Dodd-Frank’s “orderly liquidation” power, albeit with “tweaks.”  The authority was designed so the Federal government could take those financial institutions the government itself decided were “systemically important” and shut them down if the same government, in sequence with that SI claim, decided the business was not performing up to government-dictated standards.

That’s a lot of “decides” in government hands.  It also deliberately bypasses existing bankruptcy law that has done a fine job with business failures generally and would do a fine job with financial institutions in particular, were government not putting itself in the way.

To be sure, Treasury claims to want

…changes to the bankruptcy code to make it easier for such a failure to be resolved in bankruptcy court….

To my cynical mind, though, that just sounds like a distraction in order to slide by the continuation of Government control over decisions concerning whether a business is sound enough to operate and if not, Government control over the terms of the business’ demise.

No.

Dodd-Frank needs to be rescinded in toto, including both “systemically important” determinations and control over bankruptcy procedures.

It may be that existing bankruptcy law needs improvement, but that’s a separate question, and it should not be mixed in with Dodd-Frank legitimacy questions.

A New Insurance Plan

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Idaho has one.  Blue Cross of Idaho says it’s going to take advantage of newly issued State regulations to start marketing a plan that won’t meet Obamacare requirements, and they’re going to sell the plan alongside its existing Obamacare-compliant plans.

The Idaho Department of Insurance last month became the first state regulator to say it would let insurers begin offering “state-based plans” for consumers that involved practices generally banned for individual insurance under the ACA, including tying premium rates to enrollees’ pre-existing health conditions.

In particular,

The new Blue Cross state plans’ premiums would vary based on an enrollee’s health status—for instance, for one of its new plans, the insurer suggested that the best rate for a healthy 45-year-old could be around $194.67 a month, while a person of the same age with worse health could pay as much as $525.69. For one of its “bronze”-level ACA plans, the premium for a 45-year-old, regardless of health history, would typically be around $343.09, the insurer said.

Risk-based premiums.  What a concept.  And lower risk brings a premium roughly half the Obamacare risk-be-damned charge.

A New Welfare Trap

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This one is in the offing at the State level, and comes as a result of the punitive tax for not buying health coverage was repealed last December.

At least nine states are considering their own versions of a requirement that residents must have health insurance….

And

Maryland lawmakers are pursuing a plan to replace the ACA mandate, which requires most people to pay a penalty if they don’t have coverage. California, Connecticut, Hawaii, Minnesota, New Jersey, Rhode Island, Vermont, and Washington, as well as the District of Columbia, are publicly considering similar ideas.

Notice that.  These are Progressive-Democrat-run states.

The less well off who couldn’t afford either the penalty or the remaining costs—high deductibles, low per centage of plan provider payments even after “coverage” kicked in—under Obamacare still won’t be able to afford mandated coverage in these States.

Beyond that, they won’t be able to leave the State and relocate to one that doesn’t inflict these costs.  Their already limited economic resources are a barrier to such relocation.  Added to that, though, will be the lack of portability of the mandated coverage plans: having been dragooned into one by, say California or DC, they won’t be able to take it with them, even to Connecticut or Minnesota.  Or to a State that doesn’t require them to buy something they don’t want.

Progressive-Democrats really are that desperate to keep their welfare “recipients” trapped in welfare cages. Aside from that bit of self-serving…nonsense…the move also demonstrates the Progressive-Democrats’ utter contempt for us Americans.  We are, their behavior and policies say, just too mind-numbingly stupid to be entrusted with our own choices.  We have to be led by our Betters, forced for our own good, to do certain things.