9 States' AG's – Call Obama to task on illegal violations

MEMO:          A Report on Obama Administration Violations of Law

DATE:            March 5, 2012

Introduction

As chief legal officers of the states and commonwealths, attorneys general are the last line of defense against an increasingly overreaching federal government.  Attorneys general have a duty to uphold the laws of their respective states and uphold the U.S. and state constitutions.

One of the ways in which attorneys general protect the integrity of state laws and constitutions is by carefully reviewing the actions of the federal government and responding when they break the law or overstep the bounds of the Constitution.

Federalism is the division of authority between the federal and state governments that the Founding Fathers created to provide a check on federal power so that the federal government would not become destructive of the very liberty it was instituted to protect.

While some naïvely argue that the Constitution should “evolve” due to the fact that our Founders could not have foreseen the issues faced by our country today, they forget that the Founders faced tyranny firsthand and understood it well.  This led to the creation of a Constitution that relies on limited government, precisely to protect our citizens from today’s unprecedented overstepping of the “division of authority.”

The Landscape

While each Attorney General has policy disagreements with the Obama Administration, those disagreements are not what serve as the basis for this effort.  For example, this Administration makes many decisions and takes numerous actions that Republican attorneys general find politically ignorant or flawed from a policy standpoint.  However, that does not make those decisions or actions illegal.  The purpose of this report is to outline actions taken by this Administration that are violations of law.

The obvious example is a federal health care overhaul, passed against the will of the majority of Americans and more importantly in violation of the Constitution, which is now being challenged by more than half of the states.

While the Patient Protection and Affordable Care Act (PPACA) has received the most attention, it serves as a representation of a much larger picture that demonstrates the continued disdain for the Constitution and laws shown by the Obama Administration.

Through the collective review by a committee of Attorneys General from nine of the 50 states, the group identified more than 21 illegal actions from this Administration and is highlighting the effects of the federal overreach on our citizens and states.

The Impact

Whether it is through the EPA, NLRB, Office of Surface Mining, FCC or other entities, the Obama Administration has aggressively used administrative agencies to implement policy objectives that cannot gain congressional approval and are outside of the law.

In Florida, a state with one of the most aggressive and innovative water quality protection programs in the country, the EPA chose to impose its own costly, unprecedented and unscientific numeric nutrient criteria.  The estimated impact the EPA’s rules would impose was dramatic, including billions of dollars in compliance costs, significant spikes in utility bills and the loss of thousands of jobs.  The Florida Attorney General’s Office sued the EPA and two weeks ago prevailed when a federal judge in Tallahassee threw out the costliest of the EPA’s rules, the one governing Florida’s streams and rivers.  In doing so, the judge found the EPA’s rules were not based on sound science and that the agency had failed to prove that its rule would prevent any harm to the environment – in other words, the EPA was found to have violated the law.

In South Carolina, the NLRB’s recess-appointed, unconfirmed general counsel threatened to sue the state for guaranteeing a secret ballot in union elections, despite 83 percent of South Carolinians voting for an amendment for such action.  When South Carolina was joined by three other states in mounting a vigorous defense, the NLRB backed down but turned their attention to Boeing, a private company and corporate citizen of South Carolina, telling the employer where they could or could not locate facilities.  Again – after a high-profile fight – the NLRB backed down in their complaint against Boeing, but only after the company and the union worked through an agreement.

In Arizona, voters passed a referendum requiring that individuals registering to vote show evidence that they are citizens.  Over 90 percent of the population can satisfy this simply by writing down a driver’s license number or naturalization number.  The less than 10 percent of those who do not have these numbers are able to register by mailing a copy of a birth certificate, passport, Indian registration number or similar documentation.  The Obama Administration argued against Arizona in the Ninth Circuit and a decision is yet to be made.

In Oklahoma, the EPA illegally usurped Oklahoma’s authority in the Clean Air Act to determine the state’s own plan for addressing sources of emissions by imposing a federal implementation plan.  The federal plan goes beyond the authority granted to the EPA in the Clean Air Act and will result in a $2 billion cost to install technology needed to complete the EPA plan and a permanent increase of 15-20 percent in the cost of electricity.  The Obama Administration is fighting Oklahoma’s appeal, which was filed in  the Tenth Circuit Court of Appeals.

The ongoing fight over the individual mandate and these four state examples serve as only a representation of the more than 21 Obama Administration violations that attorneys general are fighting against.

Taking Action

What these nine Attorneys General have collectively confirmed is that this Administration repeatedly shows disdain for states, federal laws it finds inconvenient, the Constitution and the courts.

With the release of this report, and its extensive list of transgressions, two principles are abundantly clear:

• This group of nine Attorneys General will grow and continue to serve as a de facto “task force,” assisting when possible to defend state laws and identifying “best practices” and legal arguments to fight back against the Obama Administration’s illegalities in a more cohesive and effective manner;
• The next election is critically important and as the states’ chief legal officers, the attorneys general will make a concerted effort to educate their states’ voters on the impacts that the Obama Administration’s legal violations have on their every day lives.

Regardless of party, when Washington politicians fail to adhere to the Constitution and the rule of law, state attorneys general become the last line of defense against an overreaching federal government.

List of Violations

• FCC: Regulation of the Internet in the face of a court order from Circuit Court of Appeals for Washington D.C. stating that the FCC does not have the power to regulate the Internet
• PPACA: Individual Mandate; To be heard by Supreme Court of the United States in March
• EPA 1: GHG lawsuit; EPA’s own Inspector General reported last September that EPA failed to comply with its own data standards; Heard in Circuit Court of Appeals for Washington D.C. in February
• OSM: Attempting to impose regulatory requirements on the 19 states with authority for exclusive regulation of their coalmines for the first time in more than 30 years
• NLRB: Boeing; Engaged in unprecedented behavior as described by former Chairmen under both Presidents Bush (43) and Clinton; behavior is best exemplified in South Carolina where the Board tried to muzzle over 80 percent of state voters who supported a secret ballot amendment to the South Carolina Constitution and attempted unsuccessfully to tell an employer in the state where they can and cannot base manufacturing facilities
• EPA: Florida Water; EPA’s numeric nutrient criteria pre-empted Florida standards; U.S. District Judge upheld the state’s site-specific alternative criteria for streams and rivers
• EPA: Texas Air; TX filed lawsuit challenging Cross-State Air Pollution Rules; application rule to TX was particularly dubious because state was included in the regulation at the last minute and without an opportunity to respond to the proposed regulation; regulation was based on a dubious claim that air pollution from TX affected a single air-quality monitor in Granite City, Illinois more than 500 miles and three states away from Texas
• EPA: Oklahoma Air; EPA illegally usurped Oklahoma’s authority in the Clean Air Act to determine the state’s own plan for addressing sources of emissions that affect visibility, by imposing a federal implementation plan; Federal plan goes beyond the authority granted to the EPA in the Clean Air Act and will result in $2 billion in cost to install technology needed to complete the EPA plan, and a permanent increase of 15-20 percent in the cost of electricity; Obama Administration is fighting Oklahoma’s appeal, which was filed in the 10th Circuit Court of Appeals
• HHS: Religious Liberty; HHS mandated religious entities such as Catholic, Baptist and Jewish schools and churches be required to provided medical services they find unconscionable to their employees; President attempted to compromise with an “accommodation” in name only that required insurance companies to provide the services for free to the religious organization employees; Accommodation made matters worse as many religious-base hospitals and schools are self-insurers; Seven Attorneys General filed suit to protect religious liberty and oppose the HHS mandate
• DOJ: South Carolina & Voting Rights Act: Rejecting voter ID statutes that are similar to those already approved by the Supreme Court of the United States; DOJ ignored section 8 of the Voting Rights Act which calls for protections against voter fraud, and used section 5 to administratively block measures to protect the integrity of elections passed by state legislatures in preclearance states including South Carolina; South Carolina voter ID law merely requires a voter to show photo identification in order to vote or to complete an affidavit at the pain of perjury if the voter does not have a photo ID
• DOJ: Arizona & Voting Rights Act: Rejecting voter ID statutes that are similar to those already approved by the Supreme Court of the United States
• DOJ: Arizona Immigration; In violation of 10th Amendment, federal government to sue to prevent AZ from using reasonable measures to discourage illegal immigration within Arizona’s borders; Affects Arizona because state has a large percentage, compared to other states, of illegal immigrants and need to be able to act to reduce the number
• DOJ: Alabama Immigration; The DOJ challenged Alabama’s immigration reform laws after parts were “green lighted” by a federal judge; DOJ appealed the ruling; parts of the AL case have been struck down in various federal courts; specific provisions of the law include collection of the immigration status of public school students, businesses must use E-Verify, prohibition of illegal immigrants receiving public benefits; the provision requiring immigrants to always carry alien registration cards; allowance of lawsuits by state citizens who do not believe public officials are enforcing the law
• DOJ: South Carolina Immigration; DOJ challenged South Carolina’s immigration reform laws that are very similar to the AZ which is scheduled to appear before the United States Supreme Court; SC case will be heard by the 4th Circuit soon there after as the 4th Circuit granted SC motion to extend the filing time until after the US Supreme Court issues an Opinion in AZ
• Congressional: “Recess” appointments to NLRB (three) and CFPB (one)
• EEOC: Hosanna Tabor (MI); Sought to reinstate a minister who was discharged for her disagreement with the religious doctrine of the church
• DOE: Yucca Mountain; In 2009, Administration arbitrarily broke federal law and derailed the most studied energy project in American history when DOE announced intent to withdraw 8,000 page Yucca Mountain licensing application with prejudice; SC and Washington State filed suit, as a result, contesting the unconstitutional action; American people have paid more than $31 billion (including interest) through percentages of electric rate fees towards the project and taxpayers have footed an addition $200 million in legal feeds and over $2 billion in judgments against the DOE for breaking contracts associated with Yucca Mountain
• DOI: Glendale Casino (AZ); Glendale is a violation because the Federal Government is forcing a family-oriented town, Glendale, to become another Las Vegas against its will.  Essentially, the Federal Government has granted ‘reservation status’ to a 54-acre plot in the same town, where the Tohono O’odham Nation plans to build a resort and casino.