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Posts published in February 2017

Unintended consequences


Every so often some group or another decides that the only way to bring about the result they are promoting is to convene an independent convention of the states to amend the Constitution.

Although it may sound perfectly reasonable, and although the subject matter being promoted may seem to be stalled from achieving the desired Constitutional action any other way, the process of getting there through a convention of the states is a terrible idea with potentially terrible consequences for a variety of complicated and technical, but very sound legal and historical reasons.

This fever is afoot again in Idaho, this year in the form of a Senate Concurrent Resolution now pending in the Idaho State Senate. SCR 108 is application to Congress to add Idaho’s name to a list of states that are requesting a constitutional convention. When this list reaches three-fourths of the states, or 35 in number, Article V of the United States Constitution mandates that Congress convene a convention.

The resolution was just reported out of the Senate State Affairs committee on a closely divided 5-4 vote. It will be on the floor of the Senate next for more debate and a full vote. Some 28 states have already adopted similar resolutions, with Wyoming and Arizona expected to do so shortly. This would make Idaho the 31st state to jump aboard, and is giving the current effort somewhat the look of a bandwagon – or a steamroller.

For the purpose of the analysis presented here, it does not matter that the subject of the proposed amendment, being a balanced budget amendment forbidding deficit spending on the national level, would absolutely lead to economic disasters of titanic proportions resulting in both domestic and world-wide catastrophes of enormous and immediate significance. More will come on this subject later. The point here is that the very idea of a separate constitutional convention all by itself, no matter what the subject or purpose, is wrong-headed, risky, and totally unnecessary.

If there truly was a compelling need for a constitutional amendment, there is no need to call for a separate convention of the states to start the process. We have a perfectly adequate assembly of delegates from every state that is in essentially continuous session year round in Washington D.C., being, of course, the United States Congress, which already has full authority under Article V of the Constitution to start the process of amendment at any time. Thirty-three amendments have been proposed by Congress and sent to the states for their consideration, and twenty-seven have been ratified and incorporated into the Constitution. The point here is that there is a perfectly acceptable procedure for starting a constitutional amendment in the Congress; we know how to do it, we know how to keep it under control, and we know that the procedure works.

There is already pending before Congress a proposal to amend the Constitution in exactly the manner asked for in the Idaho resolution. Similar balanced budget proposals have been submitted in almost every session of Congress since at least the 1930’s; none have ever passed. Only a few have ever seen the floor for a vote as most disappear into the bowels of the germane committees, never to be heard from again. But the fact that Congress has been unable or unwilling to pass a proposed amendment on this subject is not an argument for going around Congress. If anything, it is an argument that the subject is deeper that it appears on the surface, and requires more careful analysis before we go leaping off a cliff. There is no acceptable argument for going around the established procedure and attempting a process that is completely untested and presents so many risks.

What is missing from any general discussion of amending the Constitution by convention is any explanation of exactly how the process might come about. The Constitution provides no guidance. There is no provision in the Constitution or elsewhere on how many delegates are to be included, how they are to be allocated among the states, how they are to be selected from within the states, or how they or their states are to vote. Additional questions on such issues as whether methods can differ from state to state, whether the process should be partisan or non-partisan, the cost of it all, and the source of funding, are all unanswered. Given the realities of today’s Congress, these questions alone are enough to predict that the only result of congressional action will be a Gordian knot. Many, if not most knowledgeable observers predict outright chaos if Congress even attempts to convene a convention.

The proponents argue that under their proposal, the convention call will be for the limited purpose of taking up the subject amendment only, thinking that this removes the chance of chaotic expansion. They are wrong. There is no provision in Article V of the Constitution for limiting the process of amendment by convention, nor does the Constitution elsewhere grant Congress the power to impose such limits. Without some limitation defining the enumerated power being expressed within the Constitution, most scholars agree that Congress would have no power to engraft such a limitation on its own.

Recall that the Constitutional Convention of 1787 was originally begun in Annapolis for the limited purpose of amending the existing Articles of Confederation to insert some measures to improve foreign trade. Then, once the convention was convened, it promptly moved itself to Philadelphia, adopted new rules, and disappeared into closed session. It emerged September of 1787 with a brand new Constitution that completely overhauled the federal government.

It is the consensus of respected historians, legal experts and Constitutional scholars who have examined this issue that any convention convened under Article V could not be limited as to scope or subject matter. Once assembled, and once organized, the new convention could write its own rules, declare its own scope of inquiry, and go wherever it pleased – just as the Constitutional Convention did in 1787.

While it may be unlikely that any convention of states would lead us completely off the rails, it is entirely likely that all sorts of additional issues of the day would come up as different interest groups suddenly insisted upon their urgently needed matter being attended to by the convention. Term limits, gun rights, abortion, the establishment clause, judicial independence, prisoners’ rights, gay marriage and LGBT issues come immediately to mind, as well as the panoply of prisoner’s rights, privacy surrounding the cybernet, and personal freedoms in the shadow of terrorism. There are undoubtedly others. The ACLU’s hair is on fire.

Whether the delegates might voluntarily follow any limitations imposed by Congress and confine themselves exclusively to the subject matter of the call, or ignore the limits and wander off on their own, is a question that simply cannot be answered in advance. The mere possibility of an untethered convention, no matter how carefully constructed and no matter how well intentioned, rummaging through 230 years of Constitutional history and adding to or modifying selected items here and there at their whim, whose work would then be presented for approval by the states in total, with no opportunity for further editing or revision of any of the individual elements, horrifies most. In the past, the mere risk of this happening has been sufficient to bury the idea of a constitutional convention for good.

Given the ability of Congress to act itself in starting a Constitutional amendment if the issue was truly of vital national interest, coupled with the risks and uncertainties of getting an independent convention organized, the probabilities of endless political wrangling over partisan issues, and the huge expense of it all, and adding the uncertainties of what a rogue convention might come up with, it should be clear to all that the decision should be a “no” vote on SCR 108.

Better not bet the farm on it, though.

What rule of law?


When future historians write of these years in which we’re living, the common thread will likely be how divided - how splintered - how fractured - was our nation and nearly all political, cultural and societal relationships within its structure. How could they not?

Pick your own example for those historians. Pick a national subject like politics. Or a personal subject like religion. Pick almost any “Mom and Apple Pie” topic. You’ll almost certainly get an argument from somebody.

Divisions are open and deep. Even those who’ve been saying “Give him/them/someone a chance” have quieted down. Public debate has largely lost all tones of civility and courtesy while respect for a different viewpoint is as hard to find as truth in the White House.

No one knows how all this will shake out. But it will. Eventually.

There’s one area of our current trials of divisiveness I don’t hear much about - the subject of the rule of law. In my four score years, the rule of law has been a constant. Whatever the issue - whomever the protagonists - however divided - constancy of the law was simply taken for granted. Disrespect it - break it - ignore it - and there were consequences.

Now, our lives are filled with individuals, political entities and even government itself flouting the law and, seemingly, getting away with it.

A few years back, many county sheriffs across the country decided not to enforce any new gun laws - state or federal. They announced to all - including the federal government - that if its duly appointed agents came into the various states to enforce new laws, they’d be arrested and jailed. The rule of law? Ignored.

More recently, in Southern Oregon, Nevada, Utah, Montana and elsewhere, federal agents attempting to enforce federal laws on BLM and U.S. Forest Service lands, were faced by armed civilians who wouldn’t be moved and law enforcement backed down. In one case in Oregon, even the regional BLM office was closed and the agents transferred. Trespassing? Armed insurgence? Rule of law?

Several major cities across the country - and the entire states of New York and California - have told the President and the Department of Justice they will ignore federal orders and continue to be “sanctuaries” for illegal immigrants. Rule of law?

Washington State Governor Inslee has issued an order telling state employees not to follow federal executive orders on immigration. Oregon’s Brown is doing much the same. What of the rule of law?

There are dozens more examples. The law says one thing; local government says another. Feds say “do this” and other elected officials say “No.”

There are laws on the books of various levels of government I haven’t agreed with for years. There’ve been regulations by the pile I’ve not liked most of my adult life. Our “unfit-for-any-public-office” President has been throwing executive orders this way and that for over a month. Haven’t found one yet that seems necessary and deserving of my obedience. And he’s been flouting the law and the Constitution even as he holds elected office

But - what about the rule of law? Without it - without all of us respecting and following our laws - where is this nation heading? What will be our national future if the various parts that make up the whole of our government pick and choose which laws will be followed and which ignored?

The guy sitting in the Oval Office today has the respect of only a minority of Americans. A significant majority wants him gone. He’s the punch line of social media - the butt of comedians everywhere. He’s unsuited for his job and has surrounded himself with equally unqualified minions who seem scared to death of the guy. He’s frightened and confused heads of government around the world. Honesty, integrity, moral character and respect for the office have become victims of continual lies about everything. Then, there’s his top aide, Steve Bannon, using Trump for his own purposes.

In short, the President himself has created an atmosphere which makes respect for him and his pronouncements impossible to accept by others who are far more equal to their public tasks. Many have reached a point they can no longer accept guidance from someone so obviously flawed who represents thinking antithetical to good and proper governing. Many are refusing to obey.

The rule of law is what’s at stake here. The foundation of a civilized society and the basic precept that creates the order in which that society has its being.

We are seeing ruptures in that foundation. What future will this nation have if that foundation breaks?

Idaho Briefing – February 27

This is a summary of a few items in the Idaho Weekly Briefing for February 6. Interested in subscribing? Send us a note at

The Wilderness Society and Idaho Conservation League released results of new research on February 22 that reveal what appear to be widespread violations of the Idaho constitutional limit on how much land the State Land Board can sell to private parties. The new findings further deflate claims by public land takeover advocates that Idaho citizens won’t be locked out of their forests and recreation lands if they are given to the state.

Staff from the Idaho Public Utilities Commission will conduct a public workshop for Idaho Power Company customers on Tuesday, March 21 at 7 p.m., regarding the utility’s application to accelerate depreciation for its share of the Valmy, Nevada, coal plant.

The Bureau of Reclamation and the U.S. Army Corps of Engineers will continue to increase flows from Lucky Peak Dam beginning today due to above-normal winter precipitation in the Boise River drainage.

The Idaho Department of Labor is actively investigating a scam where job seekers are receiving fraudulent emails with the subject line of “Job Offer” from a company called Juno Publishing Limited.

Nampa residents will find a new and easier-to-use website when they visit the city’s website next time. The city also modernized the Nampa logo, giving it fresh, brighter colors.

Water digest – week of Feb 27

Water rights weekly report for January 9. For much more news, links and detail, see the National Water Rights Digest.

The 9th Circuit Court of Appeals on February 21 held that a local California water authority did not have standing to challenge Department of Interior and Bureau of Reclamation decisions on water flow based on endangered species considerations. San Luis & Delta-Mendota Water Authority v. Kevin Haugrud wound up affirming federal agency obligations to take responsibility for considering endangered species considerations.

Despite objections from many water suppliers that drought conditions have ended, the State Water Resources Control Board this week voted unanimously to extend emergency water conservation regulations throughout California.

The largest coal-fired power plant in the west, the Navajo Generating Station in northeast Arizona, is proposed for an end of operations in 2019. It is a heavy water used in a parched region. The plant uses a significant amount of water, much of it from Lake Powell on the Colorado River system. What would happen to it if the plant stops operations?

photo/At the Oroville Dam in California, a partial view of the emergency spillway (left) and the concrete structure containing the gates for the main service spillway (right)

The impact, not the numbers


Last May, I wrote about a report from the Wilderness Society contending that since statehood, 41 percent of the “endowment” lands Idaho originally received from the federal government had been sold.

A couple of weeks later, the Department of Lands wrote to take issue with the Society’s numbers, especially with the 41 percent figure - the correct figure would have been about a third. Since the reply was widely disseminated in news stories at the time, and since the numbers differ largely on the relatively technical basis of what you choose to include or not, I didn’t return to it in a later column because whether the amount was 41 percent or 33 percent, it still was a lot. The Society’s basic point, that a lot of land had been sold off, appeared to remain, though no fine point was put on its implications.

Last week, another shoe dropped, this one less about the numbers than about the meaning of the transactions. This came in the form of new research from the Society and the Idaho Conservation League that, in their words, “reveal what appear to be widespread violations of the Idaho constitutional limit on how much land the State Land Board can sell to private parties. The new findings further deflate claims by public land takeover advocates that Idaho citizens won’t be locked out of their forests and recreation lands if they are given to the state. The sales in question span nearly a century, from statehood in 1890 until sales in the 1980s.”

That makes them pertinent indeed. As the groups also pointed out, “The Idaho Legislature is also considering a measure (Senate Bill 1065) from Senator Steve Vick (R-Dalton Gardens) that requires all state agencies to prioritize privatization of state lands.”

And the response this time from the Department of Lands was a little different. Director Tom Schultz released a statement saying, “At this time I am not prepared to concur with or dispute the conclusions reached by the Wilderness Society. Even though no discrepancies have been identified over the past 30 years, I intend to hire an independent auditor to review IDL’s records and advise the Land Board on its findings. I understand that the analysis by the Wilderness Society may raise concerns about land sales, and want to assure Idahoans that there are measures in place today to ensure that individuals and businesses do not purchase lands exceeding constitutional limitations.”

(The department did point out that there appear to have been no instances of such sales in at least the last 30 years or so.)

Because it had to fulfill detailed information requests from the environmental groups some time ago, the department has been aware for a while this question has been pursued. If it had an easy response to the allegation, it would have offered it. By assigning the case to an independent auditor, the declaration of problematic sales (assuming the groups’ research is on track) would come from a non-state employee, which would be a little easier for everyone on the state side to swallow.

What this suggests is that the allegation, of regular extra-constitutional land sales to private parties across much of Idaho’s history, has a good chance of holding up.

What if anything will be done about it is another question, further down the road.

A master mystery

A guest submission by Levi B. Cavener, a special education teacher in Caldwell, Idaho. He blogs at IdahosPromise.Org

If you are a teacher who feels a little lost about the Master Teacher Premium--which is now also apparently being referred to as the Master Educator Premium--don't feel bad. The legislature is equally lost in the program of their own making.

A survivor of the shipwrecked tiered licensure, the master teacher premium was hatched as a way to get some educators closer to the original sixty thousand salary goal line after the legislature capped the career ladder salary allocation short at just fifty thousand. When implemented in 2019, qualifying teachers will receive an additional four thousand per year for three years.

Some problems: the rubric which will be used to assess which teachers are Jedi quality and which are still padawans has not been developed. Teachers will be required to submit a portfolio of artifacts covering at least three of the previous five school years, but the evaluation tool and process to evaluate selected evidence to determine the superhero variety of teachers from their sidekick colleagues has not yet been determined.

Because, as teachers know, best practice is to assign work to students by only giving them a vague idea about what is expected. Make sure to avoid generating a rubric prior to giving the assignment. When asked by students for an assessment tool that is little more specific, best practice is to shrug and let students know a rubric should be available in the next year or two. Hopefully. Foolproof pedagogy!

Keep in mind that the legislature really has no idea this test of teacher awesomeness is going to cost the state. Sen Thayn went so far as to call the plan a “house of straw” that has a shaky financial foundation at best.

Idaho Ed News reported the State Dept. of Education estimating that only a shockingly small ten percent of Idaho teachers will apply. Keep in mind that doesn't mean the SDE believes ten percent of Idaho teachers will be awarded the distinction, only that ten percent will submit the paperwork.

Is the connotation of that estimate taken to mean that Idaho's State Department of Education believes that, at best, only one in ten of Idaho educators are masters in their craft?

Sen. Thayn’s critique is legitimate. Suppose that fifty percent of Idaho teachers meet the eligibility criteria. Further suppose that only half of those eligible teachers apply. That leaves 25% of Idaho’s teachers submitting applications.

That plausible scenario would result in a whopping 250% applicant increase in comparison to the SDE’s projection. Is the legislature ready to put its money where its mouth is, particularly if awardee numbers come in significantly over the current conservative projection?

Will the legislation be tweaked to include a quota? You know, because the state only has so much money--err space--for awesome teachers?

Also consider the cost of the folks actually performing the evaluation of the portfolios as well. What criteria will be used in determine who is fit to judge teacher awesomeness? It is doubtful qualified evaluators will work for free.

The larger the laundry list of demands to be included in the portfolio means the larger the workload--and elevated cost--of assessing padawans from their Jedi colleagues. And what happens when a teacher doesn't receive their black belt? What will be their recourse? A suit in our courts that further taxes the state?

Don't stress though teachers. None of us are Jedi masters yet. Who knows what will happen between now and 2019 when the awards are delivered. As Master Yoda tells us, “patience you must have.”

Legislative end run


Idaho voters thought it wise to place the legislative authority for administrative rulemaking review into the Idaho Constitution this last November (HJR5).

Now we are seeing the arrogance and hubris of the legislature in action. The recent rejection of some of the Education Standards by the House Education committee is using this authority to bypass the legislative process.

This decision to reject some rules was based solely on the whim and preference of some committee members. The newly passed Article III Section 29 reads in part: The legislature may review any administrative rule to ensure it is consistent with the legislative intent of the statute that the rule was written to interpret, prescribe, implement or enforce.

Show me the statute or legislative intent that declares it is not appropriate to teach global warming in Idaho classrooms or have such expectations for standards. Please point out the law; I can’t find it. If the legislature wants to pass such a law, they are free to.

They have passed laws to require the daily reading of scripture in the classroom (33-1604); a prohibition of consideration of global warming shouldn’t be so tough. But instead of writing a law, voting on it and getting it into statute, they have bypassed the policy making process the Constitution gives them and injected policy by rejecting an administrative rule. They broke the law and ignored the Idaho Constitution. But who will hold them accountable to this rule of law? Will we the people? Will the voters who elected these legislators be offended by this violation?

There are too many legislators in our Capitol with a conscience to let this transgression go by with a shrug.

The legislature has clearly violated the Idaho Constitution, both Article II Section 1 and the newly passed Article III Section 29. My complaint has nothing to do with how or whether I perceive the planet to be changing. I object to the arrogant disregard for the process, the rule of law.

Arrogance is a trait that needs constant vigilance to check. But arrogance is just offensive and rude, not illegal. This act was illegal. The legislature is empowered to make laws but we are all obligated to uphold the laws.

If the legislature chooses not to follow sworn oaths and disregard the very laws they have written and instead act on whim, our tenuous faith in government is in jeopardy. What next?

A presidential yarn


Listening to President Trump’s rambling, meandering rant against the media and its allegedly dishonest coverage of his Administration last Thursday, as well as his claim that he had inherited a mess, reminded me of an old political story. It also led me to conclude that the POTUS is due for a refresher media training course.

The old story goes thus: A newly elected young governor was paying a courtesy call on the older veteran governor he had defeated in the November election. He was smart ernough to ask the veteran whether he had any counsel to impart.

The veteran governor said “as a matter of fact I do. I’m going to pass along to you the same package of three letters my predecessor handed me. When you first run hard into a sticky-wicket of an issue open the first letter. And when you run into a second crisis, open the second and if you have a third crisis open the third one. Then follow the advice in the letters.”

Sure enough, about one year into the new administration the new governor ran into a seemingly insoluble problem. Remembering the packet with the three letters he went to his desk, opened a drawer, took out the first letter and opened it. It simply said “ blame your predecessor!”

So he called a press conference and kicked the living daylights out of the previous governor. And it worked.

Another year went by and the governor ran into another, complex and complicated matter. Remembering the packet he went to his desk and extracted the second letter which he immediately opened. It simply said “blame the Legislature!”

So he called a press conference and ripped the Legislature. And it worked.

Another year passed before the governor hit the biggest bump in the road, a seemingly intractable matter with no solution in sight. Remembering he had one more letter he went to his desk, grabbed the last letter and ripped it open. It simply said “prepare three letters!”

The moral of this story is that executives, regardless of whether they are a president, a governor, a mayor or the chairman of a county commission, all are elected to solve problems and meet challenges head on without blaming anyone else. President Trump ought to take note.

He also should schedule and commit to taking a media training refresher course. Being the Donald, I’m sure he thinks he doesn’t need such training, but he clearly does.

The first rule is “never, ever lie to the media.” Rather than say he can’t say or he’ll get back to you, he shucks and jives media reporters. He continues to erode the one true sine qua non for any president or governor: the public trust. Without the implied consent of the governed a leader can never really govern. That he lies is incontestable; that he seems to get away with it is debatable; that he is rapidly losing the public trust also seems incontestable.

President Trump has to relearn how to stay on message and how to avoid the negative. Rather than deny his administration is so far a chaotic organization, he should block the thrust of the question and bridge to a positive message. So, rather than deny the chaos, which is manifest to all, he should not implicitly accept the premise of the question.

He should have said, “The premise of your question is wrong. While we’ve encountered a few bumps in the road here and there, we have taken on more campaign promises than any previous administration. We’re getting things going which will become more clear to you down the road.”

Notice, one does not repeat the negative in the question, but rather quickly says it is incorrect and then bridges to their message of the day.

The fact that neither the President nor his abused press secretary, Sean Spicer, understand this is one of many reasons they are coming off as rank amateurs.

Look for the Republicans in the House and Senate to recognize that by the mid-term elections in 2018 they had better impeach and remove Trump from office or they’ll suffer catastrophic losses.

The first rule of politics is the imperative to survive and riding the wooden rocking horse of Trump is not going to pave the way. Here’s hoping the Republic can survive the turbulence coming down the road.

Repeal the exemption


It is time for the Legislature to repeal the faith-healing exemption to Idaho’s statute prohibiting the injury of children.

Section 18-1501 of the Idaho Code penalizes conduct by “any person” that is likely to endanger the person or health of a child. This applies to parents but the statute has qualifying language that limits violations to rather egregious conduct. It was carefully crafted to limit governmental intrusion into the family setting.

However, the statute includes an exemption that has allowed some parents to refuse to provide readily available health care to their children, resulting in needless suffering and death. The exemption says that the “practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not for that reason alone be construed to have violated the duty of care to such child.” This language should be eliminated in order to protect some our most helpless and vulnerable citizens.

Adults can decide for themselves on healthcare matters. If they decide to forego medical intervention for themselves for religious reasons, that is their prerogative. The state has an interest in safeguarding the health and safety of minors who cannot speak for themselves. Our laws have numerous protections for children without religious exemptions - marital age, child labor, ability to contract, and the like. In my estimation, the right to have basic life-saving healthcare trumps those protections.

A courageous young woman, Linda Martin, recently spoke out in a Statesman ad to urge the repeal of the faith-healing exemption. As a former member of a group that denies basic medical care to its youngest members, she spoke with eloquence and authority about the injury inflicted on sick children in the group. She closed with this statement: “This is not a freedom of religion issue: this is a right to live issue.” Amen.

Since at least the 1980s, when I served as Idaho Attorney General, the Legislature has passed numerous laws intended to support the right to life by using the power of the government to require women to carry a fetus to term. To my knowledge, none of those measures contained a religious exemption.

The question arises as to whether the right to life of some children in our great state ceases upon birth. It is time for the Legislature to stand up for our children and to require that faith-healing parents provide basic healthcare to their children.