The good news is somebody made to obvious move to sue the Louisiana Legislature for ignoring the Constitution regarding the passage of legislation. The bad news is they picked the wrong item to contest that more than likely will end in their defeat, and with that brings up the question why try the half-court shot when an available slam dunk wins the game?
Yesterday, perhaps the most important specific business lobby in the state, the Louisiana Chemical Association, filed suit against the Legislature and other state entities for having put into effect HCR 8, which lopped off a quarter of the exempted tax for utilities that businesses otherwise would pay. The aggregate one percent is expected to raise just over $100 million this fiscal year. It based this mainly on the fact that to repeal a tax exemption requires a two-thirds vote in each chamber, which did not happen in the House of Representatives.
But just as the Constitution helps them with the supermajority requirement in Art. VII Sec. 2, it strikes a critical blow against it in Art. III Sec. 20, which states that laws may be suspended by the same voting requirement with which they were enacted. A suspension differs from a repeal in that it only is temporary, lasting no more than 60 days past the end of the legislative regular session after enacted, and does not require gubernatorial action. By contrast, a repeal is permanent or last for a period greater than a year.
When the U.S. Supreme Court recently created a new protected class, people who identify themselves as homosexuals, it opened a whole can of worms regarding questions of freedom of religious exercise, and Louisiana appears to have become ground zero for sorting it all out.
Specifically, the issue right away became whether individuals who are asked in behave in a way that would cause them to deny their religious beliefs, by having them by way of cooperation to assist in the commission of what they see as facilitating immoral acts, must provide that service. The questions arose both in the performance of public sector duties and in those non-government persons and entities participating in commerce.
Regarding government employees, the issue arose when Gov. Bobby Jindal’s office issued a memorandum that stated that clerks of court and state employees who process marriage license requests from people of the same sex wishing to marry may refuse to do so. The legal brief essentially restated federal law (Title VII of the Civil Rights Act), which requires an agency to accommodate employees' exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the agency’s operations. Practically speaking, this means that employees who object to handing out such licenses may defer if other employees can be found to do the same; if not, then the objecting employee(s) likely would be forced to do so because that would cause undue hardship on operations. The severity of hardship is judged by whether it would cause an actual cost to the agency or to other employees or be an actual disruption of work.
Posted by Jeff Sadow at 10:25
So people of the same sex who wish to marry each other may have to wait a bit to obtain marriage licenses in Louisiana. Politics may explain the delay, but that doesn’t mean it’s not the right thing to do.
Only Mississippi seems to follow Louisiana in waiting on allowing issuance of these, where the state’s Constitution prohibits state recognition of such unions but last week’s U.S. Supreme Court decision that used creative license to give birth to a new protected class defined only by its behavior will override that passage. The Court recognizes a 25 day period for reconsideration although that is extraordinarily unlikely to happen. As a result, almost all states have started to issue such licenses, including 12 of the 14 that either did not have the ability in their Constitution, by law, or by judicial fiat.
But Louisiana and Mississippi lay under the jurisdiction of the Fifth Circuit Court of Appeals, which previously had heard a district court case that had denied the federal government the power to impose a definition of marriage on states. The Supreme Court heard cases consolidated from another circuit. That means that the Fifth Circuit must remand the case it ruled on back to the district court to revisit its decision in light of the discovery of the new protected class and its rights granted by the highest court, but until then its interpretation stands, reaffirmed by Gov. Bobby Jindal. Already such a petition to review had been filed. Atty. Gen. Buddy Caldwell did not mention this action in his statement about why he will not direct license issuance to clerks.
Posted by Jeff Sadow at 08:20
Perhaps echoing sentiments he has harbored from his youthful enthusiasm for former Pres. Ronald Reagan, Gov. Bobby Jindal has transferred a desire to abolish the federal Department of Education to getting rid of the U.S. Supreme Court. Actually, he doesn’t have to go that far to rein in a court straying from the Constitution on issues of the day, and if he does win the presidency, with help from his party he would be in excellent position to do so.
Jindal expressed this desire after two monumentally flawed, discouraging, and dangerous decisions, one to ignore the strict wording of a law in favor of an interpretation the opposite of it infused into it by the Court, and the other to conjure up a new protected class of individuals on the basis of their behavior not otherwise explicitly listed in the Constitution. Both set bad precedents that empowered government while simultaneously threatening liberty through dispensing with democratic norms.
But while Jindal’s frustration may be understandable, the Constitution does not really provide for that solution, unless he wishes to go through the difficult amendment process. Theoretically, this complete neutering of the Court could happen statutorily by the powers vested in Congress in Art. III that, while the article requires the presence of one Supreme Court, it could set the Court’s membership currently at nine to zero. However, it need not take such a drastic approach, for Art. III also allows Congress to set the appellate jurisdiction of the Court beyond that specified in the Constitution – and once before it has done that as a reaction to a Court taking up an inflammatory case.
Posted by Jeff Sadow at 09:55
To say it’s been a bad week for the Constitution, rule of law, and democracy in America would be a gross understatement. The question now is how does Louisiana respond to these affronts?
In its King v. Burwell decision, the U.S. Supreme Court majority simply maimed the Constitution, leaving it for dead with tortured reasoning to produce a political outcome that rivals Dred Scott v. Sandford for its politicization and incoherence. By not understanding “established by the state,” the majority ruled that words have no meaning except that which it decides to give them according to whatever ideology at least five archons believe in, should they think that the democratic institutions would fail to follow the same.
However, as this was a matter of federal law, essentially Louisiana need do nothing as a result. With the law dealing with health insurance exchanges that made it optional for states to establish, it can continue to save money by making the federal government pay for these (and proportionately lightening the burden on state taxpayers, even as they pay for this in a much smaller proportion on their federal taxes) until which future time they are abolished when meaningful and genuine health care reform replaces the current unsustainable law that empowers the state at the expense of the individual.
Posted by Jeff Sadow at 14:00
If the seemingly-outmanned Virginia Cavaliers could take down the mighty defending champion Vanderbilt Commodores in college baseball, then maybe Gov. Bobby Jindal can win the presidency of the United States. The trick is in convincing the electorate that he can run the playbook better than he did as governor.
Yesterday, Jindal made his official announcement that he will seek the presidency of the United States, but that served as mere punctuation. Talk about a presidential run began as soon as he succeeded on his second try for governor in 2007, revisiting the scuttlebutt that had surrounded the likes of former Govs. Buddy Roemer in the late 1980s and John McKeithen in the 1960s that they compete for nomination by Democrats. But in making it official, he is the first Louisianan since former Gov. Huey Long to openly declare he will contest for a major party nomination who has a non-trivial chance of winning it (although he has not followed the Kingfish in writing about what he’ll do in his first few days in the White House if elected). And observers who think this announcement is part of a larger strategy primarily designed to land him a post-gubernatorial job in a Republican presidential administration, as a national political pundit, or as a leader of a public policy interest group, misjudge the man.
No, Jindal is in it to win it. There’s no reason he should think otherwise, despite very low polling numbers. His whole life has followed a path of unlikely success. His parents hardly having been in the U.S. when he was born, he succeeded handsomely in every academic sense, started close to the top of the state’s bureaucracy after a short stint in the private sector just a couple of years after graduate studies, and moved into the upper reaches of the federal bureaucracy before expressing intent to run for governor in 2003. Starting low in the polls, he outdistanced other more experienced Republicans and Democrats alike to win the most votes in the general election, but lost in the runoff, yet parlayed that into a convincing U.S. House of Representatives win a year later and subsequent reelection. Nothing could stop his gubernatorial quest in 2007 and he secured reelection even more impressively in 2011. Simply, he has succeeded in everything meaningful that he has tried, and there’s no reason to believe he does not think the presidency is within reach, especially with a GOP field so fragmented at this point.
Posted by Jeff Sadow at 10:50
Having already taken more than a billion dollars out of Louisiana than they put it, filmmakers and related interests backing an industry mouthpiece group don’t appear to mind draining a little more of the people’s money through lawsuits they can’t win, because they do desperately want to keep riding the gravy train.
In the aftermath of the enactment of Act 134, which among other things placed a limit of $180 million on the amount of Motion Picture Investor Tax Credits that could be redeemed a year for the next three fiscal years and limited to $30 million the amount any single production could receive, the Louisiana Film Entertainment Association said it expected holders of the credits to sue the state, claiming that the restrictions violate contractual obligations, and it will join them with one of their own.
Which, unless the group suddenly has turned into a civil libertarian outfit that takes on laws at least somewhat out of philosophical objections that is contrary to its history of shilling for a law that returns anywhere from 13 to 23 cents to taxpayers for every dollar they shell out, on the surface seems a curious thing for it to do. After all, although no central repository identifies who holds what credits, likely only a small minority are held by producers and other interested parties who back the group, because these are not refundable and therefore only can be used against Louisiana tax liability. What they owe never ends up very large and almost every production, sometimes dramatically (one film took away $35 million worth against a liability a fraction of that), exceeds that, so producers take advantage of the guaranteed selling clause to the state that currently pays out 85 cents on the buck or sell them to brokers. This puts most of these into the hands of Louisiana citizens and businesses (and politicians), who have nothing to do with this group.
Posted by Jeff Sadow at 09:25
Within days, the U.S. Supreme Court will make a ruling that could spread same sex marriage nationwide (even if they permit states to prohibit it by also making them recognize these from other states). If so, the case of former Shreveport fire chief Kelvin Cochran stands as a warning to the excess that may result.
After Cochran came up through the ranks in Shreveport, his career trajectory, including a stint as the United States Fire Administrator, took him to Atlanta as head of its fire department. During his (second) tenure there he wrote and self-published a devotional book concerning men and Christian faith, where in part of it he explored his belief that marriage only was to be between a single man and single woman, calling homosexual behavior “perversion.”
For that, he was fired despite an internal investigation revealing he never had discriminated illegally against any employee on the basis of that belief or on any other basis. In other words, he was terminated for his thinking, not for any of his actions with others, that he did not have the right personal beliefs for him to hold the job. The city justified its action that its senior administrators could not express beliefs contrary to opinions nebulously contained in a government-defined perception of the city’s views without approval and that Cochran had not received this before publishing – despite the fact the mayor had a copy of it for many months prior to the suspension handed down during the investigation and Cochran said he received verbal approval – and then when ordered to stay quiet about it during the investigation did not. He has since sued the city.
Posted by Jeff Sadow at 09:35
Perhaps because he may have plans to get out of town for a period, Gov. Bobby Jindal has not wasted time in casting vetoes, but so far left unchanged his hisotircal penchant for getting these right, with one major exception.
In the past, Jindal typically has waited as long as he can before vetoing, which makes sense to maximize your decision period. But he started early in his last roundup as governor, putting his highest-profile cancellation on HB 42 by state Rep. Sam Jones, which unwisely would have accelerated a pension raise to retired state employees and teachers and beneficiaries that would have degraded further the retirement systems’ stability at taxpayer expense. Other necessary ones have come as well.
HB 370 by state Rep. Chris Broadwater would have interposed an unelected panel into human resource management decisions made by the executive branch. While Jindal pointed out the politically-appointed group from outside his auspices, which would have had the power to make the Division of Administration’s Office of Group Benefits comply with premiums rates it established for insurance products offered to state employees, lacked OGB representation and increased the possibility that politics would trump actuarial-based reasons to determine rates, a more fundamental flaw ordained this veto. It’s never sound practice to violate unity of command in the management of personnel, as this makes the manager less able to induce performance from employees. By having an outside entity interfere with this important decision, the pricing of benefits, which determines employee recruitment, retention, and motivation, this thereby makes working at cross-purposes more likely, reducing the tools at disposal to shape bureaucratic behavior in a coherent fashion. If dissatisfied with personnel policy by a governor, the solution is not to muddle the environment but to change governors through election, recall, or impeachment.
Posted by Jeff Sadow at 10:45
By the logic of his own statement, it turns out that state Rep. Sam Jones hates the people of Louisiana. And perhaps even emulating Gov. Bobby Jindal in the antipathy of which he accuses the governor, neither of which lead to good policy-making in the area of pensions.
The ever-reliably partisan Democrat blowhard, Jones spared no comity, nor any pretense of intellectual coherence, in criticizing Jindal’s decision to veto HB 42, which would have inserted a pension raise of up to 1.5 or 2 percent (depending on the system) for state and teacher retirees and beneficiaries already pensioned for the first $60,000 paid. This would void a law passed last year that would provide such a raise no more often than every other year as part of a strategy to bring down the state’s unfunded accrued liabilities from a stratospheric $19 billion that must be paid off by 2029 at an average cost to the citizenry of $1.5 billion a year.
Essentially, the law would insert at least an extra year’s worth of increase, guaranteed. Current law prohibits an increase for this year, as part of the mandatory skip, but the bill would slot one in. Further, even for FY 2016 and beyond a raise is not guaranteed, for it would be determined on the basis of the change in the Consumer Price Index-Urban indicator by being no higher than that (and capped at a maximum depending on system health which currently would suggest this figure be 1.5 percent), if the fund in question earned an adequate rate of return. If because of this proposed raise that the metrics towards elimination of the UAL were not met, the bill specified that the employer – the state or local agencies who use taxation power to fund salaries – would pay the difference. The math showed in the first five years that this meant an additional liability of $70 million, for which taxpayers ultimately would be liable.