It’s For The Children…Thanks Phil Hart…

An Eagle Eye Chucklehead sent us this… Good insight as we’ve come to expect from Phil Hart!

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It’’s For the Children   by Phil Hart
And it really is “for the children”, so said the Framers of our
Constitution when they wrote into the preamble of that great document this
language “and to secure the blessings of liberty to ourselves and our
posterity, do ordain and establish this Constitution for the United States
of America.”

What we can do best “for the children” is to defend our Constitution, to
which many of us have taken an oath to do just that.  And so far in human
history, our system of government appears to be the best designed and put
into practice in the history of mankind.  To that end, the Legislature of
Idaho did the right thing when it rejected Senate Bill 1067 in the regular
2015 session.  And now today, it also needs to reject House Bill 1 in the
Special Session.

There has been much written about Senate Bill 1067, which seeks to
implement the Convention on the International Recovery of Child Support
and Other Forms of Family Maintenance, of the 2007 Hague Convention.
Implementing such an agreement is precisely what the Framers of the United
States  Constitution envisioned the role of the federal government to be,
and tasked the United States Senate, working in cooperation with the
executive branch, to do so.  The responsibilities are clearly drawn.  And
our United States Senate has had plenty of opportunity since 2007 to
implement this Hague Convention as a treaty; and they have declined to do
so.

The attempt to get the States of the Union to each put into state statute
the unaltered language of this Hague Convention agreement constitutes an
end-run around both our state and federal constitutions.   It blurs the
original and well defined spheres of authority in our constitutional
system of dual sovereignties and a framework of checks and balances.  It
creates more of an enmeshed political blob of confused responsibility that
will serve to empower the government and reduce the ability of people to
cope with it.  This is as unhealthy for a society as it is when families
blur individual responsibilities and boundaries between members of a
family.

One of the foundational principles of our system of government, and one of
the primary issues leading to our separation from England is summarized by
the statement “ No taxation without representation.”  Embedded in this
principal is the idea that citizens should have recourse with their
government to change things they do not like.  This is a principle that
dates back to the Magna Carta in 1215 and is also memorialized in our
Declaration of Independence with the noted grievance: “For imposing taxes
on us without our consent.“

In the same way today’s House Bill 1 will impose governmental authority
over people for which they do not have any means to redress through any
political process.   It is a form of “Taxation without Representation”
that past Americans have fought on the battlefield to throw off such
tyranny.  This makes HB 1 antithetical to what America is all about.

Sections 9, 34, 35 and 53 of House Bill 1 imposes the “full faith and
credit” principle, a constitutional provision limited to other Union
States; and not to foreign countries, many of whom will have a political
and governmental system different than our own.  This was never envisioned
by the Framers of either our state constitution nor our federal
constitution.  The Legislature of Idaho is therefore without the power to
pass this bill.

And if House Bill 1 passes and is signed into law by the Governor,  where
in the Idaho Code will we find sections 68, 69 and 70 of the bill? These
sections include “Legislative Intent”, “Report – Legislative Intent” and
“Severability”.   There is no designation of where these sections will be
placed in the code books.  Are we going to hide the Legislative Intent
from the public and those people who will in the future get their shirt
caught in this Child Support Machinery?   And what the heck is the
definition of the term “sister states” found in section 68?  Why don’t we
use a well defined term like “Several States of the Union” that has a 228
year history?

And lastly, the urgency to pass this bill is likely unnecessary to avoid
the cutting off of federal funds, which was threatened if the Idaho
Legislature did not pass SB 1067; and is now threatened again if House
Bill 1 is not immediately passed.   Both the Governor’s office and the
Attorney General’s office ought to know how to fight this issue in the
courts, as the state of Idaho is a party to a suit that has recently
successfully done just that on another issue.

This relates to the lawsuit by 26 states against the Department of
Homeland Security (DHS) over a DHS institutionalized program that is in
conflict with the immigration laws passed by Congress.  This case is
styled State of Texas v. United States of America, and both the State of
Idaho and Governor C.L. “Butch” Otter, are listed as Plaintiffs.   Case:
1:1-14-cv-00254, United States District Court, Southern District of Texas.
See the Court’s February 16, 2015 Opinion found below.  Please pay close
attention to pages 102 to 123.

In this case a DHS program, not authorized by Congress, was going to cause
a significant cost to the state of Idaho, and Texas, as the lead state,
was able to get a temporary injunction.   The main issue was that the DHS
was legislating outside of Congress without following the provisions of
the Administrative Procedures Act.

The same issues apply to HB 1 and the threat of loss of funds to the state
of Idaho by the United States Department of Health and Human Services.
Questions that Idaho Legislators need to be asking include the following:

1.  Is the Department of Health and Human Services an independent agency
able to administer “public rights” and legislate by rule outside of
Congress?

2.  Is the policy of the Department of Health and Human Services to
withhold funds based on a rule promulgated by that agency?  And is there
any agency discretion in applying this rule?

3.  If the HHS policy is based on such a rule, is the rule a “substantive
rule” with the force of law, or is it an interpretative rule?

4.  And lastly, if the rule is a “substantive rule”, did HHS follow the
requirements of the Administrative Procedures Act and the Federal Register
Act in promulgating this rule?

If the answers don’t line up correctly with HHS’s authority, then the
threatened loss of funds is only a hollow threat.  The state of Idaho
needs to investigate these details, and if appropriate, sue the Department
of Health and Human Services making the same argument that Texas made in
their suit against DHS, of which Idaho is a party to.   It is likely that
today’s special session of the Legislature is completely unnecessary.

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