APRIL 08, 2016
Too often, politicians at every level will ignore the clear language of a law if it doesn’t let them do as they wish. This is evident on two fronts this week: in California and here in the District of Columbia.
First California. You will recall that we filed a taxpayer lawsuit in August 2014 challenging a decision by the University of California Regents to give up to $27.1 million in non-resident tuition waivers and financial aid to illegal alien students in their schools.
A lower California state court upheld their action, and we’ve now completed the briefing for the appeal of the lower court ruling with the filing of a reply brief this week. We brought this litigation on behalf of Earl De Vries, a legal resident and taxpayer of California (Earl De Vries v Regents of the University of California (BC555614)). Under California law, taxpayers have the right to sue government officials to prevent unlawful expenditures of taxpayer funds and taxpayer-financed resources.
In our August 2014 lawsuit on behalf of De Vries in the L.A. County Superior Court, we asked the court to halt the estimated annual $19.6 million in non-resident tuition waivers; $4.3 million in taxpayer-funded grants and scholarships; and $3.2 million in state loans the Regents have started giving illegal alien students.
Under the “Personal Responsibility and Work Opportunity Reconciliation Act” passed by Congress in 1996, unlawfully present aliens are ineligible for state or local public benefits. The only exception to this federal law is when a state “affirmatively provides for such eligibility” to illegal aliens, which states may do “only through the enactment of a State law …”
The California State Legislature passed statutes granting such tuition benefits to California State University students and California Community College students, but it was forbidden to do so for University of California students. Under the California Constitution, the UC Board of Regents is “entirely independent” of the state legislature in policy matters, so there is no lawful way for the California legislature to allow or require the University of California to provide public benefits to illegal aliens.
In March 2015, the Superior Court ruled that the UC Board of Regents policies themselves (and not the state statutes) are the “state laws” that affirmatively provide the benefits to UC students in satisfaction of federal law and dismissed the lawsuit. In November 2015, Judicial Watch filed its opening appellate brief with the California Court of Appeal, Second Appellate District, arguing that the trial court wrongly read extra words into Congress’ statute. Specifically, the brief argues that the federal statute in question “does not say ‘state law or administrative rule, regulation or policy.’ It says ‘State law.’ This means an enactment of the state legislature.”
In our March 22 appellant’s reply brief, we highlight how the appointed UC Board of Regents has not been granted the same rights as a state legislature elected by voters under federal law:
When Congress wrote “only through the enactment of a state law” can unlawfully present aliens receive benefits, that is precisely what it meant. This means the exercise of state legislative power …. The Regents argue this is not what Congress really meant, but rather it meant any exercise of state lawmaking power, be it legislative, executive, judicial, or by independent board. Those arguments are unavailing. Congress’ unique word choices and other evidence of Congressional intent behind [the federal law] prove that the statute is limited to representative or democratic state legislative acts only.
UC Regents officials think they can rewrite the law according to their personal whims and provide illegal aliens in-state tuition benefits contrary to law. Public officials on the UC Board of Regents need to put aside politics and obey both federal law and the California Constitution. They have no right to play politics at taxpayers’ expense.
“Taxpaying California citizens deserve to have their hard-earned money spent lawfully,” De Vries says. “What the Regents are doing is not only illegal, and it’s grossly unfair to taxpayers.”
There also was action this week in the U.S. Supreme Court on a matter that concerns illegal aliens. Last year we joined with the Allied Educational Foundation (AEF) in the filing of two amici curiae briefs with the U.S. Supreme Court in support of Sue Evenwel, a Texas resident who filed a lawsuit to overturn a Texas “malapportionment” law (Sue Evenwel, et al. v. Greg Abbott, et al. (No 14-940)) and (Sue Evenwel, et al. v. Greg Abbott, et al. (No. 14-940)).
We argued then that Texas is devaluing the votes of certain citizens by improperly including noncitizen nonvoters when determining the “equal population” of legislative districts. Under federal law and the laws of all 50 states, only citizens may vote in federal elections. Texas’ scheme to give weight to nonvoting noncitizens along with lawful voters is contrary to the principles embodied in citizen voting laws. As a result, the votes of some Texas’ citizens have, by some measures, almost twice the electoral power of the votes of other Texas citizens.
Unfortunately, the Supreme Court this week found that, the “one-person, one-vote” allows states to use total population only, rather than voter population, when apportioning state voting districts:
Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.
Isn’t it incredible that five of the six justices who signed on to that opinion just last year imposed gay marriage across America despite thousands of years of tradition and law!
The media made much of the 8-0 ruling but the same media masked reports of the Court’s divisions. Justice Thomas agreed with the result only because he thought states had leeway to apportion state legislative seats as under our constitutional system. Justice Alito also noted that the decision by Justice Ginsberg left for another day the issue of whether only voters could be counted for purposes of apportionment by the states. You can view the Evenwel opinions here.
The Supreme Court’s Evenwel majority decision undermines the principle of “one man, one vote.” The decision will encourage politicians to fill their legislative districts with more non-citizens and fewer voting Americans. This abuse could lead to unequal voting power for voters in districts with large numbers of alien residents.
Under this decision, 100,000 black American voters in one state legislative district would have the same voting power as 10,000 white American voters in another district with 90,000 non-citizens. Even though total population is the same in both districts, voting power is radically different.
These types of abuses, already present in Texas, will spread nationally.
This is one reason this political decision by the High Court won’t stand the test of time.
To that end, you may now want to contact your state’s elected representatives about how you feel about counting non-citizens in apportioning representation your state legislature.
Congress Supports Judicial Watch Taxpayer Lawsuit against DC Government
Now to the nation’s capital, where local politicians are seeking to do as they please, regardless of the law and United States Constitution. The House of Representatives this week took the unusual step of filing an amicus curiae brief urging a U.S. District Court to deny the D.C. government’s efforts to dismiss a Judicial Watch lawsuit, which seeks to prevent D.C. from illegally expending tax dollars. The House amicus brief was filed in the U.S. District Court for the District of Columbia (Clarice Feldman v. Muriel Bowser and Jeffrey S. DeWitt (No. 1:15-cv-01967)).
This filing comes in support of our November 2015 lawsuit on behalf of Clarice Feldman, a longtime taxpayer and resident of the District of Columbia. We sought to ensure that no taxpayer money is spent by local D.C. politicians under the District’s Local Budget Autonomy Act. In February 2016, the D.C. government filed a Motion to Dismiss the Judicial Watch November lawsuit.
The Local Budget Act is a naked and unabashed effort to strip Congress of powers vested in it by Article I of the Constitution, and to circumvent the constitutionally-prescribed legislative process that the District and its supporters previously and repeatedly have acknowledged is the one constitutionally-appropriate way to proceed.
In other words, the Local Budget Act turns the Appropriations Clause upside down, and is inconsistent with Congress’s plenary authority over all District appropriations. The only constitutionally permissible manner by which the District may achieve budget autonomy with respect to locally-derived funds is for Congress to convey that authority to the District by way of the normal legislative process – and Congress has not yet done that.
In Feldman’s Opposition to the Motion to Dismiss, Judicial Watch takes strong issue with the District of Columbia’s continued attempts to circumvent federal law, arguing:
Regardless of whether it is sound policy for the District of Columbia to have budget autonomy, [the defendants] cannot ignore the law. Yet, they do. Since October 1, 2015, Defendants have been illegally incurring obligations and expending local taxpayer funds pursuant to the Fiscal Year 2016 Budget Request Act of 2015 (“FY16 Budget Request”) that have not been appropriated by Congress and presented to the President for signing. As a District taxpayer since 1979, Plaintiff challenges Defendants’ lawlessness.
The District of Columbia City Council passed the Local Budget Autonomy Act of 2012 in an effort to spend tax dollars without an appropriation from Congress, as required by the Home Rule Act. The Act was signed by then-Mayor Vincent Gray and ratified by D.C. voters in April 2013. Upon the advice of the then-D.C. attorney general, Gray and then-Chief Financial Officer Jeffrey DeWitt subsequently withdrew their support of the law and notified the City Council that they would not enforce it. The D.C. Council filed suit to compel Gray to enforce the law. In 2014, U.S. District Court Judge Emmett Sullivan found the Budget Autonomy Act to be unlawful and permanently enjoined all parties from enforcing the law:
The grant of legislative authority to the District in the Home Rule Act is broad … but Congress included several restrictions to that authority in Sections 601, 602, and 603. These included congressional authority to veto District legislation and the authority to legislate for the District on any matter.
As a native Washingtonian, the Court is deeply moved by Plaintiff’s argument that the people of the District are entitled to the right to spend their own, local funds. Nevertheless, the Court is powerless to provide a legal remedy and cannot implement budget autonomy for the District.
The City Council subsequently appealed the District Court’s ruling to the U.S. Court of Appeals for the District of Columbia Circuit. But, prior to an opinion being issued by the Circuit Court, Muriel E. Bowser was elected Mayor of the District. On March 24, 2015, Bowser filed a motion to dismiss the appeal for mootness and requested that the appellate court vacate the District Court’s ruling. On May 27, 2015, the Circuit Court ruled in Bower’s favor. The twists and turns of this initial litigation aren’t typical and is an example of politicians trying to game the courts and the rule of law.
The politicians running the local DC government may have thought they skated, but then your JW filed a new lawsuit on behalf of Feldman in the U.S. District Court on November 6, 2015.
You know we don’t have much patience for the House leadership’s failures of vigilance and oversight, but we can’t help but welcome the action of the House of Representatives in standing up for District taxpayers, the rule of law, and constitutional mandates. Mayor Bowser and the rest of the D.C. government continue to think they can violate federal law with impunity.
For several years we have been seeking records of then President-elect Barack Obama’s interview with two FBI agents and two assistant U.S. attorneys regarding former Illinois Governor Rod Blagojevich, who was sentenced to fourteen years in federal prison for attempting to sell Obama’s vacated Senate seat.
Our Freedom of Information Act (FOIA) requests were rejected, and so we have now filed a lawsuit (Judicial Watch v. U.S. Department of Justice (No 1:16-cv-00576)) against the U.S. Department of Justice in the U.S. District Court for the District of Columbia seeking the FBI interview records of Obama, Rahm Emanuel, and Valerie Jarrett.
The FBI denied our June 1, 2011, FOIA request seeking:
- Records of FBI interviews with Barack Obama concerning or relating to Rod Blagojevich, including but not limited to notes, summaries, and recordings of the interview.
- Records of FBI interviews with Rahm Emanuel concerning or relating to Rod Blagojevich, including but not limited to notes, summaries, and recordings of the interview.
- Records of FBI interviews with Valerie Jarrett concerning or relating to Rod Blagojevich, including but not limited to notes, summaries, and recordings of the interview.
- Records concerning any of the aforementioned interviews with Barack Obama, Rahm Emanuel, or Valerie Jarrett.
The FBI contends the release of these records “could reasonably be expected” to interfere with law enforcement proceedings and withheld them under Exemption 7 (which allows agency to withhold certain law enforcement records).
Here is the background:
On December 18, 2008, about a week after Blagojevich’s arrest, then-President-elect Barack Obama was questioned at his Chicago transition office about the scandal surrounding the alleged sale of the Senate seat he vacated in 2008. We are seeking the FBI summaries from this interview.
In January 2009, we released documents from the office of then-Governor Rod Blagojevich related to Blagojevich’s contacts with President-elect Obama and his transition team. The documents include a December 3, 2008, letter from Barack Obama following his December 2, 2008, meeting with Blagojevich, as well as a November 17, 2008, letter signed by Presidential Transition Team co-chairs Valerie Jarrett and John Podesta, providing Blagojevich with a list of transition team contacts. These documents tend to undermine Obama’s claims that he had no contact with Blagojevich.
Blagojevich was convicted on 17 of the 20 public corruption charges against him, some of which have been vacated. He is not scheduled for release until 2024. The Supreme Court has refused to hear his appeal on the 13 remaining corruption charges. A federal judge has scheduled Blagojevich to be resentenced on June 30, 2016.
Writing in The Washington Examiner, Rudy Takala noted, “There are no enforcement proceedings related to the case known to be pending, leading critics to charge that the agency’s denial is politically motivated.”
Well, yes. This lawsuit highlights the personal corruption issues of Barack Obama. He and his closest aides were interviewed by the FBI in a criminal investigation, and his administration doesn’t want Americans to have the details. The Chicago way shouldn’t trump the American people’s right to know.
It won’t if we have anything to do with it.
Until next week …