House Democrats Use Obscure Rule to Stifle GOP’s Kabul Probe, Say GOP Reps

House Rules Committee Democrats quietly extended a rule earlier this week in the latest National Defense Authorization Act (NDAA) that effectively bars Republicans from obtaining information on President Joe Biden’s disastrous Afghanistan withdrawal, say GOP representatives.

The provision was adopted during the Rules panel’s Sept. 20 hearing on the defense bill, and it includes a continuing resolution on spending and a measure designed to nullify state laws limiting abortion access at any time during a pregnancy.

The provision, which has been extended by Democrats multiple times since the original adoption, reads as follows:

“24. Provides that House Resolution 188, agreed to March 8, 2021 (as most recently amended by H. Res. 555, agreed to July 27, 2021), is amended by striking ‘September 22, 2021’ each place it appears and inserting (in each instance) ‘October 27, 2021.’”

The provision continues one of the chief tools House Democrats have used in the rules adopted in January for the 117th Congress to frustrate the ability of Republicans to demand and receive information from the Biden White House and the executive branch using the resolution of inquiry (ROI).

The wording of ROIs “will vary depending on the person to whom the resolution is directed. The House traditionally ‘requests’ the President and ‘directs’ the heads of executive departments to furnish information,” according to the House parliamentary procedures manual.

The Rules panel’s action comes as Republicans on the House Foreign Relations Committee seek an investigation of the administration’s actions in the Afghanistan withdrawal.

The ROI is an effective investigative tool because it puts the authority of a congressional committee behind a legislative request rather than causing representatives of the minority party to rely on letters and telephone calls seeking needed information and data.

It’s much more difficult for executive branch officials to ignore a request backed by an ROI, while telephone calls aren’t returned and letters from lawmakers are easily and often ignored.

The ROI is also more difficult for the majority to defeat because House rules require such a measure to be marked up within two weeks of its introduction or it becomes a privileged motion for the whole House. If the resolution is approved, the ROI then becomes a request of the House, not just a committee.

Rules committee member Rep. Guy Reschenthaler (R-Pa.) offered a motion on Sept. 21 to end the ROI ban, saying that “in light of President Biden’s failed Afghanistan withdrawal and evacuation, it is absolutely imperative that we restore this tool to get to the bottom of this administration’s avoidable debacle.”

Reschenthaler said he was “concerned that the majority maintains this provision simply to shield the administration from addressing the very real concerns that members on both sides of the aisle have” on the Afghanistan situation.

Rules member Rep. Michael Burgess (R-Texas), spoke in favor of Reschenthaler’s motion, telling the panel the ROI ban should be terminated because “we can’t get phone calls answered from the administrative state. This is not right and it needs to change. … I urge the majority to restore minority rights” under the ROI process.

Burgess also seeks the passage of an ROI concerning the Biden administration’s treatment of unaccompanied illegal immigrant children coming across the U.S. border from Mexico.

Reschenthaler’s motion was defeated 9–4, marking the fifth time Democrats, led by Committee Chairman Jim McGovern (D-Mass.), have rejected efforts to restore ROIs. ROIs were first adopted in 1879.

A spokesman for the Rules panel majority didn’t immediately respond to The Epoch Times’ request for comment.

During debate on a previous attempt, Rep. Tom Cole (R-Okla.), the panel’s ranking Republican, said: “The speaker and the Democratic majority have ruled with an iron fist, beginning in earnest at the start of the 117th Congress. In one fell swoop, they eliminated two critical minority tools, motions to recommit and the use of resolutions of inquiry.”

Besides the ROI, Cole was referring to limits during the 117th Congress on the minority’s ability on the House floor to offer motions to recommit bills to committees with instructions to change them rather than having votes on final passage.

Rep. Michael McCaul (R-Texas), the top Republican on the House Foreign Relations Committee, told The Epoch Times the ROI ban has prevented effective legislative oversight on multiple issues.

“Democratic Leadership has suspended a centuries-old House rule that allows for more congressional oversight—all to protect President Biden from scrutiny for the multiple disasters his failed leadership has caused,” McCaul said.

“Whether it’s the deadly catastrophe in Afghanistan or the crisis at our southern border, the American people expect Congress to hold the Executive Branch accountable for their mistakes. The majority needs to lift this indefinite ban on resolutions of inquiry and allow for vigorous oversight.”

Republicans on the foreign relations panel have been frustrated by having to depend on letters to gain needed oversight information on the Biden administration’s lax administration of congressionally mandated sanctions against, for example, Russia’s Nord Stream 2 natural gas pipeline to Europe.

The Biden administration didn’t answer questions posed by House Republicans in a March 5 letter to Secretary of State Antony Blinken. Questions also went unanswered from an April 22 letter from McCaul to Blinken concerning Biden’s Afghanistan withdrawal.

In the April letter, McCaul predicted the withdrawal would “hand the Taliban an undeserved victory, damage U.S. credibility as a counterterrorism partner, and gravely endanger the lives of Americans and Afghans alike.”

Mark Tapscott

Congressional Correspondent

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HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.



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Biden Will Use Trump Rule To Justify Mass Deportation in Border Crisis

Homeland Security plans to deport thousands of illegal immigrants

Some of the thousands of immigrants sheltered near the International Bridge in Del Rio, Texas / Reuters

Karl Salzmann • September 20, 2021 3:40 pm

The Biden administration plans to use Title 42, which former president Donald Trump activated in March 2020, to expel some of the roughly 14,500 illegal immigrants who are sheltering under a bridge in Del Rio, Texas.

The rule allows Customs and Border Protection to immediately expel immigrants, including asylum seekers, from the United States without hearings if they pose a serious risk of communicable disease. During the 2020 election, Joe Biden promised to deport no immigrants during his first hundred days in office and that afterward “the only deportations that will take place are commissions of felonies.” His campaign called the Trump administration’s immigration policy an “assault on our values.”

Biden’s campaign website promised that he would “secure our border, while ensuring the dignity of migrants and upholding their legal right to seek asylum.” A link prompted on the website called for special protections for Haitian asylum seekers.

The Department of Homeland Security will now use Title 42 to “accelerate the pace and increase the capacity” of deportations from Del Rio. More than 14,500 migrants, a majority of whom are Haitian, have flooded the border city, leading the city’s Democratic mayor to plead with Biden for more help alleviating the crisis, the Washington Free Beacon reported Friday. An inspector general’s report released this month found that Biden’s handling of the border has put Americans’ health at risk.

Around 3,300 of the immigrants have already been deported or detained, Border Patrol chief Raul L. Ortiz said at a Sunday press conference. Under the Biden plan, Homeland Security will deport families with children, a policy that has faced court challenges and led to harsh criticism from some human rights groups and Democratic lawmakers.





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SF Mayor’s Response When Caught Violating Her Own Mask Rule Completely Eviscerates Mandates – RedState

We’ve seen a long list of Democrats break their own COVID mandates.

But San Francisco Mayor London Breed, the latest violator in the “Rules for thee but not for me” club really does take the cake for one of the most obnoxious responses, after being caught breaking her own city mask mandate.

Breed imposed an indoor mask mandate on the city’s businesses in August. “Everyone, including people who are fully vaccinated, must wear a well-fitted mask in indoor public settings at all times except,” the order declares, “people may remove their well-fitted mask while actively eating or drinking.”

As we reported yesterday, Breed was busted singing, dancing, and partying with a lot of other unmasked people at the Black Cat Nightclub in very close quarters. She was not “actively eating or drinking.” Among her group was Alicia Garza, one of the co-founders of the BLM. Breed is the one dancing in black, next to the wall, with the darker hair.

The video was taken by a San Francisco Chronicle reporter who interviewed her. She also took other pictures of Breed without her mask on.

The reporter termed it a “fun night.” The reporter did report that Breed was not wearing a mask as required by the mandate. The reporter admitted she also wasn’t wearing a mask either during the interview. She obviously was more intrigued by the “fun” than by the hypocrisy of it all.

But Breed wasn’t only not apologetic, she was clearly mad that anyone would dare question her actions, even if she was breaking her own mandate.

From Fox News:

“While I’m eating and drinking I’m going to keep my mask off,” Breed, a Democrat, told reporters while calling the story a “distraction,” according to FOX 2 of the Bay Area. “And yes, in the time while we’re drinking like everyone else there, we were all having a good time and again all vaccinated.”

The mayor insisted the focus of media attention should be on live music returning to San Francisco and said that putting a mask on in between eating and drinking isn’t “realistic.”

“The fact that this is even a story is sad,” she said.

Oh, so you mean you think your own mandate is unreasonable? Do go on. You weren’t actively eating or drinking as your mandate says.

Then she really went over the slide with her defiance.

“My drink was sitting at the table. I got up and started dancing because I was feeling the spirit and I wasn’t thinking about a mask,” Breed explained. “I was thinking about having a good time and in the process I was following the health orders.”

Breed added, she and fellow club-goers “don’t need the fun police to come in and micromanage and tell us what we should or shouldn’t be doing.”

“The fact that this story became about me and less about the artists and nightlife, which I will continue to enjoy in San Francisco, is very unfortunate,” she told reporters.

Nice way to completely eviscerate your own mandates. You see it for yourself — it isn’t reasonable — but you still want to impose it on other people. You are the “fun police” trying to shut down everyone else, but you want freedom to have your own fun and you don’t even see the hypocrisy. Talk about an obnoxious take. Repeal the mandate since you yourself have explained why it’s completely unreasonable.





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Illinois judge to rule on Pritzker’s latest motion to dismiss dining prohibition lawsuit

A judge may soon rule on if a restaurant’s challenge to the governor’s prohibition of indoor dining last year amid COVID-19 orders should be dismissed.

Last year, Gov. J.B. Pritzker issued a statewide stay-at-home order as the pandemic hit. After a phased in opening, in the fall he triggered different restaurant capacity limits for different areas of the state based on COVID metrics. In Kane County, he prohibited indoor dining for weeks.

FoxFire in Geneva sued Pritzker last fall. With many status hearings and even amended complaints by the restaurant, the latest motion to dismiss from the governor was heard this week.

Attorneys for FoxFire and Pritzker argued Wednesday in a virtual Sangamon County Court hearing before Circuit Judge Raylene Grischow regarding if the motion to dismiss was proper.

Early on, litigants discussed the original counts brought by FoxFire. Grischow said there are facts throughout that may be considered.

“[FoxFire attorney Kevin Nelson] brings up the quarantine statue, which I have been waiting for months and months for someone to bring up and no one has brought it up and finally now that I look at the facts on all counts, Mr. Nelson does raise that,” Grishow said. “Shutting down a business is a form of quarantine. … I think that is an issue that is ripe for argument.”

Pritzker’s attorneys said no specific allegation has been made by FoxFire and the governor had a reasonable right to limit activity during the pandemic.

“The governor has authority to control occupancy of premises,” Pritzker attorney Darren Kinkead said during the hearing. He also said the governor can control the sale of food and commodities.

“It’s very broad powers,” Kinkead said of Pritzker’s orders last fall.

He argued FoxFire has not proven a fundamental right was violated.

“Foxfire has been arguing that what has occurred here is tantamount to a full business closure … the indoor dining restaurant can’t do outdoor dining in the winter time,” Nelson replied, noting FoxFire doesn’t do carryout or deliver. “People don’t like eating a fine steak on cardboard.”

After the hearing, Nelson said in an interview the governor has attempted at least four different times to have the case dismissed.

“The Second District says ‘no, there’s a claim here, and here’s what a trial should look like,’ so the fact that the governor keeps trying to come back and get this entire case dismissed, not on the merits, but summarily dismissed is inappropriate, but that’s what they’re doing,” Nelson said.

Nelson said they’re getting discovery documents for if there is a trial, but there’s an impasse on getting substantive information. He told the judge 99.9% of the documents they’re getting from the governor through the discovery process are redacted or not pertinent to the case.

Brining finality to the case sooner than later is important, he said.

“Precedent is a slippery slope,” Nelson said after the hearing. “The governor shutdown indoor dining at restaurants for more than three months in Kane County and that has not been declared improper and then from there, because he thinks he can do that, then he launches into other various things that go further such as mask mandates in schools to who knows about vaccines.”

A status hearing is set for next month. The judge could rule on the governor’s latest motion to dismiss before then.





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Cole Beasley helps unvaccinated NFL fan skirt Bills’ COVID rule by giving him free tickets to a road game

Buffalo Bills wide receiver Cole Beasley has been a lightning rod for controversy ever since he pushed back against the NFL’s COVID-19 protocols when the league introduced the restrictions back in June. Beasley called the NFL’s COVID rules “crazy” in the summer and said the “players association is a joke” for agreeing to the NFL’s terms that are “not for the players.” Now, Beasley is sure to stir the pot with his latest decision to give an unvaccinated NFL fan free tickets to road games in a way to skirt the Bills’ COVID regulations at home games.

The Buffalo Bills announced on Tuesday that proof of COVID-19 vaccination is a requirement to gain entry to home games at Highmark Stadium. For the home games on Sept. 26 and Oct. 3, fans will be required to furnish proof of at least one dose of the COVID-19 vaccine. Starting on Oct. 31, Bills fans will need to be fully vaccinated to see their team play at Highmark Stadium. Children under the age of 12 do not need to be vaccinated, but are required to wear a face mask. A negative coronavirus test is not an option.

“We’ve worked collaboratively with the county over the last several weeks, months, all throughout the pandemic,” Ron Raccuia, the vice president of Pegula Sports and Entertainment, which owns the BIlls, said. “We are looking to provide the safest environment for our fans that we possibly can. We’re thankful for this collaboration. We feel like this is the right move going forward.”

The Bills become the fourth NFL team to require proof of vaccination to attend home games, joining the Seattle Seahawks, Las Vegas Raiders, and New Orleans Saints.

Some Bills fans strongly objected to the vaccine mandate. Two unvaccinated fans voiced frustration over the new vaccine mandate since they had already purchased tickets for future games when only vaccinated people would be allowed to go to Bills home games.

“Sad day for me as a Buffalo fan,” a Bills fan said on Twitter. “I was bringing my 10 year old daughter to her first game in December all the way from Albuquerque. Already bought tickets. I won’t get the shot so now I don’t know what to do. I probably need to sell the tickets and find an away game.”

Beasley responded to the Bills fan in New Mexico by offering the fan free tickets to an away game.

“If you find an away game you are able to go to then I will buy the tickets for you guys,” Beasley replied. “DM me names and every thing snd [sic] I’ll figure out the best way to make it happen. Wish she could witness the mafia!”

The Bills fan, Chris Hauquitz, told the Buffalo News that Beasley was working on getting him tickets to the Oct. 10 game in Kansas City.

“I’ve had Covid, so in my opinion, I’ve already got the antibodies,” Hauquitz said. “I think they’re just as good as the vaccine. The vaccine came out pretty rushed. I don’t really know all the information. In my opinion, there’s so little information out there and it all seems to be one-sided. And then, personally, my religious beliefs. I think God created me for a purpose. He has a plan for my life. And whether I have the vaccine or not, I’m taken care of.”

Beasley previously said it is his “personal choice” as to why he decides not to get the COVID-19 vaccine. In June, the slot wide receiver said, “That means I don’t have to explain to anyone why I do what I do. Just like everything else in my life.”

Another Bills fan was disappointed to see the vaccine mandates implemented at home games, and Buffalo long-snapper Reid Ferguson offered him free tickets to an away game.

“Well damn. Was so excited to see the @BuffaloBills play at home for the first time ever, especially being from Nebraska. But I guess the new rules for the stadium will keep me out. I guess I’ll have to watch @SnapFlow69 from the parking lot if I even go to Buffalo now,” the fan wrote on Twitter, and tagged Ferguson on the tweet.

Ferguson replied, “I hear you brother. If you can find your way to an away game this year, tix are on me.”





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Just four of 15 NYC restaurants tested actually enforced the city’s vaccine passport rule – HotAir

Not a total policy failure. If you know you will be denied entry to a restaurant or theater without proof of vaccination, that’s a reason to get your shots.

But if you know you might be denied entry to a restaurant or theater without proof of vaccination, that’s still a reason (if a weaker one) to get your shots.

“Inside Edition” did a solid for the de Blasio administration by airing the clip below since it’s destined to spook some proprietors who’ll fear they might be next to end up on television and in hot water with the city for not following the rules. That should boost enforcement. (Unless the publicity from the segment attracts a wave of unvaccinated customers looking for a place to eat that won’t hassle them, in which case maybe it pays to break the rules.) But there are also incentives against enforcement. For instance, what if a customer happens to be a violent nut who takes their rage about the vaccine rules out on you?

Is NYC’s vaccine passport regime even working to increase vaccinations, you may wonder? The answer is: Probably. The policy took effect on August 17 but full enforcement wasn’t required until Monday of this week, September 13. By the numbers:

On August 17 the city was averaging 22,655 doses daily. That rose to 27,358 by August 31. Vaccinations dipped over Labor Day weekend but they were back to 27,094 as of Monday’s passport launch. (This week’s data is incomplete at the moment so the final numbers may be higher.) Last Friday, the final weekday before the new rules would be fully enforced, the city saw the highest number of doses administered on a single day since mid-June. No one can say for sure that that’s due to New Yorkers having their arms twisted by the new policy rather than, say, fear of the Delta variant, particularly since daily doses began rising even before the vaccine passport rules were announced. But the timing is suggestive. We’ll see how durable the surge is in NYC in the weeks to come.

Speaking of twisting arms, interesting news from corporate America today:

Raytheon Technologies Corp. and Walgreens Boots Alliance Inc. will require all U.S. workers to be vaccinated against Covid-19, while Southwest Airlines Co. is rolling out a new carrot-and-stick approach, as pressure grows across corporate America to ensure employees are protected…

The latest announcements come about a week after Biden said the Department of Labor would develop a workplace safety rule requiring that companies with at least 100 employees either require vaccination or offer weekly testing. Biden also ordered all executive branch workers and federal contractors to be vaccinated, putting Raytheon and other defense giants such as Lockheed Martin Corp. and Boeing Co. at the center of the government’s tougher stance on vaccinations.

Apparently the CEO of Walgreens briefed Biden on the company’s plan personally on Wednesday. This is why I think it doesn’t matter much whether Biden’s federal employer vaccine mandate is ultimately upheld in court or thrown out. It’s chiefly a political device to give cover to big companies to impose the mandates they’ve wanted to impose all along but were too anxious to order until they had political cover. Now that Biden’s temporarily forced them to get all of their workers vaccinated (or tested weekly), they can implement mandates and blame him for it. By the time SCOTUS gets around to nuking the federal rule months from now, most employees will already have been vaxxed in the interim and Walgreens can simply decide to keep their policy in place irrespective of the court’s decision. For many businesses, the new federal mandate is nothing more or less than a fig leaf for them to do what they want to do. It’ll serve that purpose regardless of its fate legally.

Here’s “Inside Edition” inadvertently providing free advertising for a few restaurants to unvaccinated New Yorkers.





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Judge to rule on lawsuit seeking refund of St. Louis earnings taxes paid by remote workers during pandemic

A St. Louis circuit court judge is deciding if taxpayers living outside the city and working remotely due to the pandemic can file a lawsuit to reclaim city earnings taxes.

Circuit Court Judge Christopher McGraugh on Wednesday heard arguments by attorneys for St. Louis Collector of Revenue Gregory F.X. Daly. They cited Missouri tax law stating taxpayers must file individual lawsuits to seek any refund. Attorneys representing taxpayers argued the city changed its earnings tax refund forms to exclude teleworkers without any legislative approval.

“They changed the law without a change in the law,” Mark Milton, a lawyer for the taxpayers, told KMOX radio. “The executive branch changed the law without a change by the legislature.”

Milton and attorney Bevis Schock created stlrefund.com , a website to help workers who didn’t live in the city in 2020 but whose employers withheld the city’s 1% earnings tax. They seek refunds based on the days spent teleworking from locations outside the city, not including business travel days.

Prior to the pandemic, if a non-resident worked some days outside the city – whether teleworking from home or traveling for business – the employee could apply for a refund for the amount based on days worked outside St. Louis. But in tax year 2020, the city changed its policy and forms to only allow earnings tax refunds for travel and not allow for refunds for days spent teleworking or working outside the city.

“In short, without any change to the authorizing state statute and/or the earnings tax ordinance,” Schock and Milton’s website states, “the city now refuses to issue refunds for days spent working from locations outside the city of St. Louis, that is, teleworking – even though the work was performed or the services were rendered outside the city.”

David Luce, an attorney for the collector of revenue, said the pandemic forced changes in tax collection.

“The virtual world is not the world that’s surrounding your chair at your office,” Luce told KMOX. “It’s the virtual world that you’re entering into.”

The earnings tax provides about 36% of the city’s general revenue. Earnings tax collections dropped from $184 million in 2019 to $176 million in 2020, according to documents in the city’s fiscal year 2022 budget. Budget documents show a revised estimate of $187 million for 2021 and $178 million for 2022.

“And because people who live outside the city but work for an employer based here also pay the earnings tax, it helps distribute the cost of providing services they use as well as city residents,” St. Louis Comptroller Darlene Green wrote on the department’s website as the earnings tax was being renewed by city voters. The Missouri legislature passed a law in 2010 requiring earnings taxes to be renewed by a vote every five years. The tax was renewed in April with 79% of the vote. It also was renewed in 2011 and 2016.

Kansas City is the other Missouri city with a 1% earnings tax. It was renewed in April with 77% of the vote. Media outlets reported Kansas City was processing earnings tax refunds for non-residents working remotely for businesses located in the city.





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Constitution Day: Rule of Law over Rule of Men

Detail of Scene at the Signing of the Constitution of the United States by Howard Chandler Christy (Wikimedia)

Reverence to the Constitution requires us to reject identity politics and partisan tribalism.

Our Constitution is under attack, or so we constantly hear from both sides of the aisle. Of course, this rare instance of bipartisanship is quite shallow, since the different sides don’t see a common source or content to the threat they perceive; they simply view the other side itself as the threat.

Threats to the Constitution do exist. But the biggest one is deeper and more subtle than the weakening of free speech, the separation of powers, or religious liberty. It concerns the idea upon which these precious principles depend: the rule of law.

Ultimately, some person or set of persons must be in charge in a political community. Our polity vests that control not in a king or an aristocracy, but in “We the People.” And we the People do not exercise political power in a direct, unfettered manner. We rule through and within a fundamental set of written rules. We have directed and limited our own political power in ordaining and establishing a written Constitution. As such, the Constitution is a manifestation of the rule of law.

Acting through a written constitution protects and enhances the principles of justice we hold so dearly. It protects our liberty by establishing the bounds of legal government action and the protections the state must afford us, thus allowing us to hold the government accountable to those bounds and for the provision of those protections. It guards equality by making the government treat persons and groups according to established rules, not personal affections or grudges. It creates institutions such as Congress, the presidency, and the courts. Separation of powers and the institutions created to serve it neither inhibit nor coddle popular rule; instead, the Constitution’s rule of law facilitates a political decision-making that is more moderate and rational, and thereby more just.

Yet our current partisanship threatens to undermine all of these principles.

It does so first by normalizing crisis. Every issue we encounter is an emergency, with little perspective on what truly matters. Such emergencies, when actually existing, are extraordinary, and thus demand extraordinary action. When we frame or mistake the ordinary for the extraordinary, however, we risk eroding and finally destroying the constitutional structures and protections we cherish. We weaken our trust in the Constitution’s adequacy, always seeing the need to make exceptions to the separation of powers, the consent of the governed, or equality before the law until such exceptions become the de facto rule. Worse yet, we now often make such exceptions in the name of the rule of law that they undermine.

Then there are our present divisions and the identity politics and ideological tribalism they feed off of. These perspectives tend to reduce politics to membership in one group or another and loyalty to that group’s representative personalities. In such an environment, every political issue becomes a binary loyalty test, rather than a question of justice and prudent action. Every issue must neatly conform to the desires of one side or the other, with virtue-signaling a bipartisan strategy. For a policy or political decision to be “correct,” it must help one’s own group and/or hurt the other side.

Worst of all is the fact that the two threats — ideological tribalism and the normalization of crisis — fuel each other. Not only do we always face an emergency; the other side’s holding power — or the possibility that it could hold power in the near future — is always that emergency, and the entire fate of the republic always hangs in the balance.

When we view the world through this lens, we’re liable to start seeing the rule of law as a quaint luxury at best and as treason to our fellow tribe-members at worst. And when that happens, the Constitution loses its power to restrain and form us in the direction of justice as its Framers intended. Instead, the rule of law, including the Constitution, become tools to be manipulated in service to the rule of groups.

Americans revere their Constitution — and rightly so. But they must understand why it is good and how it is noble if they are to truly sustain it. They must confront the threats to it in accordance with its own principles. So this Constitution Day, let’s reject identity politics and tribalism and make an alternative commitment — to the rule of law, not of men.





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Kentucky judge to rule on school choice law in coming weeks

A Kentucky judge said he expects to make a ruling in the next few weeks on a new state law that allows some families to receive grant funding they can use to cover private school tuition or other school-related expenses for their children.

Franklin Circuit Judge Phillip Shepherd told lawyers during a virtual hearing Thursday he will try to make a decision by Oct. 11, a deadline requested by officials with the Kentucky Department of Revenue. Last week, the department launched a website allowing organizations to seek certification, which would enable them to accept contributions and issue Education Opportunity Accounts.

Under House Bill 563, which passed the General Assembly earlier this year, individuals and corporations can seek tax credits for contributions to organizations administering the accounts. The tax credits are capped at $25 million per year for five years.

The bill allows account-granting organizations to establish accounts for students whose households meet eligibility requirements. The funds allow for coverage of several educational expenses. For example, families can use the funding to cover costs to send their children to an out-of-district public school. In counties with a population of 90,000 or greater, families can use the grants to cover private school tuition.

The Council for Better Education (CBE) claims the tax credits established by the law would take essential funding away from public schools, with private schools reaping the benefits in some instances.

Eric Harrington, a lawyer representing the CBE said the private school portion runs explicitly counter to state Supreme Court precedent and the state constitution.

“The Commonwealth is obligated to furnish every student in the state an education in the public schools, and it is constitutionally proscribed from providing aid to furnish a private education,” he told Shepherd. “The case can end right there. HB 563 establishes a system to provide aid to furnish the private education.”

However, a lawyer representing families that seek to intervene in the case told the judge that tax credits are not state revenues.

“There are billions of dollars in tax benefits that Kentucky taxpayers are eligible for,” said Joshua House, an attorney for the Institute for Justice. “None of those are being challenged on the face of the complaint. It seems that the plaintiffs really just have a problem with aiding low-income families with their education rather than with tax credits as a whole.”

Shepherd noted some concern about the law limiting private school aid to just the state’s nine largest counties. In Franklin County, which is not one of the counties covered by the law, he said there are three private schools that could have participated in the program. However, he later added that it did not seem “very appealing” to rewrite laws passed by legislators.

House added that plaintiffs in the case did not bring up that stipulation and that the courts do not need to address that matter.

It’s also something that the lawmakers may revisit in the future, House said.



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Can Biden’s Vaccination Rule for Private Employers Survive Judicial Scrutiny? – Reason.com

The White House says a COVID-19 mandate that President Joe Biden plans to impose on private employers, which “will impact over 80 million workers,” is all about “Vaccinating the Unvaccinated.” But officially, that mandate is aimed at protecting workplace safety, and the difference between those two descriptions could make it vulnerable to the flood of litigation it will provoke.

A month after he was elected, Biden called vaccination against COVID-19 “a patriotic duty” but said, “I don’t think it should be mandatory.” On July 23, White House Press Secretary Jen Psaki reiterated that position, saying it’s “not the role of the federal government” to require vaccination.

A week later, Rochelle Walensky, director of the Centers for Disease Control and Prevention, insisted “there will be no federal [vaccination] mandate.” Last month, Anthony Fauci, Biden’s top medical adviser, agreed that “you’re not going to get mandates centrally from the federal government.”

If you are determined to reconcile those assurances with the rule that Biden announced last week, which applies to all businesses with 100 or more employees, you could note that it does not technically require people to be vaccinated, since they can submit to weekly COVID-19 testing instead. But the choice between those two options—especially if employees have to foot the bill for testing—is likely to encourage vaccination, which is what Biden wants.

The problem is that the Occupational Safety and Health Administration (OSHA), the agency that Biden has charged with imposing the vaccination/testing rule, does not have broad authority to fight epidemics or promote public health. Its mission is limited to protecting employees from workplace hazards.

Ordinarily, it takes years for OSHA to finalize new regulations. But the approach Biden has chosen, an “emergency temporary standard” (ETS), allows OSHA to bypass the usual rule-making process: It can issue a rule that takes effect immediately without advance notice, public comment, or hearings.

Although the ETS option is undeniably convenient, it requires a special justification. OSHA must “determine” that its ETS is “necessary” to protect employees from a “grave danger” caused by “new hazards” or by “exposure to substances or agents determined to be toxic or physically harmful.”

Those assessments are subject to judicial review, and OSHA’s track record in defending emergency standards suggests why it rarely takes this route. Six of the nine emergency standards that OSHA issued between 1971 and 1983 were challenged in court, and those challenges were partly or fully successful in all but one case.

On July 21, when OSHA published an ETS requiring specific COVID-19 precautions in health care settings, it was the first time the agency had attempted an emergency standard in 38 years. It was also the first time OSHA had cited the danger posed by a communicable disease as the justification for an ETS.

Whether COVID-19 constitutes a “grave danger” to employees depends on conditions that vary widely from one workplace to another. The danger is greater, for instance, when work requires a lot of close interaction (as in meatpacking plants), when the vaccination rate is low, or when many employees are relatively old or have preexisting medical conditions that make them especially vulnerable to COVID-19.

In a workplace where the employees are young and healthy, by contrast, their risk of dying from COVID-19 is very low even if they are not vaccinated. And if someone’s work does not entail close contact with fellow employees, his risk of catching COVID-19 from unvaccinated colleagues may be negligible or nonexistent.

Considerations like these also factor into the question of whether OSHA’s ETS is “necessary.” It would be hard to justify a rule that made no exceptions for employees who work from home, for example, or for employees who are resistant to COVID-19 because of their immune responses to prior infections.

A broad rule with no exceptions better serves Biden’s goal of increasing the overall vaccination rate. But it will also be harder to defend in court.

© Copyright 2021 by Creators Syndicate Inc.



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