Category Archives: Academia

UCLA Professor Caught Stealing Secrets for China | Jul 11 2019

UCLA prof guilty of conspiring to steal missile secrets for China, could face more than 200 years in prison

|| Campus Reform

“A jury found an electrical engineer and University of California, Los Angeles (UCLA) professor guilty of exporting stolen U.S. military technology to China.

UCLA adjunct professor Yi-Chi Shih was convicted June 26 on 18 federal charges, Newsweek reported, and could now lose hundreds of thousands of dollars, while also facing up to 219 years behind bars for numerous violations of the law. These include conspiracy to break  the International Emergency Economic Powers Act (IEEPA), committing mail and wire fraud, lying to a government agency, subscribing to a false tax return, and conspiring to gain unauthorized access to information on a protected computer, according to a Department of Justice news release.

“Schemed to export to China semiconductors with military and civilian uses, then he lied about it    

Shih and co-defendant Kiet Ahn Mai tried to access illegally a protected computer owned by a U.S. company that manufactured semiconductor chips called monolithic microwave integrated circuits (MMICs). MMICs are used by the Air Force and Navy in fighter jets, missiles and missile guidance technology, and electronic military defense systems.

The chips were exported to Chengdu GaStone Technology Company (CGTC), a Chinese company, without a required Department of Commerce license. Shih previously served as the president of CGTC, which made the Commerce Department’s Entity List in 2014 “due to its involvement in activities contrary to the national security and foreign policy interest of the United States – specifically, that it had been involved in the illicit procurement of commodities and items for unauthorized military end use in China,” according to court documents cited by the DOJ.

Shih “schemed to export to China semiconductors with military and civilian uses, then he lied about it to federal authorities and failed to report income generated by the scheme on his tax returns,” U.S. Attorney Nick Hanna said, according to the DOJ release. “My office will enforce laws that protect our nation’s intellectual property from being used to benefit foreign adversaries who may compromise our national security.”

See more at: Campus Reform

 

Ex-State Department Worker Gets 40 Months In Prison For Secret Dealings With China

|| DelawarePublic.org

 

 

“A former State Department employee was sentenced to 40 months in prison for concealing her interactions with two Chinese intelligence agents, along with the extravagant gifts they gave her in exchange for government information.

Candace Claiborne began to work as an office management specialist at the State Department in 1999, according to court documents. She had a top secret security clearance and served overseas in such cities as Baghdad, Beijing and Shanghai.

But she ignored her responsibility to report foreign contacts, prosecutors said as they announced her sentence on Tuesday.

“Claiborne was entrusted with privileged information as a U.S. government employee, and she abused that trust at the expense of our nation’s security,” Acting Assistant Director John Selleck of the FBI’s Washington Field Office said in a statement. “The targeting of U.S. security clearance holders by Chinese intelligence services is a constant threat we face,” he added.

Over the course of five years, Chinese agents allegedly gave Claiborne and her family “tens of thousands of dollars” in gifts and perks – including wired cash, a monthly stipend, overseas trips, tuition at a Chinese fashion school and an apartment that was fully furnished. In exchange for the gifts, Claiborne gave them a window into the State Department’s inner workings through copies of internal documents about dignitary visits and other topics.

Prosecutors said she told a co-conspirator that the agents were “spies” and wrote in her journal that she could “Generate 20k in 1 year” by working with one of the agents.

Federal public defender David Walker Bos, Claiborne’s attorney, did not immediately respond to NPR’s request for comment.

Her arrest came in March 2017 after a sting operation in January of that year. An FBI agent, posing as a Chinese agent, approached Claiborne on a street in Washington, D.C. She welcomed him to her home and their lengthy discussion ended with the undercover agent thanking her for helping the “Ministry,” NPR previously reported.

After the arrest, she pleaded not guilty to charges of obstruction and making false statements to the FBI. In April 2019, she pleaded guilty to a charge of conspiracy to defraud the United States. In the plea agreement, prosecutors agreed to drop the other charges.

A judge ordered Claiborne detained pending sentencing, but she requested to self-surrender on June 5, the document stated.

In addition to a 40-month prison sentence, Claiborne received three years of supervised release and a fine of $40,000.

Her sentence comes after former CIA officer Jerry Chun Shing Lee pleaded guilty this spring to spying for China – and as U.S. officials have warned that Chinese espionage is the country’s most serious security threat.”

See more at: DelawarePublic.Org

President Signs Executive Order Protecting Free Speech on College Campuses | Mar 21 2019

Trump Signs Executive Order to Protect Free Speech on College Campuses

|| PJ Media

“On Thursday, President Donald Trump signed an executive order to protect free speech on college campuses.

“In America, the very heart of the university’s mission is preparing students for life as citizens in a free society, but even as universities have received billions and billions of dollars from taxpayers, many have become increasingly hostile to free speech and to the First Amendment,” the president said.

He mentioned the case of Hayden Williams, a field representative for the Leadership Institute who got punched in the face in Berkeley, Calif.

“You see people being punched hard in the face, but he didn’t go down,” Trump said of Williams. “I said you have a better chin than Muhammad Ali.”

Trump took Williams on stage at the Conservative Political Action Conference (CPAC) earlier this month.

Turning to the broader problem, Trump said, “Under the guise of speech codes and safe spaces and trigger warnings, these universities have tried to restrict free thought, impose total conformity, and shut down the voices of young Americans like those here today.”

More:

Mario Savio and the Free Speech Movement of 1964 at UC Berkeley –

From Wikepedia:

“With the participation of thousands of students, the Free Speech Movement was the first mass act of civil disobedience on an American college campus in the 1960s.[4] Students insisted that the university administration lift the ban of on-campus political activities and acknowledge the students’ right to free speech and academic freedom. The Free Speech Movement was influenced by the New Left,[5] and was also related to the Civil Rights Movementand the Anti-Vietnam War Movement.”

Mercury News Calls for Firing of UC President Napolitano Over Recent Financial Scandals | Nov 26

Editorial: After audit debacle, fire UC President Napolitano

|| San Jose Mercury News

“For the good of the University of California system, it’s time for President Janet Napolitano to go.

When a state audit revealed in April that her office was sitting on $175 million of undisclosed reserves, we sharply criticized her, but stopped short of calling for her firing.

But now an independent report released last week shows how Napolitano and top assistants interfered with that audit to try to ensure her office was cast in a positive light.

Despite her public mea culpa, Napolitano doesn’t fully own responsibility for her serious transgressions. The buck stops at the top. Not at her two senior assistants, who recently resigned.

The Office of the President should be run to better the UC system, not to protect Napolitano’s reputation.

UC regents last week chastised her for “poor judgment” that set in motion an “unacceptable” course of conduct. Nevertheless, the board declared it “fully supports her continuing leadership.”

She should have been shown the door.

Napolitano heads the 10-campus university system and her office serves as the administrative center. Last year, the state auditor sent surveys to each campus trying to ascertain how well the office was performing. The answers were to be kept confidential.

But Napolitano directed campus chancellors to first submit the responses to her office for review. A independent investigation, commissioned by the regents and headed by former state Supreme Court Justice Carlos Moreno, reveals the extent of the meddling.

In a conversation with us Monday, Napolitano continued to insist that she was trying to help the campus chancellors. But, the Moreno investigation found, the chancellors never wanted help.

She claimed her lawyers had approved her office reviewing the answers. In fact, UC attorneys advised that, while pre-screening the survey responses was legal, it was a bad idea.

The Office of the President, the attorneys presciently warned, “should think carefully about creating an appearance that (it) is biasing the results of the survey, which likely would be a subject of criticism in the final audit report.”

When UC Santa Cruz sent its answers directly to the auditor, Napolitano called the chancellor of that campus. She was “furious,” the chancellor recalled, and proposed that he withdraw the survey answers, which he did.

The Moreno investigation found that officials at campuses self-censored answers, knowing that Napolitano’s office would review them. Even still, Napolitano’s staff sent back five campuses’ survey responses for changes.”

….Continue reading more @ Mercury News

 

 

New York Times Censors Civil Libertarian Dershowitz | July 19, 2017

NYT Refuses to Publish Dershowitz’s Defense of Trump

|| Townhall

“The New York Times recently refused to publish liberal Alan Dershowitz’s op-ed in defense of President Trump. Dershowitz, an avid supporter of two-time presidential hopeful Hillary Clinton, is well-known in cable news and legal commentary, and has appeared in conservative and liberal outlets alike, including CNN, The Washington Post, Washington Times, Fox News and the Times itself.

In an interview with the Washington Examiner, Dershowitz discussed his multiple attempts to contact editors at the Times and his belief that the once-unbiased newspaper looks exclusively for certain opinions to publish.

“I said that I thought the readers of the New York Times were entitled to hear or read the other side of the issue whether there were crimes committed…And I really do think The New York Times does not want its readers to hear an alternative point of view on the issue of whether or not Trump administration is committing crimes,” he said of the op-ed he submitted to the Times, offering a different point of view.”

….Continue reading more @ Townhall

California Democrats Sue College Students for Gathering Recall Signatures | July 9, 2017

California Democrats Are Apparently Suing Some College Republicans For Being Republicans

|| Hot Air

“Do you recall that little dust-up out in California over the massive new gas tax they passed? It resulted in a recall effort to remove freshman state senator Josh Newman from office, along with a petition to repeal the tax hike. That prompted state Democrats to circle the wagons, going so far as to change the rules to make it much harder to gather the required signatures to recall any legislator. Normally that would be a dicey move in most other states because the same rules would be used against them, but hey… this is California. The Democrats control pretty much the entire government so they really don’t need to worry about it.

That apparently wasn’t enough for them, though. Since some of their constituents were uppity enough to actually attempt the recall, the state Democratic party decided to teach them a lesson once and for all. They’re suing a group of College Republicans for having the audacity to actually collect signatures. (Daily Wire)

In keeping with the rules, opponents of the massive tax hike gathered nearly 90,000 signatures in a matter of weeks just to get the initiative moving. Since the Democrats can’t seem to stop them under the standing rules, this lawsuit must be the next best way they see to remove some players from the field and intimidate the rest.

Is it just me or does this sound like something out of a George Orwell novel? The Democrats are seeking to use the power of the judicial branch to eliminate the opposition and, very likely, frighten others into silence. And it’s all being done under the vague accusation of “misleading” the people who signed up for the proposal. The signature forms all made it clear that the purpose of the initiative was to recall Newman. And how could any volunteers discuss the issue without bringing up the tax hike, given that this was the impetus for the recall effort in the first place? If that was too confusing to some voters, leading them to think they were trying to recall the tax hike, then what of it? That’s the end goal anyway, though it takes a couple of steps to do it.

I find it hard to believe that this sort of lawsuit would gain much traction, but then again… this is California we’re talking about. Anything is possible out there as long as it fits in with the overarching liberal narrative. Thankfully there should be some sort of appeals process in place. But if they manage to get away with this then you may as well shut out the lights and let the state secede from the nation. Democracy will be pretty much toast.”

….Continue reading more @ HotAir

 

California Democratic Party Sues Conservative College Students In Unprecedented Move

|| DailyWire

“Three members of the Cal State Fullerton College Republicans have been named in a lawsuit backed by the California Democratic Party in retaliation for their work to recall State Senator Josh Newman, who was the pivotal vote in support of April’s $52 billion gas tax increase.

The Democrats’ lawsuit, which was filed in Sacramento Superior Court last Thursday, alleges that the College Republicans and other conservative activists “misled” voters in their successful signature gathering effort to recall Senator Newman. The suit names Amanda McGuire, Brooke Paz, and Ryan Hoskins (pictured below) as defendants in the suit, for volunteering their weekends to talk to constituents about the cost of Newman’s vote to the district’s taxpayers.

The recall effort gathered nearly 85,000 signatures in a matter of several weeks, due to constituents’ frustration and anger at Newman’s vote on the gas tax. The Democrat Party has alleged that recall organizers, which also included dozens of local conservatives of all ages, lied to voters about the true nature of the recall campaign by claiming that the recall would repeal the gas tax.

Brooke Paz, who serves as Public Relations Director for the College Republicans told Daily Wire, “This lawsuit is a baseless attack on the character of hardworking and passionate activists, as well as a shameful intrusion on the democratic processes that are my right as an American citizen.”

“As we just celebrated the 241st anniversary of our independence, my God-given rights are being threatened by the California Democrats simply because they disagree with me and my colleagues,” Paz continued. “Our elected representatives are supposed to govern by the people and for the people. The people do not want higher taxes, and as proven by the incredible amount of signatures we’ve gathered for this recall petition, the people do not want Newman.”

Once Democrats in the state legislature realized that the recall petition was moving forward at a record pace, they scrambled to develop a number of subversive methods that would stop the lawful recall by the voters. Democrats, who hold a two-thirds supermajority in both the Assembly and Senate, and hold all eight statewide elected offices, worked to change the rules on signature verification, tried to alter contribution limits, and fought for legislation that would push the election further back.

Organizers of the recall told Daily Wire that the Democrat Party is desperate for any way to stop the election by any means necessary, which has a high likelihood of forcing Newman out of office only months into his first term.

Amanda McGuire, who is Vice-President of the College Republicans, asserted that “the lawsuit is a shameful and frantic attempt to silence voters of the district. The intimidation tactics espoused by the California Democrats should no longer be tolerated. It’s gone too far when college students are being dragged into court for becoming involved with the issues faced by their local cities. I’m proud to be a part of the party that fights to fix our government on every level.”

“Democrats are desperate to hold on to absolute power – whether it is changing the rules ex post facto on signature verification, or contribution limits, or a lawsuit challenging the validity of signatures – they will stop at nothing to keep absolute power,” said Whitaker. “There is no principle left for them, it’s only power, and it doesn’t matter if we change the rules or ruin the finances of ordinary college students now having to defend their own signatures.”

….Continue reading more @ DailyWire

More ‘Academic’ Lunacy at the University of California | June 02, 2017

UC reverses policy, won’t pick up tab for regents’ parties

|| sfchronicle.com

UC President Janet Napolitano said the practice will stop to avoid questions over the use of fund

“The University of California will no longer pay for its governing board members to throw themselves dinners and parties after a Chronicle report showed that the regents regularly billed the university for their festivities.

Although the events were charged to a private endowment, and thus not covered by public money or tuition, the practice will stop “to avoid any question over use of university or university-associated funds,” Board of Regents Chair Monica Lozano and UC President Janet Napolitano said in a statement Sunday.

Longtime Regent Richard Blum, a wealthy financier and former chairman of the board, said the policy change was his idea. After reading The Chronicle’s story Sunday, Blum said he called Napolitano and suggested it.

“I said, ‘Janet, it’s not worth the aggravation. Let’s have the regents pay for their own dinners,’” Blum told The Chronicle. “I just called Janet and said, ‘Look, for the amount of what it costs to have a dinner, let’s have everyone pay for their own dinner. And if they can’t pay, I’m happy to pick it up.’”

The change in policy came hours after The Chronicle reported that the UC governing board billed the university for nearly a quarter of a million dollars since 2012 for dinners every two to three months.

Some of the banquets were poorly timed: The $270-a-head Jan. 25 banquet was held the night before the regents voted to raise student tuition. And the similarly priced May 17 party happened a few hours after student protesters shut down the regents’ meeting, objecting to both the tuition increase and a $175 million secret fund uncovered by a state audit this year.

The dinners were thrown at luxury destinations, such as San Francisco’s InterContinental Hotel and Palace Hotel. Attendees included the regents, their spouses, UC executives and campus chancellors.

“Up to now, board dinners have been paid for with monies from the Searles Fund, a private endowment that the donor designated for university business costs not covered by state or tuition funds,” read the statement from Lozano and Napolitano. “However, to avoid any question over use of university or university-associated funds, regents will absorb their costs for board dinners from this point forward.”

Revelations of the dinners came as the UC weathered blowback from the scathing audit — including calls by legislators to strip the university system of its independence from state government and Gov. Jerry Brown’s withholding of $50 million in funding if the university system didn’t fix financial problems identified by the review.

Considering that the UC — with its 10 campuses, five hospitals and three national laboratories — has a budget around $30 billion, “it’s kind of silly” to be concerned with the price of dinners, Blum said. “But having said that, there’s the perception problem.”

What’s more, Blum said, paying $250 or more per person — even for fine dining — was “crazy.” By comparison, periodic dinners at the Ritz-Carlton he has hosted for the American Himalayan Foundation, of which he is chairman, cost only $90, he said.

Blum said he asked Napolitano to go through the numbers with him first thing Tuesday morning. He said he wasn’t sure whether the new plan would include the Wednesday night dinners the regents have when they gather every other month for the board meetings or whether it would only cover their celebratory dinners.

A university spokeswoman did not return requests for comment Monday.

Those who criticized the spending said they were pleased with the new policy but questioned why it took a newspaper report to make the change.

“It’s appropriate, if for no other reason than the symbolism,” said Lt. Gov. Gavin Newsom, a regent who did not attend the two most recent parties. “Spending tens of thousands of dollars on dinners is absurd. It rubs people, understandably, the wrong way.”

Some observers, including Jamie Court, president of the advocacy group Consumer Watchdog, and Assemblywoman Catharine Baker, R-San Ramon, said the regents should reimburse UC for their past expenditures.

Jessica Levinson, a law professor and government ethics expert at Loyola Law School, said invoicing the dinners to UC was “distasteful” and “tone deaf,” but at least university officials were swiftly responsive to public pressure.

“We’re talking about money that could be used to educate kids,” Levinson said. “If they wanted to have reasonable business dinners, maybe that’s a different story, but that doesn’t appear to be what happened.”

Chronicle staff writer Kimberly Veklerov contributed to this report.

Nanette Asimov and Melody Gutierrez are San Francisco Chronicle staff writers.”

….Continue reading more @ The Chronicle

 

UC Regents Slammed for Expensive Dinners in Midst of Spending Scandal

|| Breitbart

“The University of California Regents hosted 59 friends for a $258-per-plate dinner at the luxurious San Francisco Palace Hotel the night after they promised to implement greater control over tuition increases.

Breitbart News reported earlier this month that California State Auditor Elaine Howle skewered UC President Janet Napolitano on May 17 before the California Legislature’s joint oversight committee. Howle’s 167-page audit detailed that the UC president’s office “Failed to Disclose Tens of Millions in Surplus Funds, and Its Budget Practices Are Misleading.”

The report alleged that Napolitano’s office systematically overcharged the ten UC campuses to fund its bloated staff of 1,700; spent excessively on employee compensation and executive performance bonuses; and then kept the existence of a $175 million reserve secret when the UC Regents voted on her request to raise 2017-2018 tuitions.

Napolitano told legislators her office accepted all 33 State Auditor budgeting recommendations as “constructive and helpful.” She thanked legislators for calling the hearings, and claimed, “It is my hope that this hearing will enable us to clear the air, and move forward on behalf of our students and the state,” according to the East Bay Times.

Monica Lozano, Chairwoman of the UC Board of Regents, then testified that her Board would implement changes in the UC president’s office and review the $336 increase in tuition this coming school year. Lozano praised the State Auditor’s report and promised that the UC Board of Regents exercise give greater direction over Napolitano’s spending.

But Lozano then hurried down to San Francisco’s Michelin Five-Star rated Palace Hotel, where she joined the UC Board of Regents in hosting a dinner for 59, and charging the $15,199 bill to the University of California. The Palace is part of Starwood’s “Luxury Collection.” It is known for its famed bar, awe-inspiring crystal chandelier, and world class dinning. Room rates range from $505 to $7,550 a night.

According to the San Francisco Chronicle, the University of California Board of Regents spent $17,600 at the posh Mark Hopkins Hotel on the top of Nob Hill the evening before they voted on January 26 to raise UC tuitions by 2.7 percent.

A UC spokesperson Dianne Klein told the Chronicle that the tradition of four-to-six Regents’ dinners per year, paid from UC endowment funds, goes back for decades. Ms. Klein acknowledged that the UC President’s Office had reimbursed the Regents $225,000 for dinners over the last five years.

A high-profile Regent who appears to have ducked the burgeoning UC spending scandals is current California Lieutenant Governor, and active candidate to replace Governor Brown, Gavin Newsom. His office serves as one of the 26 UC Regents, but he did not attend the January 25 and May 17 dinners. Newsom told the Chronicle that high-class Regents dinners are unnecessary and the cost of recent spending was inappropriate.

Assembly member Phil Ting (D-San Francisco), Chair of the Assembly Budget Committee, who called for the hearings on the critical findings of the State Auditor’s independent audit of the UC President’s Office, has demanded that the University of California’s administrative budget come under the Legislature’s control.”

….Continue reading more @ The SF Chronicle

UC President Napolitano Hid $175 Million Office Slush Fund While Raising Tuition | Apr 28, 2017

Napolitano Deserves Boot Over Latest UC Scandal

|| Spectator.org

“The University of California warned Californians early this year that if tuition weren’t significantly raised or public funding increased, education at the 10-campus system — with its staff of 200,000 and $28.5-billion-plus budget — would suffer. “We’re at the point where if we don’t do this, if we don’t invest, the quality of education is going to suffer,” a UC spokesperson told the media. The Board of Regents promptly approved tuition hikes.

I’m the parent of a UC student, but the main reason the deal upset me was that it spotlighted the system’s waste-filled bureaucracy. There’s insufficient oversight of UC’s spending. Instead of cutting back on programs battling micro-aggressions” and other PC nonsense or trimming obscene levels of pay and benefits for UC employees, officials spend like crazy and then take it out of the hide of students and taxpayers who fund about a quarter of its budget.

As it turns out, conservative critics of the university and its President Janet Napolitano, the scandal-plagued former head of the Department of Homeland Security under President Barack Obama, were just scratching the surface. A report released Monday by the California State Auditor detailed plenty of waste, but also alleges that the Office of the President did not disclose $175 million in reserves.

This scandal should lead to the firing of Napolitano and others at UC who took part in this alleged budget-hiding game. Basically, the state audit argues that UC officials were sitting on a budget that was not disclosed to regents, legislators, or the public. That’s at the same time they were crying poormouth, and hitting up students for an additional $88 million annually to assure that the university could continue to provide the same level of “quality” education.”

….Continue reading more @ Spectator.org

 

UC President Janet Napolitano hid $175 million while raising tuition, paying excessive salaries to personal staff

|| HotAir

“A state audit released Tuesday concludes that the University of California Office of the President, led by former Obama administration DHS Secretary Janet Napolitano, hid away $175 million while paying excessive salaries to staff and raising tuition on students. Auditor Elaine Howle also says someone from Napolitano’s office interfered with questionnaires sent to various UC campuses as part of the audit. From the San Francisco Chronicle:

The UC Office of the President amassed millions in the secret reserve funds in part by overestimating how much it needed to run the 10-campus university system — and then spending less than budgeted, the audit said. From 2012 to 2016, the office sought increased funding based on the inflated estimates, not actual spending, according to Howle…

About $32 million of the $175 million that Howle’s audit found in the secret reserve came from campus assessment fees — money that the auditor said could have been spent on students and should be returned to the campuses.

Even as it accumulated the campus fees, Napolitano persuaded the Board of Regents to increase those fees in two of the four years audited, Howle said.

There are nearly 1,700 people working in the Office of the President. The audit notes that number is significantly higher than other similar offices. This chart makes the comparison. Note that the California State system has more than twice as many campuses and nearly twice as many students but manages to get by with 1/3 the amount of staff of the UC system:

In addition to having an outsized staff, the Office of the President was also paying significantly higher salaries than comparable state workers were earning, plus offering a special retirement plan, and other questionable expenses. From the LA Times:

The audit said: “10 executives in the Office of the President whose compensation we analyzed were paid a total of $3.7 million in fiscal year 2014-15 — over $700,000 more than the combined salaries of their highest paid state employee counterparts.”

On benefits, the Office of the President provided a regular retirement plan but also offered its executives a retirement savings account into which the office contributes up to 5% of the executives’ salaries—about $2.5 million over the past five years, the audit found.

“The Office of the President also spent more than $2 million for its staff’s business meetings and entertainment expenses over the past five years—a benefit that the State does not offer to its employees except in limited circumstances,” the audit said.

.. ..

For the record, Napolitano has denied the claims made in the audit. She says the reserve fund was only $38 million which was set aside as a reserve in case of emergency. But needless to say, all of this stinks to high heaven. Howle, the auditor, told the SF Chronicle, “I’ve never had a situation like that in my 17 years as state auditor.” Lawmakers plan to hold a hearing on the results of the audit next week.”

….Continue reading more @ HotAir

| Note: For the record Janet Napolitano had no administrative experience running an academic institution the size, reputation and importance like the University of California. She needs to resign. /CJ

 

| U.S. Constitution: Bill Clinton lost the Line Item Veto in 1998

That pesky Presentment Clause of the Constitution

|| Heritage.Org

“The Presentment Clause is commonly viewed as a provision that protects the President’s veto power, an association reinforced by the clause’s name. Yet, the Presentment Clause has a broader function: The clause prescribes the exclusive method for passing federal statutes, indicating that all bills must pass both Houses of Congress and be subject to the President’s veto. Thus, with some justification, one might call the provision the Lawmaking Clause.

Recently, the Supreme Court has reviewed a different departure from the traditional lawmaking process—the conferral of cancellation authority on the executive—and held it to be unconstitutional as a violation of the Presentment Clause. Clinton v. City of New York (1998). In 1995, Congress enacted the Line Item Veto Act, which despite its name, did not provide the President with veto authority, but instead authorized him to cancel certain spending provisions. This cancellation authority was similar to an ordinary delegation of administrative authority in that it conferred discretion on the executive, subject to a statutory standard, to take certain actions. Cancellation authority, however, differs from an ordinary delegation since it is generally narrower. Whereas an ordinary delegation allows the executive to promulgate a rule of his choosing, cancellation authority permits him only to accept or reject a statutory rule. For example, in the appropriation law area, ordinary delegations under traditional appropriation laws permit the President to spend any sum between the amount appropriated and zero, whereas cancellation authority only permits him the choice to spend the appropriated amount or to cancel the appropriation and spend nothing.

Reviewing the cancellation authority provided by the Line Item Veto Act, the Supreme Court found it unconstitutional. In the Court’s view, cancellation authority was similar to the power to repeal a law, because the authority could eliminate an appropriation. The exercise of cancellation authority therefore needed to conform to the Presentment Clause. Of course, if cancellation authority is similar to repealing an appropriation, then the executive’s authority under a traditional appropriation to decide how much to spend is similar to enacting an appropriation, because the executive can “legislate” the amount that should be spent. Under the Court’s reasoning, then, ordinary delegations may also logically violate the Presentment Clause, but the Court continues regularly to permit such delegations. The Court has yet to resolve this double standard whereby cancellation authority is unconstitutional even though such authority is generally narrower than ordinary delegations.”

….Continue reading more @ The Heritage Foundation

 

Can the President Legally Not Spend Funds Appropriated by Congress?

|| Justia

Impoundment of Appropriated Funds

“In his Third Annual Message to Congress, President Jefferson established the first faint outline of what years later became a major controversy. Reporting that $50,000 in funds which Congress had appropriated for fifteen gunboats on the Mississippi remained unexpended, the President stated that a “favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of the law unnecessary… .” But he was not refusing to expend the money, only delaying action to obtain improved gunboats; a year later, he told Congress that the money was being spent and gun-boats were being obtained.628 A few other instances of deferrals or refusals to spend occurred in the Nineteenth and early Twentieth Centuries, but it was only with the Administration of President Franklin Roosevelt that a President refused to spend moneys for the purposes appropriated. Succeeding Presidents expanded upon these precedents, and in the Nixon Administration a well-formulated plan of impoundments was executed in order to reduce public spending and to negate programs established by congressional legislation.629

Impoundment630 was defended by Administration spokesmen as being a power derived from the President’s executive powers and particularly from his obligation to see to the faithful execution of the laws, i.e., his discretion in the manner of execution. The President, the argument went, is responsible for deciding when two conflicting goals of Congress can be harmonized and when one must give way, when, for example, congressional desire to spend certain moneys must yield to congressional wishes to see price and wage stability. In some respects, impoundment was said or implied to flow from certain inherent executive powers that repose in any President. Finally, statutory support was sought; certain laws were said to confer discretion to withhold spending, and it was argued that congressional spending programs are discretionary rather than mandatory.

There is no satisfactory definition of impoundment. Legislation enacted by Congress uses the phrase “deferral of budget authority” which is defined to include: “(A) withholding or delaying the obligation or expenditure of budget authority (whether by establishing reserves or otherwise) provided for projects or activities; or (B) any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority, including authority to obligate by contract in advance of appropriations as specifically authorized by law.” 2 U.S.C. § 682(1).”

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On the other hand, it was argued that Congress’ powers under Article I, § 8, were fully adequate to support its decision to authorize certain programs, to determine the amount of funds to be spent on them, and to mandate the Executive to execute the laws. Permitting the President to impound appropriated funds allowed him the power of item veto, which he does not have, and denied Congress the opportunity to override his veto of bills enacted by Congress. In particular, the power of Congress to compel the President to spend appropriated moneys was said to derive from Congress’ power “to make all Laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.”

The President’s decision to impound large amounts of appropriated funds led to two approaches to curtail the power. First, many persons and organizations, with a reasonable expectation of receipt of the impounded funds upon their release, brought large numbers of suits; with a few exceptions, these suits resulted in decisions denying the President either constitutional or statutory power to decline to spend or obligate funds, and the Supreme Court, presented with only statutory arguments by the Administration, held that no discretion existed under the particular statute to withhold allotments of funds to the States.633 Second, Congress in the course of revising its own manner of appropriating funds in accordance with budgetary responsibility provided for mandatory reporting of impoundments to Congress, for congressional disapproval of impoundments, and for court actions by the Comptroller General to compel spending or obligation of funds.”

….Continue reading more @ Justia

Question: A question that seems to present itself is for example, if the executive decides in the event of a major flood for example to defer or reserve funding from discretionary funding of a program to another more tactical in nature or by deletion of the funding by line item of the now uneeded program.  How could the Court hamper the powers of the executive in such a way, and in such a permanent fashion as in the Impound Act of 1974?

This is a fascinating subject as it includes the question of whether the president can or cannot withhold funds appropriated by Congress. There may be no simple answer to this conundrum, as each ‘solution’ to the problem seems to only create new ones. /CJ

Impoundment of appropriated funds | Wiki