Legal Problems with Rep. Reed’s “Property Rights Act”

Author Leslie Danks Burke is an attorney. She was a candidate for U.S. Congress in New York’s 23rd district in 2012.

“When government gets out of its rightful lane, people get hurt,” writes Congressman Tom Reed in a March 23 op-ed. He offers this as a dubious defense of his own drift out of the federal lane to interfere with state law.

Mr. Reed has introduced the so-called “Defense of Property Rights Act,” a proposed federal law to undo New York State’s fracking ban by making the ban overwhelmingly expensive. In a nutshell, Mr. Reed wants New York State to pay landowners for shattering dreams of gas-induced riches.

Among several problems with Mr. Reed’s idea, two glaring concerns stand out. First, it problems-3disregards powers held by states and expands the scope of federal government. Second, it attempts an end-run around at least a century of jurisprudence on the Constitutional law of “takings.”

The Constitution does not give Congress free-standing power to undo state-level decisions. Sometimes, where the Commerce Clause is triggered, for example, Congress may step in to regulate “economic activity,” which has a certain legal definition. But shoehorning a supposed right to drill into the Commerce Clause is on the outer edges of federal power and may be unconstitutional. It’s certainly the sort of law that a Congressman who believes in limited government should not support.

Mr. Reed says expansion of the federal government is necessary in this instance to “promote accountability and responsible policymaking” at the state level.

Let’s roll with the idea that it’s part of a federal representative’s job to reach into state law and regulate payment burdens that aren’t there. The next problem is that the payments Mr. Reed wants to force are not “rights,” as much as he wishes they were in the Constitution.  Mr. Reed knows this. He says he’s “forcing the government to provide compensation to affected property owners . . . Today, those individuals are not eligible for relief.” His legislation would create new government payments.

It’s a basic tenet of “takings law” that the government may only take private property for public use, and it has to pay the property owner first. If the government takes land to build a highway, for example, the owner must be paid.

Should the government pay the property owner if it doesn’t actually take the land, but instead issues regulations that limit how the owner uses the property? Sounds kind of reasonable on the surface. But what if a homeowner wants a lucrative truck stop in his back yard, yet the village does not allow truck stops in residential neighborhoods? Do we want that owner to sue the village for payment, because his truck stop can’t go in? What if a developer wants to build a spa resort complete with a tranquility pond, but the only property he owns is in the middle of a noisy shopping center? Does the city owe the developer money because he is unlucky enough to own land in a shopping center zone instead of a placid field?

The US Supreme Court says if the property owner is still able to make profitable use of his property, even if not the dream use, a regulation does not trigger the need to pay the owner.

Mr. Reed wants to overturn the Supreme Court’s Constitutional interpretation by statute and expand the government into paying property owners for things like zoning law changes and fracking bans. But Constitutional law does not get changed through legislation, and I’d be surprised if Mr. Reed doesn’t understand this. More likely, he’s drifting into state policy to score quick political points.

“I will continue pressuring [Governor Cuomo] to reconsider his state-wide ban on natural gas development,” says Mr. Reed. So far, Governor Cuomo appears to be staying the course despite Mr. Reed’s intrusion – perhaps the best approach when a federal representative gets out of his rightful lane. We don’t want anyone to get hurt.

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Rep. Amash, a fiscal conservative, on the budget

amash“I would rather keep all the levels (of spending) lower and stick to the sequester. But there are people in leadership who live outside of reality and want to increase things that Republicans like and pretend Democrats don’t exist.–Rep. Amash

On competing budget proposals, Rep. Amash, a fiscal conservative, wrote:

The House is poised to set a shocking precedent of more spending, more debt, and higher taxes this evening.

There are two main competing budgets on the House floor: one from the Budget Committee and one supported by the Armed Services Committee.

Compared to last year’s budget, the Budget Committee’s budget includes $20 billion in additional “emergency” military spending that’s off-budget. This extra military spending isn’t counted toward the spending caps set in the 2011 fiscal deal that has modestly reined in spending over the last four years. The Budget Committee’s budget says that the new “emergency” spending should be offset by cuts to other programs.

The Armed Services Committee’s budget raises “emergency” military spending by $22 billion, but unlike the Budget Committee’s budget, this budget eliminates the spending offsets. It doesn’t ask for any cuts to other programs. The Armed Services Committee’s budget lays the foundation for more spending from both parties, hundreds of billions of dollars of new debt, and tax hikes.

If the House passes the Armed Services Committee’s budget tonight, we’ll have set the dangerous precedent that violating the 2011 budget deal and sequester are acceptable, that more national debt is just fine. We’ll have joined with Pres. Obama in obliterating even the pretense of fiscal responsibility.

The votes on the Budget Committee’s budget (known as “Price #1″) and the Armed Services Committee’s budget (known as “Price #2″) will happen around 5 p.m. I will vote yes on Price #1 and no on Price #2.

How will your representative in Congress vote?

On Price #1, 105 Republicans voted AYE; 139 Republicans and 180 Democrats voted NO. Tom Reed voted NO.

On Price #2, 219 Republicans voted AYE; 26 Republicans and 182 Democrats voted NO. Tom Reed voted AYE.

One notes several things about Rep. Amash’s views:

  • Debt, government spending, and taxes are presumed bad.
  • He discusses only two Republican budget proposals
  • He doesn’t question the need for additional military spending.
  • Additional military spending is ok if offset by cuts to domestic programs.
  • He doesn’t object to keeping “emergency” military spending off-budget.

I appreciate that Rep. Amash is willing to explain his views and votes. Rep. Reed had only this to say:

  • You balance your budget and live within your means. Washington should do the same.
  • The House GOP budget balances in less than 10 years without raising or creating taxes.

Comparing the Federal Government to a family is nonsense. That the budget ought to balance is unjustified. That the proposed budget would balance as predicted is questionable. Tom Reed and Justin Amash share some concerns, but Tom is far less willing to explain himself.

© William Hungerford – March 2015


Posted in Congress, Economics, Political, Reed's Views | Tagged , , , , | 5 Comments

Term Limits

ballot-box-2The cornerstone of new ethics reform should be term limits on all State elected officials.–Chemung County Sheriff Chris Moss

Gibson (R-NY-19) long ago pledged to serve no more than eight years in the House. Tuesday’s announcement that he won’t run for re-election in 2016 cuts two years off that self-imposed term limit.–Brian Tumulty

Chemung County Sheriff Chris Moss writes:

If we enact term limits, we effectively do away with the current broken power structure, and the eventual corruption that inevitably arises from it.

This is an astonishing claim; corruption may be more robust than Chris Moss imagines. Moss continues:

Limiting the number of years that an elected official is allowed to hold office would go a long way in fighting the corrupt culture in Albany. It would also promote fresh ideas constantly being fostered by newly elected officials, encourage qualified candidates to run for office because it would be more affordable, and create higher accountability on legislating and less emphasis on fundraising. It boils down to reducing incumbents’ focus from solely working on their reelection so they could instead focus on voting their beliefs and principles.

Moss’s points:

  • fight corruption
  • fresh ideas
  • qualified candidates
  • more affordable
  • higher accountability
  • less emphasis on fundraising
  • focus on beliefs and principles

These are all dubious claims. Moss offers no proof. In practice, experience suggests that term-limited legislators are likely to concentrate on their next job opportunity. Moss writes:

True ethics reform in Albany will never be attained as long as the voters leave it up to the Legislature to enact it. Many of these Legislators simply have too much to lose.

The NYS legislature may well enact some ethics reform measures. One key issue is outside income for part-time legislators. Ethics reform is certainly possible without term limits. It is unlikely that the NYS legislature would enact term limits. However, Moss suggests no other way.

Before Tom Reed was elected to Congress, he claimed to favor term limits. After he was elected, he said he planned to serve no more than six terms. Since then he has been silent on term limits.

Does Chris Moss favor term limits for the office of Sheriff? He doesn’t address that.

© William Hungerford – March 2015

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Fracking may be banned, but the work is not done!


Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.–Margaret Mead

Read more at Brainy

Dear Colleague,

More than 65% of the citizenry praised New York Gov. Andrew Cuomo’€™s action last December when he moved to settle the longstanding debate over hydraulic fracturing, or fracking, in New York State by issuing an all-out ban on the destructive gas-extraction method.  The attached information lists municipalities and organizations where a proactive home-rule position was taken that influenced the decision that was reached.  Though this review is comprehensive, it may not include a few communities where action was contemplated or had taken place.

As of March 2nd 2015, the NYSDEC has not released their findings in studying the “health impacts and/or the science behind the governor’s announcement, and no official ordinance(s) have been promulgated. However, every good faith indication is that the announcement is tantamount to the decision being a fait accompli, as legislative action will be formalized in the spring of 2015.

Despite the fact that HVHF drilling has been prohibited for health and safety reasons in the Empire State, the storage, transport and deposit of radioactive and/or toxic waste and infrastructure (i.e. pipelines) have not been restricted.  The NYSDEC still supports the use of frack brine on the roads for ice and dust control.  Therefore it behooves those municipalities who have moratoria in place or who wish to protect the health, welfare and safety of their citizens and guests to enact zoning ordinances to prohibit the activities of energy companies who both use and still plan to utilize NYS landfills for the deposit of toxic waste (manufactured water and drill cuttings) use and abuse (frack brine) of the roadways for transport, and utilize inactive well and salt caverns for storage of LP gas.

On the same day that Governor Cuomo announced his prohibition of HVHF drilling in NYS, Penfield held a scheduled an open meeting to receive comments from residents on changing their moratorium to a prohibition/ban.  The following week, the ban was enacted. The law also prohibited the disposal of gas and petroleum extraction wastes within the town, including disposing waste water in injection wells and spreading well brine on Penfield’s roads.  I strongly urge you to follow their example.

Sincere Best wishes,


Joseph Hoff, Chairman

Keuka Citizens Against Hydrofracking


On a personal note,  five+ years ago I made a six month€ commitment to study the issues surrounding HVHF drilling and its appurtenant activities.  During that time the modest bans and moratoria listing I began has grown from 2 pages of data to 26.  This modest compilation has been a featured offering on 80+ websites in 45 states and is used throughout North America, Europe and Africa.  Going œviral€ can be good stuff!  Work on committees in our two communities resulted in bans in both and support for an area-wide moratorium (with substantive zoning ordinances) in all but one community in the Keuka Lake region.  Yet there is more to do.  The Committee of Towns (we are ready and willing to share our experience and grass-roots successes with you) invites you to contact us ( to see how we may help you to protect the health, welfare and safety of your neighbors and communities.

3-2-15 BansMoratoriaStatementsRevision

Posted in Uncategorized | 7 Comments

Tom Reed for Governor?

Doesn't know much about Social Security, may not want to learnI am calling on Gov. Cuomo to reverse his ill-conceived fracking ban that infringes on constitutionally protected property rights. If the Obama administration and even California Gov. Jerry Brown can side with farmers and landowners, now is the time to undo such a damaging and job-killing policy.–Rep. Tom Reed

Could Tom Reed be thinking of running for Governor of New York? A constant critic of Governor Cuomo, Tom has taken great interest in NYS politics recently.

On Gov. Cuomo’s 2015 State of the State message:

Besides the lack of good economic news for the region, I was further disappointed that there was no mention of repealing other Cuomo dictates such as the Safe Act, which attacks our Second Amendment rights or Common Core, which destroys local control of our schools. It is not fair we are denied these rights.

On education, Tom wrote:

President Lincoln said, “The philosophy of the school room in one generation will be the philosophy of government in the next.” Obviously Governor Cuomo and other proponents of Common Core have this backward. I oppose Common Core because I care about our children and I believe that a top-down, one-size-fits-all approach to education is NOT the answer.

On fracking, this …

Spurred by Democratic New York Gov.  Andrew Cuomo’s ban on hydraulic fracturing, known more commonly as “fracking,” Rep. Tom Reed, R-N.Y., is proposing a bill that would let landowners who have seen the value of their property plummet seek payment.

and this:

Evolving regulations covering fracking on federal lands prove the process can be done safely, and should push New York Gov. Andrew Cuomo to revisit his decision to ban the practice.

As Governor, Tom could try to repeal the NYS SAFE Act, rescind the ban on fracking, and abolish common core. Perhaps he would run with Chemung County Sheriff Chris Moss who has expressed an interest in another run for statewide office. Moss says that he will back candidates

who are interested in reducing taxes, creating jobs by producing a friendlier business atmosphere, opposing infringements on our 2nd Amendment rights, as well as bringing meaningful ethics reform to Albany.

Tom would seem to fit that bill.

© William Hungerford – March 2015

Posted in 2016, Education, Environmental, fracking, Political, Reed's Views, Rights | Tagged , , , , , | 15 Comments

Negotiations: Iran and Trans-Pacific-Partnership

At Rep. Reed’s Town Hall Meeting at Atlanta (Steuben County) on March 15 the following question was asked:

What did you learn by going to Netanyahu’s message to congress, and do you agree with the forty-seven Senators  who undermined our President’s role in negotiating with Iran?

His response was not surprising. He has learned the GOP talking points and buzz words well.

 “These negotiations are going down a path that is problematic. It is potentially leading us to a bad deal. And when are dealing with a nuclearized  Iran having a bad deal with Iran on this situation is not a path I’m going to be supportive of.”

CNN, in an articled dated March 16, explained where the negotiation stood as of that date. Of course the situation is complexed since they include other countries involved negotiatingwith the talks siding with the US. CNN did say, “Aborted negotiations that leave Iran rededicated to its nuclear program raise the specter of Tehran with a bomb.” In other words, if negotiations fail, then Iran would be free to increase its nuclear program, quite different than what Rep. Reed told the two dozen or so crowd in Atlanta. You may want to read the article for yourself.

The second part of the question was “Do you agree with the forty-seven Senators  who undermined our President’s role in negotiating with Iran? His reply was:

“The Senators will have to weigh in on this process whenever there is an agreement becomes a treaty. The Senate has the prerogative to accept or reject the treaty. So the Senators and how they employ themselves on the letter I’ll let the Senators speak for themselves. But I think a clear message was needed to be delivered to the world and whoa, time out-back, up we are not going down the path of bad deal and if an agreement comes to the Senate a bad deal will get rejected by the Senate and that is what the Senators was putting a marker down on. Saying, Mr. President, we are part of this process, we are going to hold you in-check, and anyone who is negotiating with you needs to understand that there needs to be a process, and if it is a bad deal, just because you doesn’t mean it is going to get accepted by the Senate. To me that is a reasonable approach to take and that is clear message that needed to be sent as we get into these negotiation to completion because it is my understanding that they are trying to wrap these negotiations up very quickly and they are giving away some big chips because they are so eager to get to an agreement. Sometimes if you are not willing to walk away from an agreement you give away things that could be dangerous.”

Let’s look closely at what our representative said:

“The Senators will have to weigh in on this process whenever there is an agreement becomes a treaty. The Senate has the prerogative to accept or reject the treaty.

The United States has proposed unilateral sanctions on Iran, and, true, Congress would have to approve them. Reed did not mention the proposed United Nation sanctions, or the proposed European Sanctions, or proposed sanctions from other counties. I am assuming that our Congress realizes that they only get to decided on our sanctions.  If Congress does not approve of our sanctions, they will only weaken the complete package of sanctions against Iran.

But I think a clear message was needed to be delivered to the world and whooo, time out-back- up we are not going down the path of bad deal and if an agreement comes to the Senate a bad deal will get rejected by the Senate and that is what the Senators was putting a marker down on.

As mentioned earlier, if there is no treaty, Iran will be able to continue their program as they wish. From the CNN article,

Iran could start up centrifuges halted during the nuclear negotiations, bring more advanced machinery online and enrich uranium to the potent 20% level that would get it closer to a weapon.

And if it bars international inspectors, the world would have no idea how far Iran is from making a bomb.

Reed goes on to say:

Mr. President, we are part of this process, we are going to hold you in-check, and anyone who is negotiating with you needs to understand that there needs to be a process, and if it is a bad deal, just because you doesn’t mean it is going to get accepted by the Senate.

No. The Senate is not part of the Negotiation Process, at least not at this point.  William Hungerford, in his recent New NY 23rd article, “Republicans, Barack Obama, and Woodrow Wilson”, reminded us that the 1919 Republicans, who didn’t ratify President Wilson’s League of Nature and the Versailles Treaty, understood the process. They waited until after the Negotiations were finalized before they voted them down. (That action planted the seeds for World War 2).

If you re-read Reed’s rhetoric, you realize that he fails to give facts  about the negotiations. The details are missing. He is assuming the worst. He is purposely scaring the public. He wants us to depend on him for protection.

Reed agrees with the actions of the Senators to undermine the negotiations:

To me that is a reasonable approach to take and that is clear message that needed to be sent.

Basic negotiating is not simple. These negotiations are complicated, complex and convoluted. The Art of Negotiation includes give and take, compromise, and a little face saving. Both sides need to see the benefits of accepting the final results. It is not, as our 47 Senators and our congressman seems to think, a one way take-it-or-leave-it ultimatum.

Compare the Republican re-action to the Iran Negotiations and the Trans-Pacific-Partnership Negotiations.

President Obama has requested “Fast-Track Authority” (Officially known as Trade Promotion Authority–or TPA) for the TPP. Fast Track is a special feature unique to Trade Treaties. Once the trade negotiations end, that is consensuses is reached between all of the countries involved, each country takes the agreement back to their ruling body for approval. If one country wants to change any part of the agreement, no matter the size of the change, they all need to go back to the negotiation tables and agree on the language again. That is not practical.

If the TPP is given  Fast Track status, the process of introducing the bill to voting on it could take 90 days or less. That includes going through committees in the House (since it deals with revenues) and then the Senate, debates and votes. That is why it is called Fast. Other special considerations associated with a Fast Track Trade Bill is that the Senate can not filibuster that bill, and there can be no changes (amendments) to it–it is either a Yes or NO vote. Also, it needs a simple majority to pass.

When a Trade Bill is passed, the agreed language in the Bill supersedes United States law. An example was given at the Rally held outside of Rep. Reed’s Corning Office on Wednesday, March 11. The Philip Morris Tobacco Company was going  to sell cigarettes in Uruguay, which has strong rules on  health warnings on the packs of tobacco products. Morris sued Uruguay accusing the packing requirement “devalues its trademark”, and through binding arbitration the International Centre of Settlement of Investment Disputes sided with the tobacco company, which sided with Morris since that phrase was in the Trade Treaty. They have used the same technique against other countries.

Other concerns about TPP, which has lawyers from International Corporations negotiating on the U.S. side, deals with having the terms supersede U.S. wage, safety, environmental, and food safety laws, state-owned businesses market for small businesses, access to pharmaceutical products and on-line commerce.

One would think that our congress, and our congressman, would be quite upset that our laws, which went through the regular legal process, would be stepped on by International Corporations. But that is not the case.  Rep. Reed, admitted that the trade agreement would change U.S. Laws, touted TPP as an opportunity to “make here and sell there.” A lovely thought if our other trade agreements had worked that way, which they haven’t.

 The leaders of our congress attacked one set of negotiations during negotiations, undercutting our negotiators and the President. They will then go through a ceremonious debate over a real secret set of negotiation. One is to impress the base of the Republican Party. The other is to impress the deep pocket donors to their campaigns.

Posted in 2016, Congress, Constituents, Economics, Political, Reed's Views, Terrorism, Treaties, War | Tagged , , , , | 10 Comments

Evolving politics

boehner pelosiReportedly Senator Ted Cruz will run for President as an unabashed conservative, presenting himself as an alternative to the “mushy middle.” However, Jeb Bush, who famously said he might have to lose the primary to win the election, recognizes that national elections are won by the party that claims the high ground in the middle.

Cruz’s campaign plan is at odds with Republican Party leadership which increasingly has moved toward the center marginalizing the extreme right faction of the party. Cruz, like Barry Goldwater, might win the Republican nomination only to lose the election.

Congress has increasingly joined with Democrats to pass legislation that Republican leaders consider necessary overriding demands from the extreme right that they hang tough on principle. Here are some examples:

  • NDAA–National Defense Authorization Act of 2015
  • CRomnibus budget bill
  • DHS funding
  • Doc fix

One easily sees why–with Republicans claiming “we can lead,” deadlock leading to government shutdown might nix Republican chances in 2016.

It will be interesting to see which issues are solved by compromise. Here are some future challenges for the GOP leadership.

  • Education Reform Bill
  • Export Import Bank
  • TPP Fast Track
  • 2016 Budget

Education reform has been tabled; evidently it wasn’t considered essential. Reauthorization of the Export Import Bank might be handled with a Republican compromise on a temporary extension. TPP might be in trouble even with Democratic support. Finally, the budget can’t be ignored; almost certainly a compromise with Democrats will be necessary.

Expect Rep. Reed to vote with the leadership, possibly after casting some non-critical votes to appease the far right.

© William Hungerford – March 2015



Posted in 2016, Congress, Immigration, Political, Reed's Views, Shutdown | Tagged , , , , , , , , | 2 Comments