It’s For the Children by Phil Hart
And it really is “for the children”, so said the Framers of our Constitution when they wrote into the preamble of that great document this language “…and to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
What we can do best “for the children” is to defend our Constitution, to which many of us have taken an oath to do just that. And so far in human history, our system of government appears to be the best designed and put into practice in the history of mankind. To that end, the Legislature of Idaho did the right thing when it rejected Senate Bill 1067 in the regular 2015 session. And now today, it also needs to reject House Bill 1 in the Special Session.
There has been much written about Senate Bill 1067, which seeks to implement the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, of the 2007 Hague Convention. Implementing such an agreement is precisely what the Framers of the United States Constitution envisioned the role of the federal government to be, and tasked the United States Senate, working in cooperation with the executive branch, to do so. The responsibilities are clearly drawn. And our United States Senate has had plenty of opportunity since 2007 to implement this Hague Convention as a treaty; and they have declined to do so.
The attempt to get the States of the Union to each put into state statute the unaltered language of this Hague Convention agreement constitutes an end-run around both our state and federal constitutions. It blurs the original and well defined spheres of authority in our constitutional system of dual sovereignties and a framework of checks and balances. It creates more of an enmeshed political blob of confused responsibility that will serve to empower the government and reduce the ability of people to cope with it. This is as unhealthy for a society as it is when families blur individual responsibilities and boundaries between members of a family.
One of the foundational principles of our system of government, and one of the primary issues leading to our separation from England is summarized by the statement ” No taxation without representation.” Embedded in this principal is the idea that citizens should have recourse with their government to change things they do not like. This is a principle that dates back to the Magna Carta in 1215 and is also memorialized in our Declaration of Independence with the noted grievance: “For imposing taxes on us without our consent.”
In the same way today’s House Bill 1 will impose governmental authority over people for which they do not have any means to redress through any political process. It is a form of “Taxation without Representation” that past Americans have fought on the battlefield to throw off such tyranny. This makes HB 1 antithetical to what America is all about.
Sections 9, 34, 35 and 53 of House Bill 1 imposes the “full faith and credit” principle, a constitutional provision limited to other Union States; and not to foreign countries, many of whom will have a political and governmental system different than our own. This was never envisioned by the Framers of either our state constitution nor our federal constitution. The Legislature of Idaho is therefore without the power to pass this bill.
And if House Bill 1 passes and is signed into law by the Governor, where in the Idaho Code will we find sections 68, 69 and 70 of the bill? These sections include “Legislative Intent”, “Report – Legislative Intent” and “Severability”. There is no designation of where these sections will be placed in the code books. Are we going to hide the Legislative Intent from the public and those people who will in the future get their shirt caught in this Child Support Machinery? And what the heck is the definition of the term “sister states” found in section 68? Why don’t we use a well defined term like “Several States of the Union” that has a 228 year history?
And lastly, the urgency to pass this bill is likely unnecessary to avoid the cutting off of federal funds, which was threatened if the Idaho Legislature did not pass SB 1067; and is now threatened again if House Bill 1 is not immediately passed. Both the Governor’s office and the Attorney General’s office ought to know how to fight this issue in the courts, as the state of Idaho is a party to a suit that has recently successfully done just that on another issue.
This relates to the lawsuit by 26 states against the Department of Homeland Security (DHS) over a DHS institutionalized program that is in conflict with the immigration laws passed by Congress. This case is styled State of Texas v. United States of America, and both the State of Idaho and Governor C.L. “Butch” Otter, are listed as Plaintiffs. Case: 1:1-14-cv-00254, United States District Court, Southern District of Texas. See the Court’s February 16, 2015 Opinion found below. Please pay close attention to pages 102 to 123.
In this case a DHS program, not authorized by Congress, was going to cause a significant cost to the state of Idaho, and Texas, as the lead state, was able to get a temporary injunction. The main issue was that the DHS was legislating outside of Congress without following the provisions of the Administrative Procedures Act.
The same issues apply to HB 1 and the threat of loss of funds to the state of Idaho by the United States Department of Health and Human Services. Questions that Idaho Legislators need to be asking include the following:
1. Is the Department of Health and Human Services an independent agency able to administer “public rights” and legislate by rule outside of Congress?
2. Is the policy of the Department of Health and Human Services to withhold funds based on a rule promulgated by that agency? And is there any agency discretion in applying this rule?
3. If the HHS policy is based on such a rule, is the rule a “substantive rule” with the force of law, or is it an interpretative rule?
4. And lastly, if the rule is a “substantive rule”, did HHS follow the requirements of the Administrative Procedures Act and the Federal Register Act in promulgating this rule?
If the answers don’t line up correctly with HHS’s authority, then the threatened loss of funds is only a hollow threat. The state of Idaho needs to investigate these details, and if appropriate, sue the Department of Health and Human Services making the same argument that Texas made in their suit against DHS, of which Idaho is a party to. It is likely that today’s special session of the Legislature is completely unnecessary.
see the attached document:
Heather Scott sends this caveat:
Today I will be voting on adding 37 pages of code to the books, 32 of which are verbatim language from an international treaty. This is a historic first for adding international language (from the Hague Convention Treaty) into Idaho law. Idaho will not be allowed to question the facts of foreign orders. Unfortunately your questions will not be allowed to be asked. The chairman of the Committee, Patti Anne Lodge, has limited questions to 2, and I have already asked 2! I believe that your voice is being limited and this is a top down bully attempt by the federal government and the Idaho establishment to force this language into Idaho Code. Please get involved in your Republic before it no longer exists!