Monthly Archives: May 2023

Legal Issues Related to the Debt Ceiling

By tmess2 | Published May 27, 2023

With the Republicans once again playing a game of chicken with the debt limit, there has been a lot of chatter about options that the Biden Administration has if the Republicans continue to make unreasonable demands.

To understand the legal issues, it is necessary to understand the different legislative actions related to the debt ceiling.  First, there are the laws related to the budget process.  There are two key aspects to these laws, the first requires Congress to annually pass a budget resolution.  The problem with this law is that one Congress is unable to bind a future Congress.  So Congress does not always pass a budget resolution.  The key thing to remember is that a budget resolution is a concurrent resolution which means that it has to pass both houses but does not go to the President.  In other words, it is not a law.  Instead, the impact of the concurrent resolution is internal to the legislative process.  The budget resolution sets the broad limits for the two Appropriations Committees in drafting the annual appropriations bills.   Additionally, if a budget resolution passes, the budget resolution triggers the reconciliation process which allows the Senate to pass budget related bills without having to overcome the filibuster.  A budget resolution (like the President’s budget proposal which starts the budget process) will typically contain estimates/target numbers for the other components of the budget.  The budget laws also restrict the ability of the President to refuse to spend or to reallocate the money allocated in the budget.

And here is where we get to the actual laws at issue.  In thinking of the budget, there are three types of laws.  In any budget, there are two sides of the equation:  1) income/revenue; and 2) expenditures.  For the most part, the laws on the income side of the equation are tax laws.  (There are certain other things like mineral leases on federal land and user fees at federal facilities, but the primary source of revenue is from taxes).  By its nature, revenue is not entirely predictable.  If every investor tomorrow decided that now was a good time to sell their current stock holdings and buy an entirely new stock, that decision would trigger a significant amount of capital gains and capital losses which in turn would dramatically alter the total income taxes received by the federal government.  But, while there is a degree of unpredictability, there is also a good amount of predictability — subject to changes in the economic climate. In other words, the revenue estimate for any given year will be close but not exact. Continue Reading...

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Title 8 vs. Title 42 — A Brief Primer on Immigration Law

By tmess2 | Published May 14, 2023

This past week, the expiration of “Title 42” was a big headline in the news.  And, while it is too soon to be sure, it is likely that the expiration may end up being a tempest in a tea pot (not that the MAGA folks will ever admit this reality).  But to the extent that this comes up as a topic, here is some basic (admittedly oversimplified) immigration law for non-lawyers.

One of the major development in law in the late eighteenth and early nineteenth century was the Napoleonic Code in France.  Prior to Napoleon, when laws were enacted, they were recorded and published.  But you would need to search through every annual volume to see what the statutes were on any given topic.  The concept behind the Napoleonic Code was that in addition to the annual volumes of that year’s new statute, there would also be a collection organized by topic of the current laws in effect on a topic.  It took time for the idea to catch on her, but eventually, the U.S. organized its laws into the U.S. Code.

But there is one problem with the code system — where do you place a law in the code that impacts multiple topics.  When it comes to immigration law, most laws impacting immigration are found in Title 8 — the part of the U.S. Code governing immigration and naturalization.  However, there is also a title of the U.S. Code (Title 18) that contains most of the federal criminal statutes — which is why there are some things that are not allowed by Title 8 which are simply improper immigration and not criminal.  And for this discussion, there is Title 42 which contains laws related to Public Health and Welfare. Continue Reading...

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The Supreme Court and State Governments

By tmess2 | Published May 13, 2023

This year’s Supreme Court Term is now in the home stretch.  All oral arguments have been completed, and all that is left is for the Supreme Court to issue the decisions in the case.  (As of May 12, there are still 40 cases left to be decided over the next seven weeks.)  On Thursday, the Supreme Court issues an opinion in one of the sleeper cases of the term — National Pork Producers Council vs. Ross.  

The issue in the case is the validity of California’s laws requiring pork products sold in that state to meet certain criteria related to the proper treatment of the hogs prior to their slaughter.  As one can imagine, pork producers in other states do not like having to change how they raise their livestock in order to sell pork in California.  They would rather be able to find the most lenient state possible and raise their hogs in that state.  So they filed a challenge to the regulation based on the so-called “Dormant” Commerce Clause.  The Commerce Clauses gives Congress the authority to pass legislation that regulates interstate commerce.  Over the years, the Supreme Court has inferred from that grant of authority that their is an implied (or in legal speak, dormant) aspect of that grant of power that limits the ability of states to regulate interstate commerce.

In deciding this challenge, we got a rather unique alignment of Supreme Court justices.  And one of the reasons for that alignment is that Supreme Court decisions are not just about the current case.  They are about the next case.  The partisan politics of the Supreme Court (and it is impossible to deny that whatever used to be true, Supreme Court justices have become political actors placed on the court to serve specific political agendas) may dictate the preferred “rule of law” that the Supreme Court justices want to see in place including the blatant tossing out with little or no justification of long-established rules that contradict a justices preferred rule, but justices still like to apply those rules consistently from case to case.  Thus, underlying the decision in this case is what type of analysis should the Supreme Corut apply to the next case in which a red state requires manufacturers to not adopt “liberal policies” to their production processes. Continue Reading...

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Unions and the Screen Writers’ Strike

By tmess2 | Published May 7, 2023

With rare exceptions, labor disputes tend to get very little media attention.  A strike at your local supermarket only impacts the workers and the customers at the supermarket, and the customers are able to shift to another supermarket.  And the ones that would have major disruptions on major products tends to get resolved quickly.  A major car manufacture and the UAW know that a long-term strike benefits neither side; so both sides work hard to resolve things without a strike.

But a strike in the entertainment industry is different.  The strike gets front and center attention quickly — a strike in sports means that games are not played; a strike in movies/tv means that nothing new gets produced and only shows/movies that are already completed can be released.  But there is no readily available replacement.  Strikes tend to be industry-wide.  So it’s not just the Tennessee Titans that are unable to field a team, but every other team in the NFL too.  Likewise, it’s not just Saturday Night Live which is unable to broadcast a new show, but every other live scripted show.  And since people are used to seeing these shows/sporting events on a regular basis, the loss of the content is instantly noticed.  But, while the networks and leagues would like to not have the shutdown, they know that their customers will come back when things restart.  So “management” can cope with  the temporary disruption of a strike to some extent.  And the workers also know that the industry will be back in full force when the strike ends.  While there may be some lost paychecks, if they have banked some money in advance of the strike, the workers know that their jobs will probably be there in two to three months.   (Of course, the disruption might kill a particular show or movie, but there will be another show or movie around to hire the workers, and the loss of a season in the prime of their careers will have some negative impact on the career earnings of athletes.)

For all that screenwriters live an entirely different universe than most other workers. the current strike shares themes with the strikes in less glamourous income with two common issues being at the center of the dispute. Continue Reading...

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