A couple of days after Rand Paul won the Republican nomination for the senate race in Kentucky, he stirred up controversy by saying the government should not be able to tell businesses who they have to serve as is regulated in the Civil Rights Act of 1964. Realize, he is for the Civil Rights Act and what it has advanced for all people in the country. As a Libertarian, he believes a business should be able to do business with whom they choose and not have the government regulate their behavior. His stance, like most Libertarians, is that the public with their money will regulate a business better than the government. Dr. Paul was adamant, he does not like racists but does not believe their views should be restricted.
The Civil Rights Act of 1964 signing was a joyous act and a sad act. It was joyous because it finally gave Americans with dark skin the liberties and freedoms that were supposedly bestowed upon them by the Fourteenth and Fifteenth Amendments to the Constitution. It was a sad act because it took almost 100 years for those rights to be recognized. Think about that. The Constitution was amended to give all Americans the same rights; however, some states did everything they could to disallow those rights for certain individuals. It took the Country almost a century to put everyone on the same page with respect to rights! And, in reality, the Civil Rights Act of 1964 was nothing more than a repeat, with specific wording this time, of the constitutional amendments ratified in 1868 and 1870.
After the end of the Civil War, the southern states passed "black codes" which were meant to restore the racial relationships which existed prior to the Civil War. After the ratification of the Fourteenth and Fifteenth Amendments, which were used as bargaining chips to reinstate the southern states into the union, the southern states were not ready to bestow the same rights upon the black Americans as the white Americans enjoyed. The black codes morphed into what were called "Jim Crow Laws." These laws ensured separation of blacks and whites. This regulated blacks to a second-class citizenry. This was further aggravated by Plessy v. Ferguson (1896). In this case, the Supreme Court ruled that "separate but equal" facilities did not violate the equal protection clause of the Fourteenth Amendment. This opened the door for the southern states to institute legal racial inequality.
Now I will go off course a little here but the discussion will be a good backdrop for the rest of the article. The Supreme Court in Plessy v. Ferguson made an incorrect interpretation of the Jim Crow laws and their constitutionality. Mr. Plessy, 1/8 black, tried to ride in a white only railroad car. He was arrested and fined. He filed a lawsuit challenging the law. When the state Supreme Court found in favor of the state, he took it to the Supreme Court. Writing for the majority, Justice Brown wrote "So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order" (Plessy v. Ferguson, 163 U.S. 537 (1896)). What the court failed to consider was the phrase from the Fifth and Fourteenth Amendments: "no person shall...be deprived of life, liberty, or property, without due process of law." While most would say that the government cannot take a life or incarcerate someone or seize property without a court proceeding, it is short-sighted to interpret the statement only in this manner. Substantive due process places a limit on the government enacting any legislative matter that is not related to a legitimate government interest or could be unfair or unjust (Merriam-Webster, pg 153). The government is not served by passing a law which restricts the freedom of an individual which is not at the benefit of society. Granted, many people in that time felt separation was good for society because co-mingling should not be forced but only encouraged. However, the force of separation is the same as the force of co-mingling. If all the whites on a rail car or bus wanted to sit together and not sit with the blacks of their own free accord, then so be it. However, for the government to say that is the rule of the land is an infringement of the Fifth and Fourteenth Amendments. One of the crucial elements of due process is the the opportunity to be heard and defend one's rights. When the state passed the separate but equal law, were blacks consulted or allowed to vote on the law? There isn't a way to verify the answer, but one can assume that for the most part, the answer will be no. Then by stating a black could not ride in a specific rail car that was not related to a valid government interest or for which did not violate the rights of someone else (mere presence in a public place is not a right infringement) limited the liberty of the blacks to ride in a specific car - a liberty which was infringed without due process of law. Thus the state law was unconstitutional. The Supreme Court missed a key constitutional argument.
One of the elements in the court case which they did get right was stating that the state had the right to regulate commerce in their state. Since the railroad was a local railroad and not a interstate railroad, the state had the right to pass a law that applied only to local railroads. The Federal government does not have the right to regulate the commerce of a state. The Federal government under Art I section 8 to the US Constitution is given the right to regulate commerce among the states. I agree in this case. However, I reiterate, while the state has a right to regulate the commerce in their state, they don't have the right to regulate contrary to the US Constitution.
So now we come to the Civil Rights Act of 1964. The southern states were denying rights to blacks under the guise of "separate but equal." The Federal government stepped in and passed a law to ensure the civil rights of all Americans. Did the Federal Government have the legal power to do this? Yes, section 5 to Amendment 14 states, "The Congress shall have power to enforce, by appropriate legislation, the provision of this article." So Congress did have the power. But, now the question is, was the legislation appropriate? For the most part it was, for one specific section it was not.
Congress in the Civil Rights Act of 1964 Title II Section 201, defined any business that somehow partook in interstate commerce to affect interstate commerce and thus fall under their jurisdiction. For example, if a business gets most of its food from out of state, that business affects interstate commerce. But this is a far-reaching interpretation of the "commerce among the states."
Merriam-Webster defines commerce as "the exchange or buying and selling of goods, commodities, property, or services esp. on a large scale and involving transportation from place to place." The question then: is the buying of a good, commodity, property, or service which has been transformed from its original state after original exchange or buying or selling still fall under the purview of the Congress? To this extent, once something has changed form and is resold inside the state, even if it comes from another state, is intrastate commerce and not interstate commerce. Thus the Congress does not have the right to regulate commerce in a state even if the commerce is a direct result of interstate commerce. To better explain, Congress has the right to regulate the exchange of lettuce moved from one state to another state. Congress does not have the right to regulate the salad made from said lettuce once it is in the state. But this is what Congress in effect did with the Civil Rights Act of 1964. Thus they over stepped their rights under the Constitution; therefore, the Civil Rights Act of 1964 is unconstitutional in the respect where it regulates the conduct of business in a state when the business obtains goods or services via interstate commerce.
Now with that said, some of the regulation in the section 201 is legal. For example, the regulation of a sports arena which hosts teams from another state falls under the commerce clause - the exclusion of a team or their fans from a local site affects interstate commerce. The regulation of inns along the interstate highway system falls under the commerce clause - the purpose of those inns is to support interstate commerce, how could they support interstate commerce if they refused service to some customers trying to affect the same?
Section 202 of Title II to the Civil Rights Act does exactly what was really needed. This section specifically tells each state they cannot have a law which restricts access to anyone on the basis of color, race, etc. This restatement of the Fourteenth Amendment was needed in the Act.
To clarify the viewpoint of this article: Congress has the right under the commerce clause to regulate commerce among the states. This does include the regulation of how a business conducts intrastate commerce. Each state has the right to regulate the commerce inside its borders. This does not include the regulation which violates the Fourteenth Amendment, such as the Jim Crow laws, or "separate but equal." Each business should have the right to say who they will cater to including the refusal of service to a group or groups of people they don't like. Now while this standpoint might be reprehensible, it is a basic tenet of free speech and the power of the consumer. It is worse to stifle speech which one does not like than to be subject to the same. When you go into most businesses do you not see signs both in English and Spanish? Why is that? That's because there is a large consumer group with buying power that does not speak English, only Spanish. To tap that money, why not put signs in both languages if you want to cater to both groups? So how long do you think a business would survive in this day and age if it excluded a group based on race, color, national origin, etc?
The Civil Rights Act of 1964, a great legal triumph which should be celebrated, is also, possibly, a good example of "the ends justify the means."
Mike
References:
Ourdocuments.gov. (n.d.) Transcipt of Civil Rights Act (1964). Retrieved 27 May 2010 from http://www.ourdocuments.gov/doc.php?flash=true&doc=97&page=transcript
Plessy v. Ferguson 163 U.S. 537 (1896). Retrieved 28 May 2010 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=163&invol=537
New World Encyclopedia. (2008). Jim crow laws. Retrieved 28 May 2010 from http://www.newworldencyclopedia.org/entry/Jim_Crow_laws
Thompson, K and Dan Balz. (2010). Rand Paul comments about civil rights stirs controversy. DC: The Washington Post. Retrieved 28 May 2010 from http://www.washingtonpost.com/wp-dyn/content/article/2010/05/20/AR2010052003500.html
Nash, G and others. (1990). The American people: creating a nation and a society Volume 2 since 1865. NY: HarperCollins.
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.
Friday, May 28, 2010
Thursday, May 27, 2010
Bully Politics
On Tuesday, I started researching the 14th Amendment and the Civil Rights Act of 1964 after remarks by Dr. Rand Paul, the just-selected Republican Party representative for the state of KY's senate race. I obviously chose a different topic as evident by a two day discussion on pensions. I am again tabling my original intent on the discussion in lieu of another topic. To give a little teaser for tomorrow, I plan on arguing that the Civil Rights Act of 1964 is unconstitutional. We'll see how that goes.
In my research on the Civil Rights Act of 1964, I realized there were some aspects of the Reconstruction Era I did not remember. I also cannot remember if I was ever taught this in the first place. In my reading, I saw a pattern that was reminisce of recent times. Thus was born a discussion on bully politics.
One of the first indications of bully politics is found in our Country's history during Washington's second administration. After the Revolutionary War, the country had taken on the state's debt and needed to raise funds. In 1791, Alexander Hamilton proposed a tax on distilled spirits to help raise said funds. One of the problems was it was a tax that favorable large producers over small producers (globalsecurity.org, n.d.). In western Pennsylvania, farmers used grain not sold to distill whiskey. They even bartered in the distilled spirits. The excise tax (a tax at production not consumption) was an undue burden on the small producers. Tax evasion and abuse of tax collectors became prevalent throughout the western region of Pennsylvania. Riots even broke out over the tax. Fed up with the insubordination, Washington raised a militia from other states. Under the command of Virginia Governor Harry Lee (Gen Robert E. Lee's father), the militia went to Pennsylvania and put the uprising to an end (earlyamerica.com, n.d.). This was an event which showed the states the new federal government was ready to enforce its authority. A flex of its might, the nation showed its power. In 1801, the unpopular whiskey excise tax was repealed....
At the end of the Civil War, the former slaves were all freedmen. However, the plantation owners still needed their crops harvested. How could they get them harvested at a cheap cost? Pass laws which would force the freedmen back into lawful servitude, that's how! The southern states then passed what has become to be known as the Black Codes which reestablished white dominance (Nash and others, pg 545). For example, one state made it illegal to not have a job, in other words, vagrancy was a crime. If charged with vagrancy, the violator would have to pay a fine. Of course, the vagrant did not have the money to pay the fine. So the vagrant was given the option to "work off" his debt at the plantation (civilwarhome.com, n.d.). Wasn't this a great plan? Of course, the northerners weren't going to have any of this. In response, the Fourteenth Amendment was ratified in 1866. The southern states, at the urging of President Johnson, refused to ratify the amendment. So after flexing its muscle with the Fourteenth Amendment, the northern states flexed their muscles again with the Reconstruction Acts. They redrew voting districts and disallowed many rebels from voting. This ensured blacks could vote on a new state constitution. Only after ratification of the Fourteenth Amendment were the southern states allowed to send representatives to Congress (Nash and others, pg 549). However, it wasn't until the passing of the Civil Rights Act of 1964 did the intent of the Fourteenth Amendment become the way of life. Or has it?
In 2008, the state of California passed Proposition 8. This proposition defined marriage as between a man and a woman. These words were placed into the state's Constitution making it difficult for the court to allow same-sex marriages. The beginning of Prop 8 began back in 1999. In that year, the legislature wrote several laws recognising a domestic partnership. This effectively gave same-sex couples many of the rights as married couples. Then in 2000, proposition 22 was approved by the voters which defined marriage as between a man and a woman and stated California would only recognize a marriage from another state only if it matched the state's definition. In 2008, the California Supreme Court ruled proposition 22 unconstitutional. Thus the voters of the state which approved prop 22 flexed its muscle and approved prop 8. Same-sex couples were now prevented from using the word "marriage" to define their relationship even though their domestic partnership is legal....
In 2010, the Democrats holding a majority in Congress had to flex their muscles. Even though polls showed most Americans did not want the Democrats' version of healthcare reform, the muscles were flexed and the Democrats passed their healthcare reform over the objection of the public. We have yet to see the repercussions from this muscle flexing.
Throughout our Country's history, the majority has flexed its muscle in a bullying manner to get their agenda passed. Was it for the good of the country or for the good of themselves? Only history will tell...
Mike
Again, I recommend checking out the references.
References:
Nash, G and others. (1990). The American people: creating a nation and a society Volume 2 since 1865. NY: HarperCollins.
USconstitution.net. (n.d.) Notes on the amendments. Retrieved 27 May 2010 from http://www.usconstitution.net/constamnotes.html#Am14
Smith, P. (n.d.) Trial by fire, a people's history of the civil war and reconstruction. Retrieved from civilwarhome.com. Retrieved 25 May 2010 from http://www.civilwarhome.com/blackcodes.htm
Archiving early America. (n.d.) The Whiskey Rebellion. Retrieved 25 May 2010 from http://www.earlyamerica.com/earlyamerica/milestones/whiskey/
Globalsecurity.org. (n.d.) Whiskey Rebellion. Retrieved 27 May 2010 from http://www.globalsecurity.org/military/ops/whiskey_rebellion.htm
For Prop 8 or Prop 22 just do a search for them. Obviously, wikipedia will something for you.
I'm sure you know the healthcare debate.
In my research on the Civil Rights Act of 1964, I realized there were some aspects of the Reconstruction Era I did not remember. I also cannot remember if I was ever taught this in the first place. In my reading, I saw a pattern that was reminisce of recent times. Thus was born a discussion on bully politics.
One of the first indications of bully politics is found in our Country's history during Washington's second administration. After the Revolutionary War, the country had taken on the state's debt and needed to raise funds. In 1791, Alexander Hamilton proposed a tax on distilled spirits to help raise said funds. One of the problems was it was a tax that favorable large producers over small producers (globalsecurity.org, n.d.). In western Pennsylvania, farmers used grain not sold to distill whiskey. They even bartered in the distilled spirits. The excise tax (a tax at production not consumption) was an undue burden on the small producers. Tax evasion and abuse of tax collectors became prevalent throughout the western region of Pennsylvania. Riots even broke out over the tax. Fed up with the insubordination, Washington raised a militia from other states. Under the command of Virginia Governor Harry Lee (Gen Robert E. Lee's father), the militia went to Pennsylvania and put the uprising to an end (earlyamerica.com, n.d.). This was an event which showed the states the new federal government was ready to enforce its authority. A flex of its might, the nation showed its power. In 1801, the unpopular whiskey excise tax was repealed....
At the end of the Civil War, the former slaves were all freedmen. However, the plantation owners still needed their crops harvested. How could they get them harvested at a cheap cost? Pass laws which would force the freedmen back into lawful servitude, that's how! The southern states then passed what has become to be known as the Black Codes which reestablished white dominance (Nash and others, pg 545). For example, one state made it illegal to not have a job, in other words, vagrancy was a crime. If charged with vagrancy, the violator would have to pay a fine. Of course, the vagrant did not have the money to pay the fine. So the vagrant was given the option to "work off" his debt at the plantation (civilwarhome.com, n.d.). Wasn't this a great plan? Of course, the northerners weren't going to have any of this. In response, the Fourteenth Amendment was ratified in 1866. The southern states, at the urging of President Johnson, refused to ratify the amendment. So after flexing its muscle with the Fourteenth Amendment, the northern states flexed their muscles again with the Reconstruction Acts. They redrew voting districts and disallowed many rebels from voting. This ensured blacks could vote on a new state constitution. Only after ratification of the Fourteenth Amendment were the southern states allowed to send representatives to Congress (Nash and others, pg 549). However, it wasn't until the passing of the Civil Rights Act of 1964 did the intent of the Fourteenth Amendment become the way of life. Or has it?
In 2008, the state of California passed Proposition 8. This proposition defined marriage as between a man and a woman. These words were placed into the state's Constitution making it difficult for the court to allow same-sex marriages. The beginning of Prop 8 began back in 1999. In that year, the legislature wrote several laws recognising a domestic partnership. This effectively gave same-sex couples many of the rights as married couples. Then in 2000, proposition 22 was approved by the voters which defined marriage as between a man and a woman and stated California would only recognize a marriage from another state only if it matched the state's definition. In 2008, the California Supreme Court ruled proposition 22 unconstitutional. Thus the voters of the state which approved prop 22 flexed its muscle and approved prop 8. Same-sex couples were now prevented from using the word "marriage" to define their relationship even though their domestic partnership is legal....
In 2010, the Democrats holding a majority in Congress had to flex their muscles. Even though polls showed most Americans did not want the Democrats' version of healthcare reform, the muscles were flexed and the Democrats passed their healthcare reform over the objection of the public. We have yet to see the repercussions from this muscle flexing.
Throughout our Country's history, the majority has flexed its muscle in a bullying manner to get their agenda passed. Was it for the good of the country or for the good of themselves? Only history will tell...
Mike
Again, I recommend checking out the references.
References:
Nash, G and others. (1990). The American people: creating a nation and a society Volume 2 since 1865. NY: HarperCollins.
USconstitution.net. (n.d.) Notes on the amendments. Retrieved 27 May 2010 from http://www.usconstitution.net/constamnotes.html#Am14
Smith, P. (n.d.) Trial by fire, a people's history of the civil war and reconstruction. Retrieved from civilwarhome.com. Retrieved 25 May 2010 from http://www.civilwarhome.com/blackcodes.htm
Archiving early America. (n.d.) The Whiskey Rebellion. Retrieved 25 May 2010 from http://www.earlyamerica.com/earlyamerica/milestones/whiskey/
Globalsecurity.org. (n.d.) Whiskey Rebellion. Retrieved 27 May 2010 from http://www.globalsecurity.org/military/ops/whiskey_rebellion.htm
For Prop 8 or Prop 22 just do a search for them. Obviously, wikipedia will something for you.
I'm sure you know the healthcare debate.
Wednesday, May 26, 2010
Who's in charge of your pension?
Yesterday during my research for retirement benefits I ended up at several union websites. All unions push the same type of retirement system, defined benefit (DB). This is the type of pension the military provides to their retirees. A defined benefit based system usually has some formula utilized to calculate a specific monetary benefit to the retiree for as long as they live. There is also an option associated with DB to ensure a retiree's survivors can partake of the retirement plan. The designated survivor will get a reduced award amount for as long as the survivor lives. This obviously will come at a price to the retiree as they will pay a premium for this "insurance." The military option is called the Survivor Benefit Plan (SBP).
The other retirement system is called defined contribution (DC). This system is based on the contributions to the system vice the benefit of the system. An IRA or 401(k) plan is a DC system. One of the drawbacks to this system is that the account can reach zero before the retiree has passed on. Running out of money is a just concern.
So which retirement system is pushed by the unions? If you guessed DB, you are correct. In the DB system, the employer is responsible for the system; in the DC system, the employee is responsible for the system. Unions are anti-employer, so, of course, they would be for a system that puts all the burden on the employer. I think unions believe people cannot be trusted to run their own retirement fund; therefore, it should be left to someone else. (There's a covert message in that last sentence!)
Some argue that a retiree should have a three-legged stool approach (Almedia and Fornia, 2008). This approach is one of relying on social security while having both types of plans. A way to look at having all three types is one of diversification, or not having all eggs in one basket.
There are advantages and disadvantages to both plans. In the DB system a huge advantage is only the employer pays into the system (unless it is a public service sector job, then the taxpayer pays a portion while the employee pays another portion). For the most part, union pensions require only the employer to pay into the system. This creates a large pool of money that can be managed by one manager for optimum growth (another advantage). Again, I reiterate, only the employer pays into the system. So a company that pays into a DB system in order to keep the same profit rate will recoup that money a different way: raise the cost of their goods or service. This fact is a disadvantage to the consumer or user of the company.
In the DB system, the benefit is the same for how long the retiree lives. When looking at a DC system, remember, it can run out of money. This is a disadvantage to the DC system. However, a retiree can utilize the DC to purchase an annuity which would then pay a specific amount to the retiree for their life span. In the same report by Almedia and Fornia, they say most owners of DC plans won't do that or know to do that so a DB system is better. Again, a DC owner is not smart enough to take care of themselves, so a system that takes care of them is better.
From an employer standpoint, the DB has a huge advantage over a DC. This advantage lies in the fact that because the money is in one big pot, the employee cannot take the DB with them if they want to change jobs or employers (there's no way to say whose dollar in the account is whose). This makes the employee loyal to the employer thus the employer won't have to find a replacement and spend the money to train them to replace the employee who wants to leave. The DC system, though, is portable. An employee can take their retirement funds with them. In a DB, the funds belong to the employer until the employee retires. In a DC, the funds belong to the employee at all times. Of course, realize that if someone works for a DB system company and is not union, at sometime close to the retirement age, the company just might decide to let that someone go. This way the DB fund will not have to pay the benefits to the employee because the employee did not meet the retirement requirements. So I hope you if work for a DB system company, you are union!
Consider the following: from yesterday my scenario had someone working for twenty years then retiring. They paid $25,200 into a DB system and received $360,000 from the same system. Assuming matching funds actually paid into the system by the taxpayer, this requires a rate of return of over 20% per year to get to that amount. I really don't see a DC matching that. Or can it? But also consider the following, what happens when the retiree dies and has not received all of the funds? Who gets it? Even after paying the survivor, there will be money left over. Who gets that money? In a DC, the funds can be transferred to a survivor. All of the remaining funds (of course, this depends on a half-way decent estate lawyer). If a union has control of the DB fund, who gets the money?
To be honest, I don't like the benefits of the military system under which I retired. If the government doesn't have the money to pay me, how will they pay me? Look at what's happening in Greece. I am dependent on the government. I want to be dependent on me. I've already decided that when I get my second career started, I am going to look for a company or firm that offers a 401(k) or similar plan. This way I'm in control of my money. I'm the one who wants to retire, why should I not be responsible for my own retirement? Someone I met a few months ago, left their job to start their own business because they realized that all the money being brought into the business they worked for was going to the retirees and overhead, leaving not a lot of funds for the company. He left so he could provide for himself now and into the future.
So, who's in charge of your pension?
Mike
P.S. I hope you check out some of the following references:
References:
Credit federal. (2006). Retirement pensions. Financial News. Retrieved 25 May 2010 from http://creditfederal.com/article/articles/126/1/Retirement-Pensions
AFL-CIO. (n.d.). Defined-benefit pensions. Retrieved 25 May 2010 from http://www.aflcio.org/issues/retirementsecurity/definedbenefitpensions/
National association of state retirement administrators. (n.d.) Defined benefit/defined contribution issues. Retrieved 25 May 2010 from http://www.nasra.org/resources/dbdcissues.htm
Dinkytown.net. (n.d.) Investment rate calculator. Retrieved 26 May 2010 from http://www.dinkytown.net/java/InvestmentReturn.html
Almedia, B and William Fornia. (2008). A better bang for the buck: The economic efficiencies of defined benefit pension plans. National institute on retirement security. Retrieved 25 May 2010 from http://www.nirsonline.org/storage/nirs/documents/Bang%20for%20the%20Buck%20Report.pdf
National association of state retirement administrators. (2005). Myths and misperceptions of defined benefit and defined contribution plans. Retrieved 25 May 2010 from http://www.nasra.org/resources/myths%20and%20misperceptions.pdf
Sonnanstine, A and Brian Murphy and Paul Zorn. (2003). List of advantages and disadvantages for DB and DC plans. Retrieved 25 May 2010 from http://www.nasra.org/resources/GRS%20DB%20DC.pdf
CalPers benefit booklet. (2008). Retrieved 25 May 2010 from https://www.calpers.ca.gov/mss-publication/pdf/xxBu0jYBuPcir_pub-2-Aug2008.pdf
The other retirement system is called defined contribution (DC). This system is based on the contributions to the system vice the benefit of the system. An IRA or 401(k) plan is a DC system. One of the drawbacks to this system is that the account can reach zero before the retiree has passed on. Running out of money is a just concern.
So which retirement system is pushed by the unions? If you guessed DB, you are correct. In the DB system, the employer is responsible for the system; in the DC system, the employee is responsible for the system. Unions are anti-employer, so, of course, they would be for a system that puts all the burden on the employer. I think unions believe people cannot be trusted to run their own retirement fund; therefore, it should be left to someone else. (There's a covert message in that last sentence!)
Some argue that a retiree should have a three-legged stool approach (Almedia and Fornia, 2008). This approach is one of relying on social security while having both types of plans. A way to look at having all three types is one of diversification, or not having all eggs in one basket.
There are advantages and disadvantages to both plans. In the DB system a huge advantage is only the employer pays into the system (unless it is a public service sector job, then the taxpayer pays a portion while the employee pays another portion). For the most part, union pensions require only the employer to pay into the system. This creates a large pool of money that can be managed by one manager for optimum growth (another advantage). Again, I reiterate, only the employer pays into the system. So a company that pays into a DB system in order to keep the same profit rate will recoup that money a different way: raise the cost of their goods or service. This fact is a disadvantage to the consumer or user of the company.
In the DB system, the benefit is the same for how long the retiree lives. When looking at a DC system, remember, it can run out of money. This is a disadvantage to the DC system. However, a retiree can utilize the DC to purchase an annuity which would then pay a specific amount to the retiree for their life span. In the same report by Almedia and Fornia, they say most owners of DC plans won't do that or know to do that so a DB system is better. Again, a DC owner is not smart enough to take care of themselves, so a system that takes care of them is better.
From an employer standpoint, the DB has a huge advantage over a DC. This advantage lies in the fact that because the money is in one big pot, the employee cannot take the DB with them if they want to change jobs or employers (there's no way to say whose dollar in the account is whose). This makes the employee loyal to the employer thus the employer won't have to find a replacement and spend the money to train them to replace the employee who wants to leave. The DC system, though, is portable. An employee can take their retirement funds with them. In a DB, the funds belong to the employer until the employee retires. In a DC, the funds belong to the employee at all times. Of course, realize that if someone works for a DB system company and is not union, at sometime close to the retirement age, the company just might decide to let that someone go. This way the DB fund will not have to pay the benefits to the employee because the employee did not meet the retirement requirements. So I hope you if work for a DB system company, you are union!
Consider the following: from yesterday my scenario had someone working for twenty years then retiring. They paid $25,200 into a DB system and received $360,000 from the same system. Assuming matching funds actually paid into the system by the taxpayer, this requires a rate of return of over 20% per year to get to that amount. I really don't see a DC matching that. Or can it? But also consider the following, what happens when the retiree dies and has not received all of the funds? Who gets it? Even after paying the survivor, there will be money left over. Who gets that money? In a DC, the funds can be transferred to a survivor. All of the remaining funds (of course, this depends on a half-way decent estate lawyer). If a union has control of the DB fund, who gets the money?
To be honest, I don't like the benefits of the military system under which I retired. If the government doesn't have the money to pay me, how will they pay me? Look at what's happening in Greece. I am dependent on the government. I want to be dependent on me. I've already decided that when I get my second career started, I am going to look for a company or firm that offers a 401(k) or similar plan. This way I'm in control of my money. I'm the one who wants to retire, why should I not be responsible for my own retirement? Someone I met a few months ago, left their job to start their own business because they realized that all the money being brought into the business they worked for was going to the retirees and overhead, leaving not a lot of funds for the company. He left so he could provide for himself now and into the future.
So, who's in charge of your pension?
Mike
P.S. I hope you check out some of the following references:
References:
Credit federal. (2006). Retirement pensions. Financial News. Retrieved 25 May 2010 from http://creditfederal.com/article/articles/126/1/Retirement-Pensions
AFL-CIO. (n.d.). Defined-benefit pensions. Retrieved 25 May 2010 from http://www.aflcio.org/issues/retirementsecurity/definedbenefitpensions/
National association of state retirement administrators. (n.d.) Defined benefit/defined contribution issues. Retrieved 25 May 2010 from http://www.nasra.org/resources/dbdcissues.htm
Dinkytown.net. (n.d.) Investment rate calculator. Retrieved 26 May 2010 from http://www.dinkytown.net/java/InvestmentReturn.html
Almedia, B and William Fornia. (2008). A better bang for the buck: The economic efficiencies of defined benefit pension plans. National institute on retirement security. Retrieved 25 May 2010 from http://www.nirsonline.org/storage/nirs/documents/Bang%20for%20the%20Buck%20Report.pdf
National association of state retirement administrators. (2005). Myths and misperceptions of defined benefit and defined contribution plans. Retrieved 25 May 2010 from http://www.nasra.org/resources/myths%20and%20misperceptions.pdf
Sonnanstine, A and Brian Murphy and Paul Zorn. (2003). List of advantages and disadvantages for DB and DC plans. Retrieved 25 May 2010 from http://www.nasra.org/resources/GRS%20DB%20DC.pdf
CalPers benefit booklet. (2008). Retrieved 25 May 2010 from https://www.calpers.ca.gov/mss-publication/pdf/xxBu0jYBuPcir_pub-2-Aug2008.pdf
Tuesday, May 25, 2010
Are you worth the pension?
One of the reasons stated for the economy mess in Greek is their pension system which allows some professions to retire early. For example, a trombonist can retire at age 50 because their profession can lead to late-life breathing problems (AP, 2010). European nations have called for an overhaul of the pension system but the beneficiaries of the system are obviously upset at the prospect of losing benefits, even if it would mean salvaging their country's economy. I guess the Greeks would rather lose all of their benefits as their country goes under than to reduce their benefits.
The state of California has faced their own budget woes for over a year. Pensions though have not been brought up in the discussion. However, in the city of San Diego, the city's pension system for its city employees was under funded for several years, and, in 2003, the Mayor formed a commission to figure out a way to back pay the system. There is still a fight over this issue to this date.
In California's and San Diego's retirement systems, employees can retire as early as 50. Unlike the Greek retirement system, this age is not job dependent. As a matter of fact, most of the service employees who can retire at this age are closer to desk jobs where I guess paper cuts and stress can lead to late-life difficulties. For the state, as long as an employee worked for five years they are eligible for retirement benefits. At least for the city, a city employee must have worked for twenty years before they are eligible for benefits.
For federal, state, and local retirement systems, the tax payer is the prominent payer of the pension system. The federal government gives the military a pension payment after twenty years of service. I currently am receiving a pension from the federal government. I am only 43. If I live for another 25 years, at a minimum, the taypayer will be on the hook for $938,400. That's right, I will be paid a million dollars if I live for another 25 or more years by the taxpayer. Not bad for service to my country. But what was the cost to me? I was on the hook to go into harm's way for my country. Did I do so? No, but the possibility existed. Those who are willing to put their life on the line should be compensated for their duty. Also, for most military members, life in the military is accompanied by family separation - an added stress to an already stressed life. Do we as a nation owe our military members this? I think so.
For state and local retirement systems, they pay into a retirement system that is similar to paying into a 401(k) or IRA. The employee pays a percentage of their income into the system and the employer (the taxpayer) pays into the fund also. When the employee retires they get a monthly benefit. (Note: the federal system is a pay-as-you-go system, which means funds are not deposited throughout the employee's life but, instead, are paid by the current taxpayers.)
The question I have is: are city employees really worth a pension? Unless the employee was a police officer or a firefighter, are they worth the burden to the taxpayer? Think about the Department of Motor Vehicle person or any other state worker who pushes paper. Should they be able to retire at 50 or 55 and continue to receive money that could possibly come from current taxpayers?
For the state of California, the retirement system pays using a formula: years of service times a benefit factor which is based on 2% at age 55 times the last year's average monthly salary. This means that a worker who worked for twenty years with a monthly salary of $3000 would get (20 X .02 X 3000) $1200 per month when they retired. Assuming they live for another twenty five years (55 + 25 = 80 years old), this person would get $360,000, assuming a zero cost of living adjustment. That amount is about 1/3 of the amount I should get.
Is this person worth this expense? The contribution rate is only 3.5%. This equates to a $25,200 ($3000 X .035% X 12 months X 20 years, assuming a constant salary) investment by the employee. So going back to the anticipated benefit of $360,000, this payment over 25 years works out to be a 1428% return on investment. Where else can you get a ROI that high for working for one entity and not having to put your life on the line?
The Greeks wanted state jobs. The jobs were easy and came with nice retirements. Greece is now in the throes of an economic crisis. Were the pensioners really worth the expense?
Mike
References:
City of San Diego Retirement Benefits. Retrieved 25 May 2010 from http://www.sandiego.gov/empopp/benefits/index.shtml
City of San Diego Retirement System: https://www.sdcers.org
Boitard, C. (2010). Greek cabinet agrees radical pension reform. Yahoo News. Retrieved 25 May 2010 from http://news.yahoo.com/s/afp/20100510/bs_afp/greecefinanceeconomy
Associated press. (2010). Greece's early retirement rules breed resentment. USA Today. Retrieved 25 May 2010 from http://www.usatoday.com/money/world/2010-05-18-europeretire18_ST_N.htm
The state of California has faced their own budget woes for over a year. Pensions though have not been brought up in the discussion. However, in the city of San Diego, the city's pension system for its city employees was under funded for several years, and, in 2003, the Mayor formed a commission to figure out a way to back pay the system. There is still a fight over this issue to this date.
In California's and San Diego's retirement systems, employees can retire as early as 50. Unlike the Greek retirement system, this age is not job dependent. As a matter of fact, most of the service employees who can retire at this age are closer to desk jobs where I guess paper cuts and stress can lead to late-life difficulties. For the state, as long as an employee worked for five years they are eligible for retirement benefits. At least for the city, a city employee must have worked for twenty years before they are eligible for benefits.
For federal, state, and local retirement systems, the tax payer is the prominent payer of the pension system. The federal government gives the military a pension payment after twenty years of service. I currently am receiving a pension from the federal government. I am only 43. If I live for another 25 years, at a minimum, the taypayer will be on the hook for $938,400. That's right, I will be paid a million dollars if I live for another 25 or more years by the taxpayer. Not bad for service to my country. But what was the cost to me? I was on the hook to go into harm's way for my country. Did I do so? No, but the possibility existed. Those who are willing to put their life on the line should be compensated for their duty. Also, for most military members, life in the military is accompanied by family separation - an added stress to an already stressed life. Do we as a nation owe our military members this? I think so.
For state and local retirement systems, they pay into a retirement system that is similar to paying into a 401(k) or IRA. The employee pays a percentage of their income into the system and the employer (the taxpayer) pays into the fund also. When the employee retires they get a monthly benefit. (Note: the federal system is a pay-as-you-go system, which means funds are not deposited throughout the employee's life but, instead, are paid by the current taxpayers.)
The question I have is: are city employees really worth a pension? Unless the employee was a police officer or a firefighter, are they worth the burden to the taxpayer? Think about the Department of Motor Vehicle person or any other state worker who pushes paper. Should they be able to retire at 50 or 55 and continue to receive money that could possibly come from current taxpayers?
For the state of California, the retirement system pays using a formula: years of service times a benefit factor which is based on 2% at age 55 times the last year's average monthly salary. This means that a worker who worked for twenty years with a monthly salary of $3000 would get (20 X .02 X 3000) $1200 per month when they retired. Assuming they live for another twenty five years (55 + 25 = 80 years old), this person would get $360,000, assuming a zero cost of living adjustment. That amount is about 1/3 of the amount I should get.
Is this person worth this expense? The contribution rate is only 3.5%. This equates to a $25,200 ($3000 X .035% X 12 months X 20 years, assuming a constant salary) investment by the employee. So going back to the anticipated benefit of $360,000, this payment over 25 years works out to be a 1428% return on investment. Where else can you get a ROI that high for working for one entity and not having to put your life on the line?
The Greeks wanted state jobs. The jobs were easy and came with nice retirements. Greece is now in the throes of an economic crisis. Were the pensioners really worth the expense?
Mike
References:
City of San Diego Retirement Benefits. Retrieved 25 May 2010 from http://www.sandiego.gov/empopp/benefits/index.shtml
City of San Diego Retirement System: https://www.sdcers.org
Boitard, C. (2010). Greek cabinet agrees radical pension reform. Yahoo News. Retrieved 25 May 2010 from http://news.yahoo.com/s/afp/20100510/bs_afp/greecefinanceeconomy
Associated press. (2010). Greece's early retirement rules breed resentment. USA Today. Retrieved 25 May 2010 from http://www.usatoday.com/money/world/2010-05-18-europeretire18_ST_N.htm
Monday, May 24, 2010
Click It or Ticket: Money for the Government
This weekend local television, at least in the San Diego area, has been barraged by "click it or ticket" advertisements. The intent is to get those who fail to utilize seat belts while operating a motor vehicle to actually do so. This morning the local news reported the fine for not having a seat belt on will be raised during the recent "click it or ticket" campaign which will run until June 6.
Not wearing a seat belt while operating or riding in a motor vehicle is not smart. Statistics show there is a higher probability of death for those who don't wear seat belts versus those who do (National highway traffic association, 2008). For me the question is not whether or not you should wear a seat belt, the question is should the government order you to wear a seat belt? For me the answer is a resounding NO.
If you visit my Facebook profile, you'll find under the favorite quotations section a personal quote. The quote is "laws should be made to protect man from man, not man from himself." I believe the seat belt law is a law that protects a person from themselves vice protecting a person from another person. If someone gets into a car accident and dies from their injuries because they were not wearing a seat belt has no bearing on me or any other person, including anyone involved in the accident.
Some may argue that a person who survives the accident but requires expensive medical care would be a burden on the insurance system because the insurance would have to pay to the limits of the policy. This then causes all other premiums to rise. The military informs all military personnel that if they are injured or killed in an automobile accident when they aren't wearing a seat belt, the US Government will not pay any expenses. Looking at my insurance documents on-line I cannot tell if this the same for my insurance company. If this policy of not paying for expenses in the case of non-seat belt use is not the standard, it should be. All insurance companies should refuse to pay for any expenses related to accidents when the claimer failed to wear a seat belt. This then would ensure the person not wearing a seat belt would not be a burden on the insurance system.
Think about that fine (insurance not covering medical if not wearing a seat belt when involved in an accident) for a minute. The state of California will fine a driver not wearing a seat belt $142. I want to fine them if they get into an accident thousands of dollars. My rule is a rule of self responsibility. The government is a rule of forced responsibility when something may or may not happen.
Some may also argue that a person's family should not be made to suffer because of the actions of an irresponsible person. Well, too bad, so sad. It's not the role of government to protect a family from emotional distress or from financial distress because someone failed to wear a seat belt then was injured or killed in a car accident. This happens every day even when the person wears a seat belt.
So what is the purpose of the law? The only purpose is to generate money for the government. There will always be people who don't wear seat belts - I'm not sure why, again, the statistics don't lie - so there will always be someone to ticket for not wearing a seat belt. My problem with this law is that it does not protect the society for the actions of someone. So, what we have is the government telling us we must do something or else we have to pay a fine. And I reiterate that this something does not protect the society as a whole. Is this a power we want to bestow on the government? It is not for me.
I have no problem if the law said the driver is responsible for ensuring the safety of the passengers of the vehicle. This falls under the "due care" aspect of the law. Due care is the care that an ordinarily reasonable and prudent person would use under the same or similar circumstances (Merriam-Webster dictionary of law, 1996). A driver would have the due care to ensure each of his passengers were properly seat belted or restrained, as in the case of a child too small for a seat belt, such that an accident would not harm them while in the driver's vehicle. This means I have no complaint against ticketing a driver who has failed to ensure his passengers have not put on their seat belt. I do have a complaint about ticketing someone who has failed to put on their own seat belt.
There's an old saying: The stupid shall be punished. The stupid are punished by their actions not by us punishing them prior to said actions because something "might happen."
If we give the government the thought they can fine us for not doing something that does not harm anyone but the person involved, there is no limit to what we will allow them to do. Hmmm, everyone must buy health insurance comes to mind.....
Mike
References:
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.
Thomas, K. (2010). Govt: About 45 million Americans don't buckle up. AP. Retrieved 24 May 2010 from http://www.signonsandiego.com/news/2010/may/24/govt-about-45-million-americans-dont-buckle-up/
National highway traffice association. (2008). Fatality anaylsis reporting system. Retrieved 24 May 2010 from http://www-fars.nhtsa.dot.gov/People/PeopleRestraints.aspx
Not wearing a seat belt while operating or riding in a motor vehicle is not smart. Statistics show there is a higher probability of death for those who don't wear seat belts versus those who do (National highway traffic association, 2008). For me the question is not whether or not you should wear a seat belt, the question is should the government order you to wear a seat belt? For me the answer is a resounding NO.
If you visit my Facebook profile, you'll find under the favorite quotations section a personal quote. The quote is "laws should be made to protect man from man, not man from himself." I believe the seat belt law is a law that protects a person from themselves vice protecting a person from another person. If someone gets into a car accident and dies from their injuries because they were not wearing a seat belt has no bearing on me or any other person, including anyone involved in the accident.
Some may argue that a person who survives the accident but requires expensive medical care would be a burden on the insurance system because the insurance would have to pay to the limits of the policy. This then causes all other premiums to rise. The military informs all military personnel that if they are injured or killed in an automobile accident when they aren't wearing a seat belt, the US Government will not pay any expenses. Looking at my insurance documents on-line I cannot tell if this the same for my insurance company. If this policy of not paying for expenses in the case of non-seat belt use is not the standard, it should be. All insurance companies should refuse to pay for any expenses related to accidents when the claimer failed to wear a seat belt. This then would ensure the person not wearing a seat belt would not be a burden on the insurance system.
Think about that fine (insurance not covering medical if not wearing a seat belt when involved in an accident) for a minute. The state of California will fine a driver not wearing a seat belt $142. I want to fine them if they get into an accident thousands of dollars. My rule is a rule of self responsibility. The government is a rule of forced responsibility when something may or may not happen.
Some may also argue that a person's family should not be made to suffer because of the actions of an irresponsible person. Well, too bad, so sad. It's not the role of government to protect a family from emotional distress or from financial distress because someone failed to wear a seat belt then was injured or killed in a car accident. This happens every day even when the person wears a seat belt.
So what is the purpose of the law? The only purpose is to generate money for the government. There will always be people who don't wear seat belts - I'm not sure why, again, the statistics don't lie - so there will always be someone to ticket for not wearing a seat belt. My problem with this law is that it does not protect the society for the actions of someone. So, what we have is the government telling us we must do something or else we have to pay a fine. And I reiterate that this something does not protect the society as a whole. Is this a power we want to bestow on the government? It is not for me.
I have no problem if the law said the driver is responsible for ensuring the safety of the passengers of the vehicle. This falls under the "due care" aspect of the law. Due care is the care that an ordinarily reasonable and prudent person would use under the same or similar circumstances (Merriam-Webster dictionary of law, 1996). A driver would have the due care to ensure each of his passengers were properly seat belted or restrained, as in the case of a child too small for a seat belt, such that an accident would not harm them while in the driver's vehicle. This means I have no complaint against ticketing a driver who has failed to ensure his passengers have not put on their seat belt. I do have a complaint about ticketing someone who has failed to put on their own seat belt.
There's an old saying: The stupid shall be punished. The stupid are punished by their actions not by us punishing them prior to said actions because something "might happen."
If we give the government the thought they can fine us for not doing something that does not harm anyone but the person involved, there is no limit to what we will allow them to do. Hmmm, everyone must buy health insurance comes to mind.....
Mike
References:
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.
Thomas, K. (2010). Govt: About 45 million Americans don't buckle up. AP. Retrieved 24 May 2010 from http://www.signonsandiego.com/news/2010/may/24/govt-about-45-million-americans-dont-buckle-up/
National highway traffice association. (2008). Fatality anaylsis reporting system. Retrieved 24 May 2010 from http://www-fars.nhtsa.dot.gov/People/PeopleRestraints.aspx
Friday, May 21, 2010
An Education: Arizona SB1070 The Final Chapter
Last night on The O'Reilly Factor, Megyn Kelly spoke on the Arizona immigration law. For once, someone was speaking about SB1070 who had actually read the law (besides me). Of course, what else do you expect from a lawyer? Megyn was not going to speak about something she had not actually read. She's a shining example that Eric Holder should emulate. Ms. Kelly actually said some enlightening facts which should be shared before I finish my SB1070 discussion.
Ms. Kelly pointed out that in a Supreme Court case from 2005, the Supreme Court had ruled on a case that involved a question of when a police officer can request someone's identification (Note: I could not spell the name of the case adequately to find it for reference purposes). The Supreme Court ruled a police officer can request identification from anyone at any time. A requirement of lawful contact or of reasonable suspicion does not exist according to the Supreme Court. In other words, the Arizona law is more restrictive over police actions than what the Supreme Court has ruled. This is something not reported in the media or by the opponents of the law. Shame on them.
Now to finish the discussion.
http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf
Section 13-1059. This section makes not carrying immigration documents or failing to obtain proper immigration documents by an alien against state law just as the same is against federal law. The best part of this section states that an alien not lawfully present on US soil, if convicted of a crime, is not eligible for parole, early release, probation, etc. In other words, the full sentence will be served prior to their release; and, as prescribed by section 11-1051, once released this individual will be turned over to ICE. The section also sets a fine and requires the individual guilty of violating this section to pay all court costs and fines. I'm not sure how the state will get some person who was not able to pay the cost for legal immigration to actually pay court costs.
Another aspect of this section not being discussed by the opponents is that a person who maintains federal authorization to be in the United States is exempt from this section of the law. In other words, this section does not apply to someone the federal government says can stay in the United States. This section sets the violation of this section as a misdemeanor, unless, the person is also found to be in possession of a substance that could be used to create a dangerous drug, is a dangerous drug, or is a weapon of some dangerous sort; then the violation is a felony. It is also a felony to violate this section a second or subsequent time. Let's be clear, it's a misdemeanor to violate federal law except in a few specific instances. The opponents of this law have stated it's a felony to violate the state law. I'm so glad they can read and relate the truth!
Section 13-2928. One of the arguments of those opposed to the law is the government should be going after those who hire illegal aliens. This section does just that; but, you don’t hear too much about this aspect of the law, from either side. This section makes it illegal to for someone to hire an illegal immigrant from their car or for an illegal immigrant to solicit for work or for an illegal immigrant to enter a vehicle for work. This means if an Arizonian ventures down to the local Home Depot and hires one of the day workers from the parking lot who is an illegal alien, they are in violation of the law. Now there’s a caveat. This section only applies if the vehicle is in the right of way. This means the person could park their vehicle in a parking spot and then hire the illegal. Of course, the agreement will be in violation of other aspects of this law, just not this section.
Section 13-2929. This section makes transporting, concealing, or enticing to enter the state of Arizona an alien who is in the country illegal a misdemeanor. Now the stature contains the words “recklessly disregards.” This means that the state will claim if someone who violates this section and did not first obtain verification of the alien’s immigration status did so with reckless disregard of the law. In other words, the “I didn’t know” defense will not be allowed.
It should be stated that the vehicle used to transport an illegal alien is subject to confiscation!
Also, a protective service worker and medical workers in the execution of their jobs are not subject to this law. There is also a caveat to the misdemeanor nature of this law – if someone is found transporting six or more illegal aliens, the crime is changed to that of a felony.
Section 13-3883. This section already existed under Arizona law and gave police officers the authority to arrest someone without a warrant under certain circumstances. The section is amended to include the situation where the person has committed a public offense that makes the person removable from the United States. In other words, a police officer can arrest an illegal alien without warrant.
Section 23-221. This stature was passed as law in 2007. It prohibits employers from hiring employees who are undocumented aliens. It is strict in that an employer can be fined for every day the employer has undocumented aliens on the payroll. It also allows employees to turn in their employers for hiring undocumented aliens. Of course, the employee cannot base their suspicion on race, national origin, etc. This law, again, is not talked about by those who oppose Arizona’s immigration law.
This section is amended to allow entrapment as a defense against hiring an illegal alien. In other words, the state is trying to protect employers from entrapment by the police! WHAT? A state trying to protect employers, you’ve got to be kidding! Why hasn’t this been discussed in the media? Entrapment is where the employer is enticed or forced to hire the illegal alien when they normally would not have.
Section 23-214. This stature, also passed in 2007, requires employers to e-verify their employees prior to hiring the employee. The section is amended to require the employer to maintain the record of employee verification for the length of employment or three years, whichever is longer.
Section 31-1724. This section authorizes the establishment of the fund related to enforcement of this act. Fines and other monies collected under section 11-1051 will be deposited in this fund and then utilized to pay expenses under enforcement of this law. We’ll see if this actually works. Again, most illegal aliens don’t have the money to legally migrate into the country. I would like to see the state squeeze some blood from that turnip.
This concludes the discussion on Arizona’s immigration law. Now you are knowledgeable of what is in the law and should be able to carry on an informed discussion. Even if you don’t support the law, you now know more than most of those who agree with your position and you now know more than most of those who disagree with your position (except me).
Mike
Ms. Kelly pointed out that in a Supreme Court case from 2005, the Supreme Court had ruled on a case that involved a question of when a police officer can request someone's identification (Note: I could not spell the name of the case adequately to find it for reference purposes). The Supreme Court ruled a police officer can request identification from anyone at any time. A requirement of lawful contact or of reasonable suspicion does not exist according to the Supreme Court. In other words, the Arizona law is more restrictive over police actions than what the Supreme Court has ruled. This is something not reported in the media or by the opponents of the law. Shame on them.
Now to finish the discussion.
http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf
Section 13-1059. This section makes not carrying immigration documents or failing to obtain proper immigration documents by an alien against state law just as the same is against federal law. The best part of this section states that an alien not lawfully present on US soil, if convicted of a crime, is not eligible for parole, early release, probation, etc. In other words, the full sentence will be served prior to their release; and, as prescribed by section 11-1051, once released this individual will be turned over to ICE. The section also sets a fine and requires the individual guilty of violating this section to pay all court costs and fines. I'm not sure how the state will get some person who was not able to pay the cost for legal immigration to actually pay court costs.
Another aspect of this section not being discussed by the opponents is that a person who maintains federal authorization to be in the United States is exempt from this section of the law. In other words, this section does not apply to someone the federal government says can stay in the United States. This section sets the violation of this section as a misdemeanor, unless, the person is also found to be in possession of a substance that could be used to create a dangerous drug, is a dangerous drug, or is a weapon of some dangerous sort; then the violation is a felony. It is also a felony to violate this section a second or subsequent time. Let's be clear, it's a misdemeanor to violate federal law except in a few specific instances. The opponents of this law have stated it's a felony to violate the state law. I'm so glad they can read and relate the truth!
Section 13-2928. One of the arguments of those opposed to the law is the government should be going after those who hire illegal aliens. This section does just that; but, you don’t hear too much about this aspect of the law, from either side. This section makes it illegal to for someone to hire an illegal immigrant from their car or for an illegal immigrant to solicit for work or for an illegal immigrant to enter a vehicle for work. This means if an Arizonian ventures down to the local Home Depot and hires one of the day workers from the parking lot who is an illegal alien, they are in violation of the law. Now there’s a caveat. This section only applies if the vehicle is in the right of way. This means the person could park their vehicle in a parking spot and then hire the illegal. Of course, the agreement will be in violation of other aspects of this law, just not this section.
Section 13-2929. This section makes transporting, concealing, or enticing to enter the state of Arizona an alien who is in the country illegal a misdemeanor. Now the stature contains the words “recklessly disregards.” This means that the state will claim if someone who violates this section and did not first obtain verification of the alien’s immigration status did so with reckless disregard of the law. In other words, the “I didn’t know” defense will not be allowed.
It should be stated that the vehicle used to transport an illegal alien is subject to confiscation!
Also, a protective service worker and medical workers in the execution of their jobs are not subject to this law. There is also a caveat to the misdemeanor nature of this law – if someone is found transporting six or more illegal aliens, the crime is changed to that of a felony.
Section 13-3883. This section already existed under Arizona law and gave police officers the authority to arrest someone without a warrant under certain circumstances. The section is amended to include the situation where the person has committed a public offense that makes the person removable from the United States. In other words, a police officer can arrest an illegal alien without warrant.
Section 23-221. This stature was passed as law in 2007. It prohibits employers from hiring employees who are undocumented aliens. It is strict in that an employer can be fined for every day the employer has undocumented aliens on the payroll. It also allows employees to turn in their employers for hiring undocumented aliens. Of course, the employee cannot base their suspicion on race, national origin, etc. This law, again, is not talked about by those who oppose Arizona’s immigration law.
This section is amended to allow entrapment as a defense against hiring an illegal alien. In other words, the state is trying to protect employers from entrapment by the police! WHAT? A state trying to protect employers, you’ve got to be kidding! Why hasn’t this been discussed in the media? Entrapment is where the employer is enticed or forced to hire the illegal alien when they normally would not have.
Section 23-214. This stature, also passed in 2007, requires employers to e-verify their employees prior to hiring the employee. The section is amended to require the employer to maintain the record of employee verification for the length of employment or three years, whichever is longer.
Section 31-1724. This section authorizes the establishment of the fund related to enforcement of this act. Fines and other monies collected under section 11-1051 will be deposited in this fund and then utilized to pay expenses under enforcement of this law. We’ll see if this actually works. Again, most illegal aliens don’t have the money to legally migrate into the country. I would like to see the state squeeze some blood from that turnip.
This concludes the discussion on Arizona’s immigration law. Now you are knowledgeable of what is in the law and should be able to carry on an informed discussion. Even if you don’t support the law, you now know more than most of those who agree with your position and you now know more than most of those who disagree with your position (except me).
Mike
Thursday, May 20, 2010
An Education: Arizona SB1070 Part II
This morning I was contemplated writing something else instead of the continued teachings on Arizona's immigration law. After careful thought and much hand-wringing, I decided to continue my discourse on the immigration law. So here we go.....
The link to Arizona's immigration law: http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf
Continuing with Arizona Revised Statues Art 8, Title 11, Section 1051:
C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM IMPRISONMENT OR ON THE ASSESSMENT OF ANY MONETARY OBLIGATION THAT IS IMPOSED, THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION SHALL BE IMMEDIATELY NOTIFIED.
This portion of the statute requires any unlawfully present alien to be turned over to ICE upon their release or payment of fine. Ok it says notify ICE but let's read on...
D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY SECURELY TRANSPORT AN ALIEN WHO THE AGENCY HAS RECEIVED VERIFICATION IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT AGENCY. A LAW ENFORCEMENT AGENCY SHALL OBTAIN JUDICIAL AUTHORIZATION BEFORE SECURELY TRANSPORTING AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES TO A POINT OF TRANSFER THAT IS OUTSIDE OF THIS STATE.
Now once someone is verified to be an unlawfully present alien, the law allows the agency currently holding the unlawfully present alien to transport said alien to a federal facility. This is one section of the law that actually places a burden on taxpayers. Arizona taxpayers will have to pay for their local agency to transport the alien who is unlawfully present. The law doesn't actually state this; but, who else will pay?
E. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS, LAWFUL OR UNLAWFUL, OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:
This seems a little big-brotherly to me. The passage basically gives any state agency the authorization to maintain and share information about immigration status of anyone the agency comes in contact with. Now, the times this applies is when an agency has under lawful contact requested the immigration status of a person suspected to be in the country illegally. The real gist though is to allow the free-exchange of information among the state agencies without any restrictions by anyone in the state. Of course there are the acts this information are to be used for:
1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS STATE.
This is a beautiful aspect of the law. SO the free-exchange of information about aliens will be allowed prior to ensuring the person is eligible for benefits. In essence, if you're in the country illegal, no welfare for you!
2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.
3. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.
4. PURSUANT TO 8 UNITED STATES CODE SECTION 1373 AND 8 UNITED STATES CODE SECTION 1644.
The other three are just other examples of purposes for sharing information among agencies.
F. THIS SECTION DOES NOT IMPLEMENT, AUTHORIZE OR ESTABLISH AND SHALL NOT BE CONSTRUED TO IMPLEMENT, AUTHORIZE OR ESTABLISH THE REAL ID ACT OF 2005 (P.L. 109-13, DIVISION B; 119 STAT. 302), INCLUDING THE USE OF A RADIO FREQUENCY IDENTIFICATION CHIP.
This is a curious section of the law. It basically states this section (1051) does not enact the REAL ID ACT of 2005. I had never heard of this act. Here is a link for information about the act. This act might be fodder for a later discussion....
http://www.ncsl.org/IssuesResearch/Transportation/RealIDActof2005Summary/tabid/13579/Default.aspx
G. A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
Here the state is telling all agencies of the state, if they fail to follow the stature, anyone can turn the agency in, and the agency will be fined for each day it fails to follow the law. This is another aspect of the law preventing a sanctuary city.
H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G OF THIS SECTION AND REMIT THE CIVIL PENALTY TO THE STATE TREASURER FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41-1724.
Straightforward detailing where any fines collected via this stature will go in the state fund.
I. THE COURT MAY AWARD COURT COSTS AND REASONABLE ATTORNEY FEES TO ANY PERSON OR ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT PREVAILS BY AN ADJUDICATION ON THE MERITS IN A PROCEEDING BROUGHT PURSUANT TO THIS SECTION.
This is a curious aspect of the law. Basically, if an agency is accused of violating the law and is subsequently found not guilty, the court costs for that agency in its defense can be awarded. This aspect of the law is not fully defined as to who will pay the court costs. In the end, I'm sure it is the taxpayer.
J. EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH, A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION IN WHICH THE OFFICER MAY BE A DEFENDANT BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY.
Basically, if a police officer is accused of violating the law by following the actions of the agency, then that police officer, as long as they did not act in bad faith (intentional deception or dishonesty), will be reimbursed for their court costs by the agency they for which they worked. To me this sounds like a "I was following orders" defense. I'm sure there was a good reason to try to protect individuals who follow the orders of an agency which is in violation of the state law.
K. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES CITIZENS.
This is another section not voiced by the opponents of the law. The state is basically stating, in carrying out this law, the agency must still protect civil rights of everyone (including aliens in the country illegally) and must still respect the privileges and immunities of US citizens. I like the part that privileges and immunities are not stated for all persons; they are reserved only for citizens.
Tomorrow I will finish my discussion. Instead of going line-by-line as I have done for the first section of the law, I will give an overview of what the other sections of the law entail.
Mike
Reference:
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.
The link to Arizona's immigration law: http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf
Continuing with Arizona Revised Statues Art 8, Title 11, Section 1051:
C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM IMPRISONMENT OR ON THE ASSESSMENT OF ANY MONETARY OBLIGATION THAT IS IMPOSED, THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION SHALL BE IMMEDIATELY NOTIFIED.
This portion of the statute requires any unlawfully present alien to be turned over to ICE upon their release or payment of fine. Ok it says notify ICE but let's read on...
D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY SECURELY TRANSPORT AN ALIEN WHO THE AGENCY HAS RECEIVED VERIFICATION IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT AGENCY. A LAW ENFORCEMENT AGENCY SHALL OBTAIN JUDICIAL AUTHORIZATION BEFORE SECURELY TRANSPORTING AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES TO A POINT OF TRANSFER THAT IS OUTSIDE OF THIS STATE.
Now once someone is verified to be an unlawfully present alien, the law allows the agency currently holding the unlawfully present alien to transport said alien to a federal facility. This is one section of the law that actually places a burden on taxpayers. Arizona taxpayers will have to pay for their local agency to transport the alien who is unlawfully present. The law doesn't actually state this; but, who else will pay?
E. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS, LAWFUL OR UNLAWFUL, OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:
This seems a little big-brotherly to me. The passage basically gives any state agency the authorization to maintain and share information about immigration status of anyone the agency comes in contact with. Now, the times this applies is when an agency has under lawful contact requested the immigration status of a person suspected to be in the country illegally. The real gist though is to allow the free-exchange of information among the state agencies without any restrictions by anyone in the state. Of course there are the acts this information are to be used for:
1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS STATE.
This is a beautiful aspect of the law. SO the free-exchange of information about aliens will be allowed prior to ensuring the person is eligible for benefits. In essence, if you're in the country illegal, no welfare for you!
2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.
3. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.
4. PURSUANT TO 8 UNITED STATES CODE SECTION 1373 AND 8 UNITED STATES CODE SECTION 1644.
The other three are just other examples of purposes for sharing information among agencies.
F. THIS SECTION DOES NOT IMPLEMENT, AUTHORIZE OR ESTABLISH AND SHALL NOT BE CONSTRUED TO IMPLEMENT, AUTHORIZE OR ESTABLISH THE REAL ID ACT OF 2005 (P.L. 109-13, DIVISION B; 119 STAT. 302), INCLUDING THE USE OF A RADIO FREQUENCY IDENTIFICATION CHIP.
This is a curious section of the law. It basically states this section (1051) does not enact the REAL ID ACT of 2005. I had never heard of this act. Here is a link for information about the act. This act might be fodder for a later discussion....
http://www.ncsl.org/IssuesResearch/Transportation/RealIDActof2005Summary/tabid/13579/Default.aspx
G. A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
Here the state is telling all agencies of the state, if they fail to follow the stature, anyone can turn the agency in, and the agency will be fined for each day it fails to follow the law. This is another aspect of the law preventing a sanctuary city.
H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G OF THIS SECTION AND REMIT THE CIVIL PENALTY TO THE STATE TREASURER FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41-1724.
Straightforward detailing where any fines collected via this stature will go in the state fund.
I. THE COURT MAY AWARD COURT COSTS AND REASONABLE ATTORNEY FEES TO ANY PERSON OR ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT PREVAILS BY AN ADJUDICATION ON THE MERITS IN A PROCEEDING BROUGHT PURSUANT TO THIS SECTION.
This is a curious aspect of the law. Basically, if an agency is accused of violating the law and is subsequently found not guilty, the court costs for that agency in its defense can be awarded. This aspect of the law is not fully defined as to who will pay the court costs. In the end, I'm sure it is the taxpayer.
J. EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH, A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION IN WHICH THE OFFICER MAY BE A DEFENDANT BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY.
Basically, if a police officer is accused of violating the law by following the actions of the agency, then that police officer, as long as they did not act in bad faith (intentional deception or dishonesty), will be reimbursed for their court costs by the agency they for which they worked. To me this sounds like a "I was following orders" defense. I'm sure there was a good reason to try to protect individuals who follow the orders of an agency which is in violation of the state law.
K. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES CITIZENS.
This is another section not voiced by the opponents of the law. The state is basically stating, in carrying out this law, the agency must still protect civil rights of everyone (including aliens in the country illegally) and must still respect the privileges and immunities of US citizens. I like the part that privileges and immunities are not stated for all persons; they are reserved only for citizens.
Tomorrow I will finish my discussion. Instead of going line-by-line as I have done for the first section of the law, I will give an overview of what the other sections of the law entail.
Mike
Reference:
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.
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