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Note: Fred Kelly Grant and Stand & Fight Club are pleased to support the efforts of the Electronic Vaping Coalition of America (EVCA) as it continues fight the assault on the vaping industry at the hands of unelected government bureaucrats and special interests. You are encouraged to visit the EVCA website or on their Facebook page to learn more, and help in the fight!

By: Fred Kelly Grant

 Plain Speaking in government ranks?  Oh, come on now!!!

After Harry Truman left the White House and went back to Independence, news columnist Mary McGrory wrote, “Since Harry Truman left town almost nobody has spoken his mind. Mr. Truman took the tradition of plain speaking back to Missouri with him.”

If Harry had been faced with vaping as a substitute for smoking tobacco, can’t you imagine him being asked at a news conference, “Mr. President, how do you feel about the government prohibiting vaping which effectively helps cut smoking and at the same time saves money on health care costs?”

Mr. Truman: “It is idiotic.”  Or “It’s just dirt dumb” Yuh think?

Government officials who seek to ban flavoring do not speak plainly.

They know the facts. They know banning flavoring will cripple the vaping industry. They know that will end the most effective, safest alternative to cigarette smoking. They know the health care costs that result from smoking. They know how many people die each year from tobacco related causes. But no plain speaking about any of that.

Instead, they talk about how flavors attract and tempt the young, under 21 group from rushing headlong into getting hooked. And, friends, to quote my late uncle Phel Grantham of Grantham Corners South Carolina, “That is pure hogwash!”

What pray tell was “pure” hogwash? I guess the closest I could come in non-Grantham Corners lingo is, if you’ll forgive and overlook an obvious play on words, “It’s just a smokescreen, a total smokescreen!”

The law already makes it illegal to sell the e-liquid and devices to anyone under 21 in California. Every store I have visited sports a “No one under 21” sign. So, if prohibition works, why is it necessary to ban flavors? Why isn’t it enough to simply have the “not under 21” law on the books? Why does anyone think that a ban on flavoring will prevent access by youth to smoking or vaping any more than does the “not under 21”.

Point of fact, in plain speaking as to youth: if a 17-year-old decides she is going to smoke, her aunt, her older sister or cousin, her older boy friend will oblige and buy for her. And, if vaping is eliminated, there is no game in town except combustible cigarettes and the dependence that usually follows.  And, federal law prohibits any attempt to ban cigarettes! But, even if they could be banned, our prospective smoker would be supplied by the black market.

Anyone around old enough to have experienced prohibition of alcohol in this country? Probably not with enough memory to reconstruct it. But surely there are people who have read about it – alcohol production was banned because the American Christian Temperance Union was strong enough to have booze banned. The result? Booze flowed like water. It was made in good clean laboratories and it was made in rusty old bath-tubs – and it all sold at a gosh-awful price, raking in disgraceful profits for the criminal syndicate that operated the underground alcohol business

In fact, no one event fed growth of the criminal syndicate in this nation more than prohibition. It was illegal to make it, to possess it, and to drink it.  Thus, the attraction was novel and greater – and we had more drunks than any time in our history.

Just plain speaking: prohibition produced drunks and huge profits to finance crime.

Even more just plain speaking: banning flavors will produce huge profits to finance crime.

That’s just plain speaking bad public policy. Yuh think?

The plain-speaking truth is that it is all about the money.

Governments have become addicted to tobacco settlement funds. They are so sickly addicted that they can’t satisfy their general fund appropriations without the tobacco money. They gushed over it at the beginning, sold bonds on the expected windfall from future tobacco settlement money, and spent those bond sales like the money was going out of style.

Now, however, the bonds are coming due, and these spendthrift governments do not have the money to redeem the bonds and fund basic government functions. They are caught between a rock and a hard place—-and nowhere to go but back to the well and draw some more money furnished by those who buy tobacco and die from it.

We have reached the idiotic position at which our governments thrive on money furnished by people smoking their lives away, and prohibit a product that would end cigarette dependence and save human lives.

Our governments prefer to let people die and so they can get their money, rather than lose that money and allow people to live.

In the marvelously clever Pogo comic strips, the artist/author hit the nail on the head when he used an historic phrase, turned it into swamp character talk and voila we had, “We has met the enemy and he is us.”

And that my friends, fits the plain speaking we need for the governments that would ban flavors and destroy vaping.  “WE HAS MET THE ENEMY, AND HE IS US.”

Yuh think?

The Village of Hartland , Wisconsin has invoked coordination with the Food and Drug Administration.  Hartland’s Trustees have insisted that the Food and Drug Administration coordinate with the Village as to regulations that seem to doom the e-liquid “vaping” industry that provides the most effective, safe means of attacking the smoking addiction that leads to 480,000 deaths a year.  Hartland’s Trustees have taken up the cause to try to save an industry vital to its economy and to the health of the people:  Johnson Creek Enterprises which produces the product that safely allows smokers to abandon life threatening cigarettes.  The FDA seems hell bent on destroying Johnson Creek as well as the entire industry through a set of regulations that create an impossible cost for industry survival.  Hartland’s Trustees have decided that they won’t let that happen without a fight.  And it’s a fight of the type encouraged by the President of the United States who happens to be the ultimate supervisor of the Food and Drug Administration.

When the Village invited Food and Drug to attend its hearing,  a spokeswoman for the agency left a voice message that the agency would send a letter addressing the Village Trustees’ “concerns”.   I seriously doubt that sending a letter is the level of coordination that is expected by President Trump. Since taking office he has repeatedly emphasized that control over many aspects of life must be returned to local government.

And the issue taken up by Hartland would seem to be the perfect type issue for local interest and involvement.  After all, smoking addiction strikes at the heart of public health that is a part of life subject to the police powers reserved to the states and local governments by the Tenth Amendment.

 

Since the Hartland, Wisconsin “coordination” the coordination process has been a topic of broad discussion.  Many call the Hartland approach “novel”, many call it “new”, some call it nonsensical to believe that a federal agency must coordinate with a small village.

But, if and when the Food and Drug Administration wants to know what we mean by “coordination”, our answer should be “why don’t you call the President and ask him?”  Because President Trump obviously knows the term.  He used it repeatedly in an Executive Order issued within the last two weeks.  In the Order directing that all designations under the Antiquities Act be reviewed he used the term four times in a two page order.  He ordered the Secretary of Interior to coordinate with local governments.

And, the order to coordinate is not new to this President.  John Fitzgerald Kennedy ordered all agencies to coordinate with local governments in a Presidential Memorandum on November 10, 1961.  He said he wanted “coordination of government activities outside of Washington significantly strengthened” in order to bring about a closer relationship with local governments on “economic problems, natural resources development, protection of equal rights and urban development efforts.”

Ronald Reagan ordered an Intergovernmental Review of Federal Programs in 1982, and directed all agencies to adopt “processes or refine processes for State and local elected officials to review and coordinate proposed Federal financial assistance and direct Federal development”.  He ordered the agencies to coordinate with local governments “as early in the program planning cycle as is reasonably feasible to explain specific plans and actions”, and to “make efforts” to reach consistency with local  plans and actions, and where that is legally impossible “explain the bases for …decision in a timely manner.”

Bill Clinton issued Executive Order 13132 in 1999  that contained the order to coordinate with local government.  Why?  Because, said the President

“The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several states according to their own conditions, needs, and desires.  In the search for enlightened public policy, individual states and communities are free to experiment with a variety of approaches to public  issues.  One-size-fits-all approaches to public policy problems can inhibit the creation of effective solutions to those problems.”

He said further that “policies of the national government should recognize the responsibility of—and should encourage opportunities for—individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort.”  To that end, he ordered all federal agencies to coordinate with local governments, and where national standards are being developed he ordered the agencies to “consult with appropriate state and local officials in developing those standards.”

And, President Obama ordered coordination by every agency with local governments in an executive order issued in June, 2011.

So, when an agency spokesperson says “we don’t know what coordination means” or when he or she asks local government “what do you mean by coordination”, perhaps the answer should be “why don’t you ask the President who supervises you what he meant when he ordered you to coordinate.”

Every one of the Presidential orders directed a process that was mandated by Congress to every federal agency by the National Environmental Policy Act in 1969.  That act orders every federal agency to enter into the coordination process regarding every “major federal action”, and issuance of regulations is considered a “major federal action”.  So, regardless of what subject is being regulated, when an agency begins to develop a regulation or set of regulations, coordination is necessary.

Some have said that the coordination process is only available for land issues.  But that simply is not so.  The National Environmental Policy Act (NEPA) makes it clear that it applies to  protect local governments and their citizens regarding all aspects of “man” and “his” environment, not just the natural resources of the environment.  Congress opens the act with a declaration of national policy “to encourage productive and enjoyable harmony between man and his environment” in order to “stimulate the health and welfare of man.”  In order to better provide for the public health, the Act created the Council on Environmental Quality which has defined the “human environment” as including all aspects of life: “ecological, aesthetic, historic, cultural, economic, social, [and] health”.

So, when Hartland invokes coordination regarding the “deeming regulations” which restrict an effective alternative to smoking that leads to death, it is invoking the process in precisely the situation anticipated by NEPA.  When invited to attend the Hartland hearing, Food and Drug said they were unable to make anyone available to come to the meeting but would send a letter addressing Hartland’s “concerns”.

We will see whether sending a letter is the degree of coordination expected by FDA’s President who as recently as last week said  he would continue the effort to return to the people the decisions important to their lives—taking them from the hands of Washington, DC “bureaucrats”.  If my experiences over the last twenty five years are any indication, sending a letter will not be the answer.  The state of Texas and the federal EPA thought writing a letter would suffice when four small towns with a population of around 6,000 invoked coordination over the first leg of the NAFTA Superhighway—but after 24 months of coordinated badgering by the towns, the Trans Texas Corridor was abandoned.

Maybe the Philistines should have sent a letter rather than Goliath?

 

           Unsung hero of rural America

Fred Kelly Grant instructs local officials how to beat environmental nannies

 

By Kathy Hoekstra – – Thursday, April 13, 2017

ANALYSIS/OPINION:

While President Trump and Congress tackle federal regulations and the agencies that promulgate them, Fred Kelly Grant is quietly doing the same — and succeeding — with the most powerful weapon you’ve likely never heard of.

It’s called “coordination” — tucked into the National Environmental Policy Act by Congress in 1976, the provision requires federal agencies to coordinate with local officials before implementing new rules, so the intentions and expectations are consistent at every level of government.

“Local policy and local plans are what drive the economy,” Mr. Grant said. “Under the coordination law, the agency doesn’t just come to the table and talk and walk away. They have to try to reach consistency with local government. That’s the key to it and that’s why it works, and every other process doesn’t.”

Not even Mr. Trump can make a difference without local help, according to Mr. Grant.

“Anybody that thinks the president of the United States drives the economy is living in an Alice in Wonderland world. He doesn’t. He can set the tone, but nothing changes from the top. It all has to change from the bottom,” Mr. Grant said. “And that’s where local government, with coordination, could get the agencies to the table with them and begin to make change.”

Mr. Grant, a longtime attorney who lives in Idaho, discovered the rule in the early 1990s during the Clinton administration’s “Cattle Free by ‘93” campaign to reduce grazing on federal lands. A rancher friend asked him for help in fending off the Bureau of Land Management’s (BLM) efforts to cut such grazing by 45 percent in southwest Idaho’s Owyhee County.

Considering around 76 percent of the county’s 5 million acres are federally owned and ranching is the primary economic producer, the move would have put more than 100 of the county’s 140 ranchers out of business.

“I said to my friend, ‘If the federal government wants you off their land, you’re going to be put off. There’s nothing I can do.’ “

Mr. Grant heard about coordination at a conference on property rights, and looked it up.

“I didn’t know about it. I worked for two governors and I had never come across it,” Mr. Grant recalled. “As I read it, I thought, ‘This can’t be. Congress didn’t leave this loophole.’ And the more I read, the more I realized it was not a loophole. It was intended and had been used successfully by counties four times in the past.”

The BLM had never coordinated with county officials as required by federal law. So Mr. Grant told the ranchers that with the statute, he could hold the feds at bay for two years — long enough for the BLM to find another way to get cattle off federal land.

Mr. Grant was wrong.

“The ranchers are still there, they’re still raising livestock, they’re still all in business and we beat the BLM,” he said. “We got rid of six different district managers because they broke the law. We got rid of two state directors because they broke the law, and today managers of the BLM drive 140 miles round trip once a month to sit down and meet with three county commissioners of Owyhee County, Idaho.”

Since then, Mr. Grant has used coordination to beat back not only the BLM, but the Environmental Protection Agency, the U.S. Forest Service, the U.S. Fish and Wildlife Service, the Departments of Interior, Agriculture and Homeland Security, and the Army Corps of Engineers.

He has also worked with the Americans Stewards of Liberty, which trains local governments in the coordination process, helped persuade the American Legislative Exchange Council to adopt a model coordination ordinance for local governments, and launched the Stand up and Fight Club, which aims to restore and protect the rights of rural Americans.

Now, he’s taking on the Food and Drug Administration.

With Mr. Grant’s help, the village of Hartland, Wis., is using the coordination statute to fight the Food and Drug Administration’s (FDA) 2016 tobacco rule that deems liquid nicotine products such as e-cigarettes as tobacco products. The rule includes an expensive premarket approval process, which the vaping and e-cigarette industry says will wipe out 99 percent of the nation’s businesses.

Given that one of the town’s biggest economic drivers is a vaping shop, the village adopted a resolution calling for coordination with the FDA on the development and implementation of the rule.

At 83, Mr. Grant has no plans to slow down.

“Not as long as I can stand and walk and talk. I’m tempted all the time to retire,” he said. “But I truly believe in this nation and I think there are too few people who understand and believe in the core principle of the federal republic, and if we lose that, I believe we lose what makes the Constitution the most perfect instrument of government that’s ever been created.”

By using the federal government’s statute to fight its own agencies to protect private property and enterprise, Fred Kelly Grant is an unsung hero.

  • Kathy Hoekstra is the national regulatory reporter for Watchdog.org.

 

48 years ago this morning, at just this hour, 6:30 am in Baltimore, I walked outside the Eastern District Police Station to get a breath of fresh air, and even the pungent smell of smoke and the sound of multiple sirens—with the distinctive sounds of fire engines, ambulances and police cruisers clear—was even an improvement over the stifling heat and constant noise inside.

 

Four days previous, on Thursday April 4, Dr. King had been assassinated in Memphis at the Lorraine Motel.  We had gone through a nervous day on Friday and I had attended three different meetings with my boss Charles Moylan the State’s Attorney of Baltimore, his Chief Deputy George Helinski, and my good friend Chief of Trials Howard Cardin concerning precautions against uprisings.  We went to mayor Tommy D’Alesandro’s office, the Police Commissioner’s office (colonel Donald Pomeleau), and to the Attorney General’s office (Frances Burch) and heard plans for mobilizing forces if it became necessary.  Governor Spiro Agnew had put the National Guard under Adjutant General Gelston and 500 state policeman on alert and standby.  My boss had gone to other meetings with the Chief Judge of the Municipal Court, Sewell Lamdin and the City Solicitor George Russell regarding a prosecutor’s response to mass arrests.  In Maryland, one arrested had to appear before a Municipal Court judge within a few hours for his initial appearance, and the specter of mass arrests had to be considered.

 

But, Friday went well, but uneasy.  A memorial service was held at noon and about 3 or 400 people attended as I remember.  My friends Bobby Fertitta and Howard Cardin and I went down there at Charley’s request and we saw nothing that would tell us that hell on the streets would break out on the week-end.

 

By Saturday morning full scale rioting was occurring in Washington DC just less than 50 miles down the highway, but no signs of that kind of violence in Baltimore.  I was to paint the new nursery for son Andrew who was just less than one year old, so around noon on Saturday Lodice and Andrew and I went to Sears on North Avenue at Harford Road to  get paint.  We had lunch at a favorite crab cake place near there and I saw no evidence of trouble, even though it was well in the center of a Black community in East Baltimore.

 

Later into the evening, I was still painting and listening to the radio broadcasts from around the nation as riots broke out in city after city.  Then, Eddie Fenton of the CBS radio station in Baltimore came on with a bulletin that arrests had been made in the Eastern and Western Police Districts in Baltimore for rock throwing attacks and broken windows.  At about 7 pm Charley called and asked me to get ready to be at the Eastern District Police station the next morning to take over handling early arrests; he said the Eastern had the most action right then and he would get me two or three assistants to help move the cases.  We talked about how to handle the arrests, realizing that paper work might be scarce if a riot actually began.  H said he would get back to me.  Just before midnight he called again, he had just been in a meeting at the Command center that had been established by the Police and State Police.  He said the Eastern jail holding cells were already full so I needed to be there at 7am the next morning to get things lined up—a judge would be there by 8:30 am to start initial appearances, so arrestees could be moved on to the city jail.  I asked if my car would be safe over at Eastern and he said a police car would pick me up.

 

So, at 6:30 am on Palm Sunday, a police cruiser from Eastern picked me up, and the officers told me en route that it was like a “war zone” near the station house.  Both had served in Viet Nam, so knew what the term meant.  As we drove across the high ground on the North end of the city, I could see plumes of smoke rising in at least twenty places in the District.  The police scanner crackled with calls for assistance, fires breaking out, people down and hurt.  Three people were already dead, and all the plate glass windows had been broken out of the Sears store we had been in at noon the day before.  The store had been looted and firebombs had exploded within it and throughout the block around it.  The crab cake place had been ransacked and nearly destroyed.

 

When we pulled into the station yard, it looked like a military compound from the movies—–officers in riot gear, defendants being shuffled around in shackles, and an overpowering rumble of noise, the old familiar “ummmmmmm  ummmmmmmmmm” that was present whenever a large group was unhappy, and that was pierced with screams and yells.

 

I met with Judge Broccolino to set our path for the morning.  At that point all the defendants were “papered” and the officers in charge had the paper work even if the arresting officers were out on the street.  So, we decided that we would proceed on the paper work, if the offense was just a curfew violation ( the sundown curfew had been imposed the night before) and there was no officer present, the defendant would have a date set for appearance and released.  If the charge was violence or any action misdemeanor based the defendant would be bound over for preliminary hearing, a bail would be set and in lieu of bail he would be sent to the city jail.  We expected we could have the holding cells emptied in a couple of hours.  And we did.  But we could never get them emptied because there more arrestees coming in than we could handle in court.

 

At about 9:30 am I called Lodice and asked her to please not go to Mass at our regular church, it was too close to the Eastern, to please just go to the church right up our street at York and Belvedere roads in North Baltimore. She asked about dinner and I said I should be able to be home by 3 when she had planned.  I also asked her to have our friends the Winchesters to take a cab that I would pay for rather than she pick them up as planned.  They lived too near the action going on over in the Western District.

 

By 1:00 pm it was clear I was going nowhere for dinner.  Charley had sent reinforcements, but it was now taking four of us to keep up with the masses being brought in.  And, now often the papers showing the charge and place of violation were not getting to  the station with the arrestees.  So, we were handling cases blindly—gathering what hearsay we could from other officers in the station, and bluffing the arrestees in order to try to get from them what they had done.  Our goal by that time was to keep them moving out of the station house and to the city jail to keep the holding cells available for new arrests.

 

By 5:00 pm we were on our third judge, our fifth chili dog courtesy of the wives of police officers and our seventh gallon of coffee and cokes.  And, the arrestees were more than ever before during the day.  Things got worse and worse until about midnight when we caught up, and had only three defendants in the cells.  I thought maybe I was just a little while from going home for awhile at least.  I had kept up with the news about our neighborhood through the officers and knew that so far there was nothing amiss in north Baltimore.  But, neighbors had taken in Lodice and Andrew and Peg and Foxie Winchester, and the neighborhood had kind of bunkered in.  Mr. Deller had gotten out his old handgun, said the bullets were green but they would be useful maybe in giving someone gangrene if he had to shoot. I laughed maybe for the first time, although as the next few days unfolded, it became survival mode to make humor out of not funny things.

 

Just about the time I was talking to the newly arrived judge about leaving the job to the younger assistants who had arrived, Charley called and said he needed to send me to the Western District where massive arrests had just taken place after a killing and five firebombs had exploded. He said the National Guard was now fully deployed and in charge and federal military had been brought or was about to be brought in from North Carolina, special troops trained in riot control.  So, off I went in a police car to take over at Western where I was joined by a good, solid hand in Steve Harris one of my favorite comrades.  When we got within a block of the station house, a rock or something hard hit the windshield and cracked it and another hit the window next to me and broke it through, scratching my cheek as the rock came through.  And, as we pulled into the lot, I saw two military tanks standing at the gate to the lot where a large crowd of very angry people stood yelling and waving their arms.

At 2:00 am I walked into that station house where the cells had long been jammed and now handcuffed, shackled people sat on the floors, some bandaged and bleeding.  A judge had just arrived, I told him how we had handled things at Eastern and away we went.  By 5:00 am we had the halls emptied and the cells were full but not jammed.  By 8:00 we were moving defendants out nearly as fast as they were being brought in, but the arrests were not declining, and virtually every minute officers were arriving with loads of arrestees.  Officers were now confining those arrested as best they could in trucks or paddy wagons on the street until the drivers had a load that they then took to the station house.  That way most of the officers did not have to leave the streets.  But it also meant that our “blind” efforts increased where we really did not know what the people were charged with.  Fortunately, for the most part if there was any violence involved, the arresting officers would have told the transporting drivers who told us and we, and the court acted on that hearsay.

 

Over 5800 people were arrested in Baltimore during the five day period between Saturday and Good Friday.  It became so overbearing by afternoon on Monday, Charley came from a meeting with the Chief Judge and said that I was retiring to the Court House where the supreme Bench Circuit level judges were going to sit as Municipal courts and prisoners would be bused to the court house where we had multiple court rooms and judges to handle the crowds.

 

From that time through Thursday, we were on twenty four hour duty in the court house.  Officers and guardsmen would bring a school bus load of prisoners into a court room, they would be processed and put back on the bus to go to the jail, or released.  By Tuesday morning, the block around the Courthouse was ringed with school buses in line; as one would come out of the courthouse and board an empty bus, a full bus would pull forward and its load would go in.  At some point during the week Charley said that he had images that one day, months into the future, like the Flying Dutchman, we would discover a school bus of defendants wandering through the streets waiting for a place in line, not knowing the riots were over.  What he referred to was the fact that when the curbs of the entire block had been filled with waiting buses, the new buses arriving had to drive around the streets until there was a place for them.

 

The courts worked around the clock.  One night, about midnight, the largest of the courtrooms was filled with about three bus loads of defendants.  There was only one guard in the room, an older court house guard with a shot gun sitting at one of the two back doors.  I looked into the courtroom to see if I needed to replace one of the assistants and Judge Sodaro caught my eye and waved me up to the bench.  He said “Fred, I’m a little nervous with this many defendants, they’re becoming a bit loud and unruly and we only have old Sam back there half awake on guard, do you think you could get some guardsmen or troops in here.”  I told him I would try.  I knew it would be hard because  of the street work being done.  But he was right.  There was an increasingly loud “ummmmmmmm ummmmmmm ummmmmm” going on in the room of probably two hundred defendants.  So, I stopped at Sam on the way out and said “judge is worried, I don’t know whether I can find someone to help you or not, so be alert, stand up and let the judge see you.”  He said okay and winked at me and stood up.  I went through the swinging doors and down the hall.  About half way to the State’s Attorney’s office I heard a shotgun blast and I raced back to the courtroom.  There was absolute silence; judge Sodaro was not on the bench, the prosecutors were not at the table and the court clerks were standing agape.  Old Sam had a smile on his face and said “Sorry Fred, I must have dozed off and my shotgun went off.”  There was not a single sound from the crowd that had been abuzz with discontent just three minutes before.  Not a single sound.

 

I talked to one of the clerks and he told me that when the shotgun went off the Judge hightailed it from the bench with the prosecutors right behind him.  He said he was too shocked to move but soon saw that the blast had brought the crowd to attention, so he just stayed where he was.  So, order was restored without having to bring troops in from the streets and Sam’s “dozing” became the story of the week in the  courthouse.

 

While our work did not diminish, the streets began to come under control when the military from Fort Benning Georgia arrived.  I will never forget the meeting Charley called me out to attend with him at the Armory where command center was located.  General York of the Army was there with the Adjutant General Gelston, Attorney General Burch, Mayor D’Alesandro who had been mayor only three months or so when the riots broke out, Police Commissioner Pomerleau and his minions and representatives of the Governor and the President.  General York made a suggestion and General Geltston said it wouldn’t be necessary for the federal troops to become that much involved, and General York in a precise, totally understandable fashion advised that the Guard had been federalized and General York was in command.  From that time on, things began to improve.  From that time on, arrests began to decline because the presence of those well trained, no nonsense troops began to prevent the offenses.

 

Finally, on Good Friday at about 2:00 p.m. Bobby Fertitta and I left to go home for the first time since Palm Sunday morning.

 

Fortunately, I never had to experience such ruinous times again.  Parts of Baltimore looked like a bombed out, burned out city in the Middle East or out of one of the devastated nations from World War II.  Most of the damage was to the Black neighborhoods themselves, and a fact escaping most people was that Blacks were the most victimized of all the citizens of Baltimore.  When I left the city to return to Idaho when it became time for that little Andrew to start school, there were still parts of the city where buildings were boarded up, never having been repaired.

 

All of it brought on by the senseless murder of a preacher who carried the message of  peace and non violence.  Dr. King’s cowardly assassin set in motion the frustration and anger that underlay a century of fourth class treatment and throughout the nation  violence was the result.  Did something, anything good come of it.  I think so.  At least it got the attention of governing powers, and even though the entire problem of discrimination has never ended, it has improved at least officially; but frankly as long as poverty and poor levels of education remain, there never will be an end to the problems.  People who have no jobs, no means to seek a job, no education of sufficient level to hold good jobs, and no money to improve themselves will always be uneasy, and will always be looking for a way to gain that money, even through criminal means.

 

Memories—how did I get on this kick?  I read last night an accounting of Memphis in the 48th year since Dr. King was killed.  And, when I woke up I found that I had been dreaming about looking for coffee in the briefing room of the Eastern.  The mind—–

This is a most historic  week  for Americans as they watch the drama unfold in Washington over the nomination of Judge Gorsuch to become a Justice of the Highest Court in the land.   To my mind there is no more important job that the President has than that of nominating a Justice to the United States Supreme Court. I believe the Court is the most critical of the ideas embedded into our fundamental law by the Founders. It was intended to be the arbiter of Justice and the balance between the Legislative and the Executive Branches of government. And, I believe that over the years it has performed its function well, in fact impossibly well considering it has no enforcement powers—no armies it can send out to execute its judgment, no power of the budget or appropriation it can use to enforce its judgment. It has only the force of law, the force of a people who live in a Republic that was created to survive under the Rule of Law.

Many times in our history, the Court has issued judgments when Congress and the President were at such odds that the issues might have torn us asunder. Each time, both other branches have followed the Court’s lead and we have survived as a nation under law.

I believe the Court was not created to “make law” but to interpret the law: both the fundamental law embedded in the Constitution, statutes and laws made by legislative bodies, and the natural rights of law that we all hold under a right even higher than our Constitution, i.e., those rights referred to in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. The “making of law” was bestowed to the legislative branch, i.e., Congress, and to the states and local governments of course by the Ninth and Tenth Amendments. The President was given the enforcement power. The Court was to be the interpreter of laws challenged by an individual, by the President or by the Congress or a state or local government.

Given the fact that I believe the nomination is so important, it stands to reason that I believe that the United States Senate has no higher duty than that of considering the nomination and either confirming or denying consent to the nomination.

This week we are expecting a battle in the United States Senate over the question of whether to confirm the nomination of Judge Gorsuch as the ninth member of the High Court. The Democrats have threatened to filibuster and it appears the threat is not only real, but also has a chance of delaying the conformation. It is in doubt, I believe, whether the Republican leadership of the Senate, as it is in the hands of Mitch McConnell, can muster the 60 votes needed to break the filibuster. If it is to be done it won’t be done by McConnell; it will be done by members like Senator Mike Crapo of Idaho who, even though a conservative, has the ability and the talent to reach across the aisle and get support of a few votes when needed.

It is regrettable that a distinguished judge like Gorsuch should be subjected to the headlines, the attacks on his record, and to the indecision of awaiting the Senate vote. He is a judge who has served impeccably, with not a blemish on his record. I have read his opinions, both those submitted to the Senate and others that I sought out. He writes a thoughtful, carefully explained opinion laying forth why he interprets and applies the law as he does, fully laying out his reason and the reason of the Court for whom he writes. He is intelligent and intellectual enough to see the nuances of the law as to what might result from his decisions, but he is not an “egg head” who writes above the level of good lawyers and literate citizens.

He is a conservative in that he tries to apply the Constitution and laws as they are written, with the intent of those that wrote them. He does not reach into outer space to come up with an approach to the law before him simply to justify his decision or that of his court. It is obvious from some of his opinions that he does not always agree with the law before him, but he makes sure that whether he likes it or not, it gets applied as it is written. To me that is the mark of a good, sound, solid judge. He is to judge, not legislate, not enforce, but to judge.

The fact that he is a conservative has nothing to do with politics. I have no idea whether he is a conservative in politics, but he is a conservative in the law. I worked many years ago as a law clerk for one of the finest judges I have ever known, Chief Judge Frederick W. Brune of the Maryland Court of Appeals. He was a conservative judge and his opinions remind me of those of Judge Gorsuch. But, in his personal life, while basically a conservative in politics, he was the most liberal person I have ever known in his empathy for the downtrodden, the disadvantaged. Much, much later, I worked for District Judge Edward J. Lodge in Idaho (when I worked for him he was a state District Judge; he later was appointed to be a Bankruptcy Court Judge and then ultimately United States District Judge where he presided over the infamous Ruby Ridge FBI shoot out case (he had presided over the trial of the infamous Claude Dallas who shot two fish and game officers)). Judge Lodge was from a politically active and very conservative family, without a liberal political bone in his body. But he, as Judge Brune, held very liberal beliefs for the people. But, the important thing on the bench for both of them is that they conservatively applied the law as they believed it read and was intended to be read.

That is my read of Judge Gorsuch. And that is my idea of a fine judge
Now, Senator Shumer and his associates may have a valid point in being upset with the way the President handled the nomination, that is, without consulting with Democrats in the Senate. After all the Constitution provides that the President shall nominate members of the Supreme Court “with the Advice and Consent” of the Senate. I believe the intent of that phrase was and should be that in making a decision so important, the President should seek the advice of the Senate when he is putting together a panel of prospective nominees. I believe when he settles on his final group, he should seek advice from the senate, and “the Senate” is both parties, not just one. Apparently he did not do that.

But, he has now had the advice of the Senate from the Democrats who have voiced their opposition, and he has not changed his mind. So, I would say that the “Advice” portion of the Constitutional mandate has been satisfied sufficiently.

So, let’s get to the vote. Lets now get to the issue of whether the Senate will confirm the nomination of this well qualified nominee to serve as a lifetime member of the United States Supreme Court.

I hope that the Senators Crapo who are in the Senate will reach out and secure the necessary votes to get this honorable man seated on the court where he has every right to sit. This is no way to treat a man who has given as much as a good judge gives up in order to serve.

But, that’s just my belief. What do I know?

Coord. 101 Flyer, 5-5,6-17

ANOTHER STEP TOWARD RECOGNIZING THE IMPORTANCE OF ‘WE THE PEOPLE’ WHO BEST EXPRESS OURSELVES LOCALLY

 

AND ANOTHER STEP TOWARD GIVING LOCAL GOVERNMENTS A CHANCE THROUGH COORDINATION TO TAKE AN ACTIVE ROLE IN REVIEW OF ENERGY DEVELOPMENT REGULATIONS

 

[The Executive Order allows to local governments  the opportunity now to demand coordination throughout the review of energy regulations ordered to take place over the next six months.  The Council on Environmental Quality will be reviewing the reports of these agencies within its role as overseer of environmental policy; and the Council’s rules require coordination with local governments.

 

So, any local government that does not make use of its coordinate authority is not doing its citizens a favor—either those citizens who favor climate controls and those that do not; and such government is not doing its duty to its citizens to make sure that sound science and sound economics are used in making regulatory decisions.

 

The President has opened the entire administrative process to coordination. It is there for the taking—-or there as an opportunity for involvement to be lost.

 

It also allows local governments the opportunity, through coordination, to state their positions in a way that gives the federal agency heads the base they need to roll back unduly, and unlawfully, burdensome regulations.  It shows that we have an Administration open to that process—now who will take advantage of it?  And who will lose the opportunity?]

 

 

 

Yesterday, President Trump signed Executive Order Entitled “Promoting Energy Independence and Economic Growth”.  It rolled back the prior Administration’s ban on fossil fuel exploration and development.

 

Senator Jim Inhofe, chair of the powerful Energy and Public Works Committee, praised the Order when he pointed out that the prior Administration’s artificial goals had been determined by scientists to be totally impossible to achieve.  And, even if achievable would have no real impact on global warming because we in this country play such a small role as compared to pollution from the entire globe.

 

Immediately, global climate warming activists roared that “the sky is falling, the sky is falling” and the Washington Post editorialized that children would wonder how any president could do such great harm to our world.

 

But, what does this Order actually do?  It sets forth to rescind regulations that “ unduly burden  the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”     In other words, get rid of those that are beyond what our laws allow.  Kind of a novel approach for DC?

It also recognizes that the policy of this nation “to the extent permitted by law” is to “promote clean air and clean water…..[while making sure that regulations] are developed through transparent processes that employ the best available peer-reviewed science and economics…[and] while respecting the proper roles of the Congress and the States concerning these matters in our constitutional republic.”

My oh My, how revolutionary—an Administration, the leader of which, recognizes science, economics, the law and federalism.  But the Washington Post moans that it will destroy us, as though if we follow the law and act based on real science and economic theory we are doomed.  In other words, unless we act on theory unsupported by facts, and unless we depart from our Constitution, we will not survive and we will take the world down with us.  If that were true, it would be time that we all went down.

What the alarmists do not discuss is the fact that the President did not order immediate rescission of all such regulations; rather it orders a structured, orderly review of such regulations by the heads of agencies.  It orders all executive department agencies to review all regulations, orders and policies (including guideline documents) that “burden” development of and use of “domestically produced energy resources…oil, natural gas, coal and nuclear energy resources”.

 

It orders that the review result in a report to the Council on Environmental Quality 120 days from now as to how, within the law, the burdens on energy development and use can be eliminated “to the extent permitted by law”, [WHAT A NOVEL CONCEPT—FOLLOW THE LAW]  such report to be finalized by 180 days from now.

 

In other words, and in the vernacular of the streets   “okay, guys, get your act together, you don’t make laws, you only implement those that are made by the people’s elected representatives in Congress and the state legislatures and the county and city councils; so get your houses in order and identify those regulations that went too far to burden our energy development and our economy.”

 

Through all the ballyhoo about the sky falling, not a mention of the importance of this Order to the people of the United States—their economic survival or the survival of the form of government, a federal republic, that has served them so well for two and a half centuries.

 

Not a word about what this Order does to again recognize the important role played by state and local governments in this land.  In one of the preliminary paragraphs, the President again expresses the “policy of the United States” that agency personnel must respect “the proper roles of the Congress and the States concerning these matters [matters of energy and fossil fuel use and development]in our constitutional republic.”

For thirty years Presidents of  the United States have led their executive agencies on an unchecked path to usurp the authority of the legislative branch, Congress, to make law.   And the Courts have stuck their heads in the sand and allowed it to happen through the infamous “Chevron case doctrine” which says that a court should stand back and give deference to an agency’s judgment as to what the law is and should be. (the whole Chevron deference is simply a way for the courts to avoid tedious examinations of and analysis of thousand page records leading up to an agency decision; the courts didn’t have any problem refusing deference to the  President’s travel ban issued for national security, yet will defer to an agency  decision as to whether a pipeline is necessary or what a “wetland” is.]

 

The prior bans on fossil developments and use were put in place through executive orders which avoided the entire legislative process, thus evading the will of the people expressed through their elected representatives and senators.  At the same time, those prior orders negated any and all countering opinions of states that yield fossil fuels, as well as any counter opinions expressed by the people through their city, county and state elected officials.  The bans were put in place by Executive Orders which  made energy policy that specifically by law is within the mandate of the Congress, and through the Tenth Amendment within the mandate of the States and local governments.

 

Global climate warming enthusiasts will wail and gnash their teeth, but to no avail.  What one President did to evade the will of Congress, which represents the people, this President undid in order to attempt to right the course of regulatory agencies that have run amok.

 

Before one succumbs to the gloom and doom predicted by climate warming activists, he or she should examine what in fact this Executive Order does: it

actually demands that appointed regulatory agency heads insist that their employees do their jobs instead of making laws that Congress refused to make.

 

Kind of astonishing that a President with no constitutional history background to speak of acts so quickly in his Administration to right one of the greatest wrongs of the past thirty years—the usurpation of the legislative function by executive non-elected agencies.

Yesterday, the President signed into law Joint Resolution 44 which nullifies a Bureau of Land Management Rule that would greatly diminish the opportunity for local governments to insist on coordination with the BLM which leads to consistency between federal plans, policies and actions and local policies.

 

As a result, Congress has nullified the BLM’s attempt to water down the coordinate position of local governments in land management decisions.   The current rule recognizing broad local government opportunities remains in  place and will be featured at the Coordination 101 Seminar in Woodland, CA on May 5-6. (See attached flyer) The fact that the current rule will remain in effect makes the Seminar all the more important for local officials who want to step into the coordination arena to protect their citizens.

 

The rule, BLM  Planning Rule 2.0 was issued in the Federal Register in December, 2016 just prior to the end of the Obama administration.  Even though the BLM personnel attempted to disguise the impact of the changes, it was clear to a whole multitude of western counties and to American Stewards of Liberty that local governments would be deprived of the same level of meaningful coordination involvement available under the current rules.

 

American Stewards of Liberty assisted counties in attacking the rule and in pointing out the loss to local governments of meaningful involvement.  Among the counties submitting comments opposing the rule change were Baker County, Oregon, Modoc County, California and Custer County, Idaho—all counties that have engaged BLM in the coordination process.

 

In signing the Joint Resolution, President Trump strikingly remarked that it is never a good thing to take any element of control or involvement from the local level and give it to Washington DC.

 

As a result of the signing in the Roosevelt Room of the White House yesterday, Congress has declared the Rule change invalid and of no effect.  The rules for coordination by BLM with local governments therefore continue as currently in effect.

 

Interestingly enough, a county that stood imminently at the forefront of moving the coordination process to a high level in the early to mid-1990s, Owyhee County, Idaho, was not listed as one of the coalition of counties opposing the new rule.  Perhaps the County submitted its own individual comments—one would hope so.

 

The signing remarks by President Trump demonstrate the reason that local governments should move promptly by demanding coordination in every major federal action that impacts their citizens.  Often I hear that “well, we’re waiting for the right time to call for coordination.”  The ONLY RIGHT TIME is at the very beginning of any federal major action—before the die is cast in the minds of the federal agency.  That is what Congress mandated and that is what the  Council on Environmental Quality has ordered—early involvement through coordination.  Any local government that does not take advantage of the coordination process from the earliest days of a major decision process is not acting in the best interests of its citizens.  The only way for those citizens’ rights to be protected against federal major actions is through their local government exerting its coordination  authority.

 

“He who hesitates is lost”.  To hesitate and delay coordination results in a tremendous loss of opportunity to influence policy and actions.

March 7, 2017                              Fred Kelly Grant

 

For years I have shared the passion of my friend Nick Dranias for a curb on spending by the Congress and the Executive branches of the national government.  So long as Congress refuses to discipline itself to a balanced budget it will continue to spend, thus allowing the zealots of regulatory government to keep spending and expanding the national government at the expense of state sovereignty.  The power to spend is the power to destroy.  In this case, heavy handed, unlimited spending has brought many states to their knees, dissipating their sovereignty to a point of impotence.

 

But, I have had the fear that to submit a balanced budget amendment to a Constitutional Convention was too great a risk—a risk as to what those who would like to rip our personal rights from the Constitution would do in a runaway session.  I agreed with the opposition stated very thoroughly by the Eagle Forum in a set of 20 questions, and the observation that if they could not be answered satisfactorily from a conservative’s standpoint no one should be urging a Convention.

 

I know Nick Dranias.  I fought with him side by side when he was with the Goldwater Institute.  Together we urged the American Legislative Exchange Council to adopt a resolution urging adoption of the process of “coordination” by which local governments could reinstate a healthy federalism with federal regulators.  Together we worked to assist Senator Sylvia Allen in her development of and passage of a “coordination” statute empowering the people to bring about “coordination” by their local governments.

 

Finally he caught me at a moment when I had a break from my fights with regulators, preparing for a rather major surgery, and I took time to review his work with Compact for America, work that is exemplified in Arizona House Bill 2226 that is up for committee vote today.  I have been a supporter of the Tenth Amendment my entire life—the sovereignty of the states, the local governments, THE PEOPLE, depend on that Amendment and on limiting the runaway power of the national government.  I believe that a balanced budget requirement is the best protector of the Tenth Amendment’s authority.  Today I accept and support the interstate compact that is evidenced in House Bill 2226.

 

But, until now I have told Nick that I had too great a fear of a runaway Convention.  I had seen too many bills in Congress go south as malcontents used the sausage making process of considering 175 bills by voice vote in one package to slip in a clause that injured or destroyed a personal or property right.  A perfect example was a grazing bill that was designed by “ranchers’ friends” in Congress to secure grazing viability.  At the time I was with American Stewards of Liberty and heavily involved with defending the rights of grazers in Owyhee County, Idaho.  Margaret Hage Byfield, Dan Byfield and I were asked to support the bill and we said we would wait and see.  On my granddaughter Samantha’s birthday, I was called from DC by an ardent supporter of the bill and asked to support it as it faced a crucial vote that day.  I declined out of fear what language the opponents of grazing might slip into it at the last second to take some right we claimed to have.  I was assured “we have guards on the committee door, nothing will get past us.”  I still declined.  My position, shared by Margaret and Dan, became a thorn in the side of the bill’s supporters.  We were called on the carpet in a meeting in Reno of the bill’s supporters.  In the bill as it came through committee to the floor, a new section had been added, “section 210”, a section that by its nature would give the Bureau of Land Management the excuse it needed to end or severely limit grazing for at least a year.  So, after several speeches chastising me for withholding support, I finally spoke and said “I will support this bill and urge American Stewards of Liberty to support it if any one of you will explain to me how section 210 will help ranchers—what does 210 mean?”  I was amused at the look of consternation on their faces as they opened their bills and searched out 210.  After time for reading, one of the leading supporters said “where in the hell did that come from?”  I could not help myself, “I don’t know cause you guys were the guards on the committee doors.  What does it mean?”  A well respected lawyer from one of the great pro bono programs glumly answered “it means there would be no grazing next year anywhere in the west.”  I said “precisely and that is why I don’t support the bill.”  The supporters went to work and stripped that language from the bill and lost the support of the anti-grazers, thus loss support needed to gain passage.

 

Thus, my reluctance to support a Constitutional Convention with the focus on an amendment to require a balanced budget.  Yet I knew, and know that it is the only way for us to gain control of an overzealous national government.

 

While Nick has been working with Compact for America I have been in court and the administrative process fighting regulatory abuses that overwhelm the sovereignty of states and local governments.  I haven’t taken time to review the Compact’s results.

 

One day recently, I received an email from Nick and I took time to read the citations he included.  I didn’t stop with those; I continued to read and have since then satisfied myself that the Compact has the answers to my questions which paralleled those posed by Eagle Forum.

 

The Compact’s structure in the form of an interstate compact is the gist of Arizona House Bill 2226 which is in committee for a vote today in the
Arizona legislature.   The Compact assures the limited nature of the session that will act on the amendment, it assures that the sovereignty of every small and every conservative state will be protected, but represented, and it offers us the chance to stem the tide in the District of Columbia.

 

Having fought for Tenth Amendment principles nearly all of my life throughout the Western United States, I am now utterly convinced that the states must unite behind the Compact for a Balanced Budget as set forth in Arizona House Bill 2226 to limit federal borrowing capacity. A key feature of the Compact for a Balanced Budget is the requirement that a majority of state legislatures must approve any increase in a constitutional debt limit. The federal government could not engage in most of its mischief if it had to gain approval from a majority of state legislatures for any increase in its borrowing capacity. Restoring respect to our states is at the core of the Compact for a Balanced Budget. If you believe in the Tenth Amendment and limited federal power, as I do, then I urge you to support Arizona House Bill 2226 joining the Compact for a Balanced Budget by passing that bill.

 

 

 

Risk?  Maybe a slight one, but none that cannot be handled under the terms and provisions as outlined in the Arizona bill.  But, as Mr. Justice Scalia said, when he was still a professor at my alma mater University of Chicago School of Law, “The founders…knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power.  The founders foresaw that and they provided the convention as a remedy.  If the only way to get that convention is to take this minimal risk, then it is a reasonable one.”  Spoken like the champion of liberty which he was.  Every  patriot from our early days of revolution to bring about individual and then state liberty has been willing to take reasonable risks.  I am too.  The work that Nick and his organization have done in designing an interstate compact reduces the risk to minimal, and again in the words of Anton Scalia, professor, jurist and patriot extraordinaire: “I think [a constitutional amendment session] is necessary…and I am willing to accept what seems to me a minimal risk of intemperate action.”  I agree!

 

If you know an Arizona legislator and you want to curb the runaway nature of the national government, call and urge that legislator to vote yes for HB 2226.

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