Claims And Issues

MOVE FEDERAL RESERVE TO BORDER. HE WOULD NOT GET IN.

The current chief prospect for the Federal Reserve owes $75,000 in back taxes.  For 5 years.

If he were at the border trying to get into the United States, they would not let him in.

But he is not.  He is in Washington, D.C. trying to get into the United States Federal Reserve.

Odds are he is likely to make it in the current Federal Government.

See Alan Rappeport, Jim Tankersley and Glenn Thrush, Fed Pick Who Owes Taxes is Latest Example of Trump's Vetting Woes, New York Times, Friday, March 29, 2019, p. B3  (New York Times may charge for online access).

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MARTHA McSALLY and Dr. CHRISTINE BLASEY FORD.

These two people have gotten very different treatment in the corporate and social media.  Martha McSally alleges that she was raped long ago.  Dr. Christine Ford alleges that a person or persons attempted to rape her long ago.

I have tried to figure out the reasons that they have been treated differently so far.  I do not think that anyone should be mistreated because they say that they were sexually harassed or raped.  EVER.  Here is what else I have thought about.

Rape v. attempted rape?  Is that a reason for the different treatment?

Appointed a Republican Senator by the Republican Governor of Arizona v. earned a Doctorate?  How about that as a reason for their different treatment?  That does not seem right, but it is 2019 after all.

No-name assailant v. naming her assailant?  That does not seem right, either, but then again ....

Dr. Ford testified to her allegations under oath.  Senator McSally has not.  She has never testified to her rape allegations under oath, so far as I know.

None of these differences seems satisfactory to explain to me why these two people have been treated so differently, one with bending-over-backwards deference it seems, and the other treated as though she were the criminal rather than her alleged assailant.

One other difference that I can think of is this.  Dr. Ford was assaulted a second time, by people with an agenda that did not want her story to be told.  These people not only did not want to listen.  They did not want ANYONE ELSE to hear her testimony, either.

In the end, maybe that's a difference that explains the different treatment that these people have received.

It's not a good reason, but it's a reason, Heaven help us.

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SO LONG, SOUTHERN DISTRICT OF NEW YORK INVESTIGATIONS.

One of the next steps now will be for the current Attorney General to block investigations pending in U.S. Attorney's Offices across the nation, including in the Southern District of New York.

Or even more:  A press release or perhaps a letter telling us that the investigations exonerated everyone who has keys to the current Federal Government.

If any of these things happen you heard it hear first, as they say on a certain radio show.

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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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FLORIDA BAR FREE FAIR HOUSING LAW WEBINAR COMING IN APRIL!

The Florida Bar has announced that a free Fair Housing Law Webinar is coming up in April, courtesy of the Bar's Public Interest Law Section:

Please register for Fair Housing Law on Apr 25, 2019 12:00 PM EDT at: 

https://attendee.gotowebinar.com/register/6274806604176707843

Fair housing practice is no more complicated than any other area of the law, and lawyers should not hesitate to become involved in representing persons in fair housing actions. The amount of damage awards continues to increase in fair housing. Attorney’s fees are available to the prevailing party in court or at administrative agencies under the federal statutes and most state and local laws. The ability to obtain fees provides incentive for lawyers to take on cases for clients who are victims of discrimination. In many areas of the country, fair housing centers are available to assist the attorney in investigating and preparing the case. This CLE will explore the practice of fair housing law for the uninitiated.

After registering, you will receive a confirmation email containing information about joining the webinar.

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PAYDAY LOAN RULE PROPOSED DELAY.

On Saturday, March 16, 2019 I left these Comments on the CFPB's proposed new rule which would stay the 2017 Payday Loan Final Rule from taking effect.  The last day to leave YOUR Comments on this particular proposed new rule is Monday, March 18, 2019.

The CFPB has proposed a separate rule to repeal and replace the Payday Loan Rule.  Leave your Comments on that proposed rule by May 15, 2019.  It is Docket No. CFPB-2019-0006-0001 on https://www.regulations.gov.

 

March 16, 2019

 

Consumer Financial Protection Bureau

Online at:  https://www.regulations.gov

 

Re:    Payday, Vehicle Title, and Certain High-Cost Installment Loans;

          Delay of Compliance Date proposed rule.

          Docket No. CFPB-2019-0007

          RIN 3170-AA95

 

To the Director of the Consumer Financial Protection Bureau:

 

The Payday Loan Final Rule took effect on January 16, 2018.

          Your proposed postponement of its operative date was the subject of a "statement" which the CFPB did not issue until January 16, 2018.  A proposed rule for postponement of the Payday Loan Final Rule's operative date was published in the Federal Register more than a year after that, on February 14, 2019.

          Parenthetically, the CFPB also published a proposed rule on February 14, 2019, to repeal and replace the Payday Loan "addressing reconsideration of certain provisions" which you "published separately in this issue of the Federal Register."  84 F.R. at 4298.

 

1. As a matter of settled law, the Administrative Procedure Act does not permit an agency to effectively repeal a final rule simply by postponing its operative date. Therefore your proposed rule to postpone the operative date of the Payday Loan Final Rule is prohibited by the APA.

 

"The APA does not permit an agency to 'guide a future rule through the rulemaking process, promulgate a final rule, and then effectively repeal it, simply by indefinitely postponing its operative date.''  California v. U.S. Bureau of Land Mgt., 277 F. Supp. 3d 1106, 1121 (N.D. Cal. 2017), dismissed by agreement after mediation, 2018 WL 2735410 (9th Cir., March 15, 2018) (Corrigan, Circuit Mediator).  For the reason that the Administrative Procedure Act prohibits the postponement you have proposed in the subject rule, the CFPB's proposed stay rule is void.

 

2. The CFPB's claim to "discretion" does not preempt the Administrative Procedure Act and the serial claims of current Federal agencies to "proposed compliance date delays" are all subject to the APA including this one.

 

The CFPB's proposed new rule relies on "discretion" as its "Legal Authority" for what the CFPB calls "proposed compliance date delay."  There is no such discretion and what the CFPB is doing here is subject to the Administrative Procedure Act.

          The proposed new rule relies for its "Legal Authority" for its claim to "discretion," on Section 1031 of the Dodd-Frank Act "and each of the other legal authorities" cited in the CFPB's 2017 Final Rule.  If the "other legal authorities" actually existed that are now broadly claimed to support discretion in the CFPB's proposed new rule, now is the time to tell them.  See Bauer v. DeVos, 325 F. Supp. 3d 74, 108-09 (D.D.C. 2018) ("The arbitrary and capricious standard of the APA, however, requires that agencies 'provide an explanation that will enable the court to evaluate the agency's rationale at the time of decision.'").  If the authorities are not stated by the CFPB in its proposed new rule, then for purposes of the APA they do not exist.

          Section 1031 of the Dodd-Frank Act specifically provides as follows regarding rulemaking:

SEC. 1031. PROHIBITING UNFAIR, DECEPTIVE, OR ABUSIVE ACTS OR PRACTICES.

(a) IN GENERAL.—The Bureau may take any action authorized under subtitle E to prevent a covered person or service provider from committing or engaging in an unfair, deceptive, or abusive act or practice under Federal law in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service.

 (b) RULEMAKING.—The Bureau may prescribe rules applicable to a covered person or service provider identifying as unlawful, unfair, deceptive, or abusive acts or practices in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service. Rules under this section may include requirements for the purpose of preventing such acts or practices.

 

There is absolutely nothing about this statutory authorization to make rules that affords any agency "discretion" about changing the date for compliance with a previously issued Final Rule.

         The CFPB's invocation of the above-quoted Section 1031 illustrates the major point that the CFPB, as a creation of Congress, has limited authority.  An agency has only the authority conferred by Congress, and the powers necessarily implied from that authority.  Delaying the date for compliance with an established Final Rule is not among the powers necessarily implied from the rulemaking authority conferred upon the CFPB in Section 1031, quoted above.

        Since the CFPB lacks the "discretion" it claims as its Legal Authority to issue the subject proposed new stay rule, the subject proposed new stay rule is void and of no effect.

        More specifically, the recurring issue of "proposed compliance date delay" is an issue subject to the Administrative Procedure Act.  Internet searches have revealed what appears to be a serial use of this phrase in new rules proposed by agencies of the current Federal Government, all seemingly contained in attempts to delay or repeal pre-existing Final Rules, as here.

        To date, I was able to find one proposed rules change dated before 2017.  In 2003, the Office of Comptroller of the Currency claimed, without authority, that it would change the compliance date on a previously issued Final Rule.  An unchallenged OCC rule is not precedent.  Parenthetically, the OCC did not even bother to invent uncited "Legal Authority" to support its proposed power grab in its proposed rules change in 2003.

 

3.  The CFPB's proposed postponement rule is arbitrary and capricious because it clearly was not written to stay pending litigation but instead it was plainly written to stay the rules pending reconsideration. This is impermissible under the APA and so the CFPB's proposed stay or postponement rule is void.

 

Although the CFPB's proposed stay rule does not say it, presumably the CFPB is relying on the stay authority found in 5 U.S.C.A. § 705.  As you know, 5 USCA § 705 provides for a stay pending judicial review, but it requires a finding "that justice so requires[.]"  The CFPB's subject proposed stay rule is arbitrary and capricious because it plainly does not relate to a stay pending litigation but instead it clearly recites that it was written to stay the rules pending reconsideration of the 2017 Final Rule.

          The subject proposed rule does not even say that a stay pending litigation is the reason why the proposed stay rule was written.

          The subject proposed stay rule cannot provide for a stay pending judicial review under Section 705 because the litigation in question mentioned by the CFPB in its proposed stay rule, Community Fin. Serv's Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, (W.D. Tex. Case No. 1:18-cv-00295-LY), has been stayed as the CFPB mentioned.  84 F.R. at 4298 n.5, referencing Docket No. 29, the Court's Order filed on June 12, 2018 reciting in part that "this action is STAYED pending further order of the court."   The same Court entered a later order concluding "that the stay of litigation in this action ordered June 12, 2018, should be continued in full force and effect."  That Court's stay of litigation is still in full force and effect, unchanged by any further order after a review of the Clerk's electronic docket.

    That Court also purportedly stayed the effective date of the 2017 Payday Loan Final Rule.  Community Fin. Serv's Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, Dkt. No. 53, Order, filed November 6, 2018 (W.D. Tex. Case No. 1:18-cv-00295-LY).

     For all these reasons, the CFPB's proposed stay rule is arbitrary and capricious and therefore void and of no effect:

While there is no prohibition against having more than one justification for invoking Section 705, provided that one of them meets the statutory requirements, [the agency defendants] must show that they properly invoked the statutorily required ground of "pending judicial review."  Defendants have not done so here.

California v. U.S. Bureau of Land Mgt., 277 F. Supp. 3d at 1122.

 

 

4. The CFPB's proposed stay rule is arbitrary and capricious because (1) costs of compliance are an insufficient basis for a stay of an agency's final rule, and (2) "more immediate compliance dates" required by States does not give any reason to postpone the Federal Government's Payday Loan Final Rule.

 

Alternatively and cumulatively, the CFPB's proposed stay rule is arbitrary and capricious because it only takes into account the costs to the industry of complying with the Rule and completely ignores the benefits that would result from compliance.  California v. U.S. Bureau of Land Mgt., 277 F. Supp. 3d at 1122.

          The CFPB's proposed stay rule does not even set out a finding by the agency that justice requires the stay.  Instead, in the proposed rule the CFPB offers two asserted reasons for a stay.  The first reason is cost to the industry of compliance with the already-established final rule.  Costs of compliance are an insufficient basis for a stay of an agency's final rule.  In addition to the   California v. U.S. Bureau of Land Management decision which has already been mentioned, see, e.g., Bauer v. DeVos, 325 F. Supp. 3d at 107-08:  "The mere fact that parties would avoid the costs of complying with the existing regulations, however, is plainly insufficient to support a § 705 stay."

    The CFPB's second asserted reason for the proposed stay rule is that some States have adopted similar requirements under State law which have "more immediate compliance dates."  84 F.R. at 4299.  This is not a good reason, either, for a stay of the Federal Government's rule with a later compliance date.

    In sum, the proposed stay rule is really a reflection of an agency's change in position due to a change in the people in power.    An unacknowledged and unexplained inconsistency "is the hallmark of arbitrary and capricious decision-making."  Bauer v. DeVos, 325 F. Supp. 3d at 109. 

Conclusion.

For each and all of the foregoing reasons, whether taken separately or together, the CFPB's subject proposed stay rule is arbitrary and capricious.  As such, it is prohibited by the Administrative Procedure Act as was the case in earlier challenged iterations of much the same type of recent "rulemaking" by other Federal agencies, which Federal Courts have struck down. 

    Thank you for your consideration.

Sincerely,

Dennis Wall

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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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NATIONAL CONSUMER PROTECTION WEEK, FLORIDA CONSUMER PROTECTION WEBINAR TODAY!

"More links than Carter has pills" you might say:  The Florida Department of Agriculture and Consumer Services is the one with more links to consumer resources and information about ways that consumers can protect themselves.

Today, Friday, March 8, 2019, from 1:00 P.M. to 2:00 P.M., they are providing a webinar describing their services.  It is available free to all consumers, all you have to do is what I did the other day, and sign up on their website.  They do not seem to be advertising it today for some reason known only to them, but keep searching and you will find it on the Florida Department of Agriculture and Consumer Services website.  You can access their website to begin your search by using the hyperlink I have just inserted above.

Sorry for the relatively short notice, but I just went on their website this morning and realized that they do not seem to be promoting it.  So, take an extended lunch today or run the webinar on your computer in the background, or attend however you like!

If you miss the FDACS webinar today, they will likely upload it and make it accessible on their website in the near future.

Whether or not they upload it and make it accessible, I will upload it and make it accessible on this site.

Finally, if all that does not work, the name of their webinar is "FDACS: Making a Difference for Florida’s Consumers."  FDACS says that you can send your questions, comments and feedback to: Christopher.Green@freshfromflorida.com.

Fellow consumers, let's protect ourselves and begin by learning about the assistance that is already available to us!

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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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RAPE AT THE BORDER. AND DISTRACTIONS ENABLED BY THE CORPORATE MEDIA.

The subject is so upsetting that I have waited a day to write about it.   Even now it is not easy for me to write about this subject.  The subject is rape.

Reports in the recent past have documented "sexual assaults" suffered by children in the hands of the current Federal Government.

Instead of "sexual assaults," read "rape" in these reports.  Instead of "the current Federal Government," read the Department of Homeland Security and its rogue agencies, ICE and the Border Patrol.

The subject is upsetting in and of itself.  Rape is not easy to read about, although it is certainly easier to read about it than endure it.  Yesterday, the corporate media did what they so often do in the current era and channeled a distraction obviously much desired by DHS.  The distraction was printed in The New York Times in this case.

The distraction was supposed to be news.  It was a report by Manny Fernandez published under the print headline, Braving Heat and Coyotes to be Raped at the Border, New York Times, Monday, March 4, 2019, p. A1.  The article reported what is certainly not news, namely, that the criminals who extort money from migrants to take them to the border, also commit the crime of rape at the border.

While this is certainly not news, and that alone raises antennae as to why is this being reported as news, the timing is also suspect.  The DHS needs a distraction from the reports of its own internal investigations that migrant children are being raped while they are held in Federal custody.

Yesterday's Times article even contrasted the numbers involved if you looked hard enough.  On page A1 in the sixth paragraph of the article, The New York Times reported the results of the paper's own review of migrant rapes at the border by non-Government individuals.  Their results?  100 rapes in 20 years of people of all ages. The actual numbers are almost certainly higher than that.

Buried deep in the same article, on page A13, we can learn that in the last four years the Federal Government has received "more than 4,500 complaints" that migrant children have been raped while in the custody of the Federal Government.  (Emphasis added.)

The reporter who put his name to this article may have had to write it.  Perhaps he was told to write it, or perhaps he wrote it to keep his job.  Whatever the reason he wrote it, it is unacceptable to everyone else.

Today, the same newspaper reports that rape is not the only crime committed while people are held in Federal custody, and migrant children are not the only victims:  Murders too are being committed by people paid with our tax money while migrants are held in Federal custody.  See Sheri Fink and Caitlin Dickerson, Fevers, Fractures and Meager Care at the Border / Little if Any Aid for Migrants Worn and Battered by Journey, New York Times, Tuesday, March 5, 2019, p. A1.

So, there are questions about yesterday's reporting in the corporate media, in this case, in The New York Times:  Why report what everyone already knows and disguise it as "news" supposedly, and why the distraction now?

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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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Linked "Sunshine State Shanda Update" on Florida Health Insurance Plans!

A vital new article has been posted on Insureblog about the pitfalls of certain health insurance "plans" offered in Florida.  The link to the particular article, is here: MONDAY, FEBRUARY 11, 2019 Sunshine State Shanda Update.  Insureblog is a great blog for vital information like the information reported in the linked article, and Insureblog is one of the relatively few blogs listed on Claims and Issue's own Blogroll.

A sign of Insureblog's incomparable good taste:  Insureblog lists this blog on its site as one of several "Blogs of Interest".  Seriously, Insureblog offers seriously important reporting on health insurance plans and on health insurance issues for people like you and me who pay for the plans and sometimes have questions about them.  The linked article that they published this week is only one example among many.  Try it, you'll like it!

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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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IS ANYBODY THERE AT THE AMERICAN BAR ASSOCIATION BLAWGS DIRECTORY?

Does anyone know how to get the attention of the American Bar Association Blawgs Directory?  This is their web address:  www.abajournal.com/blawgs/.  I have been blogging since 2006 and I have listed both of my two blogs on the ABA Blawgs since then.  (When the ABA was keeping these statistics, my 2 blogs were No. 1 and No. 2 in their respective categories.)

I have tried a lot to contact them especially in the past four months, but I am asking now for your help on how to get their attention.  That's something different apparently.

You can contact them here, they say:  Lee.Rawles@americanbar.org.  But I am asking about getting their attention.  In particular, has anyone listed a blog on the ABA's Blawg Directory?  (The ABA uses the word "blawg" to describe a blog about things related to law.)

Over the past 4 months, I have emailed them 3 or 4 times to tell them that they need to use the current (for the last eight months or so) feed on this blog, which is https://feeds.feedblitz.com/claimsissues.  Instead, all that time the ABA has incorrectly said this about the feed on this blog:  "This headline feed is not available."  I just want them to fix their mistake when it comes down to it.

Thanks.  I appreciate all the help I can get, not just in this, but in everything.

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