The Federal Government’s Obligations to the States

January 29, 2016January 30, 2016 Frank Kuchar

When we look at the intrusiveness of the federal government into our lives, we should step back and ask “Where is my state government?” It was the states, acting as independent nation-states which agreed to join together as a union under a federal constitution instead of its then current confederacy. In so doing, they did not give up their independence or authority completely, but only in certain limited, defined areas. It was the intent of our founders that the state legislatures should be our protectors against assaults against our liberties and the authority of the states by the federal government, as noted by Alexander Hamilton in The Federalist No. 85:

“We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

In examining the areas in which the federal government is to act in behalf of the states, they are limited (in broad manner) to the following:

From Article I, Section 8 of the Constitution:

To negotiate on behalf of the states with foreign nations in matters of commerce or other treaties;
To establish laws regulating naturalization as it relates to citizenship;
To coin money as a uniform standard of exchange among the states (an action prohibited to the states in Section 9);
To establish post offices and post roads between the states;
To provide for a military in defense of the states.

From Article III, Section 2:

To act as an arbitrator in disputes between two or more states.

From Article IV:

Section 2 – To guarantee the rights of citizens in each state are honored by the other states.
Section 4 –
- To guarantee that each state shall have a republican form of government;
- To protect the states from invasion and aiding in curbing domestic violence when requested by the legislature of the state in need of assistance.

In light of these I ask – “How’s the national government doing in regards to fulfilling its obligations?” I can’t see where it is earning a passing grade in any of these areas. Our biggest problem in the destruction of our liberties by the national government stems, I believe, from its utter rejection of its first obligation in Article IV, Section 4 above.

Consider the recent ruling of the SCOTUS on marriage in which it has forced states that have previously rejected recognition of gay marriage that they must do so. When citizens of a state through their representatives have said they do not wish to recognize such marriages are told by the national government they must, then the republican form of government in that state has been destroyed. Or again, if the citizens of a state through their legislators decide they wish to have restrictive gun laws, for the national government to step in and countermand the laws of that state, then once more, the republican form of government in that state has been destroyed.

There are many more such examples I could list similar to these two, but I hope you see the point. The federal government is restricted to a few and defined (in the words of James Madison) areas, and those left to the states are broad and undefined. I would submit that given the current condition of world affairs, the federal government should butt out of the business of the states and start concentrating on its obligations to the states, and that it is time for the states to start demanding that the federal government honor its obligations, starting with the one in Article IV, Section 4, Clause 1.

-January 29, 2016

This Land’s NOT Your Land, This Land’s NOT My Land…

January 29, 2016 Frank Kuchar

I remember singing “This land is your land, this land is my land” in elementary music classes, but my how the sentiment has changed from “is” to “not”! We have witnessed some startling developments as related to our Constitutional rights this past week in the confrontation between rancher Cliven Bundy and the Federal Department of the Bureau of Land Management. You can read the news stories and blog essays about what happened there but I want to take a few paragraphs to delve below the surface of these events.

(As an aside, in the standoff between armed citizens and those armed members of this government agency, we have witnessed the precise reason why we have the second amendment right to bear arms – to resist the tyrannical overreach of the central government as well as the further trampling upon our Constitutional right of free speech when these government agents limited such speech to only certain restricted areas.)

There are some basic Constitutionally-related issues that need to be addressed. First, who controls the land that is in dispute, and the corollary to it, who should control that land, Nevada or Washington DC? Second, should any government entity control the land to begin with? Third, if the land is “owned” by the state of Nevada, under what Constitutional authority does the federal government have in interfering with how the land is used?

Let us begin by turning to our Constitution and reading what properties it authorizes the general government to “own”. Article I Section 8 lists the “enumerated powers” of the general government, and within those powers are given the kinds of properties it may possess: (1) Post offices and post roads, (2) the District of the seat of the government, (3) Forts, (4) Magazines, (5) Arsenals, (6) Dockyards, and (7) other “needful” buildings. All of these properties were to be purchased by the general government upon the consent of legislature of the state from which the property was to be acquired. The Union of the States did acquire property by other means, namely purchasing land from foreign countries (e.g., the “Louisiana Purchase”, Alaska) or as a result of war (Arizona, New Mexico, California, etc). However, once these territories were divided into states, those states became as much a sovereign entity as the original thirteen. Further, Article IV, Section 3 states that Congress shall have the power to either dispose of its territory or property as well as “make all needful Rules and Regulations” regarding said territory.

The general government owns approximately 85% of the state of Nevada, which pretty much destroys any notion of state sovereignty as far as the citizens of Nevada are concerned. There is a dispute in this case as to whether or not the grazing range used by Mr. Bundy is federal or, as he alleges, land properly belonging to Nevada. It appears that the property is technically federal land. So the question is, does the property in Nevada at the heart of the dispute fall into any of those seven categories of property listed in Article I Section 8 of the Constitution, and if not, then even though Nevada may have at some point ceded the land to the general government, such would be an unconstitutional exchange. The federal government has no business being in possession of that land. It should belong to the citizens of Nevada to either sell to private individuals/companies or lease to ranchers such as Mr. Bundy.

Therefore, since the “federal” government has no constitutional right to own that land, the land should revert back to the state of Nevada, and as Nevada is a sovereign entity, the “federal” government has no right to interfere in how the land is used. This is why I advocate for the return of all lands and property currently owned by the general government that do not fall within those above listed categories of the Constitution back to the states wherein such property is located.

-April 23, 2014

2016 – The Obamacare Hammer Has Dropped

January 22, 2016 Frank Kuchar

This year, in addition to receiving your W-2 tax form from your employer, you are going to receive a Form 1095-C. This is a form that is now required under the so-called “Affordable Care Act.” Unless you work in your company’s payroll or benefits’ departments, you are probably not aware of the burden these departments are experiencing in producing these forms. As I am a payroll and benefits professional and have just finished completing these forms for my employer, allow me to share just how burdensome these reporting requirements are on businesses. (Oh, by the way, the Act also requires your insurance carrier to send you a Form 1095-B as well).

The form requires employers to indicate on one line whether or not you were offered insurance coverage that met the minimum standards as required by the Act. There are a number of different codes that must be used, depending upon certain parameters. Unless the code is the same for all twelve months of the year, the proper code for each month must be recorded in a box for that month. On a second line, businesses are required to record in a box for each month, unless it was the same for all twelve, whether you enrolled in the coverage offered, or if not, the appropriate code indicating why you didn’t (e.g., you were not an employee at the time, you were an employee but was in a probationary period, etc.). Obviously the codes in each month’s box on these two lines must match up (in other words, you could not have the code for having been offered insurance on one line if on the second line the code indicates you were not yet an employee).

If your company has the misfortune to be “self-insured”, it must also list the names of the dependents covered under the plan as well as their social security numbers (the employer is expected to make at least three “good faith” efforts to obtain these numbers in case they are not in a database kept by the company).

Unless you work for a large company that has a robust payroll/benefits accounting system that has been modified to track and produce this data, this information is not readily available in their databases. Consequently it must be compiled from perhaps multiple places into an Excel spreadsheet for example and then merged into a template (that you have to create) so that you can then print the information onto the required form in the proper boxes.

Once these are distributed to the employees, the employer must then report a summary of this information on a Form 1094 which requires a month-by-month accounting of how many employees were active on a particular day of the month and how many of them were eligible for insurance as of the first of that month. This form and a copy of all of the Form 1095-Cs must then be forwarded to the IRS so that the Obamacare “Gestapo” can be sure that you have the required coverage and if not, to impose a penalty – oh excuse me Chief Justice Roberts – a tax on you for your failure to acquire the mandated minimum coverage (or fine your employer for not offering the required insurance).

So now you have an insider’s perspective on the regulatory hammer that has fallen on both your employer and insurance carrier. With these compliance costs hammering businesses and insurers, is it any wonder that premiums are going up and businesses are reluctant to hire more full-time employees or have the profits necessary to expand and hire?

-January 22, 2016

A Tale of Two Speeches

January 15, 2016 Frank Kuchar

This past Tuesday President Obama gave the final “State of the Union” address of his presidency. I’ve noticed over the years that in every speech any of our recent presidents have given, they always proclaim “and the state of our union is strong.” This President’s final speech ended on that proclamation, but such could not be further from the truth.

We have seen our nation sorely divided at several times during our history. The Federalists under John Adams versus the Republicans led by Thomas Jefferson. The southern states versus the northern states throughout most of our history. Racial divisions, economic divisions, etc have at times been severe, and today these are as prominent as they have not been for some time, thanks in large part to this president’s leadership (or lack of) and agenda.

Today, these speeches by the sitting president have turned into a big production with little relation to what was originally intended by the founders. Any more, they are nothing more than a big “pep rally” where the party In power gives itself a huge “pat on the back” and a long laundry list of “ornaments” it wants to “hang on the tree” of government expansion.

Such was not always the case. As a matter of fact, if you read some of these addresses by our early presidents you will see where they read more like a corporate annual report – facts, plans and real accounting of revenues and expenditures. Not only this, but in some instances the speeches were not even delivered orally, but rather were sent to the Congress in letter form.

So, by way of example, I close by sharing with you some quotes from President Thomas Jefferson’s first “Annual Message” (as it was called then), and you can compare the tenor of it with what you heard on Tuesday evening:

“When we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices or officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. I will cause to be laid before you an essay toward a statement of those who, under public employment of various kinds, draw money from the treasury or from our citizens. Time has not permitted a perfect enumeration, the ramifications of office being too multipled and remote to be completely traced in a first trial. Among those who are dependent on executive discretion, I have begun the reduction of what was deemed necessary. The expenses of diplomatic agency have been considerably diminished. The inspectors of internal revenue who were found to obstruct the accountability of the institution, have been discontinued. Several agencies created by executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law, so as to subject its exercises to legislative inspection and sanction. Other reformations of the same kind will be pursued with that caution which is requisite in removing useless things, not to injure what is retained….

Considering the general tendency to multiply offices and dependencies, and to increase expense to the ultimate term of burden which the citizen can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it may never be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, government shall itself consume the residue of what it was instituted to guard.

In our care, too, of the public contributions intrusted to our direction, it would be prudent to multiply barriers against their dissipation, by appropriating specific sums to every specific purpose susceptible of definition; by disallowing applications of money varying from the appropriation in object, or transcending it in amount; by reducing the undefined field of contingencies, and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money where the examination may be prompt, efficacious, and uniform.”

This is just a sample of what a real President, intent upon upholding the Constitution he took an oath to protect and having an interest in securing our freedom and liberties would say. Alas, this is not the kind of rhetoric we heard on Tuesday evening.

-January 15, 2016

Checkmate

January 8, 2016 Frank Kuchar

In the game of chess two sides struggle to keep the each other’s power in check so as to protect their “king.” When you consider how our Constitution structures our republic according to the concept of federalism, you can see how it is much like a game of chess. In this case the struggle is not between pieces in a game, but rather between the forces of tyranny and individuals seeking to preserve their freedom and liberties.

In the game of chess, each piece has its own unique role to play, with its own level of power and ability to affect the outcome of the game. Like in chess where there are five pieces that work in concert to protect the king, within our Constitution there also exists five “checks-and-balances” against the forces of tyranny.

Within the federal government we have the three departments that are supposed to serve as a check against the excesses of one another. Whenever any one of these departments fails to serve its role as a check against the encroaching, extra-constitutional power of the other two, it is as though in the game of chess that piece has been “captured” by the opposing force and removed from the board and is no longer effective in the outcome of the game.

Outside the federal government are the states which, in a system of federalism, are sovereign in their sphere of authority which they retained under the Constitution. During the Constitutional Convention in 1787, the state ratification debates and the essays that emerged from those debates (namely the writings of the Anti-Federalists and the Federalist Papers authored by Hamilton, Madison and Jay), the states were repeatedly avowed to be the guardians against tyrannical overreach by the federal government. Yet, like the branches of the federal government, when the states abdicated their sovereignty in the areas retained by them under the Constitution they too have been “captured” and “removed from the game.”

This leaves the final and most powerful “piece” in this “chess match” – the queen, which in this case is the American people. It is “We the People” who hold sovereignty over both state and federal government, and it is “We the People” who are to be the ultimate deciders in this match. However, if the “queen” is unaware or not concerned as to its crucial role, it has in effect allowed itself to be cornered and though not necessarily “off the board”, it might as well be. You may consider yourself to be more of a “pawn” and not the powerful “queen”, but together, united, the American people can be an unstoppable force against this surge of tyranny washing upon the shore of our liberties.

In chess, if a pawn reaches the back line of the opposing side of the board, it can elect to have a previously captured piece restored to the board in its place. So it is in our struggle to preserve freedom. Though it appears as if Congress has been “captured” in that it has refused to blunt the excesses of both the judiciary and executive branches, it can be restored if “We the People” elect constitutionally-minded men and women to serve in that body. We can restore the power of the states by putting men and women in our state offices who will recognize and reassert their constitutionally-guaranteed roles as a shield against federal encroachment. And finally, if the people of this once great republic will awaken to this danger and band together, we can put the “king” of tyrannical governmental power in check; failure to do so will allow tyranny to put our “king” of freedom in checkmate.

-January 8, 2016