Texas shows CA the way in fighting Washington

Good morning! TGIF. It’s all Trump, all the time now.

Trump’s signing of executive orders Wednesday to begin planning for construction of a wall along the Mexican border, to withhold federal funds from local governments that don’t cooperate with immigration authorities and to increase efforts to track down illegal immigrants immediately prompted Senate President Kevin de Leon to announce plans to sue the Trump administration with the assistance of former U.S. Attorney General Eric Holder.

Further lawsuits seem likely as the Republican Trump continues to reverse policies that heavily Democratic California embraced under President Obama.

There’s a road map for how a large, wealthy state can resist a president whose edicts it doesn’t like: Texas in the past eight years under Obama.

CalWatchdog has more. 

In other news:

• Distractions: “In the wake of a turbulent election season and a disturbing new study on the credulity of many political news consumers, a handful of California legislators have put forward new bills designed to ensure the state’s public schools make students aware that not everything purporting to be factual reportage is as true or unbiased as it seems.” CalWatchdog has more.  

• Taxes: “GOP tax plan could boost prices for Californians’ (property) insurance,” reports CalWatchdog. 

• Trump’s wall: “With California’s political leaders in full resistance mode over President Trump’s executive order to build a wall on the Mexican border, Senate leader Kevin de León, Lt. Gov. Gavin Newsom and others have floated an idea to try to stop it: the state’s famously stringent environmental laws. But legal experts say any effort to use state and federal environmental rules to block the wall faces extremely slim chances of being successful.” The Los Angeles Times has more. 

• Sanctuary cities: “The executive order Trump issued Wednesday putting cities and counties on notice that they would lose federal funding if they didn’t start cooperating with immigration agents has broad implications for California, a state that aggressively protects its undocumented population from deportation. But while the order allowed Trump to boast that he is fulfilling a campaign pledge, it also commits him to a fight that he is not necessarily poised to win.” The Los Angeles Times has more. 

Legislature:

• Gone till Monday.

Gov. Brown:

• No public events announced.  

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @PhillipChenCA

President Trump’s signing of executive orders Wednesday to begin planning for construction of a wall along the Mexican border, to withhold federal funds from local governments that don’t cooperate with immigration authorities and to increase efforts to track down illegal immigrants immediately prompted Senate President Kevin de Leon, D-Los Angeles (right), to

There’s a road map for how a large, wealthy state can resist a president whose edicts it doesn’t like: Texas in the past eight years under Obama.

According to a running count kept by the Texas Tribune, Texas’ last two attorney generals — Greg Abbott, now the governor, and his successor, Ken Paxton — sued the Obama administration at least 48 times. Texas’ record: Seven wins, 12 losses, 20 cases pending and nine withdrawn.

State blocked Obama bid to protect undocumented

The cases run the gamut from huge wins to huge defeats.

The biggest victories came in a Texas-led lawsuit against Obama executive orders meant to protect 5 million illegal immigrants from risk of deportation. Arguing that such decisions amounted to rewriting plainly written existing laws, Texas prevailed at the appellate level and a 4-4 Supreme Court split last year left the lower-court ruling in place.

Texas also won complete or partial victories in a variety of cases in which it asserted the EPA had been excessively zealous in regulating or rejecting state pollution rules. In the most notable example, the state’s basic pollution control permitting program was upheld by the 5th U.S. Circuit Court of Appeals despite being trashed by federal regulators as weak and poorly managed.

The state also suffered sweeping defeats. Texas led a 13-state coalition challenging the legality of the Affordable Care Act, but it was rebuffed in a 5-4 Supreme Court ruling in 2012.

It lost a bid to keep federal authorities from relocating Syrian refugees in the Lone Star State, as well as five lawsuits contending the EPA exceeded its authority in such matters as greenhouse gas regulation and rejecting specific state pollution programs as inadequate.

Texas also has lawsuits pending challenging federal decrees that transgender students at schools receiving public funds can decide which bathrooms to use and a wide variety of other EPA rulings. But these suits may become moot if Trump’s administration abandons the federal decrees that led to Texas’ challenges.

The parallels between Texas and California go beyond a fight between conservative and liberal readings of the law, just with the roles reversed. As the Texas Tribune noted, the lawsuits were a “point of pride” for the state’s Republican political establishment, and GOP voters never balked at the state spending millions of taxpayer dollars on cases even if they went nowhere. In California, if Gov. Jerry Brown and new Attorney General Xavier Becerra adopt a similar approach, they will win props from state Democrats eager to do all they can to signal their disdain for the Trump administration.

Tougher to fight laws than executive orders

However, California may find rougher sledding than Texas. In most of the cases Texas won, it argued that the Obama administration had ignored limits on executive authority established by previous presidents and administrations. But on illegal immigration, for example, efforts to fight a Trump crackdown run up against the plain fact that federal law categorically states that the federal government can eject those who are not in the nation legally. Arguments that defend “sanctuary city” policies are driven by the ideas that they are humane and help persuade unauthorized immigrants to cooperate in reporting crime — not any legal precedent.

Another likely headache for California is that some of the sweeping policy changes that Trump wants won’t be achieved by executive orders but through the GOP-controlled Congress’ enactment of legislation.

Lt. Gov. Gavin Newsom told The Los Angeles Times earlier this month that he expected to be able to use federal and state environmental laws to sue to block, or at least stall, construction of a border wall. But just as the state Legislature can exempt stadiums being built by favored developers from such lawsuits, Congress can do so with the border wall. There is no right to challenge an inadequate environmental impact statement in the U.S. Constitution. The EPA was created by statute.

And there is a clear precedent for federal lawmakers to make such exemptions on national-security grounds. In 2003, Congress exempted training exercises by the U.S. military from many federal environmental laws.

The budget showed a $2 billion deficit — modest by historical standards, but worthy of the lawmakers’ attention — caused by an increase in government programs over the last few years and lagging revenues.

Brown said he didn’t want to “repeat mistakes of the past,” recalling the days of the state’s budget crisis. The proposed budget showed approximately $8 billion in the Rainy Day Fund by the end of 2017-18, which is 63 percent of the constitutional target, which Brown said was bigger than it seemed as he called for greater savings now. 

Independent analysts, as well as Brown’s budget experts, have cautioned against the state’s over-dependence on the wealthiest residents to fund the government. Brown lauded the state’s “progressive” tax system, where people with the most pay the most. But he said it also requires prudence.

“It doesn’t make sense to pretend we have money when we really don’t,” Brown said. 

Trump 

Recently, many prominent Democrats staked out positions as Trump antagonists, in interviews and even with the Legislature’s hiring of former U.S. Attorney General Eric Holder. Brown took a more measured approach by saying money wasn’t moved around to certain areas in anticipation of Trump, but left the door open for the May budget revision.

Brown seemed confident that the Affordable Care Act, which has expanded coverage to millions of Californians, wouldn’t go anywhere, noting that any repeal-and-replace proposal would have to get Democratic support in the Senate and that cutting health care for millions of people would be political suicide for Trump. 

Transportation and housing 

In response to the ongoing infrastructure funding woes, Brown proposed a “road improvement charge” of $65 per vehicle. In other car-related news, the gas tax will increase 2.1 cents per gallon automatically. 

As for housing, one of the other major unresolved issues facing the state, Brown proposed to re-appropriate an unused $400 million in funding for housing that was set aside in the last budget.

The budget does send $3.2 billion to local municipalities for affordable housing projects, but Brown said more needed to be done to spur housing development by cutting red tape, cutting delays and cutting “whatever expenses we can do without.”

“We have to bring down the cost structure of housing, not just subsidize,” Brown said.  

Is the Legislature’s contract with Fmr. U.S. Atty. Gen. legal?

Good morning! Happy Monday. The struggle between the state and the incoming Trump administration continues to plod along with no end in sight.

Last week, the Legislature’s Democratic leaders announced a contract with former U.S. Attorney General Eric Holder for outside counsel. While the Legislature’s decision made plenty of headlines, the move may violate the state Constitution, according to a California assemblyman.

Assemblyman Kevin Kiley, a Rocklin Republican, asked the California attorney general’s office on Friday whether Holder’s hiring for outside legal work in an impending battle with the incoming Trump administration violates a constitutional clause protecting against cronyism. 

“California courts have interpreted the civil service mandate of article VII of forbidding private contracting for services that are of a kind that persons selected through civil service could perform ‘adequately and competently,’” Kiley wrote, adding that there are almost 1,600 attorneys and support staff in the Legal Services Division of the state’s AG office.

CalWatchdog has more. 

In other news:

• Demographics: “Driven by rising out-migration and falling birth rates, California’s population growth has stalled, leading analysts to consider a possible forecast of a so-called ‘no-growth’ period in the future,” reports CalWatchdog. 

• AG appointment: “If confirmed as state attorney general, Xavier Becerra could lead California in fights against the incoming Trump administration on stop-and-frisk policing, a national registry of Muslims and rolling back regulation of carbon emissions. The Democratic congressman from Los Angeles highlighted those as proposed policies of President-elect Donald Trump with which he vehemently disagrees in his first public position statement since being tapped for the job: a letter to members of the special Assembly committee that will hold a confirmation hearing for Becerra on Tuesday.” The Sacramento Bee has more. 

• Solar Power: “Newly sworn-in state Sen. Scott Wiener, D-San Francisco, plans to introduce legislation Monday requiring all new construction in the state to include solar panels,” reports the San Francisco Chronicle. 

• Trump Transition: “While Democrats in Washington ratchet up their criticism of Treasury secretary nominee Steven Mnuchin, former Los Angeles Mayor Antonio Villaraigosa once offered public praise for the former Goldman Sachs executive.” Politico has more. 

Legislature:

• Assembly in at 1 p.m. Senate in at 2 p.m. 

Gov Brown: 

• No public events scheduled.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @GsmittySmith

Assemblyman Kevin Kiley, a Rocklin Republican, asked the California attorney general’s office on Friday whether Holder’s hiring for outside legal work in an impending battle with the incoming Trump administration violates a constitutional clause protecting against cronyism. 

“California courts have interpreted the civil service mandate of article VII of forbidding private contracting for services that are of a kind that persons selected through civil service could perform ‘adequately and competently,'” Kiley wrote, adding that there are almost 1,600 attorneys and support staff in the Legal Services Division of the state’s AG office.

Speaker Anthony Rendon, D-Paramount, and Senate President Pro Tempore Kevin de Leon, D-Los Angeles, announced on Thursday they’d decided to contract with Holder’s law firm, Convington & Burling, for three months, at $25,000 per month. 

The hiring of Covington & Burling was another move in an ongoing effort to bolster the state’s defenses against the perceived threat of the incoming Trump administration in areas of immigration, health care and the environment. Kiley argued that defending the state against the federal government is traditionally the role of the state AG. 

“In light of these facts, I respectfully ask your legal opinion as to whether the 1,592 attorneys and legal staff at the State Attorney General’s Office can perform ‘adequately and competently’ the legal services for which Covington & Burling has been retained by the Legislature,” Kiley wrote.

In a joint statement, Speaker Anthony Rendon, D-Paramount, and Senate President pro Tempore Kevin de León, D-Los Angeles, announced the agreement with Holder’s firm, Covington and Burling, to deal with “potential” challenges from the Trump administration. 

“The Legislature will work with the governor and our next attorney general to protect California’s economy and our sensible policies on climate change, health care, civil rights and immigration,” according to the joint statement, adding that Holder will lead a team of Covington and Burling lawyers to advise the Legislature in its “efforts to resist any attempts to roll back the progress California has made.”

The statement was short on specifics, like the terms of the agreement (including costs), the timing (prior to the swearing ins of both Trump and the presumptive CA attorney general, Xavier Becerra, who, if confirmed by the Legislature, will represent the state) and why the two leaders made the decision between themselves. Spokesmen for both leaders would not comment on these questions.

“It is all about branding and symbolism,” said John J. Pitney, Jr., a Roy P. Crocker professor of politics at Claremont McKenna College. “If Trump does take action on immigration, for instance, there are many qualified lawyers who specialize in that field. No disrespect to Holder, but U.S. attorneys general spend their time managing a bureaucracy, not arguing cases in court.”  

Republicans respond

Responses from Republicans in the Legislature trickled out throughout the day, with many arguing there are already plenty of problems facing the state that have nothing to do with Trump.

“This is a distraction from the very real problems facing everyday Californians,” said Assembly Republican Leader Chad Mayes, R-Yucca Valley. “Donald Trump did not cause California’s transportation crisis, nor did he play a role in our state’s sky-high housing costs.”

Newly-elected Assemblyman Vince Fong questioned the need for more counsel, calling the move “political.”

“The Democrat leadership’s hiring of Eric Holder to be a consultant dedicated to obstructing the Trump presidency is a waste of taxpayer dollars,” the Kern County Republican said in a statement. “The Legislature already has immediate access to legal counsel within the Legislature and in the Attorney General’s office.”

More details

The Sacramento Bee reported the contract with Covington and Burling will be initially for three months and the $25,000-per-month legal fee will be split between the Assembly and Senate, while the Los Angeles Times, citing legislative aides, reported the funds will “come out of both chambers’ operating budgets and would not require additional state funds.”

Holder served as U.S. attorney general from 2009 to 2015, under President Barack Obama. He served as a U.S. deputy attorney general under former President Bill Clinton from 1997 to 2001.

Holder was the first sitting member of a presidential cabinet to be held in contempt of Congress, in relation to the investigation into a botched federal law enforcement program, Operation Fast and Furious, where federal agents lost about 1,400 firearms, two of which were eventually found at the murder scene of a U.S. border agent. 

Lead levels plague eight CA areas

Good morning. Happy Hump Day. The Legislature returns today, although don’t expect too much action. But next week, Gov. Brown will introduce his budget and Rep. Xavier Becerra will have a confirmation hearing to be the state’s attorney general. So things won’t be quiet for long. 

We begin today with a story off the beaten path. The water contamination scandal in Flint, Michigan, triggered national outrage and prompted Congress last month to pass a bill rushing $120 million in federal aid to the city.

The local regulators who knew about the severity of lead contamination and protected themselves but not the community are facing criminal charges. That’s because a high presence of lead in the blood is associated with low IQs and cognitive problems and can be devastating for infants and children.

Now a massive study by Reuters — based on federal health data from 21 states and broken down by ZIP code — points to eight areas in California with problems as bad or worse than what is now seen in Flint, where 5 percent of tested children have elevated levels of lead in their blood. The national norm is 2.5 percent.

CalWatchdog has more.

In other news:

• “An Orange County assemblyman is under fire from his right, center and left over a column published last week titled: ‘California Democrats legalize child prostitution.’ The column set off a war of words over the difference between legalization and decriminalization, with critics panning the column as ‘misleading,’ ‘irresponsible’ and ‘an unsubstantiated hot take.'” CalWatchdog has more. 

• Democratic legislative leaders hired former U.S. Attorney General Eric Holder as outside counsel to “advise on potential legal challenges with the incoming Trump administration,” according to a statement sent this morning. Story coming later. 

• “California’s housing affordability challenges remain daunting and continue to increase, according to a draft report from the state’s Department of Housing and Community Development released Tuesday.” The Los Angeles Times has more. 

• “A series of powerful storms is set to soak California over the next week, bringing heavy rains, flooding risk in some creeks and 10 feet or more of new snow to the Sierra Nevada — the latest sign that the stranglehold of the state’s five-year drought is significantly weakening.” The San Jose Mercury News has more. 

Legislature:

• In today. Assembly at 1 p.m., Senate at 2 p.m. 

Gov. Brown:

• On vacation in Hawaii until Sunday, according to The Sacramento Bee. 

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @617Bball

An abuse of power

In the letter, obtained by the Huffington Post, Reps. Sam Farr, D-Calif., and Dana Rohrabacher, R-Calif., requested that DOJ Inspector General Michael Horowitz open an internal investigation into the department’s continued prosecutions of marijuana dispensaries, against what they said was the clear letter and intent of the law.

In its Appropriations Act for 2015, Congress had passed a provision introduced by Rohrabacher and Farr designed and intended to ward off federal interference with marijuana-related businesses operating legally under state law.

“We, the authors of the language, and our many colleagues — including those who opposed the amendment — laid on the record repeatedly that the intent and the language of the provision was to stop DOJ from interacting with anyone legitimately doing business in medical marijuana in accordance with state law,” wrote the Congressmen.

Signed into law by president Obama, the amendment received a second vote of approval from Representatives this summer. “As the marijuana provision is part of an annual funding bill that will expire,” noted the Huffington Post, “the lawmakers introduced an identical version again in June, which was reauthorized by the House of Representatives.”

In April, Farr and Rohrabacher had also demanded that Attorney General Eric Holder “stop prosecution of state-authorized medical marijuana dispensaries” in observance of the same provision, as the Orange County Register reported.

Federal legalese

But the Department of Justice chose to interpret the law in the most hostile manner possible, the lawmakers suggested, citing an April statement by DOJ spokesman Patrick Rodenbush. As the Los Angeles Times reported, Rodenbush said Rohrabacher-Farr, as the appropriations amendment was known, didn’t apply to prosecutions directed at persons or groups:

Rather, he said, it stops the department from “impeding the ability of states to carry out their medical marijuana laws,” contrary to some claims from people being prosecuted that the amendment blocks such prosecutions.

As the Times then observed, this “narrow interpretation of the law” had particularly strong implications in the San Francisco Bay Area, “where the Justice Department has initiated forfeiture proceedings against three medical marijuana dispensaries it considers to be in violation of federal law.”

Outgoing U.S. Attorney for Northern California Melinda Haag had become notorious among pro-pot advocates and businesspeople, joining “the three other regional U.S. attorneys in California in cracking down on medical marijuana dispensaries perceived to be large-scale commercial enterprises,” as Pleasanton Weekly recounted. One dispensary facing the brunt of Haag’s crusade, Harborside Health Center, met the news of her departure with what executive director Steve DeAngelo called “great relief and great satisfaction.”

“In Ms. Haag’s parting statement she said she felt her office had ‘accomplished most of our goals’ during her tenure,” DeAngelo said in a statement. “The one goal she most assuredly has not accomplished is closing down Harborside Health Center. We hope her successor will have a more finely tuned understanding of compassion and justice than Ms. Haag has displayed, and allow Harborside to focus on serving our patients instead of battling a court case that should never have been started.”

Conflicting actions

Although the Department of Justice could opt to ignore the mismatch between its conduct and the law, the law itself would hold them to account for doing so. At stake is the applicability of the Anti-Deficiency Act, as Farr and Rohrabacher argued; as Reason indicated, that law “makes it a crime to use federal money for purposes that are not approved by Congress.”

First came her response after Eric Holder announced he was leaving as attorney general. Instead of immediately saying she was not interested because she had just started her job at UC, she pointedly did not rule herself out in speculation about whom President Obama would pick to replace Holder. Her spokesman said she was “fully engaged” in her job running UC, which is not the same as saying “not interested, move along.”

Now the Washington Post reports that Napolitano is wading into the never-ending inside-the-Beltway fights over immigration policy:

Former homeland security secretary Janet Napolitano is supporting executive action by President Obama to change immigration policy if Congress fails to pass a broad overhaul, citing what she calls her successful 2012 push to delay deportations of many younger immigrants.

“If Congress refuses to act and perform its duties, then I think it’s appropriate for the executive to step in and use his authorities based on law . . . to take action in the immigration arena,’’ Napolitano, a lawyer and former U.S. attorney in Arizona, said in an exclusive interview with The Washington Post.

Napolitano is of course free to do whatever she wants to do with her life. There are some of us who never thought she was right for the UC presidency in the first place.

However, I have to wonder how many regents are wincing at the fact that the woman they gave one of the iconic jobs in American academia to just a year and a half ago already is positioning herself for a return to national politics.

It is most associated with employment discrimination lawsuits challenging standardized tests in government employment. In public education — at least until this week — the doctrine had mostly been invoked in litigation targeting the sharp differences in student discipline by race.

Take it away, The Federalist. This is from a May 2012 post:

“At the historic Edmund Pettis Bridge in Selma, Alabama, U.S. Secretary of Education Arne Duncan announced an initiative to examine disparities in achievement, academic opportunity, and discipline to determine whether schools across the country are discriminating against racial and ethnic minorities. 

“The Department of Education would use both data collection and investigations of individual school districts—called compliance reviews—as part of this initiative. The Department would seek to root out both direct discrimination and indirect discrimination, i.e., facially neutral policies and practices that have a disparate impact.

“This was a change in policy by the Obama Administration. The Department during the Bush Administration had not used ‘disparate impact analysis in its examination of complaints or compliance reviews.’ When the Department finds what it deems to be discrimination, Secretary Duncan noted, ‘it can ultimately withhold federal funds in extreme cases to schools and districts that refuse to remedy discrimination.’ The Department planned to begin thirty-eight compliance reviews by the end of the fiscal year, including reviews of discipline issues in five states.

“Secretary Duncan seemed to assume that disparities are caused by discrimination, whether intentional or unintentional. Martin Luther King, Jr. ‘would have been dismayed to learn of schools that seem to suspend and discipline only young African-American boys,’ he said. There are ‘deep’ and ‘pronounced disparities in discipline,’ and there is ‘still’ a ‘need to challenge policies which subsidize or needlessly result in grossly disparate impacts for children of color.’ 

Similarly, Attorney General Eric Holder said in a speech that it is ‘quite simply, unacceptable’ that ‘students of color’  are ‘disproportionately likely to be suspended or expelled,’ asserting that the disparities were at a minimum due to unintentional discrimination by schools.”

If conservatives were utterly dispassionate about the Vergara ruling, this assocation with Holder-think might bother them. But that’s not going to happen. A brutal setback for the CTA and CFT is going to be deeply enjoyable almost no matter what the context.