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Experts: Suing the Government Not an Option to End Shutdown

NNPA NEWSWIRE — “What I fear is this administration and our Republican colleagues in the Senate have forgotten is that this is the people’s house,” said U.S. Rep. Mary Gay Scanlon (D-Pennsylvania).

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By Stacy M. Brown, NNPA Newswire Correspondent
@StacyBrownMedia

As the government shutdown enters an unprecedented fifth week, some are calling for drastic measures to end the stalemate that has 800,000 government employees either working without pay or altogether furloughed and unable to put food on the table.

In a recent column, Charles Ellison, a political strategist and host of the radio program, “Reality Check” on WURD Radio, said Congressional Republicans could help re-open the government by simply corralling enough votes in both the House and Senate to arrive at the two-thirds majority needed to override any Presidential veto of the federal budget.

But Congressional Republicans – led by Senate Majority Leader Mitch McConnell (R-KY) — refuse to do that. McConnel claims that not only is he awaiting a deal between Congressional Democrats and the White House, but he also needs approval from the president before taking action.

“Which brings to mind three questions:

  • Why haven’t Congressional Democrats sued Congressional Republicans?
  • Could states do that instead?
  • Why are Members of Congress still getting paid?”

“I don’t know if suing will get us anywhere in any type of manner,” said Delaware County, Pennsylvania Democratic Chair Colleen Guiney.

“I’m not sure if it’s an option but Democrats in Congress have seven bills to reopen the government, but McConnell is refusing to consider any of the bills. The Senate should respect the will of the people,” Guiney said.

U.S. Rep. Mary Gay Scanlon (D-Pennsylvania) said she and other Democrats have worked tirelessly to find and offer solutions to reopen the government as thousands of federal employees have gone without pay and are struggling to pay their bills and feed their families.

“What I fear is this administration and our Republican colleagues in the Senate have forgotten is that this is the people’s house,” Scanlon said. “We have an obligation to work for them. Refusing to uphold that commitment, that promise, is a slap in the face to the American people,” she said.

Former Pennsylvania Republican Rep. Alex Charlton said his guess is that if Congressional Democrats did sue Congressional Republicans it would be the “nuclear option.”

“It would significantly delay any progress towards an actual resolution,” he said.

Unlike the federal government, a state-level government shutdown in Pennsylvania is unlikely because a court decision mandates that state employees must be paid as long as the state is still collecting tax revenue, Charlton added.

“The Republican legislature has been diligent in ensuring that the state’s expenses do not outpace its revenue. Any increase beyond that would require tax increases, which the citizens of Pennsylvania do not want,” he said.

As to why federal lawmakers continue to draw a paycheck despite the shutdown, Charlton said the salaries of U.S. senators and representatives are paid by the treasury and are set by Congress itself.

“Members of Congress are paid under legislation that is separate from the appropriations bill that funds most of the government. The tax dollars that members of Congress are paid with do not come from the same budget used to pay other federal employees,” Charlton said.

Terry Madonna, a professor of Public Affairs and Director of the Center for Politics and Public Affairs at Franklin and Marshall College, said there’s no basis for a lawsuit.

“It’s a legislative function not a judiciary one,” Madonna said.

“Folks injured by the shutdown might sue but the courts would get involved in the separation of powers doctrine. That’s been in the courts now, but a federal judge refused to rule on the charge,” he said.

More pointedly, Professor Garrett Epps who’s a professor of law at the University of Baltimore, said the Constitution would not allow members of Congress to be sued for any vote or failure to vote in Congress because the Speech or Debate Clause would cover that.

“I also know that this shutdown only affects one-quarter of the federal budget so quite a few employees are still being paid like members of Congress,” Epps said.

Further, it’s Congress’ job and they make the rules so there’s no legal penalty if they don’t reopen the government, said Justin Levitt, a Constitutional law scholar and professor at Loyola Law School.

“The Constitution allows Congress to fund government, and everybody assumes that federal officials would want federal activity. But it doesn’t require Congress to fund the government,” Levitt said.

“So there’s nothing to be gained by a lawsuit. It would fail,” he said, noting that there’s currently a federal lawsuit by federal officials who aren’t getting paid, saying that it violates the 13th Amendment to force them to come to work unpaid.

However, “the courts so far have said that because those officials could quit and get another job, they don’t win either.  At least so far,” Levitt said.

Also, another reason members of Congress continue to receive their pay despite the shutdown is that 75 percent of the government had already been funded prior to the shutdown, Levitt said.

“Some members have refused their salary or donated their salary, but not everybody. Ultimately, the pressure here is going to be political, rather than legal. Enough people get ticked off, and then this shutdown ends,” Levitt said.

Finally, Michael J. Gerhart who’s the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law in Chapel Hill, said the shutdown is all governed by politics.

“That is, McConnell remains politically accountable for his decisions, just as Trump and the Democrats are politically accountable for theirs,” Gerhart said.

“McConnell has the power under Senate rules to block votes on legislative matters he does not wish to bring to a vote, and there is no legal basis on which Democrats could challenge his decision.”

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Oakland Post: Week of October 30 – November 5, 2024

The printed Weekly Edition of the Oakland Post: Week of October 30 – November 5, 2024

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“Two things can be true at once.” An Afro-Latina Voter Weighs in on Identity and Politics

“As a Puerto Rican I do not feel spoken to in discussions about Latino voters… which is ironic because we are one of the few Latino communities who are also simultaneously American,” Ortiz-Cedeño says. Puerto Ricans born in Puerto Rico, a U.S. territory, have American citizenship by birth but they do not have the right to vote for president if they live on the island. “I think that we miss out on a really interesting opportunity to have a nuanced conversation by ignoring this huge Latino population that is indigenously American.”

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Keyanna Ortiz-Cedeño at her graduation from UC Berkeley after receiving her master’s degree in City Regional Planning. Alongside her, are her parents holding a Puerto Rican flag. Courtesy photo.
Keyanna Ortiz-Cedeño at her graduation from UC Berkeley after receiving her master’s degree in City Regional Planning. Alongside her, are her parents holding a Puerto Rican flag. Courtesy photo.

By Magaly Muñoz

On a sunny afternoon at Los Cilantros Restaurant in Berkeley, California, Keyanna Ortiz-Cedeño, a 27-year-old Afro-Latina with tight curly hair and deep brown skin, stares down at her carne asada tacos, “I’ve definitely eaten more tortillas than plantains over the course of my life,” says Cedeño, who spent her childhood in South Texas, among predominantly Mexican-American Latinos. As she eats, she reflects on the views that American politicians have of Latino voters.

“As a Puerto Rican I do not feel spoken to in discussions about Latino voters… which is ironic because we are one of the few Latino communities who are also simultaneously American,” Ortiz-Cedeño says. Puerto Ricans born in Puerto Rico, a U.S. territory, have American citizenship by birth but they do not have the right to vote for president if they live on the island. “I think that we miss out on a really interesting opportunity to have a nuanced conversation by ignoring this huge Latino population that is indigenously American.”

Ortiz-Cedeño, an urban planner who is focused on disaster resilience, homelessness and economic prosperity for people of color, says that political conversations around Latinos tend to shift towards immigration, “I think this ties back into the ways that our perception of ‘Latino’ tends to be Mexican and Central American because so much of our conversation about Latinos is deeply rooted in what’s happening on the border,” she says. “I don’t think that the Afro-Latino vote is frequently considered when we’re talking about the Latino vote in the United States.”

Primarily surrounded by Mexican-Americans while growing up in South Texas, Keyanna participated in many Chicano cultured events, such as being a dama in several quinceñeras. Courtesy photo.

Primarily surrounded by Mexican-Americans while growing up in South Texas, Keyanna participated in many Chicano cultured events, such as being a dama in several quinceñeras. Courtesy photo.

As Ortiz-Cedeño sifts through childhood photos of her as a happy teen dancing with the Mexican ballet folklorico group in high school and as a dama in quinceñeras, she reflects on growing up in South Texas, an area with a large population of white and Mexican-Americans. The Black population was small, and within it, the Afro-Latino population was practically nonexistent.

“It was interesting to try to have conversations with other Latinos in the community because I think that there was a combination of both willful ignorance and a sort of ill intent and effort to try and deny my experience as a Latino,” she says. “There are a lot of folks in Latin America who experience a lot of cognitive dissonance when they think about the existence of Black Latinos in Latin America.

Ortiz-Cedeño comments on the long history of anti-Blackness in Latin America. “Throughout Latin America, we have a really insidious history with erasing Blackness and I think that that has been carried into the Latino American culture and experience,” she says. “People will tell you, race doesn’t exist in Latin America, like we’re all Dominicans, we’re all Puerto Ricans, we’re all Cubans, we’re all Mexicans. If you were to go to the spaces with where people are from and look at who is experiencing the most acute violence, the most acute poverty, the most acute political oppression and marginalization, those people are usually darker. And that’s not by accident, it’s by design.”

Because of the lack of diversity in her Gulf Coast town, as a teenager, despite being the only Spanish-speaker at her job in Walmart, Latinos refused to ask for her help in Spanish.

“Even if monolingual [Spanish-speaking] people would have to speak with me, then they were trying to speak English, even though they could not speak English, versus engaging with me as a Latina,” she says.

“I think that the perception of Latinos in the United States is of a light brown person with long, wavy or straight hair. The perfect amount of curves and the perfect combination of Indigenous and white genes. And very rarely will people also consider that maybe they also have a sprinkle of Blackness in them as well,” she says. “Over 90% of the slave trade went to the Caribbean and Latin America.”

Keyanna as a toddler, holding a whiteboard up with her last name, Ortiz-Cedeño, on it. Courtesy photo.

Keyanna as a toddler, holding a whiteboard up with her last name, Ortiz-Cedeño, on it. Courtesy photo.

Ortiz-Cedeño remembers when a Cuban family moved in next door to her in Texas. The teen daughter had blue-eyes, blonde hair and only spoke Spanish, which caused neighboring Latinos to take pause because she didn’t fit the Latino “look” they were used to.

“People didn’t have an option to try and negate her [Latino] identity because they had to acknowledge her for everything that she was,” Ortiz-Cedeño says.

Later on, the girl’s cousins, a Black, Spanish-speaking Cuban family, came into town and again locals were forced to reckon with the fact that not all Latinos fit a certain criteria.

“I think it forced everybody to have to confront a reality that they knew in the back of their mind but didn’t want to acknowledge at the forefront,” Ortiz-Cedeño says.

Having gone through these experiences as an Afro-Latina, Ortiz-Cedeño says it’s easy for her to understand Kamala Harris’ mixed Indian and Jamaican heritage, “It comes really naturally to accept that she is both Indian and Black. Two things can exist at the same time,” she says. “I had a long term partner for about seven years who was South Indian, from the same state as Kamala Harris, so if we had had a kid, they would look like [Harris],” Ortiz-Cedeño jokingly shares.

She says she can relate to having to walk the road of people only wanting to see Harris as a Black American. The talking point about [Harris] not being Indian or not being Black, just deciding to be Black, is really disingenuous and cheap,” she says.

Ortiz-Cedeño believes that the Harris campaign has not capitalized on the vice president’s mixed identity, which could be vital in bringing together different communities to understand each other on a new level and allow for improvements on America’s racial dynamics.

Keyanna co-managed a recovery center with her mother after Hurricane Harvey. They packed essentials, such as diapers, food, and water for families in need. Courtesy photo.

Keyanna co-managed a recovery center with her mother after Hurricane Harvey. They packed essentials, such as diapers, food, and water for families in need. Courtesy photo.

As she rushes into a Berkeley Urban Planning Commission meeting straight out of Ashby BART station, Ortiz-Cedeño explains her love for talking about all things infrastructure, homelessness, and healthcare access. The topics can be dry for many, she admits, but in the end, she gets to address long-standing systemic issues that often hinder opportunities for growth for people of color.

Having lived through the effects of Hurricane Katrina as a child, with the flooding and mass migration of Louisiana residents into Texas, Ortiz-Cedeño was radicalized into issues of displacement, emergency mitigation, and housing at nine years old.

“I remember my principal had to carry her students on her shoulders and swim us home because so many parents were trying to drive in and get their kids from school [due to] the flooding that was pushing their cars away,” she recalls.

Her family relocated to Houston soon after Katrina, only to be met with a deadly Hurricane Rita. They wound up in a mega-shelter, where Ortiz-Cedeño says she heard survivors stories of the unstable conditions in New Orleans and beyond, which got her wondering about urban planning, a term she wasn’t familiar with at the time.

“I think that when you put people in the context of the things that were happening in this country around [these hurricanes], a lot of us started to really think seriously about who gets to make decisions about the urban environment,” she adds.

Watching the heavy displacement of disaster survivors, hearing stories of her Navy veteran father’s chronic homelessness, and her own mother’s work and activism with homeless communities in the non–profit sector put her on the path to progressive politics and solutions, she says. After attending college on the East Coast- where she says she was finally recognized as a Puerto Rican- and working in housing, economic development, and public policy, she returned to California to earn a Master’s in City Regional Planning from UC Berkeley.

Young Keyanna volunteering at a beach clean up. Activism and giving back to her community has always been a key part of her upbringing. Courtesy photo.

Young Keyanna volunteering at a beach clean up. Activism and giving back to her community has always been a key part of her upbringing. Courtesy photo.

Her vast interest in the urban success of underserved communities even took her abroad to Israel and Palestine when she was an undergraduate college student. “I’ve seen the border with Gaza, I’ve had homestays with farmers in the West Bank,” she says. “For me personally, Palestine is an issue that is really close to the heart.”

“I have a very intimate understanding of the conflict and I’m very disturbed by the way in which the [Democratic] party has not been willing to engage in what I would perceive to be a thoughtful enough conversation about the conflict,” Ortiz-Cedeño says. “The issue of Palestine is going to be one of those that is a make or break issue for her. It has not been one that has been taken seriously enough by the party.”

Ortiz-Cedeño is not under the illusion that one candidate will address every policy issue she wants to see tackled by the president. But she believes it’s better than what former President Donald Trump has to offer.

“Trump has made it very clear what his intentions are with Palestine, and what his relationship is with [Benjamin] Netanyahu,” Ortiz-Cedeño says. “I understand the political strategy that many people are trying to engage in by withholding their vote, but I would also encourage them to re-engage in the political process.”

Casting her vote for Harris is a decision grounded in calculation rather than outright support. “I think I can vote in this election in order to have harm reduction… because I have deep care and concern for other communities that are going to be impacted by a Trump presidency,” Ortiz-Cedeño says.

She also hopes that American politicians will consider the nuance and perspective that Afro-Latinos bring to the table when it comes to politics, policy, and race in America, “When we don’t think expansively about who is Latino in the United States, the breadth of Latino experiences in the United States, we miss an opportunity to capture how diverse Latinos interests are politically.”

This story was reported in collaboration with PBS VOCES: Latino Vote 2024.

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Bay Area

In the City Attorney Race, Ryan Richardson Is Better for Oakland

It’s been two years since negotiations broke down between the City of Oakland and a developer who wants to build a coal terminal here, and the issue has reappeared, quietly, in the upcoming race for Oakland City attorney. Two candidates are running for the position of Oakland City Attorney in November: current Assistant Chief City Attorney Ryan Richardson and retired judge Brenda Harbin-Forte.

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Members of Oaklanders Defending Democracy political action committee with Oakland Mayor Sheng Thao, center. Courtesy photo.
Members of Oaklanders Defending Democracy political action committee with Oakland Mayor Sheng Thao, center. Courtesy photo.

By Margaret Rossoff

Special to The Post

OPINION

It’s been two years since negotiations broke down between the City of Oakland and a developer who wants to build a coal terminal here, and the issue has reappeared, quietly, in the upcoming race for Oakland City attorney.

Two candidates are running for the position of Oakland City Attorney in November: current Assistant Chief City Attorney Ryan Richardson and retired judge Brenda Harbin-Forte.

Richardson has worked in the Office of the City Attorney since 2014 and is likely to continue current City Attorney Barbara Parker’s policies managing the department. He has committed not to accept campaign contributions from developers who want to store and handle coal at a proposed marine terminal in Oakland.

Retired Judge Harbin-Forte launched and has played a leading role in the campaign to recall Mayor Sheng Thao, which is also on the November ballot.  She has stepped back from the recall campaign to focus on her candidacy. The East Bay Times noted, “Harbin-Forte’s decision to lead the recall campaign against a potential future client is … troubling — and is likely to undermine her ability, if she were to win, to work effectively.”

Harbin-Forte has refused to rule out accepting campaign support from coal terminal interests or their agents. Coal terminal lobbyist Greg McConnell’s Independent Expenditure Committee “SOS Oakland” is backing her campaign.

In the 2022 mayor’s race, parties hoping to build a coal terminal made $600,000 in contributions to another of McConnell’s Independent Expenditure Committees.

In a recent interview, Harbin-Forte said she is open to “listening to both sides” and will be “fair.” However, the City Attorney’s job is not to judge fairly between the City and its legal opponents – it is to represent the City against its opponents.

She thought that the 2022 settlement negotiations ended because the City “rejected a ‘no coal’ settlement.” This is lobbyist McConnell’s narrative, in contrast to the report by City Attorney Barbara Parker. Parker has explained that the City continued to negotiate in good faith for a settlement with no “loopholes” that could have allowed coal to ship through Oakland – until would-be coal developer Phil Tagami broke off negotiations.

One of Harbin-Forte’s main priorities, listed on her website, is “reducing reliance on outside law firms,” and instead use the lawyers working in the City Attorney’s office.

However, sometimes this office doesn’t have the extensive expertise available that outside firms can provide in major litigation. In the ongoing, high stakes coal litigation, the City has benefited from collaborating with experienced, specialized attorneys who could take on the nationally prominent firms representing the City’s opponents.

The City will continue to need this expertise as it pursues an appeal of the judge’s decision that restored the developer’s lease and defends against a billion-dollar lawsuit brought by the hedge fund operator who holds the sublease on the property.

Harbin-Forte’s unwillingness to refuse campaign contributions from coal terminal interests, her opposition to using outside resources when needed, as well as her uncritical repetition of coal lobbyist McConnell’s claim that the City sabotaged the settlement talks of 2022 all raise serious concerns about how well she would represent the best interests of Oakland and Oaklanders if she is elected City Attorney.

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Oakland Post: Week of October 30 – November 5, 2024

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