"We the people" tell the government what to do, it doesn't tell us. Our Constitution is a document in which "We the people" tell the government what it is allowed to do. "We the people" are free. Ronald Reagan Farewell Address 1989
AARP Bulletin Today — Bloomberg Video — One Citizen Speaking — Aretha Franklin “Stand Up” Video
“To serve, not be served.”
AARP sent meone of those unsolicited AARP membership letters with the pre-printed membership card. So I called their 800 number and said I was interested in joining however I have a few questions and wanted to understand the AARP position on the Healthcare Bill.
The nice lady that I spoke with was located in Nevada. She explained to me that AARP supports this bill and it not a “socialist” plan as some are saying. She went on to tell me that this plan would cover the 47 million individuals not insured and that number was probably a lot higher. I asked for the source of this data however she was not sure where I could find this information.
She went on to say that this plan would cover the “donut hole” and wanted to know if I knew about this “donut hole”. I said that I was not familiar with this term. She explained that her son does not have medical coverage and this is the “donut hole”. I told her that I now understand because I also have a daughter who had purchased her own medical insurance and I would be sure to tell my daughter about this “donut hole” and it would disappear under this new plan.
At the end of the conversation I declined to join AARP. I explained that I don’t think we should change the entire system just for the unemployed or otherwise those that would be covered by either medicare or medicaid. I explained that I like my current plan and why not just fix the areas that need improvement? The nice lady suggest that I read their website and I explained that I was reading their website and this was the reason I was calling because I did not understand their position(s). I wonder now how many AARP members that voted for this new Administration due to AARP’s influence? Note: For the record, per Wiki:
The term “donut hole” (or “doughnut hole“) refers to a coverage gap within the defined standard benefit under the Medicare Part Dprescription drug program. Under the defined standard benefit package, there is a gap in coverage between the initial coverage limit and the catastrophic coverage threshold. Within this gap, the beneficiary pays 100% of the cost of prescription drugs before catastrophic coverage kicks in.
Barack Obama wants to reform the nation’s health care system. That’s good news. The better news is his intimate knowledge of the reasons that reform is so necessary. Perhaps no president has taken office with such personal exposure to the critical aspects of American health care—especially the challenges we face in restructuring a fractured system and bringing costs and services into balance with needs.
Lessons from home, namely the experiences of his mother and grandmother, will come into sharp focus as Obama proposes his first federal budget. His administration and Congress must wrestle with the conflicting dynamics of a soaring national debt, lagging revenue and a $2 trillion annual health care bill that still leaves 45 million Americans uninsured and consumes one-quarter of the federalbudget—even as U.S. infant mortality rates are higher, and longevity lower, than in the rest of the industrial world.
“My mother died very suddenly and very young,” Obama told the AARP Bulletin last fall. [Read the complete interview at bulletin.aarp.org.] Ann Dunham died in 1995 at age 52 after working as a consultant for the U.S. Agency for International Development, the Ford Foundation and Women’s World Banking. She taught her son an important lesson about access to health care. “She’d go from contract to contract and would be able to buy health insurance [only] when she got a new contract,” Obama said. “When she got sick, she had just signed up for a new job, a new contract, and she had a lot of arguments of whether this was a preexisting condition of which she had no knowledge whatsoever.” Later he added, “As someone who watched my mother argue with insurance companies while she lay in bed dying of cancer, I will make sure those companies stop discriminating against those who are sick and who need care the most.”
From his grandmother, Madelyn Dunham, who continued living in the same Honolulu apartment where he had been raised, Obama learned important social and economics lessons about long-term care. “What I’ve learned from watching my grandmother is that with some modest help she’s able to remain independent,” he told the Bulletin shortly before she died. “And that costs the system much less than if she’d gone into a long-term care facility. The problem we have is that so much of our system is built around institutional care that we end up spending more money than we need to and probably with worse outcomes in a lot of cases.
“These are not abstractions for me,” he said frequently during the campaign. Nor are they abstractions for millions of Americans. As AARP’s leaders write in a letter to the White House [see page 10], this is an important moment for the nation. With the approaching retirement of 78 million boomers, reining in health care costs and strengthening the core safety net are crucial to stabilizing the nation’s finances and establishing an upgraded and rational system of health care. Starting points are the leadership of the president and the firsthand lessons he learned from his mother and grandmother. His first book was titled Dreams From My Father. His next must be “Lessons Learned.”
Why would AARP blindly support a healthcare system which is ill-defined and which appears to feature a “best practices” approach which may be extremely hostile to the needs of senior citizens seeking advanced healthcare in the last stages of life?
…“Prior to joining AARP, Mr. Rand distinguished himself as a leader of social change in some of our nation’s largest corporate and educational institutions.”
… “Approximately seven million people have AARP branded health insurance, including drug coverage and medigap, as of April 2007 and AARP earns more income from selling insurance to members than it does from membership dues.”
…“In early 2007 AARP launched “Divided We Fail, ” designed to address health care and long-term financial security. The initiative was launched with Business Roundtable and the Service Employees International Union, and encompasses advertising in national outlets and in the primary states, online activities, and traditional grassroots work, in order to engage the public, business and elected officials in the debate, and to encourage public leaders to offer solutions, according to the AARP.”
The SEIU, under investigation for corruption within the leadership of some of its locals, openly advocates for “in-home” family health workers in California (a program riddled with fraud) and is trying to unionize these workers with an eventuality of becoming California State employees. It is my opinion that the SEIU is to unions as ACORN is to community organizing…
Lt. Col. Dr. David Earl-Graeff Letter — Ledger Inquirer — Daily Beast — Executive Order 13489/12667/13233
I-5 Los Angeles
As I stated in my post (The “Natural Born Citizenship” Problem Is Not Going Away) last week, “I don’t know what to believe”. I was in the military during the Carter Administration and I know first hand the harm that was caused to the leadership in the rank and file.
It is only a matter of time when an aircrew will refuse their orders to fly into a combat mission or a group of Army soldiers will disobey orders using this “birth certificate” issue as their justification. I’m from the “old school” and believe our military members should not be involved in such actions. I raised my right hand to serve my country and to follow all “lawful” orders. If the below article is correct, and 170 military members are now joining in this action, we have far more serious situation than the media would like us to believe.
Dr. Orly Taitz Esquire
Defend Our Freedoms Foundation 26302 La Paz ste 211, Mission Viejo CA 92691 Copyright 2009
A letter to Secretary of Defense Robert Gates written by one of my plaintiffs
Flight Surgeon, Lt. Col. Dr. David Earl-Graeff
July 19th, 2009
Orly,
As I told my commander I am concerned that this issue is much more prevalent in our military than one might think. Like an illness that is wide spread but is only manifesting itself by few subtle signs or symptoms. A good analogy is like a extensive lung cancer that initially presents with the patient complaining only of a persistent hoarse voice. This is because many are still afraid to say anything out of fear of repercussions as Maj. Cook has now been the subject of. My concern is for the well being and moral of our fighting forces and their fitness for duty and my own obligations which are now and remain conflicted. This is part and parcel of the duty of Flight Surgeon as I was trained to do in the Air Force. I understand that this is not the customary path to address this issue but the normal channels to get this issue resolved, although not the fault of my immediate commander, I am convinced are broken. It is in my opinion part of the illness. We must get this resolved and use everything in our power to do so given the gravity of the situation.
David
Honorable Robert M. Gates, 3 Mar. 2009
Enough is enough! You must be aware at this point of the tempest brewing among the Rank and File. I am writing you in an effort to appeal to your sense of concern for the Military; a concern we share not only for the Military as a whole but for each and every individual who wears the Uniform in the Service of our Country. I am in this regard specifically asking you for your help. I implore you to not wait until the “pot boils over” and we find ourselves in total disarray.
I am convinced, beyond any doubt, that the moral well being and efficiency of our fighting forces to defend our Country is soon to be hanging in a precarious balance if not already. In my humble estimation this is NOT a theoretical possibility to construct a thesis or a contingency plan about. It is a reality and is happening right now. Resolution of this issue must be accomplished in the most expeditious manner available at your disposal to gain immediate relief to those of us who are struggling to fully comply with our sworn Oath to the Constitution while being conflicted by questions relating to the qualifications of the POTUS to hold the office in full and absolute compliance with the Natural Born Citizen Clause.
Regardless of differences in the color of our uniforms, the color of our skin, religion or gender WE are Brothers and Sisters in Arms and our family is being torn apart. Are you not looking and listening to what is happening around you? How can anyone of good conscious stand by and let this happen to us? I for one cannot! You must care enough to intercede to stop this. Is this not within your power to do so? Why have you not acted already? What is it that you are waiting for?
If you have any doubts of what I am saying is true you need look no further than the comments made on the Military.com site regarding the actions of Lt. Scott Easterling who in my opinion is an absolutely courageous young Army Officer. Irrespective of your personal opinion of his actions, one thing is abundantly clear; the horrible, hateful and demeaning things that were being said about him and one to the other among my Brothers and Sisters in Arms were things that I have NEVER experienced in ALL my years of military service. It is no less than gut retching to see this happening. The wounds that are being inflicted will NOT be healed by any Medicine I have at my disposal. There is nothing I learned in Medical School or in my training as a Flight Surgeon that can fix this; save the absolute power of Truth. The POTUS must stop concealing the documents once and for all and the issue of his qualifications must be addressed. Make no mistake; any adverse consequences to the troops as a result of your failure to act responsibly will be in large part directly on your head.
Have you considered the legal ramifications for our fighting forces if for any reason the POTUS is not qualified. Are they in Iraq illegally? If so does this make them terrorists under International law as the Islamic radical elements have been calling them? Have they given up their Geneva protections and do not even know this? If so when captured can they be killed or tortured without International legal ramifications? Have they been stripped of the legal protections by the Soldiers and Sailors Civil Relief act? Are you willing to allow this risk to them when they are fighting for us?
Once again I find myself at a loss of words to try to explain the abject and total dismay I have at the administration to include the Chief Justice of the Supreme Court to allow the painful division now occurring in our military to proceed unabated. I hope that do not need to remind you that you as well took an Oath to support and defend the Constitution. As a point of honor you are either willing to do this or you are not. If you are not then preserve your honor, resign and let someone who cares more about us than that do what is right.
I again respectfully implore you to act within your powers and help us. It is absolutely true and is my Prayer to my Creator to allow me to suffer the slings and arrows of being thought a fool rather than to have my convictions realized that persons of responsibility have allowed through negligence to have the Office of the President of the United States to be USURPED; it is self evident however, that whatever the outcome we must know the truth.
An e-mail purporting to be from the two-star general listed as a plaintiff in the controversial federal lawsuit questioning Barack Obama’s eligibility as president says he never agreed to be a party to the suit.
On Wednesday night, the Ledger-Enquirer received an e-mail from a person identifying himself as Maj. Gen. (Ret.) Carroll D. Childers.
“You have bad information,” the e-mail says. “I have not joined the lawsuit brought by Maj. Cook. Please retract that information and do not print it again.”
In the story that first appeared Wednesday on ledger-enquirer.com, then later in Thursday’s print edition of the Ledger-Enquirer, Cook’s attorney filed a revised pleading after the revocation of Cook’s orders, which continued to push for a preliminary injunction. The revision also introduced two additional plaintiffs: Childers and Lt. Col. David Earl Graeff…
… The suit said in part: “Major General Carol (sic) Dean Childers retired but subject to lifetime recall, and Lt. Col. David Earl Graeff – Medical Surgeon in U.S. Airforce (sic) Active Reserves, subject to recall any day, join in this Application for Preliminary Injunction because it is a matter of unparalleled public interest and importance and because it is clearly a matter arising from issues of a recurring nature that will escape review unless the Court exercises its discretionary jurisdiction.”
Reached for comment on her cell phone Thursday afternoon, the plaintiffs’ California-based attorney, Orly Taitz, said she had a signed consent form from Childers. “Probably it’s some kind of mistake,” Taitz said. “I don’t know what happened.”
Later Thursday afternoon, the person identifying himself as Childers in an e-mail said several months ago he signed a “motion” Taitz filed requesting that a judge unseal specific personnel records, which Taitz thinks will either verify or disprove Obama’s status as a natural born citizen of the United States.
“Not being a lawyer, I was not aware that other subsequent court filings, in such cases as Major Cook, might also tie me to such subsequent cases,” the e-mail said. “I have notified Dr. Taitz that I am no longer a plaintiff in any motion she might process.”
Lt. Col. Maria Quon, a public affairs officer with the U.S. Army Human Resources Command-St. Louis, said Thursday afternoon that according to the Army records, Maj. Gen. Carroll Dean Childers retired from the Army National Guard in 1999.
Crackpot anti-Obama conspiracy theorists now include congressmen, a former GOP presidential candidate and an Army major. John Avlon on the “Birthers” attempts to pass federal legislation, and their new claims 170 soldiers will refuse to serve the president.
Last week, a U.S. Army major named Stefan Frederick Cook made news when he refused deployment to Afghanistan on the grounds that President Barack Obama might not be a natural-born citizen and therefore is constitutionally ineligible to give orders as commander in chief. Now Cook’s lawyer says she has 170 more soldiers willing to file similar protests against the president.
Welcome to the world of the “Birthers”—right-wing conspiracy theorists committed to undoing the 2008 presidential election by trying to prove that Barack Obama was not born in the United States. The movement is evidence that Obama Derangement Syndrome is going viral from the far right, proliferating beyond fringe-festival Internet sites. It’s in danger of a quiet mainstreaming along partisan lines—reaching into talk radio, cable news, the armed services, and even the halls of Congress.
The 170 number thrown out by Cook’s lawyer has the feel of Joe McCarthy’s claim that he had a list of 205 communists working in Harry Truman’s State Department—i.e. pseudo-specific, intentionally inflammatory, and ultimately bogus. But what’s not in question is the nine Republican congressmen who have co-sponsored a bill that, in response to this much-debunked conspiracy theory, would require presidential campaigns to provide “a copy of the candidate’s birth certificate.”
Asked whether Obama “is a U.S. citizen,” bill co-sponsor Randy Neugebauer, a Texas Republican, replied: “I don’t know. I’ve never seen him produce documents that would say one way or another.”
Major Cook—a distinguished combat veteran—appears to have been a willing pawn in the Birthers’ efforts to bring attention to their cause. He re-enlisted as a reservist in May, with the apparent intention of carrying out this political performance-art litigation. When the military shrugged and said he didn’t have to go to AfPak (issuing a statement saying, “This in no way validates any of the outlandish claims made by Major Cook”) and a judge threw out the case, Cook’s legal team celebrated it as a smoking-gun victory. WorldNetDaily—whose editor and CEO has been a major supporter of Birther petition efforts and roadside billboards—trumpeted it as “Bombshell: Orders Revoked for Soldier Challenging Prez.”
In the wake of this “success,” Cook’s lawyer, Dr. Orly Taitz, and her frequent plaintiff, Ambassador Alan Keyes, appeared on CNN to debate the issue. I’d hit the Birthers in my “Wingnut Watch” segment on the Campbell Brown show earlier in the week and was asked to counter their claims alongside New York Daily News columnist Errol Louis.
Before going on air, Keyes had his eyes closed as if in prayer while Taitz was jumpy and pie-eyed, like a patient off her meds. Anchor Kitty Pilgrim then went through a thorough 3-1/2 minute dismantling of the Birther arguments, including the long-ago issuance of Obama’s August 1961 certificate of live birth, its validation by Hawaii’s Republican Gov. Linda Lingle, and two birth announcements published in Honolulu papers. (Both FactCheck.org and Snopes have published detailed investigations and refutations of the non-scandal.) …
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) “Archivist” refers to the Archivist of the United States or his designee.
(b) “NARA” refers to the National Archives and Records Administration.
(d) “NARA regulations” refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.
(e) “Presidential records” refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.
(f) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.
(g) A “substantial question of executive privilege” exists if NARA’s disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.
(h) A “final court order” is a court order from which no appeal may be taken.
Sec. 2. Notice of Intent to Disclose Presidential Records.
(a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice. If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.
Sec. 3. Claim of Executive Privilege by Incumbent President.
(a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified.
(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive privilege is not justified. The Archivist shall be notified promptly of any such determination.
(c) If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.
(d) If the President decides to invoke executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.
Sec. 4. Claim of Executive Privilege by Former President.
(a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.
(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
Sec. 5. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Further Implementation of the Presidential Records Act
Delivered on 1 November 2001.
FURTHER IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures implementing section 2204 of title 44 of the United States Code with respect to constitutionally based privileges, including those that apply to Presidential records reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisors, and to do so in a manner consistent with the Supreme Court’s decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases, it is hereby ordered as follows:
Section 1. Definitions.
For purposes of this order:
(a) “Archivist” refers to the Archivist of the United States or his designee.
(b) “Presidential records” refers to those documentary materials maintained by the National Archives and Records Administration pursuant to the Presidential Records Act, 44 U.S.C. 2201-2207.
(c) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.
Sec. 2. Constitutional and Legal Background.
(a) For a period not to exceed 12 years after the conclusion of a Presidency, the Archivist administers records in accordance with the limitations on access imposed by section 2204 of title 44. After expiration of that period, section 2204(c) of title 44 directs that the Archivist administer Presidential records in accordance with section 552 of title 5, the Freedom of Information Act, including by withholding, as appropriate, records subject to exemptions (b)(1), (b)(2), (b)(3), (b)(4), (b)(6), (b)(7), (b)(8), and (b)(9) of section 552. Section 2204(c)(1) of title 44 provides that exemption (b)(5) of section 552 is not available to the Archivist as a basis for withholding records, but section 2204(c)(2) recognizes that the former President or the incumbent President may assert any constitutionally based privileges, including those ordinarily encompassed within exemption (b)(5) of section 552. The President’s constitutionally based privileges subsume privileges for records that reflect: military, diplomatic, or national security secrets (the state secrets privilege); communications of the President or his advisors (the presidential communications privilege); legal advice or legal work (the attorney-client or attorney work product privileges); and the deliberative processes of the President or his advisors (the deliberative process privilege).
(b) In Nixon v. Administrator of General Services, the Supreme Court set forth the constitutional basis for the President’s privileges for confidential communications: “Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends.” 433 U.S. at 448-49. The Court cited the precedent of the Constitutional Convention, the records of which were “sealed for more than 30 years after the Convention.” Id. at 447 n.11. Based on those precedents and principles, the Court ruled that constitutionally based privileges available to a President “survive[] the individual President’s tenure.” Id. at 449. The Court also held that a former President, although no longer a Government official, may assert constitutionally based privileges with respect to his Administration’s Presidential records, and expressly rejected the argument that “only an incumbent President can assert the privilege of the Presidency.” Id. at 448.
(c) The Supreme Court has held that a party seeking to overcome the constitutionally based privileges that apply to Presidential records must establish at least a “demonstrated, specific need” for particular records, a standard that turns on the nature of the proceeding and the importance of the information to that proceeding. See United States v. Nixon, 418 U.S. 683, 713 (1974). Notwithstanding the constitutionally based privileges that apply to Presidential records, many former Presidents have authorized access, after what they considered an appropriate period of repose, to those records or categories of records (including otherwise privileged records) to which the former Presidents or their representatives in their discretion decided to authorize access. See Nixon v. Administrator of General Services, 433 U.S. at 450-51.
Sec. 3. Procedure for Administering Privileged Presidential Records.
Consistent with the requirements of the Constitution and the Presidential Records Act, the Archivist shall administer Presidential records under section 2204(c) of title 44 in the following manner:
(a) At an appropriate time after the Archivist receives a request for access to Presidential records under section 2204(c)(1), the Archivist shall provide notice to the former President and the incumbent President and, as soon as practicable, shall provide the former President and the incumbent President copies of any records that the former President and the incumbent President request to review.
(b) After receiving the records he requests, the former President shall review those records as expeditiously as possible, and for no longer than 90 days for requests that are not unduly burdensome. The Archivist shall not permit access to the records by a requester during this period of review or when requested by the former President to extend the time for review.
(c) After review of the records in question, or of any other potentially privileged records reviewed by the former President, the former President shall indicate to the Archivist whether the former President requests withholding of or authorizes access to any privileged records.
(d) Concurrent with or after the former President’s review of the records, the incumbent President or his designee may also review the records in question, or may utilize whatever other procedures the incumbent President deems appropriate to decide whether to concur in the former President’s decision to request withholding of or authorize access to the records.
(1) When the former President has requested withholding of the records:
(i) If under the standard set forth in section 4 below, the incumbent President concurs in the former President’s decision to request withholding of records as privileged, the incumbent President shall so inform the former President and the Archivist. The Archivist shall not permit access to those records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.
(ii) If under the standard set forth in section 4 below, the incumbent President does not concur in the former President’s decision to request withholding of the records as privileged, the incumbent President shall so inform the former President and the Archivist. Because the former President independently retains the right to assert constitutionally based privileges, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.
(2) When the former President has authorized access to the records:
(i) If under the standard set forth in section 4 below, the incumbent President concurs in the former President’s decision to authorize access to the records, the Archivist shall permit access to the records by the requester.
(ii) If under the standard set forth in section 4 below, the incumbent President does not concur in the former President’s decision to authorize access to the records, the incumbent President may independently order the Archivist to withhold privileged records. In that instance, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.
Sec. 4. Concurrence by Incumbent President.
Absent compelling circumstances, the incumbent President will concur in the privilege decision of the former President in response to a request for access under section 2204(c)(1). When the incumbent President concurs in the decision of the former President to request withholding of records within the scope of a constitutionally based privilege, the incumbent President will support that privilege claim in any forum in which the privilege claim is challenged.
Sec. 5. Incumbent President’s Right to Obtain Access.
This order does not expand or limit the incumbent President’s right to obtain access to the records of a former President pursuant to section 2205(2)(B).
Sec. 6. Right of Congress and Courts to Obtain Access.
This order does not expand or limit the rights of a court, House of Congress, or authorized committee or subcommittee of Congress to obtain access to the records of a former President pursuant to section 2205(2)(A) or section 2205(2)(C). With respect to such requests, the former President shall review the records in question and, within 21 days of receiving notice from the Archivist, indicate to the Archivist his decision with respect to any privilege. The incumbent President shall indicate his decision with respect to any privilege within 21 days after the former President has indicated his decision. Those periods may be extended by the former President or the incumbent President for requests that are burdensome. The Archivist shall not permit access to the records unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.
Sec. 7. No Effect on Right to Withhold Records.
This order does not limit the former President’s or the incumbent President’s right to withhold records on any ground supplied by the Constitution, statute, or regulation.
Sec. 8. Withholding of Privileged Records During 12-Year Period.
In the period not to exceed 12 years after the conclusion of a Presidency during which section 2204(a) and section 2204(b) of title 44 apply, a former President or the incumbent President may request withholding of any privileged records not already protected from disclosure under section 2204. If the former President or the incumbent President so requests, the Archivist shall not permit access to any such privileged records unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.
Sec. 9. Establishment of Procedures.
This order is not intended to indicate whether and under what circumstances a former President should assert or waive any privilege. The order is intended to establish procedures for former and incumbent Presidents to make privilege determinations.
Sec. 10. Designation of Representative.
The former President may designate a representative (or series or group of alternative representatives, as the former President in his discretion may determine) to act on his behalf for purposes of the Presidential Records Act and this order. Upon the death or disability of a former President, the former President’s designated representative shall act on his behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges. In the absence of any designated representative after the former President’s death or disability, the family of the former President may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges.
Sec. 11. Vice Presidential Records.
(a) Pursuant to section 2207 of title 44 of the United States Code, the Presidential Records Act applies to the executive records of the Vice President. Subject to subsections (b) and (c), this order shall also apply with respect to any such records that are subject to any constitutionally based privilege that the former Vice President may be entitled to invoke, but in the administration of this order with respect to such records, references in this order to a former President shall be deemed also to be references to the relevant former Vice President.
(b) Subsection (a) shall not be deemed to authorize a Vice President or former Vice President to invoke any constitutional privilege of a President or former President except as authorized by that President or former President.
(c) Nothing in this section shall be construed to grant, limit, or otherwise affect any privilege of a President, Vice President, former President, or former Vice President.
Sec. 12. Judicial Review.
This order is intended to improve the internal management of the executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party, other than a former President or his designated representative, against the United States, its agencies, its officers, or any person.
Presidential Records
Delivered on 18 January 1989
Revoked by Executive Order 13233, 1 November 2001. Restored by Barack Obama on 21 January 2009.
By virtue of the authority vested in me as President by the Constitution and laws of the United States of America, and in order to establish policies and procedures governing the assertion of Executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:
(b) “NARA” refers to the National Archives and Records Administration.
(c) “Presidential Records Act” refers to the Presidential Records Act of 1978 (Pub. L. No. 95-591, 92 Stat. 2523-27, as amended by Pub. L. No. 98-497, 98 Stat. 2287), codified at 44 U.S.C. 2201-2207.
(d) “NARA regulations” refers to the NARA regulations implementing the Presidential Records Act. 53 Fed. Reg. 50404 (1988), codified at 36 C.F.R. Part 1270.
(e) “Presidential records” refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act and the NARA regulations.
(f) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.
(g) A “substantial question of Executive privilege” exists if NARA’s disclosure of Presidential records might impair the national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the Executive branch.
(h) A “final court order” is a court order from which no appeal may be taken.
Sec. 2. Notice of Intent to Disclose Presidential Records.
(a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, utilizing any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of Executive privilege. However, nothing in this Order is intended to affect the right of the incumbent or former Presidents to invoke Executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of Executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period. If a shorter time period is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.
Sec. 3. Claim of Executive Privilege by Incumbent President.
(a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other Federal agencies as they deem appropriate concerning whether invocation of Executive privilege is justified.
(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of Executive privilege is not justified. The Archivist shall be promptly notified of any such determination.
(c) If after appropriate review and consultation under subsection (a) of this section, either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of Executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.
(d) If the President decides to invoke Executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.
Sec. 4. Claim of Executive Privilege by Former President.
(a) Upon receipt of a claim of Executive privilege by a former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other Federal agencies as he deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this Order that Executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.
(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
Sec. 5. Judicial Review. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
RONALD REAGAN
The White House,
January 18, 1989.
[Filed with the Office of the Federal Register, 11:07 a. m., January 19, 1989]
A name, phone number, a profile on Facebook. The “Association for the truth about flight AF 447″ has not been slow to organize. Yet when one dials the number of the association, it falls directly from a law firm. The firm Maier is its name, is already through the association, 50 families. Contacted by Le Figaro, assures his boss that had to use his premises and his secretary to the association. “We are not sharks, Sylvain explains Maier. We will soon open a new phone line so there is no confusion. “
The firm works with a Parisian firm of Anglo-Saxon Stewarts Law, specializing in air crashes. According to our information, he contacted the relatives of the victims shortly after the tragedy to offer its services. Based in London, he receives at the premises of the association, ie within the law firm of Sylvain Maier, but certainly be “independent.” He dangled the prospects for victims compensation mirobolant.
This “soliciting” is banned in France, but no surprise his new partner in Paris. “I’m not shocked if the goal is to be effective,” explains Sylvain Maier. This process is not within the Bar of Paris, and I’m not even sure that it was banned in the UK. “Such a process is common relativise Denis Chemla, a partner at law firm Herbert Smith. Some law firms in the United States and Europe organized immediately after an accident in order to contact the families. “According to our records, Stewart Law has even contacted a lawyer close to the victim to try to recover his client’s piece of gold. “In France, our fees do not exceed 20% of the sums obtained by the victims, while the United States is 30 to 40%,” says the lawyer who was offered the deal.
To attract families, the Anglo-Saxon firm dangled the prospect of a trial in the United States. “The value of the seat, ie the compensation of victims, is more important to the United States than in France, said Denis Chemla. In France, including the compensation is calculated according to the income of the victims, while the United States considerations are more emotional. “Generally, a” seat “will be paid 3 to $ 5 million in the United States, against rarely more than 1 million euros in France. In the accident of Air France Concorde in 2000, families had received 1 million disappeared because passengers were quite fortunate. For the occurrence of Sharm el-Sheikh in 2004, compensation should be much lower.
Airbus made common cause with Air France
In the case of flight AF 447, Air France is not involved in a trial in the United States. Under the Montreal Convention, the company can not be prosecuted on the place of departure or arrival of his plane. The agreement also sets compensation at 90 000 euros per person. Part of this sum (17 000) has already been paid to families.
For its part, Airbus should make common cause with Air France. “Sometimes they do it without even knowing it, said a lawyer for victims. Finally, the reinsurer Lloyd’s which is the check, and it is not known who is behind. “
But once settled the case of Air France and Airbus, there is still all the equipment of the aircraft, most of whom are American. This is where the work of firms sometimes called “vultures” begins. For them, all means are good to export the judicial process on American soil. The investigators report a bad use of radar by the pilot? Bread blessed: the radar is American brand. Same scenario if the engine of the Airbus – it is General Electric – is mentioned, etc.. Remains whether the Anglo-Saxon firm really believe their fortunes through a trial in the United States or if it is for him as a way to attract customers. For a year, 150 cases of this, 147 applications have been rejected by U.S. courts.
Pieces of the plane recovered in the South Atlantic arrived Tuesday in France. But in the absence of black boxes, specialists hope not to make major discoveries.
This is a second investigation begins. The wreckage of flight AF 447 which sank in the South Atlantic on June 1st, arrived by ship Tuesday in Pauillac (Gironde). They were immediately unloaded and delivered to the Air Test Center in Toulouse (CEAT), where they are expected over the weekend.
Two teams are at work: those of the air transport police in charge of the judicial investigation and the Office surveys and analysis (BEA), whose report is intended not to identify those responsible, but to improve aviation safety . This investigation should lead to the publication of a new report by the BEA to one year and that a final report in several years.
So this is a true work of substance which now begins after the initial study on the spot. This has enabled the experts sent to Recife to say that Airbus had not disintegrated in midair and was intact at the time of impact. This scenario is corroborated by the crushing of all the parts from the front of the camera and the internal structures of the closet that have been uprooted from their vertical support and plated against the floor.
“For this kind of expertise, every piece is important and none is left out,” says Ronan Hubert, historian accidentology air. This includes observing the break points on each of the parties that have been recovered. “In general, many observations are visual, but the use of scanner is sometimes necessary. The study of the engine or some of its parts allows in general to say whether the engine still running at the time of impact. The analysis of elements of wiring also helps to determine which lights were switched on and therefore the state information of the pilots before the accident.
Industrial Issues
It seems that nothing of this nature has been recovered in the South Atlantic. So, skepticism is the rule among observers even before the second season has begun. “You can say many things in a wreck,” says Gérard Arnoux, the chairman of the pilots’ union at Air France. The problem is that in the case of flight AF 447, it has not recovered much. “640 elements of the aircraft were recovered but they represent only 2 to 3% of the total plane. “With so few elements, we will only probabilities, not on reliable deduct any scenario,” said Ronan Hubert.
Second part of this investigation is expected by the pilots of Air France. Many fear that the tracks have been reduced in the name of industrial issues. “It is almost certain today that if the Pitot probes were not released, the aircraft would not land, insists a trade union official. Then, the question of the weather and the attitude of the crew. “
Unless a miracle and the recovery of black boxes, finding an answer to these questions seems difficult. French forces had stopped last week acoustic research black boxes and will start next week a visual search of the wreckage.
Yet for some experts, all hope is not lost. During the crash of a Boeing 737 in early 2007 off the coast of Indonesia, it took eight months to U.S. authorities recovered the famous black boxes. They were intact and were based in 2 000 meters of water.
How the crash of the Airbus A330 could occur? The Russian magazine Itogui held a reconstitution of the flight in a simulator.
25.06.2009 | Stepan Krivocheïev, Grigori Sanine
Sunday 31 May, 23 hours. At the airport in Rio de Janeiro, weather conditions are those of a splendid night of the season, “wind from north-westerly gusts, low cloud insignificant 1 000 m, cloud masses at 3 000 meters.” The Air France flight took off at midnight Paris time. Sixty minutes pass, and no signs of disaster, and visibility is about 10 kilometers and promises to remain stable during the three hours. The last radio contact between the crew and the ground takes place just under three and a half hours later, before the aircraft begins its voyage across the Atlantic. But that night, over the ocean, something unimaginable will happen.
“When you look at the weather maps we see that the area from which the plane issued a series of automatic signals, ie the area of his fall, suffered intertropical convergence phenomenon, ie a hurricane tropical extremely violent, “says Alexander Poliakov, deputy director of the Russian Meteorological Agency. “At the equator, the storm clouds may rise to 16 000 meters. Airbus, he was flying at 10 700 meters, so in the midst of the storm, which was accompanied by lightning discharges extraordinarily powerful. In addition, statements on this night, there was over the Atlantic large concentrations of tropical cumulus clouds, which still cause tremendous turmoil. “
The most serious threat to an airplane, it is not the winds that drive, not even the winds, the gradient wind speed according to altitude, or, more simply, the updrafts. If at a given level, the wind speed is 10 to 20 meters per second and, just above or below, it reaches 40 meters per second, it creates eddies which can carry from experts, a strong mechanical action on the fuselage and systems of the aircraft. “
Crews who have to cross the Atlantic are familiar with these phenomena. All pilots who have experienced tropical storms say there’s nothing more terrifying in the world. Fatikh Koutiouchev, a pilot familiar with the Atlantic and often overflew where Airbus has perished, evokes an area where the weather changing before our eyes: “We always approach this trap is to ask whether we can to pass. Consult on the radar, we look through the windows of the cockpit, everything indicates that we should be able to cross, and then suddenly when you arrive in the area expected to be released, we realize that we are fallen into a trap. The pilots are based on what they said on board radar, but if the road is blocked by a thick wall of clouds, there is no way to see what’s behind. When you fly over these areas, we are blinded and tossed around the plane while buzzing, vibrating, pulsating, lights up, shakes it to a point unimaginable. “
Straight ahead stands a wall of black clouds
We are in the season when the Hurricanes take the Atlantic tropical storm. The night of the accident, the vast space that separates Brazil from West Africa was in the grip of a raging storm. “The Airbus approached this area with an angle of 30 °, details Alexandre Poliakov. But what is strange is that where it disappeared, the wind was rather weak. It is over the height at which he was flying that the weather was so abysmal, with much more turbulence. It’s really quite curious. “
In an attempt to solve this mystery, we asked an airline pilot to attempt a reconstruction of the flight AF477 to board a flight simulator. Enclosed in the camera, we discover the multitude of on-board instruments while engineers entering computer data simulator flight Rio-Paris and the weather maps of the Atlantic for the night of tragedy. The captain informed the control tower that he was ready to take off. We drive on the track and put the levers of command reactors in position. We take the speed, we take off – that’s it, we are in the air, and we enclenchons the autopilot. Reached an altitude of 10 700 meters, we are relaxed. Our cruising speed is 870 km / h, the autopilot is docilely work, transmitting screen dashboard information on the operation of reactors, speed, altitude. The weather radar indicates that we are moving on a storm front.
Can not forget what we see through the windows right in front of us lies a huge wall of black clouds all around the air is zébré lightning, our headphones are spewing crépitements deafening, echoes of thunder hit. The computer announces that we have entered a zone of turbulence. The device is shaken from all sides. The situation is changing very quickly, columns of clouds bigger deal to us, downdrafts striking the aircraft, which, despite its imposing bulk, bounces like a football. We can not help but ask ourselves what are the passengers.
Just a few more minutes and we will be in the heart of a tropical storm. Around the cockpit, preventing swirling darkness to determine the status of the device, can not be relied instruments and the cockpit is nervous men feverishly seeking the best way to avoid the storm. You can not dive, and take the altitude is impossible due to the too high. The only options are skew to the right or left.
The radar shows a small hole on the right, the captain changes the speed to reduce the angle of the turn, and it gives the autopilot parameters of the maneuver. The aircraft “jumps” to the window immediately detected, but the space between the homes is suddenly stormy much smaller than expected. It is about 5 000 m and continues to decline.
The aircraft was caught in a deadly trap and without issue
The next instant, the storm engulfs our Airbus, without leaving any chance for him to turn away. Indeed, it looks like a trap. The tremors were so violent that is difficult to not vomit. We assourdis a strident cacophony of alarms and beeps from the various instruments. One after another, the captain of the calculation we drop, the computer immediately switches all the vital systems on the emergency and continues to fight against the forces of nature apart. The crew disconnected the autopilot and password manually (at least one of the assumptions made). Wielding the stick as a joystick electronic combat, the captain was trying to find a way to bypass the storm front. The screens show a horizon that shakes the storm wants us to win.
That’s when all switches. We are entering the computer speed that we provide the external sensors, pitot probes. According to one version planned, the Airbus accident could have been deranged and communicating false information. The speed that we are entering is not very consistent, as is our test. An alarm sounds immediately to notify us of a sudden acceleration. The pilot slowly operates the levers of control of reactors, but the speed falls to a coup and the device makes a spectacular caper before biting nose. Everything is finished.
Our captain lowers a switch and finally stops the simulator. The complexion and legs greenish cotton we exit the cockpit. This experience has shown us that a malfunction of the onboard computer, caused by extreme weather conditions, could be fatal to the aircraft of Air France. It is likely that Airbus will be caught in a deadly trap harmful if it had no issue.
LB Note: Both of the above articles are speculative and are not worth our time discussing!
How many deaths will it take till he knows
That too many people have died?
The answer, my friend, is blowin in the wind,
The answer is blowin in the wind.
Sessions E-Verify Amendment #1371 — Offered by Senator Jeff Sessions (R-AL), Amendment #1371 makes the E-Verify program permanent. E-Verify is the online, electronically operated system that allows employers to quickly and easily check the work authorization status of their new employees. (For more on E-Verify, see FAIR’s E-Verify Backgrounder). In addition to making this valuable program permanent, the Sessions Amendment requires all employers who do business with the federal government to use E-Verify on their new hires, as well as existing employees assigned to affected federal contracts.The adoption of the Sessions Amendment did not come without opposition. Senator Chuck Schumer (D-NY) — a well-known amnesty advocate and chairman of the Senate Judiciary Immigration Subcommittee — gave floor speeches on Tuesday, July 7 and Wednesday, July 8 in which he urged his fellow senators to oppose the Sessions Amendment. (See Schumer’s speeches from July 7, 2009 and July 8, 2009). On July 8, Schumer offered a motion to table — or kill — the amendment. However, the Senate supported the Sessions Amendment by rejecting Schumer’s motion on a 44-53 vote. (Senate Roll Call Vote #219, July 8, 2009).Following the vote on the motion to table, the Senate agreed by a voice vote to adopt a second degree amendment offered by Senator Patrick Leahy (D-VT) that added language to the Sessions Amendment to permanently authorize the EB-5 Immigrant Investor Regional Center pilot program. (Senator Leahy Press Release, July 8, 2009). This program sets aside 3,000 visas annually for wealthy foreign investors. Following the adoption of Leahy’s second degree amendment, the Senate approved the Sessions Amendment by a voice vote. (Congressional Quarterly, July 9, 2009).
DeMint Border Fence Amendment #1399 — Offered by Senator Jim DeMint (R-SC), Amendment #1399 requires the Department of Homeland Security (DHS) to complete almost 700 miles of double-layered reinforced fencing along the southwest border by the end of 2010. (Senator DeMint Press Release, July 8, 2009). The DeMint Amendment would direct DHS to complete the border fence as Congress originally intended when it passed the Secure Fence Act of 2006. DHS has been constructing fencing that would prevent vehicular border crossings, but the DeMint Amendment will ensure that the border fence will also reduce illegal alien foot traffic.Under the Secure Fence Act, the federal government was instructed to complete “at least 2 layers of reinforced fencing” along a total of about 670 miles of the U.S.-Mexico border before the end of 2008. (Secure Fence Act of 2006). However, in December 2007, Senator Kay Bailey Hutchison (R-TX) successfully attached an amendment to the 2008 Consolidated Appropriations Act that effectively gutted the two layer reinforced fencing requirement by giving DHS the discretion to construct other types of barriers to count toward the 670 mile total. (Consolidated Appropriations Act, 2008, December 26, 2007). As a result, the Government Accountability Office (GAO) reported in January 2009 that only 32 miles of double-layered fencing had been built, and that DHS had no intention to significantly add to that total. (GAO Report, January 29, 2009). The DeMint Amendment restores DHS’ original mandate to complete the entire 670-mile southwest border fence using only double-layered, reinforced fencing. On July 8, the Senate voted 54-44 to adopt the DeMint Amendment. (Senate Roll Call Vote #220, July 8, 2009).
Vitter “No-Match” Amendment #1375 — Offered by Senator David Vitter (R-LA), Amendment #1375 prohibits any of the funding in the FY2010 Homeland Security spending bill from being used to rescind a DHS final rule that provides a method for DHS to notify employers when there are mismatches between names and social security numbers provided by their employees and to instruct employers on how to deal with these so-called “no-match” letters. The Senate approved the Vitter Amendment on July 9 by a voice vote. (Senator Vitter Press Release, July 9, 2009).The adoption of the Vitter Amendment came just one day after the Obama Administration announced its intention to rescind the No-Match rule. (DHS Press Release, July 8, 2009). If Senator Vitter’s amendment survives conference, it will not take effect will until October 1, 2009. The Obama Administration could rescind the No-Match rule before the Vitter Amendment goes into effect.
Grassley E-Verify Amendment #1415 — Offered by Senator Charles Grassley (R-IA), Amendment #1415 would give employers who are enrolled in E-Verify the option to use the program to check the work authorization status of existing employees in addition to new hires. Currently, E-Verify can only be used to check the status of new hires. The Grassley Amendment was adopted by a voice vote on July 9. (Senator Grassley Press Release, July 9, 2009). The benefit of the Grassley Amendment is that employers would be able to begin using E-Verify to ensure that all of their employees are legal — not just their new hires. This would help free up jobs currently held by illegal aliens so that out-of-work Americans could apply for those jobs.
Also on July 9, the Senate adopted one other immigration-related amendment (Amendment #1428) to the FY2010 Homeland Security spending bill. Sponsored by Senator Orrin Hatch (R-UT) and adopted by voice vote, Amendment #1428:
Reauthorizes the Special Immigrant Non-Minister Religious Worker Visa Program for three years. This program, which would otherwise expire in September, provides 5,000 visas annually for foreign non-minister religious workers to enter the United States to perform work for religious institutions. U.S. Citizenship and Immigration Services has found that the Religious Worker Visa Program is highly susceptible to fraud. (Office of Fraud Detection and National Security Fraud Assessment Summary, July 2006).
Reauthorizes the Conrad 30 Program for three years. The Conrad 30 program, which would also otherwise expire in September, allows foreign doctors who attend school in the United States to extend their stay if they agree to practice in medically underserved communities for three years.Eliminates the requirement that an alien widow or widower of a deceased U.S. citizen must have been married to the citizen for a minimum of two years or face the automatic denial of a marriage-based petition for a green card application. (Senator Hatch Press Release, July 10, 2009).
Under current law, a citizen may petition for a green card on behalf of his or her alien spouse. However, current law provides that the petition for a green card for a widow or widower alien whose spouse dies before the couple has been married for two years must ultimately be denied. This provision is designed to prevent marriage fraud. (See FAIR’s Legislative Update, June 15, 2009)…
States Requiring the use of E-Verify (Source: NumbersUSA)
Obama, Napolitano Scrap DHS No-Match Rule, Affirm E-Verify Rule for Federal Contractors
The Obama Administration and the Department of Homeland Security (DHS) made two policy announcements this week. The first will help illegal aliens keep their current jobs and make it easier for illegal aliens to commit Social Security fraud. The second merely restates a Bush-era regulation regarding the use of E-Verify by federal contractors.
On Wednesday, July 8, DHS Secretary Janet Napolitano announced that the Obama Administration would finally implement a Bush-era federal regulation that would require most federal contractors to use E-Verify, the federal government’s employment verification program. The DHS press release praised the effectiveness and reliability of E-Verify, saying the program represents a “smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce.” According to DHS, E-Verify scored high marks in terms of accuracy, reliability, and user convenience and satisfaction. Secretary Napolitano also reiterated that E-Verify is federally funded and is made available to employers at no cost. (DHS Press Release, July 8, 2009).
Despite the welcome news that DHS would begin to require federal contractors to use E-Verify for future contracts, the announcement comes after the Obama Administration delayed this same Bush-era rule on three separate occasions. In the release, Secretary Napolitano noted that DHS will not be applying the regulation until September 8, 2009. (Id.). This means that more than seven months’ worth of federal contracts, including many stimulus contracts, will have been signed by the Obama Administration before this regulation that will protect American jobs will go into effect. (Examiner.com, July 8, 2009; GovernmentExecutive.com, July 8, 2009; and Human Events, July 9, 2009).
Secretary Napolitano also announced that DHS would rescind the so-called “No-Match Rule.” (DHS Press Release, July 8, 2009 and National Review, July 8, 2009). Under the No-Match Rule, the Social Security Administration (SSA) would have been required to notify employers who report earnings for at least ten employees whose names do not match their Social Security numbers (SSNs). The rule would have required that employers double-check their records for accuracy and then have employees work to correct any discrepancies. When DHS announced the No-Match Rule in October 2008, the Department stated: “there is a substantial connection between social security no-match letters and the lack of work authorization by some employees whose SSNs are listed in those letters.” Additionally, DHS cited a private study that concluded that ”most workers with unmatched SSNs are undocumented immigrants.” (No Match Final Rule, October 8, 2008). Last week, Napolitano ignored the role the No-Match Rule could play in immigration enforcement and instead attributed most Social Security no-match letters to “typographical errors or unreported name changes.” (DHS Press Release, July 9, 2009)…
Homeland Security Announces Changes to 287(g) Program
Late last week, Homeland Security Secretary Janet Napolitano announced that U.S. Immigration and Customs Enforcement (ICE) will alter the process that state and local law enforcement agencies must follow in order to participate in the 287(g) program. The 287(g) program — named for the section of the Immigration and Nationality Act that authorizes the program – allows ICE to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration laws.
In order to participate in 287(g), state and local law enforcement agencies are required to enter into a Memorandum of Agreement (MOA) with ICE. According to ICE, MOAs are designed to define “the scope and limitations of the authority to be designated” under 287(g). An MOA also establishes “the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA.” (ICE Fact Sheet). Napolitano’s announcement last week indicated that ICE has “standardized the Memorandum of Agreement (MOA) used to enter into ’287(g)’ partnerships.” (DHS Press Release, July 10, 2009). According to the DHS press release, the new MOA “aligns 287(g) local operations with major ICE enforcement priorities — specifically, the identification and removal of criminal aliens.” The new MOA, the press release says, is meant “to address concerns that individuals may be arrested for minor offenses as a guise to initiate removal proceedings.” (Id.).
According to the author of the legislation that created 287(g) (House Judiciary Committee Ranking Member Lamar Smith (R-TX)), the new, one-size-fits-all, Washington-knows-best MOA approach contradicts with the legislative intent of the program. Smith noted at a House Homeland Security Committee hearing in March that “the goal was to really enable those local law enforcement authorities who wanted to enforce the immigration laws in whatever way they thought best…and that’s really a decision made by the government in individual situations.” (House Homeland Security Committee Hearing, March 4, 2009).
In addition, ICE’s new emphasis on aligning 287(g) with “the identification and removal of criminal aliens” is another departure from Congress’ intent. According to Smith, 287(g) MOAs should be tailored to suit the needs of law enforcement agencies who elect to participate in the program, “and that might or might not include those who have committed serious crimes.” (Id.). DHS’ announcement eliminates much needed flexibility in the program that has helped local government tailor the MOAs to meet their local needs. A January 2009 Government Accountability Office (GAO) report confirming Rep. Smith’s statement regarding the focus of the 287(g) program calls into question the DHS decision, which could dramatically undermine the effectiveness of the program. According to GAO, “Section 287(g) and its legislative history do not detail…which removable aliens should be prioritized for removal.” (GAO Report, January 2009)…
Schumer Pushes Amnesty Bill by Labor Day, Despite the Objections of the American People
Last week, Senator Chuck Schumer (D-NY), chairman of the Senate Immigration Subcommittee, declared that he expects to have a new amnesty bill ready by Labor Day. (The Associated Press, July 8, 2009). This announcement came on the heels of a report released by an Independent Task Force of the Council on Foreign Relations (CFR) (The Washington Post, July 9, 2009), co-chaired by former Florida governor Jeb Bush and former Clinton White House chief of staff Thomas McLarty. The Task Force concluded that an amnesty program “is necessary and warranted for many illegal immigrants living in the United States.” (Council on Foreign Relations Independent Task Force Report No.63, July 8, 2009).
Senator Schumer’s declaration and the conclusion of the CFR Task Force are out-of-touch with the views of the American people as evidenced by a recently released Rasmussen poll. According to Rasmussen, this latest push for amnesty comes at a time when most voters don’t view immigration as a priority issue. Instead of passing an amnesty bill, 66% of likely voters say it is very important for the government to improve its enforcement of the borders and reduce illegal immigration. In addition, 75% of voters believe that the federal government is not doing enough to secure the nation’s borders. (Rasmussen Reports, July 7, 2009). The American people understand that amnesty would allow the more than 12 million illegal aliens in the United States to begin openly competing for any available jobs with the nearly 14.7 million American workers who are currently out of work. (See FAIR’s Amnesty and Joblessness Report, July 2009).
States with In-State Tuition Laws (Source: NumbersUSA)
By Spencer S. Hsu – Washington Post Staff Writer – Thursday, July 9, 2009
President Obama will abandon a controversial immigration crackdown, sought by his predecessor, to pressure U.S. companies to fire 9 million workers with suspect Social Security numbers, Homeland Security Secretary Janet Napolitano announced yesterday.
Instead, Obama will mandate that federal contractors confirm the identities of 4 million workers against federal databases beginning in September, pushing ahead under pressure from Senate Republicans with another long-stalled Bush administration initiative.
Napolitano said her department will rescind a 2007 rule, tied up in federal court, that would have sent Social Security “no-match” letters to 140,000 U.S. employers. The notices were to warn companies to resolve discrepancies or fire suspect workers within 90 days, or face criminal penalties.
Instead, she said, the Department of Homeland Security will take a “more modern and effective” approach, ordering an estimated 170,000 federal contractors to confirm employees’ work documents against E-Verify, until now a voluntary electronic government system for companies to check new hires’ immigration and Social Security data.
Combined with a renewed emphasis by the DHS on targeting companies that hire illegal immigrants with civil fines and audits instead of high-profile raids, the moves mark the clearest sign yet of Obama’s efforts to chart a middle course on immigration enforcement, analysts said.
The administration’s announcement appeared aimed at satisfying law-and-order conservatives on Capitol Hill, where Senate Republicans successfully amended Homeland Security’s $43 billion 2010 budget yesterday to extend E-Verify to federal contractors and to expand construction of fencing on the U.S.-Mexico border.
“The American people have made it clear that immigration reform should start with better enforcement of the laws already on the books,” said Sen. Jeff Sessions (Ala.), the ranking Republican on the Senate Judiciary Committee. “Making [E-Verify] permanent and mandatory for federal contractors would be a big step toward meeting the public’s expectations.”
At the same time, Obama has told immigrant advocacy groups that Congress should try to overhaul the nation’s immigration laws within the coming year with the support of business groups and organized labor, all of whom had bitterly opposed the no-match rule.
“The Obama administration is trying to find its voice and put forward a coherent enforcement strategy,” said Angela Kelley, immigration analyst at the left-leaning Center for American Progress. “They’re looking for solid footing on enforcement so they can move on to what is the unknown territory” of broader legislation addressing the fate of 12 million illegal immigrants and the future flow of foreign workers, she said.
The complexity of navigating a centrist course, however, was revealed yesterday by the mixed reaction to Napolitano’s announcement.
As expected, business groups such as the U.S. Chamber of Commerce hailed the decision to kill the no-match rule. Since October 2007, a federal judge had held up the rule, acknowledging arguments by critics that the Bush administration failed to consider the impact on small businesses and that the rule could lead to discrimination against many legal workers because of millions of errors in the government’s Social Security databases.
But Angelo I. Amador, a spokesman for the Chamber, said business groups will continue to fight the contractor requirement in federal court, arguing that Congress never intended to make participation in the worker verification program mandatory.
“As of right now, our position remains that the rule as written is unconstitutional,” Amador said…
The July 9 news story “Obama Revives Bush Idea to Catch Illegal Workers” said that the Obama administration will not force 9 million American workers with suspect Social Security numbers to provide evidence of their identity and the legitimacy of their numbers to retain their jobs. This lack of strict enforcement also may contribute to illegitimate voting.
While unemployment among people carrying legitimate Social Security numbers is nearing 10 percent, as many as 9 million unknown fabricators are allowed to continue working.
I voted for President Obama because he promised to bring change and accountability to Washington, but it is beginning to seem as if he is of the same ilk as his predecessor. George W. Bush is clearly not off the hook for his failure to act on this security issue. He did nothing for close to eight years but talk about doing something. Though there are implications here for homeland security, it is politics as usual — one politician setting up the other to try to gain an advantage. But in Mr. Obama’s case, he promised to stop it. It is simple: This is sanctioned identity fraud.
CHANDLER GARDINER Falls Church
US Census Bureau; demographer Leon Bouvier; Roy Beck, Numbers USA (Source: CAIR)
by James Jay Carafano, Ph.D. WebMemo #2535 July 10, 2009
This week, the Department of Homeland Security (DHS) announced it plans to kill some responsible, reasonable workplace verification rules. As a result, the department will perform less–not more–workplace checks.
This announcement undercuts the claim that the department is interested in “smart and tough” immigration enforcement.Effective workplace enforcement is vital, as employment is the principal draw for illegal immigrants to come to the United States. They come here for the jobs. Enforcing workplace laws is a vital component to create disincentives to unlawful immigration. Congress should not authorize or fund efforts to scale back workplace enforcement.
What DHS Did: Giving the Green Light to Employers to Hire Unauthorized Aliens
Homeland Secretary Janet Napolitano announced today that the department intends to rescind the 2007 Social Security No-Match Rule, a rule designed to clarify the obligations employers had with respect to knowingly hiring unauthorized aliens.
No-match letters are not new and are a tested component of the Social Security system, in use for nearly 30 years. The Social Security Administration (SSA) is required to track workers’ wage histories and collects this information from the W-2 forms that employers submit each year for each employee. Each year, the SSA receives 8-11 million W-2 forms containing names and Social Security numbers that do not match the information in its records. In 1994, SSA started sending no-match letters to employers who submitted 10 or more W-2 forms that could not be matched to SSA records or who have no-matches for more than one-half of 1 percent of their workforces. The majority of the individuals named in the no-match letters sent to employers are aliens unauthorized to work in the United States.
Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal to “knowingly” employ an alien unauthorized to work in the United States. However, some employers were uncertain as to whether receiving a no-match letter amounted to constructive knowledge that an employee was unauthorized to work. Many employers took advantage of this uncertain state of affairs and did little or nothing upon receipt of a no-match letter.
Therefore, in August 2007, the Immigration and Naturalization Service (INS) promulgated a formal rule on no-match letters to ensure greater uniformity of enforcement and to clarify the definition of “constructive knowledge.” The rule carved out a safe harbor for employers who receive no-match letters and spelled out what employers must do upon receipt of a no-match letter.
The new rule and guidance were an attempt to inform employers of their obligations under IRCA and of the risk they run by turning a blind eye to their employees’ false or forged credentials. Anti-enforcement groups were quick to protest, admitting that this new approach would actually have an impact on illegal employment. They sued, and in October 2007 a federal court issued a preliminary injunction against enforcement of the rule on the grounds that DHS did not sufficiently justify its change in policy among other things.
Subsequently, DHS provided its justification for the change in policy and amended the proposed rule in compliance with the court’s order. There is every reason to believe that the Administration would ultimately succeed in court if it pressed forward with this lawsuit. The amended proposed rule would become law, and employers would have the specific guidance they need to be in compliance with IRCA.
What DHS Did Wrong
Instead, the department said it will no longer seek to issue revised no-match letters and rely solely on a “more modern and effective E-Verify system.” Through E-Verify, participating employers can instantly check the work eligibility status of new hires through a secure online service that compares information from an employee’s I-9 form against SSA and DHS databases. This service is provided free to employers (though the individual companies must bear the cost of providing the infrastructure and people to enter the data). The system has proven to be quite effective, and SSA and DHS continue to work to improve service, reliability, and privacy protections.
The department also announced “the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.” This is unobjectionable and in fact merely a continuance of the previous Administration’s plans and not a new initiative.
E-Verify is an excellent program. It is, however, not mandatory for all employers. Thus, the first consequence of not issuing no-match letters–and failing to allow DHS to check the no-match data compiled by SSA to identify employers who habitually scoff workplace at immigration laws–is that DHS will be doing less workplace enforcement, not more. In addition, it is not fully clear whether this Administration will fully comply with the intent of the previous Administration to apply E-Verify to all federal contract employees.
If, for example, E-Verify were applied only to new employees hired specifically for the contract work, then for instance, if a construction firm hires an unlawfully present individual and then one week later assigns him to work on a federal contract project, this unlawful individual would be considered an “existing employee” not subject to E-Verify.This Administration must craft the E-Verify rules to apply to all existing employees working for the federal government (a rule in place in the Bush Administration) and under federal government contracts; otherwise the result would be less work place enforcement, not more. That is unacceptable.
Legalese
The DHS press release stated that the department was abandoning “no-match” because it had been challenged in the courts and an injunction was issued byDistrict Judge Charles Breyer. This statement is at odds with an announcement last year by the department when it proposed a revised rule on issuing no-match letters. Then, the department argued “additional detail provided in the proposal is enough to have the injunction lifted.” In fact, the Bush Administration amended the proposed rule consistent with Judge Breyer’s ruling, and there is every reason to believe that he would be forced to lift the stay if this Administration pushed the issue in court with him. Conversely, the press announcement did not note that the department’s efforts to have E-Verify apply to federal contractors has also been challenged in court. Indeed, any efforts at real workplace enforcement are likely to be challenged in the courts. Offering court challenges as an excuse to make bad public policy is unacceptable as well.
Moving Forward
One hundred percent verification of workplace enforcement is already a requirement by law.In order to curtail illegal immigration, this statute should finally be enforced by moving toward requiring all employers to use E-Verify to confirm the employment eligibility of all new hires and current employees.
Government policy should be based on the principles of empowerment, deterrence, and information. It should empower honest employers by giving them the tools to determine quickly and accurately whether a new hire is an authorized worker. It should hold employers free from penalty if they inadvertently hire an illegal worker after following the prescribed procedures.
Government should perform this verification in the most efficacious manner possible, one that is cost-effective; protects individual data and privacy; minimizes the burden on employers; and addresses concerns over security, public safety, and enforcement of workplace and immigration laws. Nothing less is acceptable. E-Verify is an important component of this effort and must be authorized as a permanent program and fully funded by the Congress and its use expanded by the government as practicable. Unitl E-Verify is more broadly adopted throughout the U.S. workforce, E-Verify must be complemented by a robust no-match letter process that assists employers by specifically spelling out their obligations. By rescinding the 2007 no-match letter amended rule, the Administration is effectively saying that it will not enforce the law against employing illegal immigrants for the overwhelming bulk of U.S. employers. It is giving employers of unauthorized aliens legal cover and an excuse not to follow IRCA. The new policy is an “open door” to hiring illegal immigration at a time of near record-high unemployment among American workers.
Rather than kill 2007 amended rule on “no-match” letters, a far better policy would be to retain the letter option and, in addition, for the SSA to routinely share no-match data directly with DHS. This can be done in a manner that does not risk individual employees’ sensitive information or civil liberties. With this data, DHS could more efficiently target employers who willfully hire unlawfully present labor.
Congress Must Act
The right approach to immigration enforcement is to combine “no-match” letters and greater data sharing between DHS and SSA with a reasonable and robust E-Verify program. The outline of the plan announced by DHS today may in the not too distant future leave America with neither. Consequently, Congress should:
Reject the plan announced by DHS to abandon the 2007 amended “no-match” letter rule;
Establish in law the authority for SSA and DHS to routinely and appropriately share SSA data in a manner that respects and safeguards personal information and the right to privacy;
Permanently authorize E-Verify and fund DHS to continue to expand and improve the program;
Require the department to issue a report explaining what is meant by “smart and tough enforcement” and each component of its workplace and immigration enforcement strategy;
Direct the General Accountability Office to evaluate the department’s workplace enforcement strategy; and
Defer major immigration or border security enforcement reform legislation until the Administration implements a comprehensive, suitable, feasible, and acceptable policy for workplace and immigration enforcement.
It is the responsibility of Homeland Security to enforce the law in a manner that is both reasonable and effective. This week’s announcement fails that test. Congress should not let it stand.
James Jay Carafano, Ph.D., is Assistant Director of the Kathryn and Shelby Cullom Davis Institute for International Studies and Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies at The Heritage Foundation.
US Census Bureau – Statistical Yearbook – Immigration and Naturalization Service — Averages: 178,000 per year from 1925-1965, 195,000 per year from 1921-1970 (Source: CAIR)
For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010
Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department’s intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.
“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.”
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.
On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent.
In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.
DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.
As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report). For more information on E-Verify, visit www.uscis.gov/everify.
Federal Contractor rule delayed until September 8, 2009
(Link/Emphasis mine)
The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until September 8, 2009.
The rule will only affect federal contractors who are awarded a new contract after September 8, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704).
Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.
The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. You can read frequently asked questions about this new rule in the link below.
From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr14no08-30]
[[Page 67651]]
———————————————————————–
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 22, and 52
[FAC 2005-29; FAR Case 2007-013; Docket 2008-0001; Sequence 1] RIN 9000-AK91
Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification
AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
———————————————————————–
SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the E-Verify system administered by the Department of Homeland Security, U.S. Citizenship and Immigration Services, as the means of verifying that certain of their employees are eligible to work in the United States.
DATES: Effective Date: January 15, 2009.
Applicability Date: Contracting Officers should modify, on a bilateral basis, existing indefinite-delivery/ indefinite-quantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAC 2005-29, FAR case 2007-013.
SUPPLEMENTARY INFORMATION:
A. Background and Purpose
Employment Eligibility Verification Requirements
As explained more fully in the proposed rule, the Federal Property and Administrative Services Act of 1949 (FPASA), authorizes the President to “prescribe policies and directives” governing procurement policy “that the President considers necessary to carry out” that Act and that are “consistent” with the Act’s purpose of “provid[ing] the Federal Government with an economical and efficient” procurement system. 40 U.S.C. 101, 121.
On June 6, 2008, the President exercised this authority and the authority vested in him under section 301 of Title 3 of the United States Code in issuing Executive Order 13465 “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System.”
73 FR 33285, Jun. 11, 2008, amending Executive Order 12989 (signed February 13, 1996, published February 15, 1996 at 61 FR 6091), previously amended by Executive Order 13286 (signed February 28, 2003, published March 5, 2003 at 68 FR 10619).
As amended, Executive Order 12989 now provides, at Section 5.(a), that “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) All persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.”
The Executive Order also requires, at Section 5.(c), that the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration “amend the Federal Acquisition Regulation to the extent necessary and appropriate to implement the * * * employment eligibility verification responsibility * * * assigned to heads of departments and agencies under this order.”
On June 9, 2008, the Secretary of Homeland Security designated the “E-Verify system, modified as necessary and appropriate to accommodate the policy set forth in the Executive Order * * * as the electronic employment eligibility verification system to be used by Federal contractors.” (See 73 FR 33837, Jun. 13, 2008.)
This final rule responds to these requirements, and the Secretary’s designation, by amending the FAR to require certain Federal contractors and subcontractors to use the E-Verify system (E-Verify) administered by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) as the means of verifying that certain of their employees are authorized to work in the United States.
[Federal Register: November 14, 2008 (Volume 73, Number 221)]
[Rules and Regulations]
[Page 67651-67705]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no08-30]
[[Page 67651]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 22, and 52
[FAC 2005-29; FAR Case 2007-013; Docket 2008-0001; Sequence 1]
RIN 9000-AK91
Federal Acquisition Regulation; FAR Case 2007-013, Employment
Eligibility Verification
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to require certain
contractors and subcontractors to use the E-Verify system administered
by the Department of Homeland Security, U.S. Citizenship and
Immigration Services, as the means of verifying that certain of their
employees are eligible to work in the United States.
DATES: Effective Date: January 15, 2009.
Applicability Date: Contracting Officers should modify, on a
bilateral basis, existing indefinite-delivery/ indefinite-quantity
contracts in accordance with FAR 1.108(d)(3) to include the clause for
future orders if the remaining period of performance extends at least
six months after the final rule effective date, and the amount of work
or number of orders expected under the remaining performance period is
substantial.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement
Analyst, at (202) 208-6925 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-29, FAR case
2007-013.
SUPPLEMENTARY INFORMATION:
A. Background and Purpose
Employment Eligibility Verification Requirements
As explained more fully in the proposed rule, the Federal Property
and Administrative Services Act of 1949 (FPASA), authorizes the
President to ``prescribe policies and directives'' governing
procurement policy ``that the President considers necessary to carry
out'' that Act and that are ``consistent'' with the Act's purpose of
``provid[ing] the Federal Government with an economical and efficient''
procurement system. 40 U.S.C. 101, 121. On June 6, 2008, the President
exercised this authority and the authority vested in him under section
301 of Title 3 of the United States Code in issuing Executive Order
13465 ``Economy and Efficiency in Government Procurement through
Compliance with Certain Immigration and Nationality Act Provisions and
the Use of an Electronic Employment Eligibility Verification System.''
73 FR 33285, Jun. 11, 2008, amending Executive Order 12989 (signed
February 13, 1996, published February 15, 1996 at 61 FR 6091),
previously amended by Executive Order 13286 (signed February 28, 2003,
published March 5, 2003 at 68 FR 10619). As amended, Executive Order
12989 now provides, at Section 5.(a), that ``Executive departments and
agencies that enter into contracts shall require, as a condition of
each contract, that the contractor agree to use an electronic
employment eligibility verification system designated by the Secretary
of Homeland Security to verify the employment of: (i) All persons hired
during the contract term by the contractor to perform employment duties
within the United States; and (ii) all persons assigned by the
contractor to perform work within the United States on the Federal
contract.'' The Executive Order also requires, at Section 5.(c), that
the Secretary of Defense, the Administrator of General Services and the
Administrator of the National Aeronautics and Space Administration
``amend the Federal Acquisition Regulation to the extent necessary and
appropriate to implement the * * * employment eligibility verification
responsibility * * * assigned to heads of departments and agencies
under this order.''
On June 9, 2008, the Secretary of Homeland Security designated the
``E-Verify system, modified as necessary and appropriate to accommodate
the policy set forth in the Executive Order * * * as the electronic
employment eligibility verification system to be used by Federal
contractors.'' (See 73 FR 33837, Jun. 13, 2008.)
This final rule responds to these requirements, and the Secretary's
designation, by amending the FAR to require certain Federal contractors
and subcontractors to use the E-Verify system (E-Verify) administered
by the Department of Homeland Security (DHS), U.S. Citizenship and
Immigration Services (USCIS) as the means of verifying that certain of
their employees are authorized to work in the United States.
California could see a nearly $1.4 billion per year increase in state revenues were it to legalize marijuana, the state Board of Equalization says in an analysis of pending legislation to to do that.
The bill (Assembly Bill 390) by Assemblyman Tom Ammiano, D-San Francisco, is still awaiting its first committee hearing and is likely not to be considered until next year. It would impose not only sales taxes but a $50 per ounce fee on marijuana sales, which would be licensed by the state much as alcoholic beverages are regulated.
Today, although considered illegal by federal authorities, California allows limited sales of marijuana for medicinal purposes, subject to local control, in accordance with a ballot measure approved by voters in 1996. And the state imposes sales taxes on those pot transactions. But wider sales would, under the Ammiano bill, be dependent on federal permission.
California is considered by federal authorities to be the nation’s top marijuana producing state with 8.6 million pounds a year, valued at $13.8 billion, making it one of the state’s largest agricultural crops, much of which is exported to other locales.The Board of Equalization analysis concludes that assuming 16 million ounces of marijuana consumption in California a year, legalization under AB 390 would generate $990 million from the $50 per ounce special levy and $392 million in sales taxes.
“We can no longer afford to keep our heads in the sand when it comes to marijuana,” Ammiano said in a statement. “The move towards regulating and taxing marijuana is long overdue and simply common sense. The benefits of regulation are clear – controlling marijuana would generate up to $1.3 billion in much needed revenue for the state, restrict access to only those over 21, end the environmental damage to our public lands from illicit crops, and improve public safety by redirecting law enforcement efforts to more serious crimes.
“It defies reason to propose closing parks and eliminating vital services for the poor while this potential revenue is available. California has an historic opportunity to be the first state in the nation to enact a smart, responsible public policy for the control and regulation of marijuana.”
By Karl Vick, Sunday, April 12, 2009; Page A03 (Emphasis mine)
LOS ANGELES — With little notice and even less controversy, marijuana is now available as a medical treatment in California to almost anyone who tells a willing physician he would feel better if he smoked.
Pot is now retailed over the counter in hundreds of storefronts across Los Angeles and is credited with reviving a section of downtown Oakland, where an entrepreneur sells out classes offering “quality training for the cannabis industry.” The tabloid LA Journal of Education for Medical Marijuana is fat with ads for Magic Purple, Strawberry Cough and other offerings in more than 400 “dispensaries” operating in the city.
Los Angeles officials say applications for retail outlets surged after Feb. 26, when U.S. Attorney General Eric H. Holder Jr. announced that the Drug Enforcement Administration will no longer raid such stores. Those pressing for change in drug laws regard the announcement as a watershed in a 40-year battle against marijuana’s official listing as a dangerous drug — a legal fight that, in California, is being waged on ground that has shifted dramatically toward acceptance.
All told, 13 states have legalized medical marijuana, a trend advocates credit in part to growing openness to alternative healing. As a “Schedule 1″ drug under the 1970 federal narcotics act, marijuana officially has “no currently accepted medical use.” But doctors have found it effective in reducing nausea, easing glaucoma, and improving appetite and sleep in AIDS patients…
But in California, pot is such a booming growth industry that lawmakers are being asked to consider its potential as a salve to the state’s financial woes. Betty Yee, chairman of the California State Board of Equalization, endorsed a bill in February to regulate the estimated $14 billion marijuana market, citing the state’s budget problems. California currently collects $18 million in sales taxes from marijuana dispensaries, and Yee said a regulated pot trade would bring in $1.3 billion.
“I think the tide is starting to turn in terms of marijuana being part of the mainstream,” she said. “The pieces seem to be falling into place.”
…The new reality can be disorienting. In Mendocino County, the heart of Northern California’s “Emerald Triangle,” marijuana farming has been openly tolerated since the arrival of counterculture refugees in the late 1960s. But elected officials say they are being forced to crack down on growers who offended neighbors with aggressive farming after medical marijuana laws hastened pot’s shift from the black market to a gray zone.
“Prop. 215 opened up a new world for people who had been underground,” said Scott Zeramby, referencing the 1996 ballot proposition that legalized pot for medical users. By 2007, Zeramby’s garden supply business in the town of Fort Bragg was doing $2.5 million in business amid a land rush by new growers eager to cash in.
“Things were getting a little crazy, even out of hand,” Zeramby said. “What happened? A critical mass.”
…”Medical marijuana, right here, right now,” chants a barker on the Venice Beach Boardwalk, outside the doorway of the Medical Kush Beach Club. “Get legal, right now.”
It really is that easy, the barker explains. Before being allowed to enter the upstairs dispensary and “smoking lounge,” new customers are directed first to the physician’s waiting room, presided over by two young women in low-cut tops. After proving state residence and minimum age (21), customers see a doctor in a white lab coat who for $150 produces a “physician’s recommendation.”
Valid for one year, it is all that California law requires to purchase and smoke eight ounces legally.
…Oakland allows anyone with a medical card to cultivate 72 plants — 12 times the number the state legislature suggested in SB 420, which passed in 2003. (Even the title of the bill could be taken for a knowing wink, “420″ being subculture code for enjoying marijuana). The bill generously interpreted the ballot initiative, which allowed pot to be dispensed for “any illness for which marijuana provides relief.”
…”They blend in quite well. It’s not what you would expect,” said Gertha Hays, who owns a boutique next door. “You might think it’s going to be drug dealers, all this and that. It’s not like that. And there’s no particular stereotype of who’s a cannabis smoker. It’s all types.”
Some customers walk over from the Alameda County Public Health Department. There, for $103 ($51.50 if on Medi-Cal), residents can upgrade from a simple physician’s recommendation to an official medical marijuana identification card, widely regarded as stronger protection against prosecution.
CALIFORNIA STATE BOARD OF EQUALIZATION STAFF LEGISLATIVE BILL ANALYSIS
Date Introduced: 02/23/09 (Emphasis mine)
Bill No: AB 390 Tax: Marijuana Fee Author: Ammiano Related Bills: This analysis will only address the provisions which impact the State Board of Equalization (Board).
BILL SUMMARY
Among other things, this bill would impose a fee of fifty dollars ($50) per ounce on the retail sale of marijuana in this state. The Board would be required to administer and collect the fee on or after a specified date, and the funds would be dedicated to drug education, awareness, and rehabilitation programs.
ANALYSIS CURRENT LAW
Federal Law. Existing federal law prohibits the manufacture, possession, sale or distribution of marijuana. (21 U.S.C. § 841 et seq.) Congress enacted the Controlled Substances Act, (21 U.S.C. § 801 et seq.) (CSA) as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA establishes five “schedules” of certain drugs and other substances designated “controlled substances.” (21 U.S.C. §§802(6), 812(a).) For a drug or other substance to be designated a schedule I controlled substance, it must be found that the substance “has a high potential for abuse,“ have “no currently accepted medical use in treatment in the United States,” and lack accepted safety for use of the drug or other substance under medical supervision.” (21 U.S.C. § 812 (b)(1).)
Federal law lists marijuana as a schedule I controlled substance, deemed to have no accepted medical use. (21 U.S.C. § 812:Schedule I(c)(10).) State Law. Existing state law prohibits, except as authorized by law, the possession, cultivation, transportation, and sale of marijuana and derivatives of marijuana. (Health and Safety Code Sections 11357, 11358, 11359, and 11360.) Existing state law, as authorized under The Compassionate Use Act of 1996 (Proposition 215 of 1996), allows a patient or the patient’s primary caregiver to cultivate or possess marijuana for the patient’s medical use when recommended by a physician, as specified. (Health and Safety Code Section 11362.5) Under existing law, there is no fee imposed on the possession, sale, transport or cultivation of marijuana or derivatives of marijuana.
Under existing Sales and Use Tax Law (Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code), sales tax is imposed on all retailers for the privilege of selling tangible personal property at retail in this state, except where specifically exempted by statute. Tangible personal property is defined in law to mean any personal property which may be seen, weighed, measured, felt, or touched, or which is in any other manner perceptible to the senses. Therefore, under the law, retail sales of marijuana and any other illegal drugs or property, are subject to sales or use tax to the same extent as is any lawful retail sale of tangible personal property. This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
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PROPOSED LAW
This bill would, among other things, add Part 14.6 (commencing with Section 34001) to Division 2 of the Revenue and Taxation Code (RTC) to enact the Marijuana
Supplemental Fee Law.
This bill would impose a fee of fifty dollars ($50) per ounce for the sale of marijuana sold at retail in this state on or after the date determined by Business and Professions Code (BPC) Section 25406. BPC Section 25406 provides that the bill’s provisions shall be enforced when the later of the following has occurred: (1) 30 days after the operative date of the regulations issued pursuant to Chapter 14.5 (commencing with Section 25400) of Division 9 of the BPC (added by this bill), or 2) 30 days after the date when federal law permits the possession and sale of marijuana consistent with BPC Chapter 14.5. Definitions.
This bill would define “marijuana,” for purposes of imposing the supplemental fee under the RTC, to include all marijuana, concentrated cannabis, and their derivatives, except that marijuana containing less than one-half of 1 percent tetrahydrocannabinol by weight is not subject to this supplemental fee. The bill provides that this fee shall not be imposed on marijuana used medicinally with a doctor’s recommendation as specified in Health and Safety Code Section 11362.5, which is known and cited as The Compassionate Use Act of 1996.
This bill would also define “retailer,” for purposes of imposing the supplemental fee, to mean any retailer licensed pursuant to BPC Section 23394.1 who sells marijuana at retail. BPC Section 23394.1 provides that an off-sale general license authorizes the sale, to consumers only and not for resale, of marijuana, concentrated cannabis, or any of its derivatives pursuant to the provisions of BPC Chapter 14.5.
Collection and Administration. Returns and payments, determinations, collections of fees, overpayments and refunds, and administration required under the provisions of this bill would be governed by Chapters 5, 6, 7, and 8 of the Sales and Use Tax Law. The Board would be required to enforce the provisions and may prescribe, adopt, and enforce rules and regulations relating to the administration and enforcement of this bill.
Disposition of Fund and Adjustment of Fees. Any amounts required to be paid under this part would be deposited into the Drug Abuse Prevention Supplemental Funding Account, which this bill would create in the State’s General Fund. Upon appropriation by the Legislature, the monies in the fund would be used exclusively for drug education, awareness, and rehabilitation programs under the jurisdiction of the Department of Alcohol and Drug Programs. The Department of Alcohol and Drug Programs would be required to review annually the fee imposed under this part to determine whether a lesser fee would provide sufficient resources to support its drug education, awareness, and rehabilitation programs.
Based on this annual review, the Department of Alcohol and Drug Programs would be required to adjust the fee to an amount not to exceed fifty dollars ($50) per ounce of marijuana that is necessary to fund the programs. Other provisions. Under proposed Chapter 14.5, Commercial Marijuana Production and Sale, of Division 9 of the BPC, the Department of Alcoholic Beverage Control (ABC) would license both commercial cultivators of marijuana and wholesalers of marijuana, who would be allowed to package and prepare marijuana for sale and would be authorized to sell marijuana to licensed sales outlets. These provisions would establish fees for the initial application for a license and fees for each annual renewal of a license. This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
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Effective and operative date. The provisions of the bill would become effective on January 1, 2010; however, the bill’s provisions would become operative the later of either: (1) 30 days after the operative date of the regulations issued pursuant to Chapter 14.5 of Division 9 of the BPC, or (2) 30 days after the date when federal law permits the possession and sale of marijuana consistent with Chapter 14.5.
BACKGROUND – MEDICAL MARIJUANA SELLERS – SALES TAX
As previously stated, in 1996 California voters passed Proposition 215, also known as the Compassionate Use Act of 1996, which allows patients and their primary caregivers to cultivate or possess marijuana for personal medical treatment with the recommendation of a physician, as specified. In 2003, SB 420 (Ch. 875, Vasconcellos, Stats. 2003) was enacted to establish statewide guidelines for Proposition 215 enforcement. In particular, SB 403 clarified that nonprofit distribution is allowed in certain cases for patient cultivation cooperatives, small-scale caregiver gardeners, and dispensing collectives.
However, despite the fact that numerous medical marijuana dispensaries are currently in business in California, the sale of medical cannabis is illegal under federal law. Up until late 2005, the Board’s longstanding policy was to not issue a seller’s permit to a person whose sole selling activity is the unlawful sale of tangible personal property, so as not to confer permissive authority or condone an illegal activity. However, although it was Board policy not to issue seller’s permits, the sale of medical marijuana has always been considered taxable.
In October 2005, the Board changed its policy after hearing a case that came before the Members of the Board involving medical marijuana sales, when the Board recognized the difficulty in reconciling its authority to issue assessments for taxes due from a seller’s marijuana sales while, at the same time, not issuing seller’s permits to such sellers, and also took into account the legality under state law of some sales of marijuana as authorized in SB 420. Now, the Board issues seller’s permits to those medical marijuana sellers that apply and will issue seller’s permits to any other sellers making unlawful sales. As part of the Board’s education outreach efforts, a special notice was mailed to California sellers of medical marijuana to clarify the application of tax to sales of medical marijuana and the requirement that they must hold a seller’s permit.
COMMENTS
1. Sponsor and purpose. Assembly Member Ammiano is sponsoring this measure in an effort to generate more revenue for the state by regulating and taxing marijuana in a manner similar to alcohol.
2. Sales of marijuana would be subject to the proposed fee and the sales tax. As previously stated, retail sales of marijuana are subject to tax to the same extent as any other lawful retail sale of tangible personal property. Under the provisions of this bill, a retailer must apply to the ABC to obtain a license to sell marijuana at retail and be liable for the fee on its sales of marijuana in this state. In addition to the proposed fee, a licensed marijuana retailer would be required to apply for a seller’s permit, file returns, and pay sales tax to the Board. This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
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It should also be noted that the proposed fee would be included in the amount on which the sales tax would be imposed. Under current law, sales and use tax is due based on the gross receipts or sales price of tangible personal property in this state. The proposed marijuana fee would not be specifically excluded from gross receipts or sales price, so it would be included in the amount on which sales tax is computed.
3. What if marijuana is sold in amounts less than one ounce? It is not clear if the proposed fee would apply to retail sales of marijuana that are sold in amounts of less than one ounce. It is our understanding that medical marijuana is often sold in containers or packages of 1/8 of an ounce. Medical marijuana may also be purchased in the form of cigarette or joint. Would the sale of one or more joints, which would be less than an ounce, be subject to the fee? Would other marijuana products, such as edible products (e.g., brownies) containing marijuana be subject to the fee? This bill would require that the ABC develop an inspection and tracking system to ensure that marijuana may not be sold by an off-sale general licensee if that marijuana has not been assessed the proposed fee. While it is not specific, it appears that the intent of the bill is to make all sales of marijuana made by an off-sale general licensee subject to the proposed fee.
4. Operative date depends on federal changes. BPC Section 25406 provides that the ABC will begin enforcing the bill’s provisions beginning the later of when the following occur: (1) 30 days after the operative date of the regulations issued pursuant to Chapter 14.5 of Division 9 of the BPC, or (2) 30 days after the date when federal law permits the possession and sale of marijuana consistent with Chapter 14.5. Therefore, it appears the fee would be imposed on the retail sale of marijuana when such sale is permitted by the federal government. As the Board would require sufficient time to implement the fee collection provisions of the bill, it is recommended that the bill be revised to set an operative date for imposition and collection of the fee to be, e.g., the first day of the quarter beginning no less than 180 days after the later of the two events occurs.
5. The bill provides for three types of licenses issued by the ABC. The ABC would be responsible for issuing a license to commercial cultivators of marijuana (BPC Section 25401), marijuana wholesalers (BPC Section 25403), and marijuana retailers (BPC Section 23394.1). Marijuana wholesalers are authorized to package and prepare marijuana for sale and are also authorized to sell marijuana to licensed sales outlets. A retailer (off-sale general licensee) would be authorized to sell marijuana to consumers only and not for resale. The ABC is required to adopt and enforce regulations concerning the operations of commercial cultivators of marijuana, the sale and packaging of marijuana by wholesale licensees, and the sale of marijuana by off-sale general licensees. These regulations shall include an inspection and tracking system to ensure that marijuana cultivated, distributed, and ultimately sold by an off-sale general licensee is assessed the proposed fee.
6. Proposed fee should reference the Fee Collections Procedures Law. As written, the proposed fee, to the extent feasible, would be administered and collected in a manner consistent with the Sales and Use Tax Law, including the returns and payments, determinations, collections of fees, overpayments and refunds. However, since this fee does not parallel the sales and use tax, it is This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
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Recommended that the administrative provisions be placed under the Fee Collections Procedures Law (Part 30 (commencing with Section 55001) of Division 2, of the Revenue and Taxation Code). The Fee Collection Procedures Law contains “generic” administrative provisions for the administration and collection of fee programs to be administered by the Board. The Fee Collection Procedures Law was added to the Revenue and Taxation Code to allow bills establishing a new fee to reference this law, thereby only requiring a minimal number of sections within the bill to provide the necessary administrative provisions.
Among other things, the Fee Collection Procedures Law includes collection, reporting, refund and appeals provisions, as well as providing the Board the authority to adopt regulations relating to the administration and enforcement of the Fee Collection Procedures Law. The bill should also be amended to specify a due date for the fee and return and to authorize the payment of refunds on overpayments of the fee. Staff will work with the author’s office to address these issues as the bill progresses through the legislative process.
7. Disposition of proceeds – refund payments and administrative costs. While the bill provides that the any amount required to be paid to the State be deposited in the Drug Abuse Prevention Supplemental Funding Account in the State’s General Fund, which this bill creates, and be expended exclusively for drug education, awareness, and rehabilitation programs, the bill does not specify how payments for refunds and the Board’s administrative costs would be funded. The bill should be amended to address this issue.
8. The Board would need adequate time to notify feepayers of any reduction in the fee. The ABC would be required annually to review the proposed fee to determine whether a lesser fee would provide sufficient resources to support its drug education, awareness, and rehabilitation programs. It is suggested that the bill be amended to specify a date by which the ABC must notify the Board of a change in the fee rate, prior to the date the change would be effective, to provide Board staff sufficient time to notify feepayers of any fee rate change.
9. Legal challenges of any new fee program might be made on the grounds that the fee is a tax. In July 1997, the California Supreme Court held in Sinclair Paint Company v. State Board of Equalization (1997) 15 Cal.4th 866 that the Childhood Lead Poisoning Prevention Act of 1991 imposed bona fide regulatory fees and not taxes requiring a two-thirds vote of the Legislature under Proposition 13.
In summary, the Court found that while the Act did not directly regulate by conferring a specific benefit on, or granting a privilege to, those who pay the fee, it nevertheless imposed regulatory fees under the police power by requiring manufacturers and others whose products have exposed children to lead contamination to bear a fair share of the cost of mitigating those products’ adverse health effects.
Although this measure has been keyed by the Legislative Counsel as a majority vote bill, opponents of this measure might question whether the fees imposed are in legal effect “taxes” required to be enacted by a two-thirds vote of the Legislature. This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
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COST ESTIMATE
The Board would incur substantial administrative costs in creating a new fee program, identifying and notifying affected feepayers, developing computer programs, developing returns and supplemental schedules, developing publications and regulations, preparing and mailing special notices, training staff, and responding to numerous inquiries from affected feepayers and the public. This bill provides that the proposed fee would not be enforced until federal law permits the possession and sale of marijuana consistent with the provisions under the BPC. An estimate of these costs is pending.
REVENUE ESTIMATE BACKGROUND, METHODOLOGY, AND ASSUMPTIONS
Under this measure, the definition of marijuana includes all marijuana, concentrated cannabis, and their derivatives, except that marijuana containing less than one-half of one percent tetrahydrocannabinol by weight is not subject to this fee. Further, the measure provides that this fee shall not be imposed on marijuana used medicinally with a doctor’s recommendation as specified in Health and Safety Code Section 11362.5.
According to the report titled Marijuana Production in the United States (2006), an estimated 22.3 million pounds of marijuana was grown in the U.S. in 2006 with a value of $35.8 billion. California was the top producing state; it produced 8.6 million pounds with a value of $13.8 billion. The report also discusses that, although most marijuana is produced for local, in-state use, California is considered an export state in which marijuana is produced for both in-state use and export to other states. Our literature review indicates that estimated consumption of marijuana in California amounts to one million pounds per year, or 16 million ounces.
Based on the estimated 16 million ounces of annual consumption in California and several assumptions (which are summarized in the Qualifying Remarks section), the revenue effect of the bill is an estimated total annual revenue gain of $1.4 billion, as follows: • $990 million from the proposed $50 per ounce levy on retail sales of marijuana • $392 million in sales tax revenue.
This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
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REVENUE SUMMARY
The revenue impact of imposing a $50 per ounce levy on retail sales of marijuana in California would be as follows: Sales and Use Tax Revenue (In Millions of Dollars) Net Excise Revenue Gain $ 990 State (6.00%) $ 263 Fiscal Recovery Fund (0.25%) 11 Local (2.00%) 88 Special District (0.75%) 31 Total Sales and Use Tax Revenue $ 392 Total revenue from the excise tax and sales and use tax $ 1,382 Qualifying Remarks.
This estimate is based on numerous assumptions, all of which come from law enforcement estimates and academic studies. The most significant ones are as follows:
• Legalization of marijuana would cause its street price to decline by 50 percent.
• This 50 percent decline in price would lead to additional consumption of 40 percent.
• The imposition of the $50/ounce tax would then lead to reduced consumption of 11 percent.
Some of the revenue raised would result from additional residents consuming marijuana (that were not doing so when it was prohibited by law) in response to its being legalized.
However, a portion of this additional consumption could be at the expense of cigarettes and alcohol currently being consumed; in other words, there could be a “substitution effect” toward marijuana and away from cigarettes and alcohol. To the extent that this happens, current excise taxes from cigarettes and alcohol would switch to marijuana and the net revenue gain from the bill would be somewhat less than the $1.4 billion number cited above (exactly how much lower is unknown). The same is true with respect to the sales and use tax component of the estimate. In other words, consumers choosing to increase their consumption of marijuana would likely do so by reducing their consumption elsewhere, some of which is subject to the sales and use tax (such as cigarettes), some of which is not (such as groceries and most services).
If consumers are simply switching their consumption toward marijuana and away from some other taxable good, the increase in sales tax revenue from this measure would be less. As currently drafted, this measure stipulates that “each person 21 years of age or older may have in cultivation no more than 10 mature plants at any given time.”Substantial home production would clearly have an impact on the revenues generated . Available research indicates, however, that such production is likely to be minimal.
Analysis prepared by: Debra A. Waltz (916) 324-1890 07/15/09Revenue estimate by: Ronil Dwarka (916) 445-0840 Contact: Margaret S. Shedd (916) 322-2376 ls 0390-1dw.DOC This staff analysis is provided to address various administrative, cost, revenue and policy issues; it is not to be construed to reflect or suggest the Board’s formal position.
Jeffrey A. Miron
Visiting Professor of Economics
Harvard University
Cambridge, MA 02138
781-856-0086 miron@fas.harvard.edu
The Marijuana Policy Project provided funding for the research discussed in this report. Daniel Egan provided excellent research assistance.
Executive Summary
Government prohibition of marijuana is the subject of ongoing debate.
One issue in this debate is the effect of marijuana prohibition on government budgets. Prohibition entails direct enforcement costs and prevents taxation of marijuana production and sale.
Thisreport examines the budgetary implications of legalizing marijuana – taxing and regulating it like other goods – in all fifty states and at the federal level.
The report estimates that legalizing marijuana would save $7.7 billion per year in government expenditure on enforcement of prohibition. $5.3 billion of this savings would accrue to state and local governments, while $2.4 billion would accrue to the federal government.
The report also estimates that marijuana legalization would yield tax revenue of $2.4 billion annually if marijuana were taxed like all other goods and $6.2 billion annually if marijuana were taxed at rates comparable to those on alcohol and tobacco.
Whether marijuana legalization is a desirable policy depends on many factors other than the budgetary impacts discussed here. But these impacts should be included in a rational debate about marijuana policy.
I. Introduction
Government prohibition of marijuana is the subject of ongoing debate. Advocates believe prohibition reduces marijuana trafficking and use, thereby discouraging crime, improving productivity and increasing health. Critics believe prohibition has only modest effects on trafficking and use while causing many problems typically attributed to marijuana itself.
One issue in this debate is the effect of marijuana prohibition on government budgets. Prohibition entails direct enforcement costs, and prohibition prevents taxation of marijuana production and sale. If marijuana were legal, enforcement costs would be negligible and governments could levy taxes on the production and sale of marijuana. Thus, government expenditure would decline and tax revenue would increase.
This report estimates the savings in government expenditure and the gains in tax revenue that would result from replacing marijuana prohibition with a regime in which marijuana is legal but taxed and regulated like other goods. The report is not an overall evaluation of marijuana prohibition; the magnitude of any budgetary impact does not by itself determine the wisdom of prohibition. But the costs required to enforce prohibition, and the transfers that occur because income in a prohibited sector is not taxed, are relevant to rational discussion of this policy.
The policy change considered in this report, marijuana legalization, is more substantial than marijuana decriminalization, which means repealing criminal penalties against possession but retaining them against trafficking. The budgetary implications of legalization exceed those of decriminalization for three reasons. First, legalization eliminates arrests for trafficking in addition to eliminating arrests for possession. Second, legalization saves prosecutorial, judicial, and incarceration expenses; these savings are minimal in the case of decriminalization. Third, legalization allows taxation of marijuana production and sale.
This report concludes that marijuana legalization would reduce government expenditure by $7.7 billion annually. Marijuana legalization would also generate tax revenue of $2.4 billion annually if marijuana were taxed like all other goods and $6.2 billion annually if marijuana were taxed at rates comparable to those on alcohol and tobacco. These budgetary impacts rely on a range of assumptions, but these probably bias the estimated expenditure reductions and tax revenues downward.
The remainder of the report proceeds as follows. Section II estimates state and local expenditure on marijuana prohibition. Section III estimates federal expenditure on marijuana prohibition. Section IV estimates the tax revenue that would accrue from legalized marijuana. Section V discusses caveats and implications.
II. State and Local Expenditure for Drug Prohibition Enforcement
The savings in state and local government expenditure that would result from marijuana legalization consists of three main components: the reduction in police resources from elimination of marijuana arrests; the reduction in prosecutorial and judicial resources from elimination of marijuana prosecutions; and the reduction in correctional resources from elimination of marijuana incarcerations. There are other possible savings in government expenditure from legalization, but these are minor or difficult to estimate with existing data.The omission of these items biases the estimated savings downward.
To estimate the state savings in criminal justice resources, this report uses the following procedure. It estimates the percentage of arrests in a state for marijuana violations and multiplies this by the budget for police. It estimates the percentage of prosecutions in a state for marijuana violations and multiplies this by the budget for prosecutors and judges. It estimates the percentage of incarcerations in a state for marijuana violations and multiplies this by the budget for prisons. It then sums these components to estimate the overall reduction in government expenditure. Under plausible assumptions, this procedure yields a reasonable estimate of the cost savings from marijuana legalization.
The Police Budget Due to Marijuana Prohibition
The first cost of marijuana prohibition is the portion of state police budgets devoted to marijuana arrests.
Table 1 calculates the fraction of arrests in each state due to marijuana prohibition. Column 1 gives the total number of arrests for the year 2000. Column 2 gives the number of arrests for marijuana possession violations. Column 3 gives the number of arrests for marijuana sale/manufacturing violations. Columns 4 and 5 give the ratio of Column 2 to Column 1 and Column 3 to Column 1, respectively; these are the percentages of arrests for possession and sale/manufacture of marijuana, respectively.
The information in Columns 4 and 5 is what is required in the subsequent calculations, subject to one modification. Some arrests for marijuana violations, especially those for possession, occur because the arrestee is under suspicion for a non-drug crime but possesses marijuana that is discovered by police during a routine search. This means an arrest for marijuana possession is recorded, along with, or instead of, an arrest on the other charge. If marijuana possession were not a criminal offense, the suspects in such cases would still be arrested on the charge that led to the search, and police resources would be used to approximately the same extent as when marijuana possession is criminal.
In determining which arrests represents a cost of marijuana prohibition, therefore, it is appropriate to count only those that are “stand-alone,” meaning those in which a marijuana violation rather than some other charge is the reason for the arrest. This issue arises mainly for possession rather than for trafficking. There are few hard data on the fraction of “stand-alone” possession arrests, but the information in Miron (2002) and Reuter, Hirschfield and Davies (2001) suggests it is between 33% and 85%. To err on the conservative side, this report assumes that 50% of possession arrests are due solely to marijuana possession rather than being incidental to some other crime. Thus, the resources utilized in making these arrests would be available for other purposes if marijuana possession were legal. Column 6 of Table 1 therefore indicates the fraction of possession arrests attributable to marijuana prohibition, taking this adjustment into account.
The first portion of Table 2 uses this information to calculate the police budget due to marijuana prohibition in each state. Column 1 gives the total expenditure in 2000 on police, by state. Column 2 gives the product of Column 1 with the sum of Columns 5 and 6 from Table 1. This is the amount spent on arrests for marijuana violations. For 2000, the amount is $1.71 billion.
The Judicial and Legal Budget Due to Marijuana Prohibition
The second main cost of marijuana prohibition is the portion of the prosecutorial and judicial budget devoted to marijuana prosecutions. A reasonable indicator of this percentage is the fraction of felony convictions in state courts for marijuana offenses. Data on this percentage are not available on a state-by-state basis, so this report uses the national percentage. Data on the percentage of possession convictions attributable to marijuana are also not available, so this report assumes it equals the percentage for trafficking convictions.
In 2000 the percent of felony convictions in state courts due to any type of trafficking violation was 22.%. this total, 2.7% was due to marijuana, 5.9% was due to other drugs, and 13.4% was unspecified. This report assumes that the fraction of marijuana convictions in the unspecified category equals the fraction for those in which a specific drug is given, or 31.4% [=2.7%/(2.7%+5.9%)]. The report also assumes that the percentage of possession convictions due to marijuana equals this same fraction. These assumptions jointly imply that the percentage of felony convictions due to marijuana equals the fraction of felony convictions due to any drug offense (34.6%) multiplied by the percentage of trafficking violations due to marijuana (31.4%). This yields 10.9% (=34.6%*31.4%).
The second portion of Table 2 uses this information to calculate the judicial and legal budget due to marijuana prohibition. Column 3 gives the judicial and legal budget, by state. Column 4 gives the product of Column 3 and 10.9%, the percentage of felony convictions due to marijuana violations. This is the judicial and legal budget due to marijuana prosecutions. For 2000, the amount is $2.94 billion.
The Corrections Budget Due to Marijuana Prohibition
The third main cost of marijuana prohibition is the portion of the corrections budget devoted to incarcerating marijuana prisoners. A reasonable indicator of this portion is the fraction of prisoners incarcerated for marijuana offenses.
As with the percentage of prosecutions due to marijuana, state-by-state information on the percentage of prisoners incarcerated for marijuana offenses is not available. Appropriate data do exist for a few states, however, and this percentage is likely to be similar across states. This report therefore computes a population-weighted average based on the few states for which data exist; it then imposes this percentage on all states. This percentage is 1.0%, as documented in Appendix A.
The third portion of Table 2 calculates the corrections budget due to marijuana prohibition. Column 5 gives the overall corrections budget, by state. Column 6 gives the product of Column 5 and 1.0%, the estimated fraction of prisoners incarcerated on marijuana charges. This is the corrections budget devoted to marijuana prisoners. For 2000, the amount is $484 million.
Overall State and Local Expenditure for Enforcement of Marijuana Prohibition
As shown at the bottom of Table 2, total state and local government expenditure for enforcement of marijuana prohibition was $5.1 billion for 2000. This is an overstatement of the savings in government expenditure that would result from legalization, however, for two reasons. First, under prohibition the police sometimes seize assets from those arrested for marijuana violations (financial accounts, cars, boats, land, houses, and the like), with the proceeds used to fund police and prosecutors. Second, under prohibition some marijuana offenders pay fines, which partially offsets the expenditure required to arrest, convict and incarcerate these offenders. The calculations in Appendix B, however, show that this offsetting revenue has been at most $100 million per year in recent years at the state and local level. This implies a net savings of criminal justice resources from marijuana legalization of $5.0 billion in 2000. Adjusting for inflation implies savings of $5.3 billion in 2003.
III. Federal Expenditure for Marijuana Prohibition Enforcement
This section estimates federal expenditure on marijuana prohibition enforcement. There are no data available on expenditure for marijuana interdiction per se; existing data report expenditure on interdiction of all drugs, without separately identifying expenditure aimed at marijuana versus other drugs. It is nevertheless possible to estimate the portion due to marijuana prohibition using the following procedure:
Estimate federal expenditure for all drug interdiction;
Estimate the fraction of this expenditure due to marijuana interdiction based on the fraction of federal prosecutions for marijuana;
Multiply the first estimate by the second estimate.
This provides a reasonable estimate of federal expenditure for marijuana interdiction so long as this expenditure is roughly proportional to the variable being used to determine the fraction of total interdiction devoted to marijuana.
Table 3 displays federal expenditure for drug interdiction. This was $13.6 billion in 2002 (Miron 2003b), and it is the figure that applies for all drugs. To determine expenditure for marijuana interdiction, it is necessary to adjust for the fraction of federal expenditure devoted to marijuana as opposed to other drugs.
Table 3 next shows possible indicators of the relative magnitude of marijuana interdiction as compared to other-drug interdiction. These indicators include use rates, arrest rates, and felony convictions for marijuana versus other drugs. For the purposes here, the most appropriate indicator is the percentage of DEA arrests or convictions for marijuana as opposed to other drugs.
The data therefore indicate that $2.6 billion is a reasonable estimate of the federal government expenditure to enforce marijuana prohibition in 2002.
As with state and local revenue, this figure must be adjusted downward by the revenue from seizures and fines. Appendix B indicates that this amount has been at most $214.2 million in recent years, implying a net savings of about $2.39 million. Adjusting for inflation implies federal expenditure for enforcement of marijuana prohibition of $2.4 billion in 2003.
IV. The Tax Revenue from Legalized Marijuana
In addition to reducing government expenditure, marijuana legalization would produce tax revenue from the legal production and sale of marijuana. To estimate this revenue, this report employs the following procedure. First, it estimates current expenditure on marijuana at the national level. Second, it estimates the expenditure likely to occur under legalization. Third, it estimates the tax revenue that would result from this expenditure based on assumptions about the kinds of taxes that would apply to legalized marijuana. Fourth, it provides illustrative calculations of the portion of the revenue that would accrue to each state.
Expenditure on Marijuana under Current Prohibition
The first step in determining the tax revenue under legalization is to estimate current expenditure on marijuana. ONDCP (2001a, Table 1, p.3) estimates that in 2000 U.S. residents spent $10.5 billion on marijuana. This estimate relies on a range of assumptions about the marijuana market, and modification of these assumptions might produce a higher or lower estimate. There is no obvious reason, however, why alternative assumptions would imply a dramatically different estimate of current expenditure on marijuana. This report therefore uses the $10.5 billion figure as the starting point for the revenue estimates presented below.
Expenditure on Marijuana under Legalization
The second step in estimating the tax revenue that would occur under legalization is to determine how expenditure on marijuana would change as the result of legalization. A simple framework in which to consider various assumptions is the standard supply and demand model. To use this model to assess legalization’s impact on marijuana expenditure, it is necessary to state what effect legalization would have on the demand and supply curves for marijuana.
This report assumes there would be no change in the demand for marijuana. This assumption likely errs in the direction of understating the tax revenue from legalized marijuana, since the penalties for possession potentially deter some persons from consuming. But any increase in demand from legalization would plausibly come from casual users, whose marijuana use would likely be modest. Any increase in use might also come from decreased consumption of alcohol, tobacco or other goods, so increased tax revenue from legal marijuana would be partially offset by decreased tax revenue from other goods. And there might be a forbidden fruit effect from prohibition that tends to offset the demand decreasing effects of penalties for possession. Thus, the assumption of no change in demand is plausible, and it likely biases the estimated tax revenue downward.
Under the assumption that demand does not shift due to legalization, any change in the quantity and price would result from changes in supply conditions. There are two main effects that would operate (Miron 2003a). On the one hand, marijuana suppliers in a legal market would not incur the costs imposed by prohibition, such as the threat of arrest, incarceration, fines, asset seizure, and the like. This means, other things equal, that costs and therefore prices would be lower under legalization. On the other hand, marijuana suppliers in a legal market would bear the costs of tax and regulatory policies that apply to legal goods but that black market suppliers normally avoid. This implies an offset to the cost reductions resulting from legalization. Further, changes in competition and advertising under legalization can potentially yield higher prices than under prohibition.
It is thus an empirical question as to how prices under legalization would compare to prices under current prohibition. The best evidence available on this question comes from comparisons of marijuana prices between the U.S. and the Netherlands. Although marijuana is still technically illegal in the Netherlands, the degree of enforcement is substantially below that in the U.S., and the sale of marijuana in coffee shops is officially tolerated. The regime thus approximates de facto legalization. Existing data suggest that retail prices in the Netherlands are roughly 50-100 percent of U.S. prices.
The effect of any price decline that occurs due to legalization depends on the elasticity of demand for marijuana. Evidence on this elasticity is limited because appropriate data on marijuana price and consumption are not readily available. Existing estimates, however, suggest an elasticity of at least -0.5 and plausibly more than -1.0 (Nisbet and Vakil 1972).
If the price decline under legalization is minimal, then expenditure will not change regardless of the demand elasticity. If the price decline is noticeable but the demand elasticity is greater than or equal to 1.0 in absolute value, then expenditure will remain constant or increase. If the price decline is noticeable and the demand elasticity is less than one, then expenditure will decline. Since the decline in price is unlikely to exceed 50% and the demand elasticity is likely at least -0.5, the plausible decline in expenditure is approximately 25%. Given the estimate of $10.5 billion in expenditure on marijuana under current prohibition, this implies expenditure under legalization of about $7.9 billion.
Tax Revenue from Legalized Marijuana
To estimate the tax revenue that would result from marijuana legalization, it is necessary to assume a particular tax rate. This report considers two assumptions that plausibly bracket the range of reasonable possibilities.
The first assumption is that tax policy treats legalized marijuana identically to other goods. In that case tax revenue as a fraction of expenditure would be approximately 30%, implying tax revenue from legalized marijuana of $2.4 billion. The amount of revenue would be lower if substantial home production occurred under legalization. The evidence suggests, however, that the magnitude of such production would be minimal. In particular, alcohol production switched mostly from the black market to the licit market after repeal of Alcohol Prohibition in 1933.
The second assumption is that tax policy treats legalized marijuana similarly to alcohol or tobacco, imposing a “sin tax” in excess of any tax applicable to other goods. Imposing a high sin tax can force a market underground, thereby reducing rather than increasing tax revenue. Existing evidence, however, suggests that relatively high rates of sin taxation are possible without generating a black market. For example, cigarette taxes in many European countries account for 75–85 percent of the price (US Department of Health and Human Services 2000).
One benchmark, therefore, is to assume that an excise tax on legalized marijuana doubles the price. If general taxation accounts for 30% of the price, this additional tax would then make tax revenue account for 80% of the price. This doubling of the price, given an elasticity of -0.5, would cause roughly a 50% increase in expenditure, implying total expenditure on marijuana would be $11.85 billion (=$7.9 x 1.5). Tax revenue would equal 80% of this total, or $9.5 billion. This includes any standard taxation applied to marijuana income as well as the sin tax on marijuana sales.
The $9.5 billion figure is not necessarily attainable given the characteristics of marijuana production, however. Small scale, efficient production is possible and occurs widely now, so the imposition of a substantial tax wedge might encourage a substantial fraction of the market to remain underground. The assumption of a constant demand elasticity in response to a price change of this magnitude is also debatable; more plausibly, the elasticity would increase as the price rose, implying a larger decline in consumption and thus less revenue from excise taxation. The $9.5 figure should therefore be considered an upper bound.
These calculations nevertheless indicate the potential for substantial revenue from marijuana taxation. A more modest excise tax, such as one that raises the price 50%, would produce revenue on legalized marijuana of $6.2 billion per year.
Distribution of the Marijuana Tax Revenue
The estimates of tax revenue discussed so far indicate the total amount that could be collected summing over all levels of government. In practice this total would be divided between state and federal governments. It is therefore useful to estimate how much revenue would accrue to each state, and to state governments versus the federal government, under plausible assumptions.
Table 4a indicates the tax revenue that would accrue to each state and to the federal government under the assumption that each state collected revenue equal to 10% of the income generated by legalized marijuana and the federal government collected income equal to 20%. This is approximately what occurs now for the economy overall, except that the ratio of tax revenues to income varies across states from the 10% figure assumed here. The table indicates that under these assumptions, the federal government would collect $1.6 billion in additional revenue while on average each state would collect $16 million in additional tax revenue.
These calculations ignore the fact that marijuana use rates differ across states, so application of identical policies would yield different amounts of revenue per capita. Wright (2002, Table A.4, p.82), for example, indicates that the percent of those 12 and over reporting marijuana use in the past month ranged in 1999-2000 from a low of 2.79% in Iowa to a high of 9.03% in Massachusetts. Table 4b therefore shows the breakdown of revenue by state under the assumption that tax revenue is proportional to state marijuana use rates. A third possibility, which cannot easily be examined with existing data, is that revenue by state differs depending on the distribution of marijuana production.
V. Summary
This report has estimated the budgetary implications of legalizing marijuana and taxing and regulating it like other goods. According to the calculations here, legalization would reduce government expenditure by $5.3 billion at the state and local level and by $2.4 billion at the federal level. In addition, marijuana legalization would generate tax revenue of $2.4 billion annually if marijuana were taxed like all other goods and $6.2 billion annually if marijuana were taxed at rates comparable to those on alcohol and tobacco.
References
Baicker, Katherine and Mireille Jacobson (2004), “Finders Keepers: Forfeiture Laws, Policing Incentives, and Local Budgets,” manuscript, Department of Economics, Dartmouth College.
Bates, Scott W. (2004), “The Economic Implications of Marijuana Legalization in Alaska,” Report for Alaskans For Rights & Revenues, Fairbanks, Alaska.
Caputo, Michael R. and Brian J. Ostrom (1994), “Potential Tax Revenue from a Regulated Marijuana Market: A Meaningful Revenue Source,” American Journal of Economics and Sociology, 53, 475-490.
Clements, Kenneth W. and Mert Daryal (2001), “Marijuana Prices in Australia in 1990s,” manuscript, Economic Research Centre, Department of Economics, The University of Western Australia.
Durose, Matthew and Patrick A. Langan (2003), Felony Sentences in State Courts, 2000, Bureau of Justice Statistics, Office of Justices Programs, U.S. Department of Justice, NCJ 198821.
Easton, Stephen T. (2004), “Marijuana Growth in British Columbia,” Public Policy Sources, Fraser Institute Occasional Paper #74.
European Monitoring Centre for Drugs and Drug Addiction (2002), Annual Report 2002, available at (http://annualreport.emcdda.eu.int/pdfs/2002_0458_EN.pdf).
Gettman, Jon B. and Stephen S. Fuller (2003), “Estimation of the Budgetary Costs of Marijuana Possession Arrests in the Commonwealth of Virginia,” Center for Regional Analysis, George Mason University.
Harrison, Lana D., Michael Backenheimer, and James A. Inciardi (1995), “Cannabis use in the United States: Implications for Policy,” in Peter Cohen and Arjan Sas, eds., Cannabisbeleid in Duitsland, Frankrijk en do Verenigde Staten, Amerstdamn: Centrum voor Drugsonderzoek, Universiteit van Amsterdamn, 231-236.
Lewis, Minchin (2004), Report on the Syracuse Police Department Activity for the Year Ended June 30, 2002, Department of Audit, City of Syracuse.
MacCoun, Robert and Peter Reuter (1997), “Interpreting Dutch Cannabis Policy: Reasoning by Analogy in the Legalization Debate,” Science, 278, 47-52.
Miron, Jeffrey A. (2002), “The Effect of Marijuana Decriminalization on the Budgets of Massachusetts Governments, With a Discussion of Decriminalization’s Effect on Marijuana Use,” Report to the Drug Policy Forum of Massachusetts, October.
Miron, Jeffrey A. (2003a), “Do Prohibitions Raise Prices? Evidence from the Markets for Cocaine and Heroin,” Review of Economics and Statistics, 85(3), 522-530.
Miron, Jeffrey A. (2003b), “A Critique of Estimates of the Economic Costs of Drug Abuse,” Report to the Drug Policy Alliance, July.
Miron, Jeffrey A. (2003c), “The Budgetary Implications of Marijuana Legalization in Massachusetts,” Report to Change the Climate, August.
Murphy, Patrick, Lynn E. Davis, Timothy Liston, David Thaler, and Kathi Webb (2000), Improving Anti-Drug Budgeting: Santa Monica, CA: Rand.
Nisbet, Charles T. and Firouz Vakil (1972), “Some Estimates of Price and Expenditure Elasticites of Demand for Marijuana Among U.C.L.A. Students,” Review of Economics and Statistics, 54, 473-475.
Office of National Drug Control Policy (1993), State and Local Spending on Drug Control Activities, Washington, D.C.: ONDCP
Office of National Drug Control Policy (2001a), What America’s Users Spend on Illegal Drugs, Cambridge, MA: Abt Associates.
Office of National Drug Control Policy (2001b), The Price of Illicit Drugs: 1981 through Second Quarter of 2000, Washington, D.C: Abt Associates.
Office of National Drug Control Policy (2002), National Drug Control Strategy, Washington, D.C.: ONDCP.
Pacula, Rosalie Liccardo, Michael Grossman, Frank J. Chaloupka, Patrick M. O’Malley, Lloyd D. Johnston, and Matthew C. Farrelly (2000), “Marijuana and Youth,” NBER WP #7703.
Reuter, Peter, Paul Hirschfield, and Curt Davies (2001), “Assessing the Crack-Down on Marijuana in Maryland,” manuscript, University of Maryland.
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US Department of Health and Humans Services (2000), Reducing Tobacco Use: A Report of the Surgeon General, Tobacco Taxation Fact Sheet. Accessed at
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Wright, D. (2002), State Estimates of Substance Use from the 2000 National Household Survey on Drug Abuse: Volume I, Findings (DHHS Publication No. SMA 02-3731, NHSDA Series H-15), Rockville, MD: Substance Abuse and Mental Health Services Administration, Office of Applied Statistics.
Table 1: Percentage of Arrests Due to Marijuana Prohibition
Incarceration Percent: Pastore and Maguire (2003), Table 6.30, p.499
Table 3: Federal Expenditure on Marijuana Prohibition, 2002
1.
Prohibition Enforcement, All Drugs
$13.6 billion
2.
Marijuana Use Rate, Past Year, 2002
11.0%
3.
Any Illicit Drug Use Rate, Past Year, 2002
14.9%
4.
Ratio
74%
5.
Ratio × Line 1
$10.0 billion
6.
Percent of All Drug Arrests for MJ, 2001
46.0%
7.
Line 6 × Line 1
$6.3 billion
8.
Percent of All Trafficking Arrests for MJ, 2001
26%
9.
Line 8 × Line 1
$3.6 billion
10.
Percent of DEA Drug Arrests for MJ, 2002
18.6%
11.
Line 10 × Line 1
$2.5 billion
12.
Percent of DEA Drug Convictions for MJ, 2002
19.9%
13.
Line 12 × Line 1
$2.7 billion
Sources:
Line 1: Miron (2003b, p.10).
Lines 2-3: SAMHSA, Office of Applied Statistics, National Survey on Drug Use and Health, 2002, http://www.samhsa.gov/oas/nhsda/2k2nsduh/Results/apph.htm#tabh.2.
Lines 6 and 8: Sourcebook of Criminal Justice Statistics Online, http://www.albany.edu/sourcebook/1995/pdf/t429.pdf/
Line 10: Sourcebook of Criminal Justice Statistics Online, http://www.albany.edu/sourcebook/1995/pdf/t440.pdf/
Line 12: Sourcebook of Criminal Justice Statistics Online, http://www.albany.edu/sourcebook/1995/pdf/t538.pdf
Table 4a: State Marijuana Tax Revenue – Population Method
Appendix A: Percentage of Corrections Population Incarcerated on Marijuana Charges
State-by-state data on the fraction of prisoners incarcerated on marijuana charges are not available, but data for a few states provide reasonable estimates of this fraction. This appendix displays the available information.
Appendix B: Revenue Under Prohibition from Seizures and Fines
State-by-state data on fines and seizures are not available. There is sufficient information, however, to estimate an upper bound on the revenue from fines and seizures. There are also data on federal fines and seizures.
Seizures:
The two main sources of federal seizure revenue are the Drug Enforcement Administration (DEA) and the U.S. Customs Service. In 2002, the DEA made seizures totaling $438 million.[32] In 2001, the U.S. Customs Service seized property valued at $592 million.[33] These figures overstate revenue since some defendants recovered their seized property. The Customs seizures overstate revenue related to drugs because the figure includes seizures for all reasons, such as violation of gun laws, intellectual property laws, and the like. There may also be double-counting between the DEA seizures and the U.S. Customs seizures.
Summing together the two components yields $1,030 million (= $438+$592 million) as the seizure revenue that results from enforcement of drug laws. This figure must be adjusted downward, however, to separate out the portion due to violation of marijuana laws as opposed to other drug laws. As shown in Table 3, approximately 20% of the federal drug enforcement budget is attributable to marijuana, so it is reasonable to assume approximately 20% of the fines and seizures correspond to enforcement of marijuana laws.
Thus, seizure revenue at the federal level due to marijuana prosecutions is roughly $206.0 million annually.
State and local data on forfeiture revenue are not readily available for all states Baicker and Jacobson (2004), however, estimate using a sample of states that state forfeiture revenue per capita was roughly $1.14 during the 1994-2001 period. This implies aggregate state forfeiture revenue of $342 million. Deflating by 26%, the fraction of all drug trafficking arrests due to marijuana, implies that marijuana seizures yield $89 million to state governments.
Fines: In 2001, the total quantity of fines and restitutions ordered for drug offense cases in U.S. District Courts was just under $41 million.[34] Adjusting this by the 20% figure implies $8.2 million from marijuana cases. Assuming the ratio of state/local to federal fine revenue is similar to ratio of state/local to federal seizure revenue implies that state and local fines/restitution from marijuana cases is about $3.5 million.
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“To serve, not be served.”
Barack Obama wants to reform the nation’s health care system. That’s good news. The better news is his intimate knowledge of the reasons that reform is so necessary. Perhaps no president has taken office with such personal exposure to the critical aspects of American health care—especially the challenges we face in restructuring a fractured system and bringing costs and services into balance with needs.
A letter to Secretary of Defense Robert Gates written by one of my plaintiffs
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The estimates of tax revenue discussed so far indicate the total amount that could be collected summing over all levels of government. In practice this total would be divided between state and federal governments. It is therefore useful to estimate how much revenue would accrue to each state, and to state governments versus the federal government, under plausible assumptions.
