Claims And Issues

READING BARR'S LETTER LIKE A LAWYER LIKE BARR.

Attorney General William P. Barr wrote a letter saying what Special Counsel Robert S. Mueller wrote.  What Mr. Barr wrote is not what Mr. Mueller wrote.  Mr. Barr wrote about what Mr. Mueller wrote.

That's for starters.  The media frenzy surrounding Mr. Barr's letter sometimes confuses Mr. Barr's letter with Mr. Mueller's report.  That is a mistake.

In the letter, Barr says a couple of things that are best understood, perhaps, with the help of a dictionary that translates Barr-bar-talk into English.

Mr. Barr writes that Mr. Mueller "did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election."  (Emphasis added.)

"Find" means "conclude."

So, when Mr. Barr is saying that Mr. Mueller "did not find," he means that Mueller did not conclude.

That does not mean that Mr. Mueller "found no evidence that the Trump campaign or anyone associated with it conspired or coordinated with Russia," as some have said it means.  Not at all.  (And remember, these are not the words of the Mueller Report that we are quoting here.  These are, to say again, the words of Barr in a letter he wrote to say what Mueller said.)

And it certainly does not mean that the Special Counsel 'found that the Trump campaign (etc.) did not conspire or coordinate with Russia."  Even Mr. Barr did not say that.  (And remember, again, that these are not the words of the Mueller Report but the words of Barr's letter that we are looking at here.)

Also, Mr. Barr's letter quotes a part of a sentence from the Special Counsel's Report that "[T]he [sic; so in Barr letter] investigation did not establish" conspiracy.  (Emphasis added.) Well, in the language of a lawyer like Mr. Barr, "did not establish" means that Mr. Mueller "did not file charges" of conspiracy that could arguably be proved beyond and to the exclusion of every reasonable doubt.

Again, that does not mean that "the investigation did not establish" that there was evidence of conspiracy, or that 'the investigation did establish' that there was no evidence of conspiracy either, just that the evidence that was established did not lead Mr. Mueller to seek indictments to prove crimes beyond and to the exclusion of every reasonable doubt.

So, there you have it, a practical dictionary for interpreting the Barr letter.  Corporate media, those who have ears to hear, let them hear, as it says in the Good Book.

And as for understanding not so much what Mr. Barr wrote in the letter, but understanding why he wrote the letter and why in less than 48 hours he was able to divine that there was no intent by his boss to commit a crime where Robert Mueller and the Special Counsel's Office apparently could not prove intent based on the evidence, well to answer that question you do not need the help of any dictionary.  All you have to do is have a brain which, thank God, you have already.

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SO MUCH FOR SEMPER FI, MAC: MORE PENTAGON PURGES PREDICTABLE.

Diverting troops to the border with Mexico is not only unnecessary, but even more important, it is undermining military readiness.  Who said that?  An opponent of the current Federal Government, perhaps?  Someone looking for headlines at their expense, maybe?

No to both.  The person who said that is the current Commandant of the U.S. Marine Corps.

Photo J. Scott Applewhite / Associated Press.

Far from looking for headlines, he wrote it twice in two separate internal memorandums within the Pentagon.

In short, attempting to invent a national security crisis out of the U.S. border with Mexico is not working, so the current Federal Government is spending our taxpayer dollars inventing a national security crisis within the American military.  That's the real news.

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PENTAGON PURGES PREDICTED.

See Edward Wong and Eric Schmitt, U.S. Strategy to Isolate Iran Roils Pentagon, New York Times, Wednesday, March 20, 2019, at A1 (Pentagon objects to current Federal Government's policies because they would likely put American service personnel in danger).

We can expect purges at the Pentagon soon.  These people in the current Federal Government do not like to hear anybody's views but their own, it seems.  Even when the other person's views come with obedience, these people only want to hear their own opinions.  (Look at James Mattis, for one example.)

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WOULD YOU SIT STILL FOR A LECTURE FROM MIKE PENCE?

Well, neither would the Brits, the Germans, or the Belgians, among many others.  Mike Pence is apparently spearheading the current Federal Government’s drive to get other countries not to use Huawei telecommunications equipment.  The current Federal Government’s approach is, well, not very productive to say the least:

1. Mike Pence and Secretary of State Mike Pompeo and others lecture other countries that they should not use the Chinese manufacturer’s equipment because it is a security risk.  Pompeo has reportedly threatened to withhold intelligence reports from nations that use Huawei equipment.
2. Scolding is all they do.  Figures like Mr. Pence and Mr. Pompeo have not provided “concrete evidence that Huawei poses a real risk.”
3. Last but not least, the current boss of the current Federal Government has suggested in his own way, that he would make criminal charges against Huawei go away “as part of a trade deal with China.”

For their part, other nations respond:

1. They test Huawei’s products in labs in their own countries. What they see, they can handle.  They don’t have an attitude, they have the test results.
2. Based on the evidence they have in hand, these other nations can control the risk – which is not nearly as great as people like Messers. Pence and Pompeo claim. Britain’s National Security Adviser, for example, says that any problems with Huawei equipment can be controlled through regulation, transparency, and standards (three things that are in short supply in the current Federal Government, so no wonder it says that it sees a threat of invasion here too).
3. They may not say so out loud, but if criminal charges mean so little, other countries understandably ask what does the rest of this routine mean anyway?

So there you have it:  This is your foreign policy now.  See Julian E. Barnes and Adam Satariano, Allies Spurning Campaign by U.S. to Block Huawei / Questioning Data Risk, New York Times, Monday, March 18, 2019, at A1 (New York Times may charge for online access at www.nytimes.com).

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SOCIAL SECURITY DISABILITY INSURANCE is SOCIAL SECURITY, MICK. FOR EVERYONE.

Mick Mulvaney said when unveiling suggested budget cuts for non-billionaires, that Social Security Disability Insurance is not Social Security.

Of course it is.  And you know better.

As Casey Stengel used to say, Mick, "You could look it up."  It's in many sections of my book, Catastrophe Claims:  Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters West 2019 Spring Supplement in process).  You would probably get the most out of reading Section 18B:6, "Putting an 'insured status' into a covered disability in the Social Security Disability Insurance Program."

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FEBRUARY 27, 1933: THE REICHSTAG FIRE. FEBRUARY 23, 2019: THE MADURO FIRE.

See Nicholas Casey, Christoph Koetttl and Deborah Acosta, Maduro Burned Aid?  Footage Shows Otherwise, New York Times, Monday, March 11, 2019, p. A1 (The New York Times may charge an online subscription for online access, https://www.nytimes.com/2019/03/10/world/americas/venezuela-aid-fire-video.html).

Why would anyone believe the current Federal Government in the first place?

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"MORE AMERICANS THAN NOT." MIKA, IT'S 64%!

In response to a recent poll, 64% of Americans surveyed think that the current occupier of the Oval Office committed crimes before he was given the keys to the office.

Earlier this morning, Mika Brzezinski announced this result on television by saying that "more Americans than not" think this.

64% is not simply "more Americans than not," you know.  These figures are unheard of.  If it were an election, it would be a landslide.

Have a cup of coffee this morning and digest that result.

Then talk about it.  A lot.

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CORPORATE MEDIA DISTRACTED FROM THE SUBSTANCE BY THE SHINY, AGAIN.

Here is another example of the corporate media's feeding frenzy on the old "he said - she said" conundrum:  See Paul Kane, House Democrats Struggle to Break Through When It's All Trump, All the Time, Washington Post Online, posted Saturday, March 2, 2019.

I understand that can be a problem.  But that's not what I see and hear.

The House Democrats are actually doing a pretty good job of solving the problem.  They are breaking through.  Anyone who watches TV, listens to the radio or podcasts, or reads newspapers knows that.

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THE CONSEQUENCES OF SECRECY ARE NOT ABSTRACT.

    Australia, a nation that prides itself on blunt talk and a "fair go" for all, often can't seem to manage either when it comes to prosecuting the most sensitive crimes.  The country shrouds law enforcement and the courts in unusual secrecy ....  That limits public scrutiny and, critics say, tilts the scales of justice against the victims.

Damien Cave, A Culture of Silence That Assaults Victims Twice, New York Times, Wednesday, February 27, 2019, p. A1.

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"MODERATES" HIGH WATER MARK. AFTER THIS, WE GET REAL.

There are lots of words written and spoken about "socialism," and in particular that so-called "moderates" should reject anything different from  the way things have been done in the past.

In a "moderates" column today, The New York Times quotes a person at a Virginia town hall meeting who asked her Congresswoman how she could justify a party (Democrats) who "are the party of death and taxes."  This is the kind of person held up by corporate media and others as a "moderate."  See Catie Edmonson and Emily Cochrane, The Moderates Take a Grilling Back at Home, The New York Times, Monday, February 25, 2019, p. A1, apprehensively retitled online with the headline, In Conservative Districts, Democrats Have to Answer for Party’s Left Wing (the newspaper may require a subscription to access it).

Parenthetically, the reporting on town hall meetings does not mention that only Democratic Members of Congress are holding town hall meetings.

This is the high water mark of so-called moderates.  Soon reports will return to the facts, like:

• The vast majority of people in the United States favor, and will vote for, "Medicare for all" and "single-payer health care." Health insurance companies, hospitals, and many doctors are against it.  They make a lot of money the way things are.
• Increasing taxes on the rich is also favored by the vast majority of Americans. Rich people are understandably against increasing their taxes, so they spend less money than they would pay in taxes to promote campaigns seeking to make other people believe that everybody's taxes will increase.  But only their taxes will increase for the most part, and most people seem to know that in spite of the campaigns paid for by the rich.
• The Green New Deal is a resolution, not a statute. When any resolution is adopted -- and the Green New Deal Resolution has not been adopted yet -- it is a talking point, the beginning of a discussion of ways to do things.  Again, most people in this country know that the environment of 2019 is going to be way worse in 10 or 20 years or longer in terms of human existence.  The vast majority of people think that whether this will continue to look like the same country in 10 or 20 years, and what we as a nation can and should do about it, is a worthy debate to have in the United States of America.  Oil barons will turn up their air conditioners when things get too hot; many of the rest of the people will continue to die from the heat.

So, this is the high water mark of "moderate" stories disguised as reporting.  Apparently, "moderates" are "moderates" only if they keep you in power.  Inevitably, reporting will return to the actual facts.  Reality will become reality in spite of what we read and hear now.

In the end, we do not have a real choice.

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"BREAKING NORMS" IS NOT THE SAME AS BREAKING LAWS.

  Part Three Today.

Incredible.  Seeing it all put together is just incredible.  See Mark Mazzetti, Maggie Haberman, Nicholas Fandos, and Michael S. Schmidt, Inside Trump's Angry War on Inquiries Around Him, New York Times, Wednesday, February 20, 2019, at p. A1 (New York Times Online may require a subscription).

NOTE ONCE MORE TO CORPORATE MEDIA:  This isn't just "breaking norms."  Read your own reporting. 

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THEY'RE NOT "BREAKING NORMS." THEY'RE BREAKING LAWS. Part Two.

The Department of Education, led by Ms. Betsy DeVos, has been described as "a department that doesn't have much to lose."  Erica L. Green, published online under the headline, House Democrats Prepare to Scrutinize DeVos's Education Department, New York Times Online (posted Tuesday, February 19, 2019), quoting Michael J. Petrilli, who is identified in the article as president of the Thomas B. Fordham Institute.

The Every Student Succeeds Act is a Federal law.  It requires the Secretary of the Department of Education to hold States "accountable for achievement gaps between white and minority students."  Reportedly, the Department of Education is not obeying the law.  The Department is apparently not holding the States accountable, which the law requires the Department to do.  Indeed, the Department may actually be doing nothing by way of accountability for anyone in compliance with the law. 

In addition, earlier this week, "[o]n Monday, Xavier Becerra, the California attorney general, filed a lawsuit challenging President Trump's emergency declaration on the border."

On Tuesday, the current Administration vowed to terminate a Federal grant of $929 Million to the California High-Speed Rail Authority.  "It is unclear whether the federal government has the legal authority to withhold the grant," reports The New York Times.   Ms. Jennifer Medina, Trump Vows to Terminate Federal Grant For California, New York Times, Wednesday, February 20, 2019, p. A17, rewritten and republished Online with a different headline for unknown reasons, Trump Administration Wants California to Pay Back $2.5 Billion For High-Speed Rail (posted Tuesday, February 19, 2019).

NOTE AGAIN TO CORPORATE MEDIA:  The question is not whether they have the authority.  The question is whether they will get away with doing what they are doing.  Whatever else may be unclear to the corporate media, one thing is definitely not unclear:  This is all more than just "breaking norms."   It is clear that all this is of one piece:  breaking the law. 

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THEY'RE NOT "BREAKING NORMS." THEY'RE BREAKING LAWS. Part One.

At least as soon as Michael T. Flynn entered the White House as the New National Security Adviser in January, 2017, at least some of the people currently in charge of our Federal Government quietly worked to enrich themselves and their friends by selling American nuclear reactors to Saudi Arabia.

The technology for nuclear reactors is very similar to the technology necessary to build nuclear bombs, which is what Saudi Arabia wanted out of the deal.  Money it had, but nuclear bombs it lacked.

They all went nuclear so to speak but kept it quiet because it was against the law.

The Atomic Energy Act of 1954 requires consultation and cooperation with agencies of the Federal Government, like the Department of Energy which oversees American nuclear reactors.  The law also requires that the recipients of American nuclear reactors agree to certain conditions on using the reactors, which the Saudis have reportedly refused.  Finally, the approval of Congress is required whenever American nuclear reactors are sold to foreign actors.

This would all have been past history but, to borrow the famous Faulkner line, the past isn't dead, it isn't even past.  The current keepers of the Federal Government reportedly continued their efforts to secretly sell nuclear materials to Saudi Arabia as recently as last week.  See Nicholas Fandos and Mark Mazzetti, published online with the headline, House Opens Inquiry Into Proposed U.S. Nuclear Venture in Saudi Arabia, New York Times Online, posted Tuesday, February 19, 2019.

NOTE TO THE CORPORATE MEDIA:  This isn't "breaking norms."  This is breaking laws.  Call it what it is.

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ANNIE KARNI, SHARE THIS WITH YOUR NYT ONLINE EDITOR.

This is kind of a postscript to an article published here yesterday, CNN'S JIM ACOSTA WON, BUT PLAYING "MASOCHIST MAN" A LOSING DEAL.

The thing that originally drew my attention was Ms. Annie Karni's reporting in the print edition of last Saturday's New York Times.  When I went to the Online Edition, however, that part of her reporting was edited out.  As I wrote yesterday, Mr. Trump reportedly pointed to a few of the people in attendance at last Friday's so-called press conference in the Rose Garden of the White House.  These were supposedly mothers of children killed by undocumented immigrants -- mothers whom the White House invited to sit in the front row of this "press conference."  Mr. Trump then reportedly turned back to Mr. Acosta.

Here is the reporting that was edited out of the print edition when it was posted online, including the reporting that attracted my attention in the first place:

... , accusing Mr. Acosta of being "fake news" and driven by an agenda.

          Earlier, Mr. Trump had asked one of the grieving mothers to stand up and show off a picture of her child.  Ms. [Kirstjen] Nielsen [the current head of the Department of Homeland Security] sat next to her and rubbed her back when she sat down.

Annie Karni, White House Memo / Playbook After a Loss:  Defense by Distraction, New York Times, Saturday, February 16, 2019, at p. A17.

This morning I compared the entire edited online version of this reporting with the print edition.  I found that there were three times that the online version differed from the paper's own print reporting.  Here are the three differences, and a description of who might be benefitting from the changes:

1. The online edition added a quote from the current Federal Government. Apparently the online editor was of the opinion that there were not enough quotes in the print edition from the people currently in charge.
2. Apparently the online editor also recoiled from giving Mr. Acosta, a fellow reporter, 'free publicity' so the accusations made to Mr. Acosta, quoted above from the print edition, were airbrushed out of the online edition.
3. Kirstjen Nielsen's attempt at showing empathy -- from the same person who is in charge of separating children from their families as a matter of public policy -- was inexplicably deleted online as well, as the above quotation also shows. Rubbing one supposed mother's back while separating other mothers from their children may have been too much negative publicity for Ms. Nielsen, or appeared much too phony to believe, or so even the online editor may have decided.

When online newspaper editors delete reporting and add quotes from government officials, they add fuel to the speculation about "fake news," inadvertently or otherwise.  There is an old Irish saying that they would do well to follow:  "Don't give it to them to say about you."

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IT'S NOT A QUESTION OF AUTHORITY. THE QUESTION IS ...

WHETHER THEY WILL GET AWAY WITH IT.

 It's not a question of authority.  See, e.g., the Editor's pullout box attached to Peter H. Schuck, The Real Problem With Trump's National Emergency, New York Times, p. A19, Monday, February 18, 2019:  "The president may have the authority to throw away billions."

The question is will they get away with it.

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CLIMATE CHANGE IS NOT A JOKE. IT REALLY IS NEWS.

On Saturday Night Live's "Weekend Update," Colin Jost played the part of a newscaster as he usually does, and does very well at that.  He pointed out that the actual national emergency was climate change because the White House scheduled a press conference outside in February.  It was not much of a joke, as you -- and he -- could tell from the audience reaction.  

It was not a joke at all.  The White House held a gathering outside in the Rose Garden in the middle of February.

Really.  Scout's honor.  The meeting was comfortably held in the Rose Garden at the White House, in Washington, D.C., in mid-February:  That is the real news from that day.

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CNN'S JIM ACOSTA WON, BUT PLAYING "MASOCHIST MAN" A LOSING DEAL.

Jim Acosta of CNN is a fine reporter.  He and his employer, CNN, famously won a fight over his press credentials with the current White House.  That means CNN is entitled to send the reporter of its own choosing to attend press conferences at the White House.  Mr. Acosta is CNN's choice.

That does not mean that Mr. Acosta has to offer himself up as an object of scorn when he attends these gatherings.  Mr. Trump reportedly called on Mr. Acosta who asked him to respond to people who said that Mr. Trump made up the so-called emergency.  After pointing to people in attendance who were supposedly mothers of people killed by undocumented immigrants -- mothers whom the White House invited to sit in the front row of this "press conference" -- Mr. Trump reportedly turned back to Mr. Acosta and accused him and CNN, once again, of "fake news."  The White House scorn for Mr. Acosta is so famous that it was even made a part of a comedy sketch on Saturday Night Live that week.

When Mr. Acosta stands up to ask questions, he gets no answers but ridicule.  That is masochism, not reporting. 

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OPPOSING REMOVAL OF MEDICINES IN FAVOR OF GENERICS.

Another agency of the current Federal Government is taking actions to dismantle consumer protections with a new Administrative State.  This time it is the Centers for Medicare and Medicaid Services (CMS), located in the Department of Health and Human Services (HHS).  They propose to substitute generic drugs for brand drugs when consumers fill their doctors' prescriptions.  Their proposal was only posted on January 24, 2019 and, in a relatively short period for Comments, the deadline for leaving a Comment including in opposition to these new-Federal Government proposals, is Tuesday, February 19, 2019.

Here are the complete Comments I left on https://www.regulations.gov on Sunday, February 17, 2019 in opposition to these particular proposals.

February 17, 2019

To:       The Centers for Medicare and Medicaid Services (CMS),

          Department of Health and Human Services (HHS).

          https://www.regulations.gov

 

Re:    Proposed Changes to ACA Benefits and Payments Parameters for 2020.

          CMS-9926-P

To CMS, HHS:

These Comments are regarding your proposed addition to Regulations in 45 CFR, new proposed §§ 147.106(e)(5) and 148.122(g)(5), and wherever else the same proposed changes discussed in these Comments may be found in your proposals.  Your proposed new regulations §§ 147.106(e)(5) and 148.122(g)(5) are published in 84 F.R. at pp. 313-314.

You advise in 84 F.R. at p. 234 that your proposed new § 147.106(e)(5), for example, would allow issuers of drug plans in all three markets -- individual, small group, and large group -- to allow changes to a formulary.  (Although you do not define the term in your proposals, I understand from general usage by CMS/HHS that "formulary" in this context means a list of prescription drugs covered by a plan, a/k/a a drug list.)

The new additions you propose to existing law would be to allow issuers of plans covering prescription drugs to remove the equivalent of brand drugs from the formulary, i.e., from the plan of prescription drugs that are covered by the issuer.  See, e.g., 84 F.R. at 234.

There are at least three obstacles to implementing these proposed new regulations as law.  The three I would like to address in these Comments are (1) that the proposed new regulations are not a reasonable approach to the availability of prescription drugs to consumers who pay for prescription drug plans, or formularies; (2) that the proposed new regulations are a windfall to the issuers of plans covering prescription drugs, at the expense of consumer choice, and (3) that the term, "generic equivalent," is new and undefined, without so much as a reference I can find to the Federal Food and Drug Administration's process of testing and approving generic drugs for use by consumers.

First, the proposed new regulations are not a reasonable approach to the availability of prescription drugs to consumers who pay for prescription drug plans, or formularies.  The goal of adding generic medical equivalents to prescription drug plans, or drug lists, could reasonably be accomplished without mentioning the removal of brand drugs from the formulary at all.

The real effect of proposed new regulations like §§ 147.106(e)(5) and 148.122(g)(5) is not to permit the addition of generic equivalent drugs to an issuer's list of covered drugs, but rather to permit the issuer to remove brand drugs from the issuer's list.

That in itself is an unreasonable change to the law and, moreover, it is not authorized by the enabling Congressional legislation in the first place.  The clear purpose of the enabling statute was to foster consumer choice, not to limit consumer options, especially when it comes to prescription drugs.

That ties in to the second objection addressed in these Comments.  The proposed new regulations, such as for example §§ 147.106(e)(5) and 148.122(g)(5), are an undeserved windfall for the makers of generic drugs, and at the expense of consumer choice.  Lists of covered drugs are of course lists contained in plans for coverage of drugs.  These plans are paid for by consumers in whole or in part including by the payment of deductibles and co-pays, and often paid for as well by a share of the premiums charged for coverage under these plans.  Consumers have paid for the right to have their physicians and medicalcare providers prescribe drugs and to fill these prescriptions with brand drugs at the option or choice of the consumer, and not by the choice either of the pharmaceutical manufacturer or the issuer.  For this reason as well, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), should not and cannot be adopted.

The third and final objection to proposed new regulations §§ 147.106(e)(5) and 148.122(g)(5) which will be addressed in these Comments is the undefined use of the phrase, "generic equivalent."  This phrase is found in the proposed new authority to be conferred upon issuers to "add a generic equivalent to a formulary[.]"  See, e.g., proposed new regulation § 147.106(e)(5), 84 F.R. at p. 314, and proposed new regulation § 148.122(g)(5), also in 84 F.R. at p. 314.

The phrase used in this new proposed regulation is not limited to "medically equivalent."  (Emphasis added.)  Nor is it limited by reference, so far as I can find, to FDA-generic-approved medicines.  Without such limitations, the proposed new authority to replace brand drugs on drug lists with "a generic equivalent" is overly broad and so it is meaningless.  It would, for example, allow issuers and generic drug manufacturers to buy their way onto drug lists to add drugs that their own proprietary  'research' and support has 'determined' to be "a generic equivalent," without limitation to generic medicines already approved by the FDA.   For this reason as well, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), provide no limiting guidelines and so are void and of no effect.  They cannot validly be promulgated.

For each and all of these reasons, whether taken separately or together, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), cannot validly be promulgated as administrative regulations and, moreover, they are void and of no effect as new law.

Sincerely,

Dennis J. Wall

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AMAZON TO NEW YORK CITY: "KISS MY ... RING."

The New York Times has got the vapors this morning.  It has three reports (count 'em, three) about Amazon pulling out of its deal to come to New York City.  (And one report about a so-called national emergency in the offing.  But this is the New York Times, so Amazon pulling out of its New York City deal is a MUCH bigger story.)

One of the New York Times stories is breathless, one is actual reporting, and another is a reprint of a couple of Twitter takes by some of its reporters including one who actually covered the Amazon story.  So, what's going on?

Well, one thing that glares out at you is the fact that neither the political powers-that-be in New York nor Amazon did much of a selling job, and certainly nothing like a successful sales job.

Next, there are a couple of other things that come to mind at this early hour when these words are being written.

1. $3,000,000,000 or $3 Billion in tax incentives to Amazon for its promise of 25,000 anticipated jobs.

Let's not look at the job promises too closely.  Let's just take these figures on their face.  That would mean $3 Billion withdrawn from the tax base in exchange for 25,000 new jobs.  That breaks down into $120,000 per person who gets one of those new Amazon jobs.

 Does anyone seriously expect us to believe that each person would pay $120,000 in taxes over the same period of time to make up for the taxes that Amazon would not have to pay?

This leads to another question:  Why does government believe itself to be compelled to offer tax incentives to lure large corporations when throughout American history, it never had to do that before?

2. The real reason Amazon pulled out of the deal.

"A number of state and local politicians have made it clear that they oppose our presence and will not work with us to build the type of relationships that are required to go forward."  Amazon said that in a statement quoted by The New York Times.  Read:  They have to kiss our ... ring.  Or we are picking up our deal and going home.  We will not negotiate our power over you.  Those are the only "types of relationships," apparently, that Amazon is capable of building, or wants.

The Art of the Deal on full display, once again.

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"WHERE HAVE ALL THE CHILDREN GONE? INTO ADOPTION, EVERY ONE."

Many children separated from their families at the border cannot be found, says the current Federal Government that separated them in the first place.  This is what the Federal Government told a Federal Court a week ago.  Actually, the Federal Government was separating children from their families at the border even before they made their policy public.  See "Finding All Migrant Children Separated From Their Families May Be Impossible, Feds Say," NBC News, February 2, 2019.  In a sense, they were doing it before they were admitting to it.

Children will also be separated from their parents who were admitted into the U.S. under President George H.W. Bush's program to protect what is now about a half million non-citizens in this country.  These are people who had valid visas for example but would not go back to the countries they came from when their visas came to an end, because if they returned home when the visas were up they stood a good chance of being killed.  The program is called Temporary Protected Status or TPS because no-one, including George H.W. Bush, could ever have imagined that conditions in these countries would get worse, not better, over time.  So the question now becomes what happens to the children, once again, if the parents are deported by the current Federal Government.  See Teresa Wiltz, Stateline / If Parents Get Deported, Who Gets Their Children?, PEW, October 25, 2018.

Parenthetically, there will be a rally in Washington, D.C. to support people who relied on the Federal Government's word on TPS, on Tuesday, February 12, 2019.  "Centro:  TPS Supporters Plan to March for Justice in Washington," CBS Boston, February 2, 2019.

Where are all the children going to go?  Where have all the children gone?  It's time to take a hard look at the numbers of children now being put up for adoption, and whether and in what ways the Federal Government is involved.  Is this the real policy at work here, increasing the number of children available for adoption in America.  Is this the real policy behind the policy so to speak?

Who would have thought?  Like so many things in the America of 2019, who would have thought?

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"WTF?" SAYS A U.S. SENATOR.

That was what Senator Mazie Hirono of Hawaii said in her sadness after the State of the Union Speech on Tuesday night, February 5, 2019.  Frankly, the comment seems totally justified under the circumstances.

Since then, Senator Elizabeth Warren has again exercised anything but judgment in again apologizing for her parents telling her that she has Native American ancestry.  If she keeps it up, she will lose the influence that she has in the U.S. Senate, having already lost any real chance she had of gaining the Democratic nomination for President of the United States.

So, in response to Senator Warren's latest apology, it would be appropriate under the circumstances for us to borrow in our sadness from Senator Hirono's reaction on Tuesday night, and say:  "WTF?"

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OPERATION MAKING REFUGEES BLEED: STRINGING CONCERTINA WIRE IN THE DESERT.

Tamir Kalifa for The New York Times.

Have you observed where and what U.S. Army operations are conducted lately?  At this time, thousands more soldiers are being deployed to the border to string concertina wire obstacles in an effort to prevent children crossing.  See Helen Cooper and Catie Edmondson, More Troops to Border as Democrats Raise Doubts, New York Times, p. A14, Wednesday, January 30, 2019, posted online with a different headline.

First, take note that World War Two is over.  So is Vietnam.  Stringing concertina wire in Vietnam was a daily chore.  Noble?

More noble than causing children to bleed to death in the desert.

Second, these are the orders that the Army gets now, and the Army obeys.

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THE ICING ON YOUR CAKE. TREATS OR "GRATUITOUS CRUELTY?"

In our names, and with our dollars, Federal immigration officials are force-feeding immigrants in response to at least one hunger strike.  The force feeding is paid for with Federal tax dollars and administered by agents of ICE, Immigration and Customs Enforcement.   They force plastic nasal tubes down the throats of hunger-striking migrants during a hunger strike that has involved somewhere between 11 and 30 detainees.  These hunger strikers have concluded that they have no other way to express their resistance to cruelty inside a Texas detention facility. ICE is force-feeding immigration detainees on hunger strike, Los Angeles Times Online (Associated Press story, January 31, 2019).

It is not reported however what training the ICE agents have in force feeding, if any. 

Nor do we have any idea what training ICE agents get for this next story, reported by among others, Sarah Mervosh, ICE Created Fake School to Uncover Visa Fraud, New York Times, p. A19, Friday, February 1, 2019.  In this story, ICE agents conducted what amounts to a "sting" operation to ensnare evil falsely documented migrants who applied to become students at a fake university set up by ICE itself.

Separate from the story of what training, once again, these ICE agents have in this kind of activity -- as distinct, say, from professional law enforcement operations conducted by the FBI -- there is another question:  Who said that spending our tax money on ensnaring would-be students who applied to "the (fake) University of ICE," was better than spending our tax money on catching drug dealers, for example?  Recently, Customs and Border Patrol disrupted the importation of drugs into the U.S., but ICE is not CBP.  

So, to say again as the title of this article already suggested:   Are these operations treats paid for by our tax dollars?  Or are they unnecessary or low priority uses of our money?  

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LOOKING FOR AMERICA 2019.

 

Nolis Anderson for the New York Times.

Earlier this week, I thought I was just looking at a picture of a homeless person in the cold in Chicago.  So I said a prayer.

Then I looked at the building in the back of the photo.  Look closely, as I did.  Click on the photo if you still cannot see the name on the building. 

And I said another prayer.

 

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WIND 2019: LET THE CONFERENCE BEGIN!

On its website, the Windstorm Insurance Network (WIND) describes itself as "the only member association to bring together both defense and policyholder professionals to connect, learn, and engage on important topics in the property/windstorm insurance claims industry."  I will be taking a look myself this week.

Starting tomorrow, Thursday the last day of January in 2019, and scheduled to continue on Friday, February 1, 2019, I will be attending the sessions I signed up for a couple of months ago.  They include catastrophe claims handling and Hurricane damages coverages.  I would like to meet up with many participants especially the defense and policyholder professionals that make up the announced membership of WIND, in other words, the people who represent the people who make and deny insurance claims every day but especially after Hurricanes and earthquakes and wildfires.

The 20th Annual Windstorm Insurance Conference is set for Jan. ​30 - Feb. 2, 2019 at the Walt Disney ​Dolphin Resort.  (I will not be staying there.  I will drive back and forth from my home in the Orlando area.  It's a lot less expensive.)

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NEW COMMENTS DEADLINE ON SEX DISCRIMINATION IN EDUCATION! PLUS SUMMARY.

The Federal Government just extended its deadline for comments on its proposed Sex Harassment in Education regulations until January 30, 2019!  Take this as a good sign and leave your comments now at www.regulations.gov.  If the people speak, then even the current Administrative State has to listen by law.  Speak up, leave your comments on Sex Harassment in Education now!

We have been looking at comments since January 25, 2019 through articles posted from time to time since then down through today, January 28, 2019 on Claims and Issues Blog and on Claims and Bad Faith Law Blog.  To summarize them all for ease of reference, we have reviewed comments that:

1. The Department of Education does not have authority to change the statutes Congress voted into law which is what the Department proposes to do with these changes,
2. The proposed new standard of liability which would be imposed on a claimant in order to make a case for sex discrimination in education is so hard to meet that it is inconsistent with the Congressional prohibition in the first place,
3. Not only the Department of Education, but all Federal agencies need to have every tool in their toolkits that they have now in order to enforce the Congressional prohibition on sex discrimination, including in the rare case as it happens, of seeking damages from sexual harassers in education,
4. Keeping the law in place that concerns "religious organizations with contrary religious tenets" having to say how prohibiting sex discrimination is inconsistent with their "religious tenets," instead of letting them keep quiet about this including for example letting them keep quiet during the entire time that they are recruiting students and also not even requiring them to speak before they extend admissions offers, presumably until they get sued if they ever do, and
5. Last but certainly not least, a host of issues with the Department's newly invented Formal Grievance Procedures.

Parenthetically, what is with these people that they have to invent their own justice systems and not use the Courts?  President George W. Bush set up tribunals in Guantanamo from scratch, rather than try the inmates in Federal Courts in public.   Now the Department of Education wants to set up its own tribunals rather than have sexual harassment in education tried in the Courts.  Why don't they want the public to know what they are up to in these cases?  Oh, wait ....

So, make them make it public!  Take advantage of the extra time this extended deadline gives, and leave your comments on Docket ID ED-2018-OCR-0064 at www.regulations.gov.

If you don't do this, who will?

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SEX HARASSMENT TRIALS IN EDUCATION ... WHY NOT IN FEDERAL COURTS?

The following article is a combination of comments I left on www.regulations.gov earlier today.  Leave your own comments too!  The Docket ID is on this article, immediately below, and GOOD NEWS!  The Federal Government has just extended the deadline for comments to January 30, 2019!   Take this as a good sign and leave your comments now!

 

January 28, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  Your stated authority for them is "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  These particular comments address the Formal Grievance Procedure you have introduced in your new 34 C.F.R. § 106.45, published in 83 F.R. at 61497-99.  There are a number of problems with this new Formal Grievance Procedure.

Your new Section 106.45(a) provides that "[a] recipient's treatment of the respondent may also constitute discrimination on the basis of sex under Title IX."  83 F.R. at 61497.  However I am not aware of any Court that has ever declared that to be the correct interpretation of Title IX.  To the extent that you introduce this idea in your proposed new regulation, it is contrary to the expressed purpose of Title IX.  Section 1681 is the beginning section of Title 20, United States Code, otherwise known as Title IX.  Section 1681 sets the standard for discrimination in education on the basis of sex.  Subsection (a) could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  This language clearly does not include your proposed education tribunals conducting your new Formal Grievance Procedures.  It is therefore contrary to the statute passed by Congress and, although the law can be changed by vote in Congress, this proposed rewrite of the law cannot be lawfully enacted by a mere administrative agency such as the Department of Education.  Your proposal in this regard is void and cannot be enacted.

You propose a new regulation that "credibility determinations may not be based on a person's status as a complainant, respondent, or witness" in 106.45(b)(1)(ii), published in 83 F.R. at 61497.  Credibility determinations, as you call them, are made all the time in Court by judges and juries based on the bias of the person presenting the evidence.  You did not provide any evidence to support this change.  This change is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

Your proposed new 106.45(b)(iii) requires that certain personnel at academic institutions be given training in "how to conduct an investigation and grievance process, including hearings," among other things.  Yet you do not prescribe what the training will entail nor who is supposed to provide it.  For example, you do not state whether providers of this training will be required to have experience in presenting evidence or conducting hearings in other administrative proceedings.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It too cannot lawfully be enacted and should be withdrawn.

You propose a new regulatory requirement that academic institutions conducting a Formal Grievance Procedure must give the alleged sex perpetrator "sufficient time to prepare a response before any initial interview."  § 106.45(b)(2)(B), published in 83 F.R. at 61498 (emphasis added).  This is wrong (and unauthorized) policy-making and bad administrative procedure on your part.  As highlighted by the italicized language, your concern is not with the fundamental fairness of any required hearing, but instead you are fixated on the initial interview.  No person accused of misconduct in any other setting is given advance notice that they are going to be investigated for their alleged misconduct.  The alleged perpetrator may elect to be silent or to assert Constitutional rights of one kind or another, or anything in between, but no person accused of misconduct has ever been given rights to prepare for the initial interview of the investigation against her or him.  Your proposal to the contrary in this regard is not supported by any evidence in any case.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any procedures they must provide in the course of their providing for the "live hearing" that your regulation would now require.  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted.  It should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any essential procedures they must follow in the course of their providing for the new "live hearing."  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted. 

Your proposals regarding new treatment of "evidence of the complainant's sexual behavior or predisposition," also published in § 107.45(b)(3)(vii), are unfounded, unsupported by evidence, and contrary to law.  In particular, "sexual predisposition" is not a valid category of evidence in any judicial or administrative proceedings at this time.  You do not present any evidence to support your rewrite of this category of evidence.  This is bad public policy because the law has always focused on whether an act has taken place and not on whether the person who allegedly committed the act was predisposed to commit it.  This particular proposal also suffers from inequality itself for you did not also make it apply to evidence of the alleged sex perpetrator's "sexual predisposition" to sexually harass other people.  Your proposals in this regard are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, and void.  They should not be enacted.

A judge does not have to explain the basis of her or his rulings on evidence, yet once again also in your new § 106.45(b)(3)(vii), you would require "[t]he decision-maker" at your live Formal Grievance Procedures hearing to "explain to the party's advisor asking cross-examination questions any decision to exclude questions as not relevant."   Your proposal in this regard is contrary to substantive law.  Further, you provide no evidence in support of your proposed change, which is in violation of the Administrative Procedures Act.  The change you propose in this regard is void and should not be enacted.

Your proposed change in the standard of evidence applicable to Title IX proceedings misses the mark completely.  The standard of evidence you propose should apply to Title IX proceedings to determine only whether a person is being excluded from participation in or being denied the benefits of or being subjected to discrimination under any education program or activity receiving Federal financial assistance, "on the basis of sex[.]"  20 U.S.C.A. § 1681(a).  You are not authorized to propose a shifting standard of evidence for determining Title IX claims based on whether the recipient uses the preponderance of the evidence standard, or not, "for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction."  That is however what you propose to do in your new 34 C.F.R. § 106.45(b)(4), 83 F.R. at 61499.  University "code violations" are simply not your concern.  Your concern is strictly with Title IX claims.  Your proposals in question are not authorized and contrary to law.  They should not be enacted.

Similarly, your proposed § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, would require the academic institution to make a written determination including findings of fact, and conclusions "regarding the application of the recipient's code of conduct to the facts[.]"  (Emphasis added.)  To say again, whether the recipient's code of conduct applies is not your concern.  To say it another way, you are not authorized to impose requirements on a recipient based on its own code of conduct.  Your authority is strictly restricted to the application of Title IX to the facts.  You recognized this yourself in your new 34 C.F.R. § 106.45(a) when you stated at the outset that you were addressing sexual harassment that "may constitute discrimination on the basis of sex under Title IX."  Your proposals that follow including in § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, are void, and should not be enacted. 

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

The Federal Government has just extended the comments deadline through January 30, 2019!  I urge you to leave your own comments on www.regulations.gov.  The Docket Number that the Government wants us to use is at the top of this post.  These comments will be made available today both to the readers of Claims and Issues Blog and to the readers of Claims and Bad Faith Law Blog.

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PUTTING "RELIGIOUS OBJECTIONS" TO SEXUAL HARASSMENT OUT IN THE OPEN.

I left the following comments on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comments at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  This comment addresses in particular your proposal to delete existing subsection (b) from 34 C.F.R. § 106.12, published in 83 F.R. at 61496.

Although I have not found any reference to it in your proposed changes, the statute which authorizes religious organization exemptions is 20 U.S.C.A. § 1681(a)(3):

(3) Educational institutions of religious organizations with contrary religious tenets

this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;...

Although the statute does not speak to how the Department or any other Federal agency is to know in advance whether "the application of this subsection would not be consistent with the religious tenets" of any "educational institution which is controlled by a religious organization," the existing regulations do speak to that issue.  Advance knowledge of an organization's "religious tenets" claim can be determinative of whether Federal enforcers of Title IX's mandate will file or proceed with a Title IX enforcement action.

The regulation you want to eliminate is the regulation which provides that advance knowledge.  It is 34 C.F.R. § 106.12(b).  Subsection (b) provides in full as follows at the present time:

(b) Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.

In contrast to the obviously desirable result of preventing unwarranted Title IX enforcement actions to be filed by a Federal agency, thus reducing the respondents' costs and time necessary to defend enforcement actions which might otherwise be unnecessary, you recite that the current regulation is "confusing or burdensome[.]"  83 F.R. at 61482.  This assertion is absurd, in the face of the obviously desirable results that are likely if not certain to follow from the current regulation.  No law should be made including regulatory law which leads to an absurd result.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Further, you do not support your proposed changes with evidence either that the current regulation "impose[s] confusing or burdensome requirements" or that your proposed elimination of the current regulation would eliminate those unevidenced "confusing or burdensome requirements[.]"  For that reason, i.e., your failure to comply with the Administrative Procedures Act in this regard, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Moreover, it does not seem on the face of it that a letter to the Assistant Secretary would ever justifiably be characterized as either "confusing" or "burdensome."  That outcome is inconceivable and, in any case, is not supported by facts.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Finally, you are mistaken in your seeming belief that the current regulation specifies when an organization needs to make a written statement of the organization's "religious tenets."  The existing regulation does not speak to when.  It speaks to how.  The claim must be "in writing."  For example, the claim cannot be made verbally.  The claim must be made in writing.

The written claim must also identify "a specific tenet of the religious organization."  For example, a written claim based on nothing more than a claim to religious liberty without identifying a specific tenet of the religious organization, would not seem to be nearly enough to assert the "religious tenets" claim.

Nothing about these current requirements of the existing regulation appear to be "confusing" as understood by reasonable persons.  Nothing about them reasonably appears to be "burdensome," either.

For all of these reasons, whether taken separately or together, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  Copies of these comments are being published on Sunday, January 27, 2019 both on Claims and Issues Blog, and on Claims and Bad Faith Law Blog.

SEXUAL HARASSMENT SHOULD ALWAYS BEAR A PRICE, IF PERMITTED. PERIOD.

I left the following comment on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comment at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at page 61495.  In particular, this comment addresses your proposed changes to Section 106.3 of the regulations, titled Available Remedies, also published in 83 F.R. at page 61495.

Your proposed changes to Section 106.3 of the regulations are not sustainable as a matter of law and as a matter of law applied to fact. 

First, your proposed changes to Section 106.3 would prohibit the "Assistant Secretary" of the Department of Education (i.e., "the Department") from seeking damages in any proceeding to enforce Title IX.  The purpose for which Congress enacted this statute is clear on its face. 

Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex.  Subsection (a) of 20 U.S.C.A. § could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"

There is nothing in the language chosen by Congress to effectuate its purpose that leads to the conclusions you propose as law in your changed Section 106.3, including taking away one of the powers of the Federal Government agencies, which is to seek damages in an appropriate case in order to compel enforcement of the Congressional mandate.  For this reason, your proposed changes to Section 106.3 are not supported either by law or by the law applied to any facts, and they should not be enacted.

Second, as you are aware the Federal Courts are currently instructed to defer to the interpretation given by Federal agencies to the statutes they are called upon to administer.  Your recently suggested interpretation, that Title IX does not allow your Department to seek damages in any proceeding to enforce Title IX, is contrary to the interpretation taken by the Federal Government since Title IX was first enacted nearly 50 years ago.  The existing interpretation is like the statute itself:  If Congress has not affirmatively spoken, one way or the other, about the recovery of damages as a tool in the administrative process of enforcing the mandate of Title IX, then the Department should remain silent itself and not interfere with Congress's own interpretation.  In other words, it is a job for Congress and the Courts, not the Department of Education.

If anything, 50 years of existing interpretation should be given judicial deference over your opportunistically recent one.  For this reason, your proposals to change Section 106.3 of the regulations should be rejected.

Third, your proposals in all of these proposed regulation changes which you published in 83 F.R. from page 61462 through 61499 inclusive, are internally inconsistent.  Your proposed changes would change the standard of liability to "actual knowledge" coupled with "deliberate indifference" in any administrative action brought to enforce the law.   However at the same time you would purport to take away the Department's ability to seek damages.  This is internally inconsistent.  It is also inconsistent with and contrary to the purpose of Title IX, which is quoted above from the statute itself in 20 U.S.C.A. § 1681(a).  For this reason, your proposed changes, including your proposals to change Section 106.3 of the regulations should be rejected as contrary to law and as contrary to law applied to the facts.

For all of these reasons, whether taken separately or together, your proposed changes to Title IX and its existing attendant regulations should not be enacted.  They should each and all be withdrawn or, if not withdrawn, then they should each and all be rejected as contrary to the law and contrary to the law applied to facts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  A version of this article was previously published at Claims and Bad Faith Law Blog.

HOW 5 JUSTICES KEPT BUSY DURING THE FEDERAL GOVERNMENT SHUTDOWN.

You may have heard.  The Federal Government shut down for the past 5 weeks.  During those 5 weeks, 800,000 workers faced callbacks to work without pay or layoffs (called "furloughs").  Many could not pay the bills.  Many took solace in foodbanks.

Others act like they have not heard.  During the shutdown 5 U.S. Supreme Court Justices voted against LGBT citizens serving their country in the Army, Marines, Air Force, Navy, or Coast Guard.  They did not vote against any other activity.  Only against serving their country.  See Adam Liptak, Supreme Court Revives Hurdle to the Military, New York Times, p. A1, Wednesday, January 23, 2019, online version at https://www.nytimes.com/2019/01/22/us/politics/transgender-ban-military-supreme-court.html (subscription may be required by the NYT).

Seriously?

Couldn't the 5 find something else to do with themselves during the shutdown, other than throw more pain into the situation?  Like maybe take some kind of positive action to ease the situation?  Even to delay decisions like this one until after the shutdown ended (as in, "timing is everything")?

Apparently not.

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