Category Archives: Federalism

A few weeks ago, a daily newspaper reported that about 550 colleges in Nepal were close to closure for lack of students as large numbers of them were going abroad for higher studies. The news said that approximately 100,000 students had obtained No Objection Certificates from the Ministry of Education, and nearly the same number had departed for foreign countries in the past year.

Israeli Ambassador to Nepal Hanan Goder had cautioned me as a parliamentarian about the potential repercussions of this youth migration. The government and the political parties should show a heightened sense of concern and take proactive measures.

I will delve into this matter in greater detail next time. For now, I will highlight the Education Bill and the issue related to new universities.

When bills are introduced without adequate discussion and consultation, it is natural for disagreements to arise among the stakeholders. Furthermore, the issue of ownership is problematic, and this may hinder effective implementation.

Teachers' protest

Public school teachers and employees have conducted protests against the School Education Bill recently tabled in Parliament. While the protests ostensibly focus on improving service facilities and other demands, their underlying concern is to avoid being placed under the jurisdiction of local authorities.

The bill should have been introduced only after thorough discussions with teachers and other stakeholders. The government should have explicitly stated that the authority over school education belongs exclusively to the local level.

Following the protests, the government was compelled to reach an agreement with the teachers to address the issues, but in the end, the responsibilities and burdens are likely to be shifted to the local level. The constitution has vested the authority over school education in local governments, yet the government often appears to undermine this right by avoiding consultations with them.

The bill has overlooked the fundamental constitutional goal of advancing socialism and appears to promote private education. Additionally, the initial proposal to move private schools into trusts within a five-year timeframe has been omitted.

The proposed legislation has significant shortcomings. It overlooks crucial aspects, such as the recruitment of gold medallists and highly accomplished university graduates as educators, lacks a comprehensive strategy for subject-specific educators, and avoids addressing the controversial issue of political influence in the teaching profession.

Moreover, the bill suggests that the Education Department and the District Education Offices should be placed under the Ministry of Education, despite already having been dissolved. This move may increase the financial burden and infringe upon the rights of the local and provincial governments.

The Federalism Implementation Study and Monitoring Parliamentary Special Committee of the National Assembly had recommended dissolving half of the departments at the federal ministries because their functions have been devolved to subnational levels. The committee's proposal was unanimously approved by the National Assembly.

The prime minister had also pledged to adhere to the committee's report. But instead of implementing its recommendations, the government has reorganised the previously abolished departments and offices. This goes against the objectives of federalism and represents an unfortunate turn of events.

Eight years post-constitution, our education system lacks federalism-friendly practices. Delayed bills have perpetuated education sector issues, leaving important matters unaddressed.

On the one hand, the state of school education is in a critical condition, and on the other hand, the government is haphazardly creating new universities. Recently, the bill pertaining to Nepal University was approved by the National Assembly. In the last year, bills related to Yogamaya and Madan Bhandari universities were also passed and have become law. Currently, there are a dozen universities in operation.

The constitution has granted the provinces the authority to establish provincial universities, resulting in a rapid proliferation of university openings. The federal government is also participating in this race. It is important to note that whether a university is federal or provincial, the financial resources ultimately originate from the same pool.

Determining the number and type of universities in Nepal post-federalisation is intricate. A comprehensive study is essential to formulate an inclusive education policy embraced by all three levels of government.

Consider the data of the University Grants Commission which shows meagre enrolments of 201 students at Gandaki University, 417 students at Rajarshi Janaka, and 482 students at Lumbini Buddhist University. These numbers wouldn't sustain a primary school. This begs the question: Why persist with opening more universities?

We must ask what rationale guides the creation of new universities while the existing ones are falling dormant. Do these decisions stem from economic, scientific or sociological factors, or are they purely political manoeuvres? Clarity is crucial for Nepal's educational future.

I've consistently voiced concerns in Parliament about the government's insufficient commitment to the education sector. Prioritising education and implementing reforms to meet evolving societal needs is paramount. This entails not only addressing the quantity and diversity of universities, but also ensuring quality education and equitable access within the federal framework. My advocated approach involves crafting an education policy as a first step, followed by a comprehensive umbrella law for universities based on this policy. Only then should new universities be established if deemed necessary under the provisions of this law. Regrettably, I stand alone in championing this perspective in Parliament.

How many universities?

I've actively opposed the consecutive creation of three new universities through my votes, but it's disheartening that none of my fellow Members of Parliament has raised concerns about the government's direction. During a recent visit to Switzerland, I sought insights from Prof Johanna Schnabel at the Free University of Berlin, Germany regarding federal government-run universities. She said that there were none, as all institutions were under provincial jurisdiction. Swiss Prof Sean Mller at the University of Lausanne also said that there were only two federal universities in Switzerland. Both emphasised that the distinction between federal and provincial universities was less critical; the focus should be on maintaining educational quality and generating employment opportunities. They stressed that while ample resources allow for new institutions, their long-term sustainability should align with constitutional mandates.

Education profoundly impacts human life, contributing to individual and national development. It plays a pivotal role in global economic, scientific, social, and cultural progress. The government must genuinely commit to the country's education system. The federal, provincial and local governments should collaboratively develop a unified education policy, serving as the foundation for legislation, schools, colleges/campuses and universities in line with the constitution's spirit. Such unity is crucial to ensure Nepal's transition to federalism is meaningful.

Finally, Germany and Switzerland, both highly developed countries, differ significantly in their federal university systems. Germany has none, while Switzerland only has two such institutions. In contrast, a country like ours, which faces economic challenges, should seriously consider the necessity of having numerous federal universities.

Original post:

Sensible education policy needed - The Kathmandu Post

Topic: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

4. Both cooperative federalism and competitive federalism have their own merits and can be relevant in different contexts within a diverse country like India. The choice between the two depends on the specific challenges, goals, and dynamics of the country. Critically analyse. (250 words)

Difficulty level: Tough

Reference: The Hindu ,Insights on India

Why the question:

Cooperative federalism emphasizes collaboration and coordination between the central government and state governments for policy formulation and implementation and the Ministry of Education to negotiate better terms must with the dissenting States, respecting the essence of cooperative federalism.

Key Demand of the question:

To write about which form of federalism competitive or cooperative that suits India better.

Directive word:

Critically analyze When asked to analyse, you must examine methodically the structure or nature of the topic by separating it into component parts and present them in a summary. When critically is suffixed or prefixed to a directive, one needs to look at the good and bad of the topic and give a balanced judgment on the topic.

Structure of the answer:

Introduction:

Begin by defining cooperative federalism and competitive federalism.

Body:

First, explain the differences between both. Discuss how the spirit of competitive federalism is seen in the various inter-state ranking metric derived such as for ease of business, environmental pollution etc. Discuss how the spirit of cooperation is being enhanced by sharing experiential learnings etc

Next, Discuss the pros and cons of one over the other competitive federalism requires States to reform their programmes and provide goods and services that they can self-fund, disciplines the states, accelerates growth. Discuss the advantages that cooperative federalism offers.

Conclusion:

Conclude by giving a balanced opinion.

More:

Both cooperative federalism and competitive federalism have their ... - Insights IAS

Independence Day messages delivered on Tuesday, 15 August, by the chief ministers of the states across South India this year had a strong welfare flavour, with the general elections due in less than a year.

In the case of Telangana, Chief Minister K Chandrashekar Rao dwelt only on development and welfare, steering clear of any attack on the BJP, either directly or indirectly.

The contents of his message were understandable as he has to prepare for the Assembly elections in December itself, which will be a warm-up exercise for him for the Lok Sabha polls along with other states next year.

Meanwhile, Tamil Nadu Chief Minister MK Stalin wanted education to be brought under the state list from the concurrent list, indicating his belligerent posturing, while his Kerala counterpart Pinarayi Vijayan expressed concern over ethnic and caste divides that have cast a long shadow on the countrys secular fabric.

Karnataka Chief Minister Siddaramaiah, basking in the glory of his partys victory in Mays Assembly elections, dwelt at length on how the five guarantees of his government would render social justice to the people.

Meanwhile, Puducherry Chief Minister N Rangasamy stuck to welfare measures the government was implementing for the well-being of the people.

Andhra Pradesh Chief Minister YS Jagan Mohan Reddy took a deep dive into the gram swaraj as postulated by the Father of the Nation and explained how his government was following it in the administration of villages.

Here are the details:

After unfurling the Tricolour at the Golconda Fort in Hyderabad, Telangana Chief Minister and BRS chief K Chandrashekar Rao blamed the rulers of erstwhile Andhra Pradesh for the rundown condition of his state when it was formed in 2014.

He said the state had progressed by leaps and bounds thereafter under the BRS government.

He added that his government had balanced development with welfare to ensure that the people would be free from want to the extent possible.

Now everyone knows that what Telangana implements, the rest of the nation follows, said the chief minister, tracing the transformation of Telangana which he said was in a deplorable state, to a land of milk and honey of sorts.

He said the two important indices that pointed to the growth of a state were per-capita income and per-capita power consumption. On these two counts, the state stood first, he said.

The per-capita income was 3,12,398, while the per-capita power consumption was 2,126 units.

He said the Niti Aayogs poverty index had shown that the poverty in Telangana was on the wane, and that it was only one-third of the national average.

On the occasion, he announced 1,000 crore as the Deevali-Dasara bonus to the employees of the Singareni Collieries Company Ltd (SCCL) and the commencement of distribution of 1 lakh double-bedroom houses in and around Hyderabad to the poor.

He presented a long list of welfare schemes in implementation in Telangana state, a majority of which concerned the farmers.

After taking over the reins of administration in 2014, the BRS government waived crop loans, he said, adding that it once again took up the waiver of crop loans after it came to power for the second time. In the last nine and a half years, the government waived 37,000 crore crop loans, he noted.

He also spoke about Kaleswaram and other small and medium irrigation projects, meant to increase the scope of agriculture.

The government provided round-the-clock power supply to the farm sector, besides implementing schemes such as Rythu Bandhu and Rythu Bheema, he said, adding that this had led to the production of 3 crore tonnes of paddy in the state, which was now competing with Punjab on that front.

The chief minister said despite the financial burden, the RTC staff had been taken on government rolls. Though the government had been financially supporting the corporation by providing 1,500 crore, it has now taken the decision benefits 43,373 employees.

He said very soon a new PRC would be constituted for the state government employees. Till the PRC makes its recommendations, the state would pay the employees an interim relief.

Hoisting the national flag at Fort St George in Chennai on the occasion of the 77th Independence Day, Tamil Nadu Chief Minister MK Stalin said that all subjects that had a direct connection to the people especially education should be brought under the Constitutions state list.

Only if education is moved to the state list of the Constitution could qualifying examination methods like the National Eligibility cum Entrance Test (NEET) be completely scrapped, he said.

Stalin also announced that the Tamil Nadu government would constitute a welfare board to benefit workers attached to service providers such as Ola, Uber, Swiggy, and Zomato, among others.

Stalin also said that his government was committed to ensuring that proper respect was given to the leaders who fought for freedom, and that the monthly pension for freedom fighters and their family members would be increased from 10,000 to 11,000.

The Tamil Nadu government is planning to train 10,000 ex-servicemen to aid them to get employment and about 55,000 vacancies in various government departments would be filled during the ongoing financial year, he said.

In his social media message, Stalin said, As we celebrate Indias journey toward independence, let us reaffirm our commitment to preserving the diverse fabric of our Union. Together, as part of INDIA, we stand strong to safeguard our Constitutions ideals of democracy, unity, and diversity.

Karnataka Chief Minister Siddaramaiah said the five guarantees of his government that had been introduced were intended to follow the principles of social justice in the accumulation and distribution of wealth.

Addressing people on the occasion of the 77th Independence Day at the Sam Manekshaw Parade Ground in Bengaluru, Siddaramaiah pointed out that the people had realised that the prerequisite for development was peace.

The five guarantees, he said, were now in implementation as the gap between the haves and the have-nots had increased due to neo-liberalism.

In India, 10 percent of the people control 70 percent of our resources. The British plundered the country during the colonial era, but now a few capitalists are accumulating wealth and resources. In this situation, can development be possible? Keeping this in mind, the state government has brought in the five guarantees, he said.

The five guarantees were formulated to elevate the socio-economic status of the people, he said, adding that the government had also taken price rise, unemployment, discrimination based on caste and religion, and corruption seriously.

We took the decision to implement these schemes in the first Cabinet meeting and introduced them within three weeks of government formation.

Training his guns at the Centre for non-cooperation in providing an additional 5 kg of rice for the Anna Bhagya scheme, Siddaramaiah said his government decided to pay cash instead of giving grains to each beneficiary every month.

According to him, 1.04 crore families were receiving financial assistance under the Anna Bhagya scheme.

Andhra Pradesh Chief Minister YS Jagan Mohan Reddy said that his government had reflected the true meaning of gram swaraj.

In his Independence Day address after unfurling the national flag at the Indira Gandhi Municipal Stadium in Vijayawada, the chief minister said that the state government had implemented such programmes in the past four years which were seldom done by any other government in the 76-year history of independent India.

He noted that the state witnessed true gram swaraj envisioned by Mahatma Gandhi through village secretariats, ryhtu bharosa kendras (RBK), English medium schools, and village clinics.

Additionally, digital libraries equipped with broadband services have been constructed. This is a great change brought about by no other government in the 76 years of history (independent), said Reddy.

He also said the delivery of services such as birth certificates, caste certificates, pension, ration, and government schemes did not require visiting offices as they were available at the doorstep through the village secretariat and the volunteer system.

The Chief Minister said that 2.31 lakh crore had been credited in 50 months into the bank accounts of people in the form of welfare without the need to bribe anyone.

Most of the funds had been transferred into the bank accounts of women to empower them and ensure that the money was put to the best use, he added.

Kerala Chief Minister Pinarayi Vijayan on Tuesday said as the nation celebrated its 77th Independence Day, instances of caste and ethnic divisions were casting a shadow over the republic and injuring its secular nature.

Vijayan contended, in a Facebook post, that even federal values had been subverted. In such a situation, every citizen ought to renew their pledge to preserve the nations secular character and its federal values, he urged.

After hoisting the national flag at the central stadium in Thiruvananthapuram, he referred to the achievements of the state in various sectors, like Information Technology, setting up new enterprises, infrastructure and welfare, in the past seven years.

Vijayan noted that the state was witnessing financial growth and development since 2016 as its internal production has almost doubled, the per-capita income had increased by around 54 percent, and over 1,000 projects worth around 81,000 crore had been initiated.

The state was also intervening in the welfare sector, as evidenced by the over 4 lakh homes provided under the Life Mission scheme to the homeless.

Vijayan also said his government hoped to eradicate extreme poverty from the state by 2025, and had launched several initiatives for that the first state in the country to do so.

The idea is to turn Kerala into a world-class state similar to the developed and middle-income nations by the time India celebrates the 100th anniversary of its independence, he contended.

Earlier in the day, Vijayan also posted his greetings on the occasion on the social media platform X (formerly Twitter).

Our freedom movement wasnt just about breaking chains; it was about forging a diverse and inclusive India. On this #IndependenceDay, lets uphold our nations secular and democratic ideals, and ensure these values remain at the core of our nationhood. Happy Independence Day! Vijayan tweeted.

Puducherry Chief Minister N Rangasamy, in his Independence Day message, highlighted the schemes implemented by the government of the Union Territory (UT) to promote the welfare of the poor, the fishermen, students, farmers, and unemployed youth.

He said law and order were maintained well in the UT, and this has resulted in a steep decline in crimes during this year when compared to the scenario seen in the past.

Claiming that his government was implementing various welfare programmes with the support of the people, he said, I seek continued support of the people to frame more schemes and implement them to benefit the marginalised sections.

Rangasamy further said the implementation of the Smart City programme would ensure the development of infrastructure to promote tourism, education, and the welfare of the poor and the have-nots.

The UT government had spent 93.56 percent of the 11,500 crore earmarked under the revised estimate during 2022-2023.

As many as 16 departments had earmarked assistance covering a big chunk of beneficiaries under the direct benefit transfer scheme to promote their well-being.

An integrated complex to house Legislative Assembly would be constructed at a cost of 528 crore in the neighbouring Thattanchavady and a National Law University would also come up at a cost of 483 crore in Kalapet, he added.

(With inputs from South First and PTI)

Read the rest here:

Federalism to poll promises: South India CMs bring up host of local ... - South First

In recent years, there have been many shifts in how states administer bar exams. One of the most significant developments has been the expansion of the Uniform Bar Exam (UBE). The upshot of the UBE is that a score is "portable." Someone who receives a passing score in one state can transfer that score to another state. The biggest downside, in my view at least, is that the UBE eliminates the requirement to know any state-specific law. Instead, the UBE focuses on "general" legal principles that apply uniformly across the country. In 2015, I warned that the spread of the UBE would obscure the important flavors of local law, and in the long run, harm federalism.

If law students are trained to believe that there is no difference between laws of different states, then an entire generation of lawyers will have even less regard for the values of federalism, wherein the states can serve as laboratories of democracy. There is an importance in State A and State B being able to approach the same principle of law in different ways. Prioritizing a uniform bar exam will diminish respect for that value.

Alas, my concerns did not prevail.

To date, 40+ jurisdictions have adopted the UBE, including my home state of Texas. And that number will eventually approach 50, as states without the UBE place their law students at a competitive disadvantage. The appeal of portability trumped the appeal of lawyers actually knowing the law of the state in which they'll practice. It is difficult to imagine any of these states could abandon the UBE, and revert to a state-specific exam.

Now that the states are hooked, the National Conference of Bar Examiners (NCBE) is preparing the next generation of the exam. The "NextGen" Exam, as it is known, will be launched in 2026. The 1Ls starting in the Fall 2023 will eventually sit for this exam. Prudent law schools will craft their curriculum, in particular 1L coverage, to ensure students are adequately prepared for the NextGen Exam. As usual, law schools are trying to prepare for a moving targetthe details of that NextGen are not yet final. And there is reason for concern.

Justice Jay Mitchell of the Alabama Supreme Court highlights some of the troubling revisions in the Wall Street Journal. For example, Mitchell notes, the exam will no longer test Family Law and Wills and Trusts. Last year, my colleagues and I submitted a letter observing that roughly half of the topics covered in property will be optionalthat is, students will only need a "general familiarity" with areas like covenants, recording statutes, and mortgages. If a topic is not covered on the exam, then law students likely will not learn that topic. And, when they venture into actual practice, they will be unprepared. For sure, baby lawyers can learn a topic they are unfamiliar with, and I'm sure all of them will. But the NCBE is proactively creating huge gaps in knowledge for all attorneys.

Beyond the substance covered, Mitchell explains how DEI is undergirding the entire process. And a watered-down exam may further reduce the exam's efficacy to measure a lawyer's fitness to practice.

But perhaps the biggest concern is the NCBE's use of the NextGen exam to advance its "diversity, fairness and inclusion"agenda. Two of the organization's stated aims are to "work toward greater equity" by "eliminat[ing] any aspects of our exams that could contribute to performance disparities" and to "promote greater diversity and inclusion in the legal profession." The NCBE reinforces this message by touting its "organization-wide efforts to ensure that diversity, fairness, and inclusion pervade its test products and services."

What does all this meanand how does it have any relation to the law? Based on the diversity workshop at the NCBE conference, it means putting considerable emphasis on examinees' race, sex, gender identity, nationality and other identity-based characteristics. The idea seems to be that any differences in group outcomes must be eliminatedeven if the only way to achieve this goal is to water down the test. On top of all that, an American Civil Liberties Union representative provided conference attendees with a lecture on criminal-justice reform in which he argued that states should minimize or overlook would-be lawyers' convictions for various criminal offenses in deciding whether to admit them to the bar.

None of this is encouraging. It shouldn't matter who you are or where you come fromif you can demonstrate minimal competency on the bar exam and meet a state's character-and-fitness requirements, you should be allowed to practice law. If you can't, you shouldn't be given a license to handle the legal affairs of others. The bar exam should test the law straightwithout respect to ideology and on a race- and sex-blind basis.

It would be helpful if a state could simply opt out of the NextGen exam. But they are all hooked onto the UBE. There's no turning back to the old ways. Mitchell proposes one potential off-ramp:

States, for their part, should push for the option to retain the current exam for at least the next five to 10 years until they can properly assess the effectiveness of the new exam. State courts and bar associations would also do well to insist that the NCBE commit in writing that the new exam will be ideologically neutral and blind to race and sex.

In hindsight, state Supreme Courts that adopted the UBE should have given due regard to federalism. Instead, we are stuck with one completely imperfect solution.

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Justice Mitchell (Alabama): "The New Bar Exam Puts DEI Over ... - Reason

Federal Nepal seems to have fully embraced the quintessential feature of Nepali politics: The making and breaking of governments. And if there is one primary reason why there is growing suspicion about the utility of provinces, it is the way politicians and political parties have used them as their puppets. Just as in the centre, the course of political instability out in the provinces is almost never over, which is evident in their failure to find stable governments, or fill their cabinets, six months after the November 2022 elections.

Its the same show all over again: Coalition partners are bickering over the number of ministerial portfolios they should get in the provinces. In Bagmati, only six of the 11 portfolios are filled even as Chief Minister Shalikram Jammakattel holds three ministerial berths due to his failure to honour the wishes of the Nepali Congress and CPN (Unified Socialist). In Madhesh, the Congress, the Unified Socialist and the Loktantrik Samajbadi Party are yet to join the government led by Chief Minister Saroj Kumar Yadav. In Sudurpaschim, four ministerial berths remain vacant as the Congress, the Maoist Centre and the Nagarik Unmukti Party tussle for more positions than Chief Minister Kamal Bahadur Shah is willing to offer.

The instability let loose with the breakup of the UML-Maoist Centre alliance shows no sign of coming to a halt soon even as Finance Minister Prakash Sharan Mahat prepares to present the federal budget in under two weeks. At this time, what the people expect from the provinces is to lobby for a greater say in policies and programmes and budget allocation. But all that they are doing is massaging the egos of the politicians from the provincial and federal levels. Having imported the political cultureor lack thereofof Kathmandu, the provinces have failed to assure the people about their utility for affirmative politics and positive transformation.

This is not the kind of federalism people signed up for when they welcomed the new constitution in 2015. The idea was for the power of Singha Durbar to devolve to the provinces and the local levels so that there would be multiple avenues of addressing peoples concerns. However, six years after the first federal elections, the idea of stability in the provinces remains a pipe dream, just as in the federal centre. This series of instability began after the Nepal Communist Party, formed with the merger of the UML and the Maoist Centre, imploded due to ego- and power-tussles between KP Sharma Oli, Pushpa Kamal Dahal and Madhav Kumar Nepal. As a result, governments in the provinces fell apart, too, in what was a cascading effect. If the disappointment of the first provincial governments after the adoption of federalism was not enough, the instability syndrome lingers on in their second term as well.

Although the idea of embracing federalism was to devolve power to provinces from the all-powerful centre, it seems as if all that has been devolved is the petty, power-centric politics of mainstream parties. On the outside, it may seem as if it is a time of great upheaval in the provinces, but the hullaballoo is nothing but a sign of diminishing spirit of federalism. There should be no surprise if the voices against federalism get more traction in the coming days if the season of instability does not change in the provinces.

More here:

Season of instability - The Kathmandu Post

Recent years have seen a flurry of congressional investigations, and state prosecutors have also launched high-profile investigations and prosecutions targeting national figures.

Those trends collided this year after a New York state judge unsealed a 34-count indictment against former President Donald Trump, alleging Trump had falsified business records. Within a week, Republicans on the House Judiciary Committee subpoenaed the testimony of a former assistant district attorney, Mark Pomerantz, who had worked on the case. Manhattan District Attorney Alvin Braggs office promptly sued to quash the subpoena.

Though the parties settled the case, allowing the committee to question Pomerantz, the feud is far from over. At his deposition, Pomerantz reportedly refused to answer questions, invoking various privileges and his Fifth Amendment right against self-incrimination.

The next phase of the conflict between House Republicans, the district attorney, and Pomerantz is unclear, but it seems inevitable the smoldering feud will break back into flames at some point.

And when it does, the resolution will offer important guidance about what limits, if any, there are on Congresss power to probe state criminal investigations. It may also set the template for how House Republicans might respond if Fulton County, Ga. District Attorney Fani Willis announces any charging decisions this summer in her investigation into the 2020 election.

In April, the New York District Attorney sued to enjoin enforcement of the Judiciary Committee subpoena and sought a temporary restraining order, arguing the subpoena exceeded the scope of Congresss authority to investigate, invaded the sovereignty of New York in violation of federalism principles, and sought information subject to privilege and grand jury secrecy requirements. The proffered legislative bases for the subpoena, the district attorneys lawsuit asserted, were pretextual.

Meanwhile, the Judiciary Committee argued the subpoena had a valid legislative purpose because the district attorneys office had used federal money in connection with its investigation of Trump and Trump-related entities, and because the inquiry related to potential legislation. The committee also maintained the lawsuit was precluded by the Constitutions Speech or Debate Clause.

Noting the breadth of Congresss authority to investigate, the district court in New York refused to grant the restraining order, concluding that the subpoena served a valid legislative purpose. The district attorney immediately appealed.

While the appeal was pending, the parties settled, paving the way for the committee to question Pomerantz behind closed doors. Though the exact terms of the settlement were confidential, the committee presumably expected Pomerantz would answer many of its questions, which he didnt.

Pomerantz reportedly justified that refusal by pointing to New York laws that prohibit disclosing grand jury materials or other information about ongoing criminal investigations, along with his Fifth Amendment right against self-incrimination.

With this latest impasse, the committees dispute with the district attorney and Pomerantz may spill back into the courts. The committee may seek a court order forcing Pomerantz to answer specific questionsparticularly if it believes Pomerantzs refusal to answer questions violates the committees settlement agreement with the district attorney. (Because Pomerantz was a nominal defendant in the DAs lawsuit, he presumably participated in settlement discussions and is party to any settlement agreement.)

Or the committee might employ more traditional means for enforcing a congressional subpoena, such as holding Pomerantz in contempt or referring his conduct to the Department of Justice for potential prosecution. The committee might also issue new subpoenas seeking testimony from others in the district attorneys office or subpoena Pomerantz for documents. Any of these paths seems likely to return the dispute to court, triggering many of the same issues raised in the April lawsuit.

How a court resolves that looming dispute could have far-reaching implications. A ruling that Congress has no valid legislative purpose in investigating state-level law enforcement and police activities, or that federalism principles prohibit such an inquiry, would arguably break new legal ground. Although the Constitution largely commits policing and law enforcement to states, Congress often legislates in ways that intersect with states law-enforcement power, and congressional investigations have occasionally examined state-level policing.

At the same time, a ruling categorically approving congressional probes into ongoing state criminal proceedings could have equally serious consequences. Prosecutors and witnesses in criminal cases operate on the assumption that, at least before trial, their communications will be confidential. Allowing Congress to access or publish those communications may discourage witnesses from cooperating with prosecutors out of fear that they may become political targets. It may also influence how prosecutors evaluate or charge cases that might be unpopular with the majority party in Congress.

Apart from any court ruling, how House Republicans respond to Pomerantzs refusal to answer questions will have immediate practical consequences. Fulton County District Attorney Willis has promised to announce any charging decisions this summer. Her office will no doubt watch whether House Republicans move to force Pomerantz to answer questions, or issue additional subpoenas to state prosecutors. Georgia prosecutors may already be taking steps to insulate investigative materials from future congressional inquiries. And House Republicans are likely also using the dispute with the Manhattan District Attorney to fine-tune their strategy ahead of the prospective conflict with Georgia investigators.

The conflict between House Republicans and the Manhattan District Attorney is likely the first in a string of showdowns between Congress and state prosecutors. How that dispute is resolved will influence how both Congress and state prosecutors approach future conflicts, and may even establish important precedent on the limits of congressional investigations generally.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Eric R. Nitz is a partner and Kenneth E. Notter an associate at MoloLamken. They represent companies and individuals in connection with investigations of all typescriminal, congressional, and regulatory.

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Trump Indictment Tests Congress's Role in State Investigations - Bloomberg Law

The open-borders lobby is no stranger to bad-faith reform proposals, abusing the language of fairness as they try to scrap all migration controls entirely. Unfortunately for American citizens, bad ideas frequently come from unusual suspects. Even while acknowledging our Southwestern border crisis, two Republican governors are now among those advocating for a potentially disastrous plan that would wreak havoc on our legal immigrationpolicies.

Governors Eric Holcomb of Indiana and Spencer Cox of Utah endorsed state-sponsored visas in The Washington Post in February, strengthening more recent pushes for this flawed and destructive policy. Their proposal would allow states to sponsor visas (which only the federal government can grant) specifically for immigrants to fill entry-level, low-skill roles in that state. The governors inexplicably present this plan as a solution to both our border crisis and supposed local labor shortages, and business groups hungry for cheap labor to undercut Americans have joined their cause in Newsweek.

The basic premise of this proposal is fatally flawed because states do not exist in isolation and travel between them is unrestricted. Allowing sanctuary states like California to unilaterally admit immigrants into the U.S. undermines the most basic structure of federalism by usurping the federal responsibility to control and regulate immigration. No effective controls exist that would keep those admitted from moving wherever they want in the country, and the proposal would not extend to states the ability to refuse these immigrants. There are no solutions to state-level shortages addressed here because immigration is by its nature not something that can be restricted to one place. State-sponsored admission of low-skill foreign workers could become a backdoor for a few states to flood the rest with un-asked-for competition and crowd out Americancitizens.

In fact, that crowding actually seems to be the desired effect. The American Business Immigration Coalitions use of the nonsense term parole visas in their Newsweek piecebetrays the open-borders cheap labor lobbys true intentions. Immigration parole, intended for very limited uses, is currently being grossly abused without oversight to bring hundreds of thousands of illegal aliens into the U.S. every year (a number the piece incredibly calls very limited) with work authorization. If 360,000 illegal aliens ushered into the U.S. annually by the federal government is a very limited number to the cheap labor lobby, imagine how many millions would be admitted if the parole abuses of the White House extended to state capitols across the country. Cheap illegal alien workers are a huge net drain on the economy, not a benefit, and these governors proposals would actively hurt their American constituents who would be replaced by lower-paid foreign workers.

Bad policies that make U.S. immigration law look weak create a self-perpetuating cycle of illegal immigration, as weve seen throughout the Biden administration. Inadequate enforcement and poorly conceived handouts like this proposal draw, rather than deter, ever more migration to the U.S. and strengthen the pull to the border, while American citizens pay for the incredible expense that these migrants create in our schools and hospitals. American jobs should not be a free-for-all for the lowest bidder, but proposals like this show that the cheap-labor lobby and many politicians would be happy to put American citizens last inline.

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Big Business' New Plan Would Create Fifty New Immigration Policies - Federation for American Immigration Reform

MADISON - The Republican author of a bill that would overhaul the state's abortion law says a Senate leader is "squashing debate" on a bill she and a group of GOP lawmakers introduced this spring that would allow doctors to provide abortions to victims of rape and incest a policy change most Wisconsin residents support.

Sen. Mary Felzkowski and more than two dozen Republican lawmakers introduced legislation in April that would create exceptions to the state's 19th-century near-total abortion ban for pregnancies resulting from sexual assault, incest and in situations when the mother is experiencing serious pregnancy complications.

Democratic Gov. Tony Evers immediately said he would not sign legislation that would keep in place the state's abortion law, a move that could jeopardize a lawsuit he and Democratic Attorney General Josh Kaul launched in 2022 to invalidate the law that is still in court. Senate Majority Leader Devin LeMahieu also said at the time that his caucus wouldn't take a floor vote on the bill because of Evers' position.

This week, Senate President Chris Kapenga assigned the bill to a committee led by GOP Sen. Andre Jacque, who has authored dozens of bills that would restrict abortion access including one that would bar public officials from even promoting the idea of abortion.

I'm very disappointed. Very disappointed in what Sen. Kapenga did as Senate president. I think it squashes conversation. And I think it's a very sad day when he's afraid to let his duly elected members have a discussion," Felzkowski told the Milwaukee Journal Sentinel on Thursday.

Earlier, Felzkowski issued a public statement calling the assignment of the bill to a committee that does not oversee health issues "perplexing." Jacque heads the Senate Committee on Licensing, Constitution and Federalism.

It disappoints me that the Senate President doesnt trust his own caucus members, assigned to their committees of interest and expertise, to debate this issue fairly. Im concerned that open, honest debate is being silenced by one member of our caucus," she said.

A spokeswoman for Kapenga did not immediately respond to a request for comment. Aides to Rep. Clint Moses, who oversees a committee where the Assembly version of the bill has been assigned, did not immediately say whether Moses plans to hold a public hearing on the bill.

The move to introduce a bill that expands access to abortion by Felzkowski and Assembly Speaker Robin Vos came during a nationallyscrutinized race for a seat on the state Supreme Courtthat revolved around the future of the state's abortion ban and despite a promise from Evers to veto such legislation in order topreserve the lawsuithe launched to overturn the state's abortion law altogether.

Vos, a Republican from Rochester, said in March Republicans were moving the legislation forward anyway because hewants the state Legislature to handle abortion policyinstead of turning the state's highest court into a "super Legislature."

"I'm an optimist. I think that eventually people will realize that the right way to do it is through the traditional process, not through a super Legislature, the state Supreme Court, but hopefully the voters agree," he said before liberal Milwaukee County Judge Janet Protasiewicz defeated conservative former Supreme Court Justice Dan Kelly by double digits largely on a platform of restoring abortion access in Wisconsin.

According to recent state polling by the Marquette University Law School, the vast majority of Wisconsin voters want exceptions to the state's 1849 abortion law.

The state's abortion ban wasput back into effect in 2022when the U.S. Supreme Court overturned Roe v. Wade, allowing states to set their own abortion policies. That move pushed Kaul and Evers tofile a lawsuitto overturn the law altogether.

More: Wisconsin's 1849 abortion law goes before the courts next week. Here's what happens if it is overturned.

Whether the 1849 law is enforceable is at issue in the lawsuit. Republican lawmakers, abortion opponents and conservative legal experts say the law is now in effect. But nonpartisan attorneys for the state Legislature, Democratic lawmakers, and supporters of abortion access say potential and expected legal challenges muddy the answer to the question.

Practically,abortions have not been available in Wisconsinsince the ruling given the legal uncertainty and the state ban in statute.The debate has become central to political campaigns since then, including the 2022 governor's race and the spring race for state Supreme Court.

Senate leaders' opposition to advancing the bill came as anti-abortion lobbying groups blasted the proposal from Felzkowski, Vos, and others.

Matt Sande, Pro-Life Wisconsin Legislative Director, said in March any legislation that allows abortions "is incapable of being justified."

"A vote to add more exceptions to Wisconsins abortion ban is a vote to kill more preborn babies. It is that simple," he said. "It is always and everywhere wrong, regardless of motivation or consequence. It may never be employed, even in the narrowest of circumstances, as a means to a greater end."

Under the legislation, doctors face felony charges if they perform abortions except in situations involving victims of sexual assault and incest during the first trimester of a pregnancy, when women experience an anembryonic, molar or ectopic pregnancy, and in any circumstance in which the fetus has no chance of survival, including a physical condition of the fetus that makes survival outside of the uterus impossible.

"We are empowering the moms and the fathers who are trying to have children to work with their medical providers to make sure that they have the healthiest viable baby and that mom's life is protected in the process," Felzkowski said in March at a Capitol press conference.

The bill clarifies that the law's criminal penalties don't apply to a "therapeutic abortion" that physicians believe is necessary or advised by two other physicians as necessary, to save the life of a mother, or to avoid substantial and irreversible physical impairment of a major bodily function of the mother. Doctors also are not banned from performing abortions to remove a fetus without a heartbeat.

The state's revived abortion ban, which outlaws all abortions unless the mother will die without one, has made Wisconsin a less-attractive state to practice in the field of reproductive health, according to OB-GYN experts, potentially leading to a medical workforce less experienced at handlingmiscarriages and otherreproductive procedures.

Abortion restrictions will also have downstream effects on the states physician labor force as a whole, not only influencing where OB/GYN doctorschoose to live and workbut shaping the decisions of doctors training or practicing in other specialties, too, according to Jenny Higgins, a UW-Madison professor of obstetrics and gynecology and gender and womens studies.

Kathryn Ann Dielentheis, an assistant professor in the Department of Obstetrics and Gynecology at the Medical College of Wisconsin who practices at Froedtert Health, said earlier this year that since Roe v. Wade was overturned, she has observed some fear within the Wisconsin medical community treating pregnant women of not meeting the letter of law when making treatment decisions when patients experience complications like ectopic pregnancies.

Evers has pledged not to sign a new abortion law "that leaves Wisconsin women with fewer rights and freedoms" than before the U.S. Supreme Court ruling. Before then, doctors could perform abortions up until about 20 weeks of pregnancy. Evers has said he would sign a bill that puts back into effect a 20-week ban on abortions.

Vos said in March there were enough Republican votes to pass the bill out of the Assembly but it is all but certain to not get to Evers' desk with LeMahieu's promise to keep the bill off the Senate floor.

Democratic lawmakers also have rejected the idea of keeping in place the 1849 abortion law.

"I, like the majority of Wisconsinites, believe that we must repeal the state's 1849 criminal abortion ban and restore the rights, liberties, and freedoms that were afforded to women under Roe. There is absolutely no room for a politician in the doctor's office of any individual," Senate Minority Leader Melissa Agard, D-Madiosn, said in a statement.

Agard said Republicans "are simply flailing" after losing the 2022 governor's race and other midterm races, in part, because of their stance on abortion following the U.S. Supreme Court ruling.

Any legislation that does not provide a woman with autonomy of her own body and her own healthcare decisions is a nonstarter for my caucus," she said.

LeMahieu said in January he supports clarifying the law to address uncertainty on the part of doctors in situations involving complications like ectopic pregnancies, which can require abortion procedures to address before a woman's health is at risk.

Vos also previously said he would support requiring victims of rape to show doctors a police report before they could obtain an abortion but Wednesday's legislation does not include such a requirement.

Laura Schulte of the Milwaukee Journal Sentinel contributed to this report.

Molly Beck can be reached at molly.beck@jrn.com.

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Senator decries move to block bill loosening Wisconsin abortion law - Milwaukee Journal Sentinel

ANI | Updated: May 20, 2023 17:43 IST

New Delhi [India], May 20 (ANI): Joining the Delhi government in severely criticising the Centre for issuing the ordinance related to Delhi officers' transfer, Congress leader Abhishek Manu Singhvi on Saturday alleged that the Centre is just 'illegally buying more time'.Further recalling the basic constitutional working, the Congress leader, who is also an advocate, called it an 'unconstitutional ordinance' and said that Constitutional principles can only be changed by Constitutional amendments, and not by ordinance."Absolutely unconstitutional ordinance. Constitutional principles cannot be changed by ordinance. They can only be changed by Constitutional amendments. You have done something unconstitutional knowingly. You have also illegally bought time," Singhvi said while talking to ANI.

The criticism came after the Centre issued an ordinance to create National Capital Civil Service Authority, which will be responsible for transferring and disciplinary proceedings against officers from the DANICS cadre. The Union Government on Friday brought an ordinance to notify rules for the Government of National Capital Territory of Delhi (GNCTD) regarding the 'transfer posting, vigilance and other incidental matters'.The ordinance has been brought to amend the Government of the National Capital Territory of Delhi Act, 1991 and it circumvents the SC judgement in the Centre vs Delhi case.Aam Aadmi Party leader Raghav Chadha also slammed the Centre saying that the move is not just "contempt of court" but also "contempt of the electorate".Taking to Twitter he said, "To overturn a well-thought-out, unanimous Constitution Bench judgment by a reckless political Ordinance, in complete violation of 1. Federalism: part of the basic structure of the Constitution 2. Constitutional Powers given to Elected Governments 3. The principle of Accountability of Civil Services to Ministers is not just Contempt of Court but also Contempt of the Electorate." (ANI)

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"Illegally buying time": Congress leader Abhishek Singhvi chastises ... - ANI News

You might call this post "The Big Mac." I'm getting to the meat of the issue: What rights do Baby Ninths protect, and how do these state constitutional provisions protect those rights?

You can see the previous three in this series here, here, and here, all of which summarize my new book from the University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (available for free here).

First let's take a 30,000 foot view of what we're talking about: a specific type of provision with specific words with variants in thirty-three state constitutions. We are not talking about "rights" generally or what we would put in a constitution ourselves. You could imagine a state constitution that says something like everyone has a right to "a minimum annual income." Or "adequate housing." Or even something wide-open like "what one needs to live a fulfilling life." For various reasons I think those provisions would be bad. But if they were in a constitution, you would have to admit they were "constitutional rights." Indeed, some fellow libertarians may not like this, but many state constitutions already make a state provided primary education a right. What the text says matters.

With that level-setting, let's look at what Baby Ninths protect. For guidance, we're first going to see what various scholars have said about the Ninth Amendment itself. Since the text is always very similar between the Ninth and Baby Ninths, this will hopefully give us a good start.

VC member Randy Barnett once helpfully organized five various originalist "models" about what the Ninth Amendment meant when it was adopted. I take those five approaches in my book, plus a more recent oneof Professor Michael McConnelland apply them to Baby Ninths. I don't take sides in the book on their merits vis--vis the Ninth, but I argue that none of them make sense when interpreting a Baby Ninth other than the "individual rights model."

Some of themsuch as the "federalism model" and the "state law rights model"don't for obvious reasons. For one thing there's no "federalism" to worry about. The others models don't work either, including the "collective rights model." Although it has received a small bit of support in the caselaw, it doesn't work because the "collective rights" of the people of a state are elsewhere provided for in a state constitution via the legislature and via the constitutional amendment/convention process. Believing that Baby Ninths protect collective rights is to believe that Rube Goldberg designed your state constitution.

I also look at non-originalist views of the Ninth Amendment and conclude they don't hold up either to the extent they are inconsistent with protecting individual rights. Baby Ninths only make sense if they're actually doing somethingprotecting rightsand if the rights they're protecting are individual rights.

That still leaves open what kind of individual rights Baby Ninths protect. Indeed, turning back to the Ninth Amendment for a moment, both Professor Barnett and my former teacher Professor Dan Farber believe the Ninth Amendment itself protects individual rights, but they disagree on what those rights are. (Barnett: "yes" on personal and economic rights, "no" on positive right to an education. Farber: the opposite, except also "yes" on personal.)

In speaking with others, I find that this is the issue that scares many conservatives. "Oh my goodness, judges could just impose any right they want!" Well, if a state constitution actually said that then, yeah, judges could. Again, we're talking here about what constitutions say and mean, not what they should say and mean. But that's not the case because of how Baby Ninths are written.

Let's look at one, Nevada's: "This enumeration of rights shall not be construed to impair or deny others retained by the people." The key word here is "retained." What does that mean? It is inherently a term of social contract theory. You may believe the whole idea of a social contract is made up (indeed, I agree!) and even a terrible way of looking at rights and society. But it's the background for interpreting this languageand for lots of other language in state constitutions. As Roger Pilon recently put it in this lecture, it's a useful thought experiment. It helps us conceptualize the liberties we possess as individuals versus how we interact with other people.

"Retained" refers to the idea that we have certain rights in a state of nature but that when we form a society, we give up some but not all of those rights. Now, it could be that when we form a social contract we give up all of our rights, like with Thomas Hobbes' Leviathan. But (for good reason!) no state constitution has even gone the way of Hobbes. Americans have wisely sided with Locke.

You could make the case that "retained" just means rights people had at the time the relevant constitution was adopted. But I dig into this idea in the book and find it leads to absurd results. For example, why wouldn't it then encompass statutory rights? What if there were some odd statute that provided a positive "right"I give the example of a right to have a ponythat existed right before the constitution was adopted. Could it then never be repealed? Instead, the much better reading of Baby Ninths is to simply treat them as protections of Lockean "state of nature" rights.

That means that Baby Ninths protect rights such as the examples I gave in Part I that our friend Jane enjoyed: the right to earn a living, right to garden, right to eat what you want, right to collect stamps, etc. It does not include positive rightsthe right to demand that others (including the government) give you stuff or do things for you. And that includes procedural rights, such as a right to a jury trial or a right to see evidence used against you. Now, those are important rights! But they're protected through other language, such as specifically in the Sixth Amendment, or other kinds of open language such as "due process of law."

At this point some skeptical readers may be thinking: "He's arguing Baby Ninths allow people to do anything they want as long as they don't violate someone else's rights, as if they guarantee a nightwatchman state." And you might quip that "state constitutions do not enact Mr. John Locke's Social Contract," to steal a phrase.

In response, first, I do not claim Baby Ninths must be interpreted through the exact wording of Locke's philosophy. It's just the idea of giving up some rights but retaining others that needs to be kept in mind. Those "some" are few (the right to retribution most importantly), the "retained" are many. Second, I do not claim that the government cannot do anything that regulates "retained" rights. I only claim that they must be protected at the same level (deny/disparage/impair) as enumerated rights and, thus, given some degree of real protection. When we think about free speech or religion, for example, we recognize that there are things the government can do in order to pursue legitimate public purposes even if they bump up against those rights. They're not absolute. The same is true for the right to earn a living or the right to garden.

How does this work in practice? More on that in Part V tomorrow, plus some big picture thoughts. But basically, judges need to take Baby Ninth rights seriously. In constitutional-law-speak, that means they don't need to apply strict scrutiny, but they do need to apply some real scrutinynot the rational basis test.

The rest is here:

Baby Ninth Amendments Part IV: All the Rights but Not ALL the Rights - Reason