The relationship between the budget process and the public debt limit has evolved over the years. Federal law fixes a limit on the public debt. Bills or joint resolutions periodically have changed that public debt limit, and Congress has both temporarily and permanently raised the debt limit.
Debt limit legislation has served as the vehicle for other types of budget related matters, including deficit reduction and has been included in reconciliation acts. Debt limit legislation has been vetoed by the President.
Former Rule XXVIII, popularly known as the ‘‘Gephardt rule’’ used to provide a mechanism for a joint resolution establishing the public debt limit to be automatically generated upon the adoption of the concurrent resolution of the budget. The rule has been repealed and reinstated on several occasions and was most recently repealed in the 112th Congress.
The Congressional Budget Act also contains provisions relating to the public debt limit. Section 301(a)(5) requires the budget resolution to set [p. 352] forth the appropriate level for the public debt.[ Reconciliation directives relating to changes in the public debt may be included in the concurrent resolution on the budget under section 310(a)(3) of the Congressional Budget Act.
Further, Rule XVIII clause 10(c)(1) prohibits the consideration of an amendment to the budget resolution that proposes to change the level of public debt. The exception in clause 10(c)(2) allows such amendments only to the extent necessary to maintain mathematical consistency with other amendments changing figures within the concurrent resolution on the budget.
The Budget Control Act of 2011, enacted in the 112th Congress, provided for a three-stage increase in the public debt limit. The first increase occurred automatically upon presidential certification that the debt subject to limit was within $100 billion of the limit provided by law. The second and third increases (also initiated by presidential certification) were subject to a congressional disapproval mechanism providing expedited procedures in both Houses for consideration of joint resolutions to disapprove of such increases. If such increases were formally disapproved of by Congress utilizing this mechanism, the public debt limit would not be increased, and the budgetary savings necessary to remain under the existing limit would be achieved through a sequestration process.
The former so-called ‘‘Gephardt rule’’ was first made part of the standing rules of the House in the 96th Congress. It was repealed for the 107th Congress, reinstated in the 108th Congress, and repealed again in the 112th Congress. This former rule of the House provided a mechanism for a joint resolution establishing the public debt limit to be automatically generated and passed upon adoption by Congress of a concurrent resolution on the budget. The vote by which such budget was adopted in the House would be considered to be the vote by which such joint resolution passed the House.
The purpose of the rule was to connect debt limit legislation to the congressional budget process, to avoid additional votes on setting the debt limit, and to synchronize the limit of public debt in statute with the amount of debt contemplated by the annual budget resolution.
§ 29.1 To a bill providing a temporary extension of government borrowing authority by superseding for a temporary period the statutory ceiling on the public debt, an amendment accomplishing the same purpose by permanently raising the statutory ceiling was held germane since both were based on projections of borrowing under which an increase in the debt ceiling would provide a necessarily temporary extension of such authority and where the methods utilized were sufficiently similar as a direct or indirect amendment to the same existing law.
Mr. [Daniel] ROSTENKOWSKI [of Illinois]. Madam Chairman, I have no further requests for time, and I yield back the balance of my time.
The CHAIRMAN. Pursuant to House Resolution 165, the bill is considered as having been read for amendment under the 5-minute rule.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) during the period beginning on the date of the enactment of this Act and ending on July 17, 1987 the public debt limit set forth in subsection (b) of section 3101 of title 31, United States Code, shall be equal to $2,320,000,000,000.
(b) Effective on and after the date of the enactment of this Act, section 8201 of the Omnibus Budget Reconciliation Act of 1986 is hereby repealed.
The CHAIRMAN. No amendments to the bill are in order except an amendment printed in section 2 of House Resolution 165, by, and if offered by, Representative ROSTENKOWSKI, or his designee, said amendment is considered as having been read, is not subject to amendment, but is debatable for not to exceed 30 minutes, equally divided and controlled by the chairman and ranking minority member of the Committee on Ways and Means.
Mr. ROSTENKOWSKI. Madam Chairman, I offer an amendment.
Amendment offered by Mr. ROSTENKOWSKI: Strike out subsection (a) of the first section of the bill and insert the following: ‘‘That (a) subsection (b) of section 3101 of title 31, United States Code, is amended by striking out the dollar limitation contained in such subsection and inserting in lieu thereof ‘$2,578,000,000,000’.’’.
Amend the title to read as follows: ‘‘A bill to increase the statutory limit on the public debt.’’.
Mr. [Connie] MACK [of Florida]. Madam Chairman, I have a point of order on the Rostenkowski amendment.
The CHAIRMAN pro tempore. The gentleman will state his point of order.
Mr. MACK. Madam Chairman, I make a point of order against the amendment on the grounds that it violates clause 7 of the rule XVI, the germaneness rule, and ask to be heard on my point of order.
Madam Chairman, subsection (a) of H.R. 2360, the reported bill, makes a temporary and indirect change in the permanent public debt limit through July 17, 1987.
The amendment offered by the gentleman from Illinois [Mr. ROSTENKOWSKI] makes a permanent and direct change in existing law. It directly amends title 31, section 3101 of the United States Code. The base does not.
To a bill proposing a temporary change in law, an amendment making permanent changes in that law is not germane.
To a bill reported from the Committee on Ways and Means providing for a temporary increase in the public debt ceiling for the current fiscal year not directly amending the Second Liberty Bond Act, an amendment proposing permanent changes in that Act and also affecting budget and appropriations procedures was held not germane.
To a proposition authorizing appropriations for one fiscal year, an amendment making permanent changes in law is not germane.
The CHAIRMAN pro tempore. Does the gentleman from Illinois wish to be heard on the point of order?
Mr. ROSTENKOWSKI. I do, Madam Chairman.
The CHAIRMAN pro tempore. The gentleman from Illinois [Mr. ROSTENKOWSKI] is recognized.
Mr. ROSTENKOWSKI. Madam Chairman, in 1983 the rule providing for the consideration of H.R. 2990, to increase the public debt limit, provided for a waiver of clause 7 of rule XVI, the germaneness rule, against an amendment in the nature of a substitute recommended by the Committee on Ways and Means. The germaneness waiver was necessary because the committee amendment to repeal the temporary debt limit and to make the entire ceiling permanent was not germane to the original bill which only provided for an increase in the temporary debt limit.
With the enactment of H.R. 2990 into law in 1983, the distinction between the temporary and permanent public debt limit was eliminated. It was only with the passage of the 1986 Budget Reconciliation Act that we again temporarily increased the public debt limit.
The issue before us is how long to increase the public debt. The amendment gives the House two choices on these issues. I urge the Chair to rule the amendment germane.
The CHAIRMAN (Mrs. SCHROEDER). If there are no further speakers on the germaneness issue, the Chair is ready to rule.
The gentleman from Florida [Mr. MACK] makes a point of order that the amendment offered by the gentleman from Illinois [Mr. ROSTENKOWSKI] is not germane. The amendment would directly amend existing law by striking the existing dollar limitation in section 3101 of title 31 of the United States Code and inserting a new dollar figure, with the intention to increase the Government’s borrowing authority for an unspecified but necessarily temporary period of time.
However, the bill, H.R. 2360, in subsection (a), refers to, and in the opinion of the Chair, is tantamount to, a change in the same provision of the law as the amendment.
Both the bill and the amendment are based upon estimates of sufficiency of the total amount of borrowing authority over different periods of time. For this reason, the Chair believes the amendment to be closely related to the fundamental purpose of the bill, and to accomplish that purpose by amending the same section of law referenced in the bill.
Therefore, the Chair overrules the point of order.
§ 29.2 The House has adopted a special order of business resolution for consideration of a bill increasing the temporary limit on the public debt, waiving certain points of order against such bill and non-germane amendment, and providing for a ‘‘modified closed in part’’ amendment process.
Mr. [Bernice] SISK [of California]. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1053 and ask for its immediate consideration.
Resolved, That upon the adoption of this resolution it shall be in order to move, clause 2(1)(6) of rule XI to the contrary notwithstanding, that the House resolve itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 11893) to increase the temporary debt limit until July 31, 1976, and all points of order against said bill for failure to comply with the provisions of clause 5, rule XXI are hereby waived. After general debate which shall be confined to the bill and shall continue not to exceed two hours, to be equally divided and controlled by the chairman and ranking minority member of the Committee on Ways and Means, the bill shall be read for amendment under the five-minute rule. It shall be in order to consider the amendment recommended by the Committee on Ways and Means now printed on page 2, line 3 through line 9 notwithstanding the provisions of clause 7, rule XVI, and no amendment to said committee amendment nor any amendment to said bill changing said committee amendment in the Committee of the Whole or in the House shall be in order except amendments offered by direction of the Committee on Ways and Means, but said amendments shall not be subject to amendment. It shall also be in order to consider, any rule of the House to the contrary notwithstanding, an amendment printed in the Congressional Record of February 24, 1976, by Representative Stark, and no amendment to said amendment nor any amendment to the bill changing said amendment in the Committee of the Whole or the House shall be in order except amendments offered by direction of the Committee on Ways and Means, but said amendments shall not be subject to amendment. At the conclusion of the consideration of the bill for amendment, the Committee shall rise and report the bill to the House with such amendments as may have been adopted, and the previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit.
The SPEAKER. The gentleman from California will be recognized for 1 hour.
Mr. SISK. . . .
In addition to the increase in the temporary debt limit, H.R. 11893 contains a committee amendment increasing from $10 to $12 billion the amount of Federal long-term debt which may be issued at an interest rate greater than 41⁄4 percent. The maturity rate for these Treasury notes is also increased from 7 to 10 years.
The rule provides for 2 hours of general debate to be equally divided and controlled by the chairman and ranking minority member of the Committee on Ways and Means.
It is a modified open rule. Section 1 of the bill deals with the amount and duration of the increase to the temporary debt limit and is open to amendment. The Ways and Means Committee amendment adding section 3 to the bill is closed to amendment except amendments offered by direction of the Committee on Ways and Means.
The committee amendment, that is, section 3, increases the amount of Treasury notes which may be issued at greater than 4 1⁄4 percent interest, and increases the maturity date on notes issued by the Treasury from the present 7 to 10 years.
House Resolution 1053 waives germaneness points of order under rule XVI, clause 7, with respect to this committee amendment. The waiver is necessary since the amendment would cause a permanent change in law whereas the bill provides only a temporary amendment to that law.
The rule also waives points of order pursuant to paragraph 6, clause 2(1) of rule XI, the 3-day layover rule. This waiver is necessary in order to consider the bill today since it was not reported from the Committee on Ways and Means until Monday, February 23, 1976. The rule also provides a waiver of clause 5, rule XXI, which prohibits an appropriation in a legislative bill. Existing law provides for payment of interest expenses on the public debt. An increase in the amount of the debt will obviously cause an increase in interest expenses. The waiver is thus necessary and is traditionally granted with respect to public debt extension bills.
House Resolution 1023 also makes in order an amendment to H.R. 11893 by the gentleman from California (Mr. STARK) as printed on page 4157 of the Congressional Record of February 24, 1976. The gentleman’s statement explaining his amendment appears on page 4113 of yesterday’s Record. Essentially, the amendment establishes a minimum interest rate of 4 percent, computed monthly, on series E bonds. Bonds must be held a minimum of 60 days to collect any interest. All points of order are waived against this amendment, and it may only be amended by direction of the Committee on Ways and Means.
§ 29.3 The House has adopted a special order of business resolution for consideration of a bill increasing the temporary limit on the public debt, waiving certain points of order against such bill, and providing for an ‘‘open’’ amendment process under the five-minute rule.
Mr. [Bernice] SISK [of California]. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 562 and ask for its immediate consideration.
Resolved, That upon the adoption of this resolution it shall be in order to move, clause 2(1)(6) of rule XI to the contrary notwithstanding, that the House resolve itself [p. 359] into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 8030) to increase the temporary debt limitation until November 15, 1975, and all points of order against said bill for failure to comply with clause 5, rule XXI, are hereby waived. After general debate, which shall be confined to the bill and shall continue not to exceed one hour, to be equally divided and controlled by the chairman and ranking minority member of the Committee on Ways and Means, the bill shall be read for amendment under the five-minute rule. At the conclusion of the consideration of the bill for amendment, the Committee shall rise and report the bill to the House with such amendments as may have been adopted, and the previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit.
The SPEAKER pro tempore. The gentleman from California (Mr. SISK) is recognized for 1 hour.
§ 29.4 The House has adopted a ‘‘closed’’ special order of business resolution waiving all points of order against consideration in the House of a bill increasing the public debt limit reported from the Committee on Ways and Means.
Mr. [Claude] PEPPER [of Florida]. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 534 and ask for its immediate consideration.
Resolved, That upon the adoption of this resolution it shall be in order to consider the bill (H.R. 5395) to increase the statutory limit on the public debt in the House, all points of order against the bill and against its consideration are hereby waived, debate on the bill shall continue not to exceed one hour, to be equally divided and controlled by the chairman and ranking minority member of the Committee on Ways and Means, and the previous question shall be considered as ordered on the bill to final passage without intervening motion except one motion to recommit.
The SPEAKER pro tempore. The gentleman from Florida [Mr. PEPPER] is recognized for 1 hour.
Mr. PEPPER. Mr. Speaker, for purposes of debate only, I yield 30 minutes to the able gentleman from Mississippi [Mr. LOTT], pending which I yield myself such time as I may consume.
Mr. Speaker, House Resolution 534 provides for expeditious consideration in the House of H.R. 5395, to increase the statutory limit on the public debt. One hour of debate will be equally divided and controlled by the chairman of the Committee on Ways and Means and the ranking minority member. The rule waives all points of order against the bill and against its consideration. The rule provides one motion to recommit.
§ 29.5 The House has, by unanimous consent, and prior to any action by the Senate, authorized the Majority Leader to offer a motion to consider a House-originated bill raising the public debt limit when such bill arrives from the Senate in amended form, and to disagree with any Senate amendments thereto, and further making in order (upon adoption of such motion) consideration of a bill consisting of the text and title of the original House-passed debt limit bill.
Mr. [James] WRIGHT [of Texas]. Mr. Speaker, I ask unanimous consent that at any time after the House receives from the Senate H.R. 5395 with any Senate amendment thereto; First, it shall be in order to consider a motion in the House, without intervening motion, if offered by the majority leader or his designee to take said bill from the Speaker’s table, with the Senate amendment or amendments thereto, and to disagree to said amendment or amendments, with debate on said motion to continue not to exceed 1 hour, and with the previous question considered ordered thereon without intervening motion; and second, and upon the adoption of said motion, it shall be in order to consider in the House a bill containing the text and title of H.R. 5395 if offered by the majority leader or his designee with debate on said bill to continue not to exceed 1 hour, and with the previous question considered ordered thereon to final passage without intervening motion.
Mr. [Robert] MICHEL [of Illinois]. Mr. Speaker, reserving the right to object, and I shall not object, because this has been agreed upon by the two sides, but it might be deserving of clarification to the Members to give you a little bit of an insight as to what we may or may not expect from the other body. . . .
The SPEAKER pro tempore (Mr. FOLEY). Is there objection to the unanimous-consent request offered by the majority leader?
§ 29.6 The House has referred the veto message accompanying a bill to temporarily increase the public debt limit to the Committee on Ways and Means.
Mr. [William] ARCHER [of Texas]. Mr. Speaker, I ask unanimous consent that the veto message on the bill (H.R. 2586) to provide for a temporary increase in the public debt limit, and for other purposes, be referred to the Committee on Ways and Means.
§ 29.7 In response to parliamentary inquiries regarding operation of former Rule XXVII (the former so-called ‘‘Gephardt rule’’) during the pendency of a conference report on the concurrent resolution on the budget, the Speaker affirmed that upon adoption of the conference report by both Houses, the Clerk of the House would prepare a joint resolution adjusting the public debt limit; such joint resolution would be deemed passed by the House; no separate vote on passage of such joint resolution was contemplated by the rule; and the vote on adoption of the conference report in the House would be considered the vote on passage of such joint resolution.
Mr. [Paul] RYAN of Wisconsin. Mr. Speaker, given the stated concerns about borrowing by the majority, I have a parliamentary inquiry.
The SPEAKER pro tempore (Mr. [Earl] POMEROY [of North Dakota]). The gentleman may state his inquiry.
Mr. RYAN of Wisconsin. Mr. Speaker, it’s my understanding that pursuant to rule XXVII of the rules of the House, upon adoption of the conference report by both the House and the Senate, the Clerk of the House will be instructed to prepare a joint resolution adjusting the public debt limit; is that correct?
The SPEAKER pro tempore. That is correct.
Mr. RYAN of Wisconsin. Further inquiry, Mr. Speaker.
The SPEAKER pro tempore. The gentleman will state his inquiry.
Mr. RYAN of Wisconsin. Am I further correct, that by operation of rule XXVII, upon adoption of this conference report by both the House and the Senate, this joint resolution adjusting the debt limit will be considered as passed by the House and transmitted to the Senate?
The SPEAKER pro tempore. The gentleman is correct.
The SPEAKER pro tempore. The gentleman may state his inquiry.
Mr. RYAN of Wisconsin. Will there be a separate vote in the House on passing this joint resolution adjusting upwards the debt limit?
The SPEAKER pro tempore. Not by operation of rule XXVII.
Mr. RYAN of Wisconsin. Mr. Speaker, by operation of this rule, will the vote by which the conference report is passed by the House be considered the vote on passage of the joint resolution adjusting the debt limit?
The SPEAKER pro tempore. That is correct. . . .
The SPEAKER pro tempore. The Chair desires to announce that pursuant to rule XXVII, as a result of the adoption by the House and the Senate of the conference report on Senate Concurrent Resolution 21, the joint resolution (H.J. Res. 43), increasing the statutory limit on the public debt, has been engrossed and is deemed to have passed the House on May 17, 2007.
 See, e.g., 136 Cong. Rec. 22177, 101st Cong. 2d Sess., Aug. 3, 1990 (H.R. 5350).
 In 1983, an introduced bill providing a temporary increase in the public debt was converted by committee substitute into a permanent debt ceiling so that the ceiling would no longer drop to an artificial one on a set date but would remain the same until altered by further legislation (Pub. L. No. 98–34). Furthermore, in 1990, a waiver of the Rule XXI clause 5(a) (now clause 4) prohibition against appropriating on a legislative bill was required for a bill increasing the statutory limit on the public debt to reflect the effect of such an increase on the permanent appropriation to pay interest on the public debt. 136 Cong. Rec. 20704, 101st Cong. 2d Sess., July 31, 1990. See also Deschler’s Precedents Ch. 25 § 4, supra.
 Most notably, legislation to increase the debt limit was the vehicle for the enactment of the Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings), Pub. L. No. 99–177; the Statutory Pay-As-You-Go Act of 2010, Pub. L. No. 111–139; and the Budget Control Act of 2011, Pub. L. No. 112–25.
 See the Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99–509; Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101–508; Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103–66; and the Balanced Budget Act of 1997, Pub. L. No. 105–33.
 House Rules and Manual § 1104 (2011).
 See House Rules and Manual § 1104 (2009).
 Rules for concurrent resolutions on the budget have also disabled the former so-called ‘‘Gephardt rule.’’ See § 5, supra.
 2 USC § 632(a)(5). See § 4, supra.
 House Rules and Manual § 990 (2011).
 The President made this initial submission on Aug. 2, 2011. See 157 Cong. Rec. H5893 [Daily Ed.], 112th Cong. 1st Sess., Aug. 5, 2011 (H. Doc. No. 112–48).
 The second increase was triggered by the same presidential certification of Aug. 2, 2011. The joint resolution to disapprove such increase (H. J. Res. 77) was passed by the House on Sept. 14, 2011, but not acted upon by the Senate. 157 Cong. Rec. H6156–68 [Daily Ed.], 112th Cong. 1st Sess. The Senate rejected a motion to proceed to consider its companion measure (S. J. Res. 25) on Sept. 8, 2011. 157 Cong. Rec. S5466 [Daily Ed.], 112th Cong. 1st Sess. The third increase was triggered by the presidential certification of Jan. 12, 2012. See 158 Cong. Rec. H7 [Daily Ed.], 112th Cong. 2d Sess., Jan. 13, 2012 (H. Doc. No. 112–81). The joint resolution to disapprove this increase (H. J. Res. 98) was passed by the House on Jan. 18, 2012. 158 Cong. Rec. H54–69 [Daily Ed.], 112th Cong. 2d Sess. A motion to proceed to consider this measure in the Senate was rejected. 158 Cong. Rec. S83–95 [Daily Ed.], 112th Cong. 2d Sess., Jan. 26, 2012.
 The Budget Control Act also provided that the third increase to the public debt limit could itself be increased above the prescribed $1.2 trillion amount, contingent upon certain specified events. If the deficit reduction plan proposed by the Joint Committee on Deficit Reduction established by the Budget Control Act were passed by Congress, then the debt limit would be raised by an amount equal to the proposed savings (between $1.2 trillion and $1.5 trillion). Alternatively, the debt limit would be raised by $1.5 trillion in the event that a balanced budget constitutional amendment were passed by Congress and sent to the states for ratification. Neither of these contingencies in fact occurred.
 The ‘‘Gephardt rule’’ was originally House Rule XLIX. Following the extensive recodification of the House rules at the beginning of the 106th Congress (1999), this rule was moved to Rule XXIII. When it was reinstated following a temporary repeal in the 107th Congress (2001), it was moved to Rule XXVII. Finally, in the 110th Congress, it was moved to Rule XXVIII. The rule was repealed in the 112th Congress (2011). See House Rules and Manual § 1104 (2011).
 House Rules and Manual § 1104 (2009).
 See 146 Cong. Rec. 3442, 106th Cong. 2d Sess., Mar. 23, 2000 (H. Res. 446); 145 Cong. Rec. 5671, 106th Cong. 1st Sess., Mar. 25, 1999 (H. Res. 131); 144 Cong. Rec. 11098, 105th Cong. 2d Sess., June 3, 1998 (H. Res. 455); 143 Cong. Rec. 8904, 105th Cong 1st Sess., May 20, 1997 (H. Res. 152); 142 Cong. Rec. 11477, 104th Cong. 2d Sess., May 16, 1996 (H. Res. 435); and 141 Cong. Rec. 13275, 13276, 104th Cong. 1st Sess., May 17, 1995 (H. Res. 149). See also § 5, supra.
 See 140 Cong. Rec. 9411, 103d Cong. 2d Sess., May 5, 1994 (H. Res. 418); 137 Cong. Rec. 11856, 102d Cong. 1st Sess., May 22, 1991 (H. Res. 157); 136 Cong. Rec. 27919, 101st Cong. 2d Sess., Oct. 6, 1990 (H. Res. 496); 136 Cong. Rec. 27590, 101st Cong. 2d Sess., Oct. 4, 1990 (H. Res. 488); and 134 Cong. Rec. 12529, 100th Cong. 2d Sess., May 26, 1988 (H. Res. 461).
 See 156 Cong. Rec. H5342–3, 5357–8 [Daily Ed.], 111th Cong. 2d Sess., July 1, 2010 (H. Res. 1493); 152 Cong. Rec. 8651, 109th Cong. 2d Sess., May 18, 2006 (H. Res. 818); and 150 Cong. Rec. 10105, 108th Cong. 2d Sess., May 19, 2004 (H. Res. 649). See also § 17, supra.
 Parliamentarian’s Note: The Chair was also prepared to distinguish this situation from that presented on May 18, 1983 (129 Cong. Rec. 12726–28, 12731, 98th Cong. 1st Sess.), where the rule waived the germaneness point of order against the Committee on Ways and Means substitute. In that case the bill only amended an existing temporary provision of law to increase the public debt limit, while the committee amendment changed both permanent law to increase the public debt limit and repealed a temporary increase. As both the form of the bill and amendment here are similar – unlike the 1983 precedent – and the substantive law had been changed to remove the distinction between temporary and permanent limitations on the debt, no germaneness waiver was required to permit consideration of the Rostenkowski amendment.
 133 Cong. Rec. 12344, 12345, 100th Cong. 1st Sess. See also Deschler-Brown Precedents Ch. 28 §§ 5.7, 46.7, supra.
 For a description of the fundamental purpose test of germaneness, see Deschler-Brown Precedents Ch. 28 § 5, supra.
 122 Cong. Rec. 4279, 94th Cong. 2d Sess.
 121 Cong. Rec. 20540, 94th Cong. 1st Sess.
 132 Cong. Rec. 21691, 21692, 99th Cong. 2d Sess.
 This unanimous-consent request preceded Senate action on the House’s debt limit bill and was designed, by preemptively disagreeing to any possible Senate amendments, to signal the House’s unwillingness to consider anything other than the House debt limit bill in its original form. By further making in order consideration of a bill containing the text of the original House bill, the unanimous-consent request permitted the House to send to the Senate an identical ‘‘clean’’ debt limit bill for further Senate consideration.
 132 Cong. Rec. 22092, 22093, 99th Cong. 2d Sess.
 141 Cong. Rec. 35741, 104th Cong. 1st Sess.
 Former Rule XXVII (then former Rule XXVIII) was abolished in the 112th Congress. See House Rules and Manual § 1104 (2011). For additional information on the former rule, see House Rules and Manual § 1104 (2009).
 153 Cong. Rec. 13129, 110th Cong. 1st Sess.
 153 Cong. Rec. 15330, 110th Cong. 1st Sess.


text:
Our goal here is simple: to use the current battle over confirmation of the next Supreme Court Justice as a springboard to learn more about the judiciary. How important is the Supreme Court? What influence do Americans have on the appointment and confirmation of justices? Should the process be more or less democratic? How much should a candidate for the Supreme Court have to explain his position on certain issues?
The resignation of Justice Sandra Day O’Connor has unleashed a political battle that will dominate our nation’s attention for the next two months, and maybe longer. Television, magazines, newspapers and the internet are already abuzz with chatter about filling her vacancy. This is the first Supreme Court nomination within the era of non-stop, 24-hour news coverage and media spotlight.
This creates a unique opportunity to educate ourselves and our children about the United States Supreme Court. Students may be awakened to an interest in law or history or politics. All of us are better off becoming more informed. The more we know, the better we can protect and promote our values.
Virtually every area of our lives has been touched by the United States Supreme Court. This course offers an engaging treatment of this important topic. Sign up, and learn!
II. The Importance of Precedent.
The Supreme Court, or simply “the Court,” has consisted of a total of nine justices for nearly 150 years. Congress can change the number and at times in our nation’s very distant past the number has been different. But no one has attempted to alter the number of justices since Americans repudiated President Franklin Roosevelt’s “court-packing” plan in 1937. Then President Roosevelt sought to add justices in order to sway the Court to his liking, and even his own party in Congress rejected the plan. The episode wounded President Roosevelt politically and set a strong precedent against anyone trying this again.
“Precedent” is a term that everyone should understand and use. It has enormous significance to the Supreme Court. A legal “precedent” is a holding in a case that influences the resolution of future, similar disputes. For example, the Supreme Court banned school prayer in 1962, in Engel v. Vitale. That “precedent” has prohibited classroom prayer in public school to this day, and has been used to censor many other religious activities from school.
There are also important political precedents. George Washington set the precedent that a president should not serve more than two terms. This was not written into law anywhere, but American presidents obeyed the precedent for nearly 150 years. When President Franklin Roosevelt broke the precedent by being elected four consecutive times as president, Americans subsequently acted to prevent anyone from doing that again. After President Roosevelt died, Americans ratified the Twenty-second Amendment limiting to two terms or ten years the maximum duration of service by a president.
However, sometimes the precedent is wrong, as in the notorious Supreme Court decision of Roe v. Wade (1973), which invented a constitutional right to an abortion. The Supreme Court often overrules precedents that are wrong, as discussed in Part VI below, but has not yet overruled Roe v. Wade.
Most important legal precedents are established by the United States Supreme Court, because all other courts in America must abide by them. Unlike most countries, the United States is governed by the “Rule of Law.” The richest or most famous person must obey this law just like anyone else. No one is “above the law,” not even the president.
Each year, the Supreme Court decides the outcome in about 80 new cases. That number, which has been declining, is only a tiny percentage of the thousands of cases appealed to the Supreme Court each year. But the Court refuses to hear the appeals in over 95% of the cases brought to its attention. The Court will often allow injustices to remain simply by saying it is too busy to hear the dispute.
While the president cannot serve more than two full terms, or typically eight years, Supreme Court Justices can serve for the rest of their lives. Chief Justice Rehnquist, who is expected to resign in the last week of June this year, has served for 33 years. That is not even the record, as several justices served even longer. William O. Douglas served longest on the Supreme Court, serving 36 years and almost 7 months, from 1939-1975. John Marshall served 34 years, the longest tenure as Chief Justice of the Supreme Court. Stephen J. Field, Joseph Story, Hugo Black and William J. Brennan Jr. have all served for 34 years on the Court.
Over the years, Congress has threatened to impeach and remove from offices particularly controversial justices. The U.S. Constitution confers this power on Congress. But during the Jefferson Adminstration in the early 1800s, a political attempt to remove Supreme Court Justice Samuel Chase failed. The House of Representatives impeached him, but the Senate voted against removing him from the Court. That set a precedent against congressional impeachment of a justice and none has ever been removed by Congress.
The result is that once a justice is sworn into office, he alone decides when he will resign. In the past thirty years, Supreme Court Justices have typically served as long as their health would permit. They serve far longer than the president, sometimes more than eight times longer.
IV. How the Supreme Court Selects and Decides a Case.
Each year, approximately 7,500 cases come before the Supreme Court. Imagine trying to sort through all these cases, trying to decide which of these cases are important legal matters and worthy to be heard. The Court uses a refining process to filter through all the unimportant or frivolous matters. The Chief Justice resides over the selection process and he can choose which cases are placed on the “discuss list” or dropped onto the “dead list.” About one-third of cases make it to the “discuss list” where they can be brought up again at the Court’s weekly conference to be discussed further. The remaining cases are placed on the “dead list” and are only brought back up if a justice strongly insists.
At the conference, the justices vote on which cases to hear. If four justices vote in favor of a specific case, then a “writ of certiorari” is issued. This is a formal document sent to the respective lower court stating that the Supreme Court will hear the case. The process, by which four justices select a case, is referred to as the “rule of four.” A case that is not accepted is “denied cert” and the previous ruling of the lower court stands.
After the Court issues a “writ of certiorari,” the respective parties on each side submit briefs to the Court. At this time, third parties such interest groups, advocacy groups and even the federal government through the solicitor general, have the opportunity to submit “amicus curiae” briefs, which means “friend of the court” briefs. Next, oral arguments are scheduled for the days when the Court is sitting, a two-week period followed by a two-week recess. During the actual presentations, a lawyer from each side has 30 minutes to present his or her case to the Court.
The justices then meet in a conference where they vote on the respective cases, with a majority or plurality vote prevailing. In the event of a tie, where one justice is ill or has been recused himself due to a potential conflict of interest such as prior involvement with the case, the lower court’s decision stands. Although this voting is not final, it is the basis for deciding who writes the opinions. If the Chief Justice is in the majority, then he has the power to assign who writes the opinion or he may choose to write it himself. When he falls in the minority, the privilege falls to the senior associate justice in the majority.
Next comes the wait, which is all too familiar in dealing with the government. The issuance of the opinions can be delayed for many months. During this time the votes may change, but that is very rare. The final decision is typically announced sometime before the Court adjourns for the summer. The majority opinion states the legal reasoning behind its decision and it becomes the all-important precedent for future courts to follow. Meanwhile, justices in the minority are at liberty to issue their own dissenting opinions, which may carry weight in future cases or similar issues.
V. How One Becomes a Supreme Court Justice.
Most people grow up wanting to be a popular figure they see on television, such as an actor, an astronaut, a politician or maybe a hero of some type. Besides their nominations, Supreme Court Justices are almost never on television, and most people could not even identify them.
One of the first steps to becoming a potential nominee is to work on DC Circuit Court, which has entirely different caseload. The advantage is that you are already in town, known to the politicians, and don’t have to move and become acclimated to a new environment. Studies show that justices selected from outside of Washington, D.C., tend to change their positions more often upon moving to that town. The DC Circuit is widely considered the most influential and important federal panel outside of the Supreme Court, and so it makes a great stepping-stone to a seat on the Supreme Court.
The privilege of serving for life has made nominations to the Court extremely important. The effect of a President’s nomination can carry out for thirty more years. A potential nominee is faced with relentless media and political pressure from both sides. Every influential event in their past is examined and questioned; a nominee must be able to effectively deal with this pressure.
John Roberts, Bush’s current nominee to replace O’Connor, is a prime example. He served on the DC Circuit and has worked on the DC scene for most of his career. He clerked for Chief Justice Rehnquist and worked in the White House and Department of Justice. He also has an impeccable resume having served in respectable positions his entire life. It has been difficult to find anything to impede his nomination, much like Bush’s opposition has done for his other nominees.
VI. How Often the Supreme Court Reverses Its Own Decisions.
The Supreme Court has disregarded several of its own established precedents. After the landmark “separate but equal” decision in Plessy v. Ferguson (1896), the Supreme Court overruled it in the 1954 case Brown v. Board of Education (1954). In the 1943 decision of West Virginia State Bd. of Educ. v. Barnette, the case in which the Court ruled that school children could not be forced to recite the pledge of allegiance or salute the American flag, the Court overruled a decision of only three years earlier Minersville School Dist. v. Gobitis (1940).
A recent example was in Hudson v. United States (1997), when the Supreme Court unanimously overruled its own prior unanimous decision of United States v. Halper (1989). Supreme Court nominee John Roberts had argued for Halper, and the Court agreed with Roberts in 1989, that the Double Jeopardy Clause of the Fifth Amendment protected a defendant against a new lawsuit by the government to impose a large fine for conduct for which he had earlier been convicted. In Hudson the Supreme Court completely reversed its own precedent.
There are many other examples, though less well-known. In all its haste to establish judicial precedent, the Court does reverse itself.
Write down at least three aspects of the Supreme Court that you do NOT understand. Then write down how you might find answers to those questions.
For extra credit: email me names and citations to Supreme Court decisions, in addition to those mentioned in Part VI above, in which it has overturned one of its own prior decisions.
Next Class: Who is John Roberts?
Who is John G. Roberts, Jr.?
Who is Samuel Alito, Jr.?

matches: v. v. v. V. v. v. v. v. v. v.


Two less commonly used jurisdictional statutes in legal services practice are those involving diversity jurisdiction and declaratory judgments. They are discussed briefly below.
1. 28 U.S.C. § 1332(a)(1). Section 101 of the Federal Courts Jurisdiction and the Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (2011), amended 28 U.S.C. § 1332(a)(2), which now more clearly eliminates federal jurisdiction in cases between a citizen of a state and a citizen of a foreign state when the foreign citizen is a lawful permanent resident and domiciled in the same states as the same citizen. As before, diversity jurisdiction also exists when the parties include “citizens of different States and . . . citizens or subjects of a foreign state are additional parties,” id. § 1332(a)(3), and “a foreign state as plaintiff and citizens of a State or different States,” id. § 1332(a)(4).
2. See Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806); see also Exxon Mobil v. Allapattah Services, 545 U.S. 546, 553 (2005).
3. See Ankenbrandt v. Richards, 504 U.S. 689 (1992). Removal jurisdiction is discussed in this Chapter in Section 2.7.
4. See Freeport-McMoran v. KN Energy, 498 U.S. 426, 428 (1991) (per curiam).
5. See Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 574 (2004) (explaining Caterpillar v. Lewis, 519 U.S. 61 (1996)).
6. See Garcia Perez v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004).
7. 28 U.S.C. § 1332(e); see National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 603(1949).
8. 28 U.S.C. § 1332(a).
9. 28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010), the Supreme Court resolved decades of confusion over a corporation's principal place of business when a firm's operations are directed from one state, but significant corporate activities occur elsewhere. Essentially adopting what has been known as the "nerve center" test, the Court held that the principal place of business is ordinarily where the company maintains its headquarters so long as the headquarters is the location where corporate officers "direct, control, and coordinate the corporation's activities." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1186, 1192 (2010). Section 102 of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758, amended 28 U.S.C. § 1332(c)(1) by clarifying that any corporation, foreign or domestic, is a citizen of its place of incorporation and principal place of business wherever those may be.
10. Americold Realty Trust v. ConAgra Foods, Inc., 136 S. Ct. 1012, 1015 (2016).
11. Id. at 1016 (under Maryland law, members of unincorporated business trusts include all shareholders); Carden v. Arkoma Associates, 494 U.S. 185 (1990) (members of limited partnership are both general and limited partners).
12. See 28 U.S.C. § 1441(b); Lincoln Property Co. v. Roche, 546 U.S. 81, 83 (2005).
13. Most courts have not applied this exception in cases resting on federal question jurisdiction.
14. Ankenbrandt, 504 U.S. at 693.
15. Barber v. Barber, 62 U.S. (How.) 582, 584 (1858); see Ankenbrandt, 504 U.S. at 693.
16. Ankenbrandt, 504 U.S. at 703–04; see also Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir. 2001) (tort claims regarding management of former spouse not barred by domestic relations exception); Friedlander v. Friedlander, 149 F.3d 739, 740 (7th Cir. 1998) (tort claims not barred by exception). A similar exception excludes probate matters from federal jurisdiction. Federal courts may not probate a will or administer an estate but may entertain claims against administrators and executors as long as they do not interfere with probate proceedings. See generally 13E Charles A. Wright et al., Federal Practice and Procedure § 3609 (5th ed. 2009).
17. Marshall v. Marshall, 547 U.S. 293 (2006).
19. Class Action Fairness Act of 2005, Pub. L. No. 109-2 (codified in parts of 28 U.S.C. §§ 1332, 1335, 1453, 1711-15).
20. 28 U.S.C. § 1332(d)(2)(A). This does not apply to class actions in which the “primary defendants are States, State officials, or other government entities against whom the district court may be foreclosed from ordering relief,” or in which there are less than 100 class members. 28 U.S.C. § 1332(d)(5).
22. Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.
23. 28 U.S. C. § 2201(a). See Medimmune v. Genentech, 549 U.S. 118, 126 (2007) (plaintiff did not have to terminate licensing agreement before seeking a declaratory judgment that underlying patent was invalid).
24. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); cf. Franchise Tax Board, 463 U.S. 1, 18-19 (1983) (state declaratory judgment acts do not expand removal jurisdiction).
25. See Franchise Tax Board, 463 U.S. at 15; Skelly Oil Co., 339 U.S. at 671–72.
26. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240(1937).


§ 189-1 Location of sidewalks.
§ 189-3 Sidewalks to be kept clear.
§ 189-4 Penalties for offenses; enforcement.
§ 189-5 Conditions for civil action; prior written notice required.
§ 189-6 Transmittal of notices.
§ 189-7 Supersession of statutory provisions.
§ 189-10 Penalties for offenses.
Demolition of buildings — See Ch. 69.
Numbering of buildings — See Ch. 71.
Excavations — See Ch. 93.
Public and private improvements — See Ch. 121.
Plumbing — See Ch. 151.
Sewers — See Ch. 177.
Subdivision of land — See Ch. 193.
Vehicles and traffic — See Ch. 213.
Water — See Ch. 223.


text:
Disrupted Physician 101.1: The “Impaired Physician Movement” and the History of the American Society of Addiction Medicine (ASAM).
And in the year 2014 Stimson’s characterization of the “impaired physician movement” remains as accurate and apt as it was in 1985. But the “number of evangelical recovered alcoholic and addict physicians” has increased dramatically (outnumbering Addiction Psychiatry by 4:1) and their involvement in “ medical society and treatment programs” has been realized and enforced through the state Physician Health Programs and their “PHP-approved’ assessment and treatment centers.
Their “ability to make authoritative pronouncements on physician impairment…based on their own claim to insider’s knowledge” has become public policy and sanctified by Regulatory Medicine.
Physician Suicide 101: Secrets, lies and solutions by Dr. Pamela Wible, M.D., is now featured on KevinMD.com. Please read and comment! We need to use this as a stepping stone to start discussing the Elephant in the room; state Physician Health Programs (PHPs) organized under the Federation of State Physician Health Programs. These programs once served the dual purpose of helping sick doctors and protecting the public from harm.
Taken over by the “impaired physician” movement the current manifestation is one of absolute power and unrestrained managerial authority with no meaningful oversight, regulation or accountability. It is a culture of institutional injustice that is preventing doctors from seeking help for fear of being ensnared and monitored by them. Those being monitored by them are subject to bullying, abuse and forced 12-step indoctrination under threat of loss of licensure. Many of these doctors do not even have an addiction or substance use disorder. Situational factors, a “one-off” or even a false accusation can result in monitoring by these programs that encourage confidential referral for things such as being behind on medical charts. Sham peer-review is rampant.
Dr. Gregory H. Miday (1982-2012) A Doctor who would have made this world a better place.
This is a Public Health Emergency that is not going away. It needs to be addressed directly and with urgency; not with kid gloves and temporization.
Accountability is without exception. It requires both the provision of information and justification for actions. Accountability also requires consequences for actions if they breach standards-of-care, ethics and the law.
Hopefully this article will succeed in framing certain questions for the medical profession; questions that we all need to think about now before the door closes for good.
Physician Health Programs use a doctor’s medical license as “leverage” in what they call “contingency management.” What this means is that a doctor who is being monitored by a PHP must comply with any and all demands of the PHP under threat of being reported to the state Medical Board and loss of licensure. Dupont wants to extend the PHP model to other populations including kids.
The 2013 American Society of Addiction Medicine White Paper on Drug Testing describes the organizational structure of the “New Paradigm” which includes utilization of the medical profession as a urine collection agency for their drug and alcohol testing. When a doctor-patient relationship exists the testing is rendered “clinical” rather than “forensic.” Thus the consequences of a positive test can be deemed “treatment” rather than punishment. This bypasses the strict chain-of-custody and Medical Review Officer requirements designed to ensure accuracy and minimize false-positives. Forensic drug testing is tightly regulated because the results a positive test can be grave and far reaching. Erroneous results are unacceptable.
As onerous, unwarranted and unjust as this future dystopia sounds it may very well come to fruition. Across the country doctors have been going to the media, law enforcement, and the ACLU complaining of ethical breaches, civil rights violations, abuse and criminal activity only to be turned a deaf ear. The Federation of State Physician Health Programs has been able to construct this scaffold with no meaningful opposition and below the public radar. They have done this by removing accountability at all levels. By preventing access to information and erecting a system without oversight no consequences exist to deter misconduct and abuse. The same tactics and strategies will be used as they expand this to other populations.
The American Society of Addiction Medicine exists to trump the 12-step chronic relapsing brain disease model of addiction as defined by A.A. The authoritarian view necessitates the authority maintain authority so everything is engineered around that goal.
The PHP model is built on the very foundation Hoffer describes.
“Addiction Medicine” not a recognized medical specialty.
This begins with the ASAM itself. “Addiction Medicine” and ABAM “board certification” is not recognized by the American Board of Medical Specialties. The requirements for this self-certification are not commensurate with ABMS certifications and only requires a medical license and board certification in ANY specialty.
Federal workplace drug testing is done in accordance with mandatory guidelines. This testing is regulated using FDA approved tests with established sensitivity, specificity, and cutoff levels. FDA approval requires rigorous research and proven validity. The FDA requires valid scientific evidence (with both clinical and analytical validation) The FSPHP has introduced non-FDA drug testing via a loophole that removes accountability. The EtG, EtS, and PEth tests were introduced as Laboratory Developed Tests (LDTs) with little evidence base. The LDT pathway was developed for “clinical” tests of low market potential that would not otherwise make it to market as the FDA approval process would be prohibitive. An LDT does not even require in vivo testing or proof that the test actually tests for what it s claimed to test. Without FDA oversight, however, the labs can claim anything they want with no accountability. After getting the labs to develop the tests the FSPHP then convinced the Medical Boards they were both necessary and accurate and began using them on doctors in PHP programs.
In 2012 Drs. John Knight and Wes Boyd recommended the medical community outside of PHPS provide oversight and demand accountability. As with the NC PHP audit, Ethical and Managerial Considerations Regarding State Physician Health Programs generated little interest from the medical community at large.
Because addiction is currently defined as a disease, addicts must be “treated” (which in the United States is more often coercive than voluntary), and “cured” (which is defined as remaining abstinent). When the disease concept is not strictly reserve for medical conditions but is expanded to any and all drug and alcohol use.
And this is how the ASAM “New Paradigm” will encroach upon others. This is why the ACLU needs to get involved. This is not just about doctors but about the future of society.
The ASAM white paper contains the following quote minimizing the critical role of the MRO in drug testing. They feel clinical testing is good enough. And unless you want mandated random drug and alcohol testing at your physician visits using non-FDA approved testing with swift and certain consequences you will need to speak up. This occurred in the medical profession rapidly and with little notice. And that is how it will occur in other venues.
State Physician Health Programs have no meaningful oversight or accountability. Across the country doctors are reporting ethical and civil rights abuses and even criminal activity to law enforcement, the ACLU and the media. With the exception of North Carolina their complaints were patently ignored. Feeling hopeless, helpless, defeated and entrapped many are killing themselves. Institutional justice is a protective factor for preventing suicides. None exists here. The North Carolina PHP audit revealed conflicts-of-interest and no oversight by the state medical society or board. The audit also found that abuse could occur undetected because of this lack of accountability.
There seems to be a willful ignorance or apathy regarding PHPs. Perhaps most take the side of the PHPs complacent that these are just helping sick doctors and protecting the public the complaints are nothing more than “bellyaching.” In reality the misconduct and abuse perpetrated by the PHPs is commensurate with the behavior of Dr. Farid Fata, the Detroit Oncologist who intentionally misdiagnosed patients with cancer so he could make money off unnecessary chemotherapy treatment. Dr. Fata’s egregious betrayal of trust and unconscionable acts generated a flurry of comments. His vile acts resulted in an appropriate response.
The exact same misconduct is being perpetrated by PHPs but being overlooked, justified or otherwise ignored. Dr. Fata intentionally misdiagnosed patients with cancer who did not have cancer so he could give them chemotherapy to make money. PHPs are intentionally misdiagnosing substance abuse and behavioral disorders in physicians who do not have them in order to give them unneeded treatment and force them into monitoring contracts to both make money and gain control.
It undermines the very integrity of the profession. It is particularly vile when the betrayal of trust involves doing the opposite of what was entrusted. Abuse of positions of power, trust and influence in the field of medicine need to be both prevented, recognized and addressed. Oversight, regulation and accountability are essential if this is going to be accomplished. There are no exceptions. Policies and procedures must be enforced in a consistent manner.
The medical boards, medical societies, and departments of health have given the state PHPs carte blanche control and absolute power. They will not even investigate misconduct or even crimes.
And the PHPs have convinced law enforcement that this is a parochial matter. Doctors reporting crimes are often turned back over to the PHP.
This refusal to investigate or even acknowledge valid and factual complaints of professional misconduct has not only prevented the exposure of wrongdoing and corruption but deepened it. How does wrongdoing and corruption serve the best interests of the public or promote public health? It doesn’t. How could a culture that protects the perpetrators of unethical and indefensible misconduct yet turns a deaf ear to their victims possibly contribute to the common good? It can’t. And giving an oppressive, illegitimate and irrational tyranny absolute power and granting them unrestrained managerial prerogative over doctors is fallacy.
I have in quick determination……..
It shall be so. Madness in great ones must not unwatched go.
According to Radar Online Robin Williams is looking “grim and focused.” Grim? Yes. Focused? No. His visage is one of entrapment, despair, and dread.
In F. Scott Fitzgerald’s The Great Gatsby, Nick Carraway observes that “the loneliest moment in someone’s life is when they are watching their whole world fall apart, and all they can do is stare blankly” This is not focus but melancholia–hopelessness, helplessness, and defeat.
These requirements were made because I requested an independent evaluation at a non-biased non-12-step assessment center not affiliated with the ASAM. The choices PHS gave me were all 12-step facilities with Medical Directors who can be seen on this list. My request for an independent evaluation was justified as the MRO for PHS is on the same list. The same MRO who allowed PHS to misrepresent the positive EtG tests and fabricate a confirmatory positive PEth.
PHS claimed that I had been told to discontinue medications used to control and treat lifelong asthma. I had not. I provided the Board with multiple documents contradicting PHS claims.
After discussing alternative options with my PHS associate director, John Knight, M.D., it was decided to continue them as prescribed. This decision was based on the history and severity of my asthma and the good control and treatment these mediations provided. As a child and young adult I had multiple emergency room visits and was hospitalized several times for asthma, but the medications had prevented any serious asthma attacks for the previous 10 years.
The documentary evidence shows that PHS acknowledged the prescribed medications, considered me compliant, and advised I continue to use them.
No EtG tests were done until June 20 and June 30, 2011. PHS reported these as “positive” by claiming I was told to discontinue my asthma medications. I provided the Board with multiple documents that contradict this claim and suggested that Dr. Knight be contacted to verify this was untrue. I also requested written documentation to support PHS claim. The Board ignored the contradictory documentation, did not contact John Knight, and neither PHS nor the Board could provide any documentation to support the claim that I was told to discontinue the medication. They still haven’t.
Reporting a positive test to the Board for a prescribed and acknowledged medication would be in violation of the PHS monitoring contract. Claiming the medications were discontinued allowed PHS to report these tests as true positives and also do a “confirmatory” test. The Etg was used as a stepping-stone to order a blood being used by Physician Health Programs to differentiate “incidental” exposure from drinking.
They were aware of the medications, aware they contained ethanol, and aware that they caused positive Etg levels but reported it anyway under the pretext that I was told to discontinue the medication. This misrepresentation was then “confirmed” by fraud.
There is no known cutoff level for Etg to differentiate incidental exposure from drinking. It should be noted that the use of ethanol containing metered dose inhalers is not “incidental” exposure but “direct” exposure and reporting them as positive violates all established protocols and guidelines. PHS then used forensic fraud for confirmation.
On July 1st, 2011, Dr. Gary Chinman of PHS informed me that I had positive EtG tests on June 20th, and June 30th, 2011. I was told to go to Quest Laboratories to obtain a confirmatory blood test. On July 19th, 2011 I was informed that the test was positive at a markedly high level of 365. The cutoff level of PEth is 20 and a level of 365 suggests heavy sustained alcohol use. Common sense would have dictated this to be erroneous at this point based on my appearance, work performance, and all collateral information.
I immediately requested evaluations from my PCP and the Chief of Addiction Medicine at MGH. They both did full evaluations (including speaking with my supervisors and colleagues, physical exams, and laboratory tests ) and wrote letters to the Board contradicting PHS claim. The Board was well aware that no other pretext existed to suggest alcohol use except for these tests. The Board ignored all outside information and continued to support PHS.
Suspecting the test was fabricated I requested the “litigation packet.” PHS initially refused. I persisted in obtaining the results and PHS finally agreed but threatened me with “unintended consequences.” I received the “litigation packet” in December of 2011 and it revealed fraud. A fax dated July 19, 2011 from PHS to USDTL requested that my ID # (1310) and a chain-of-custody be added to an already positive specimen 19 days after it was collected.
The test has since been invalidated as a result of a complaint filed with the College of American Pathologists (CAP), an accrediting agency for the labs.
To sum this up I knew that the test was fabricated at the time and it was subsequently verified as fabricated ), I simply wanted a fair and objective evaluation from an assessment facility with no conflicts of interest. Marworth, Hazelden, or Bradford were the three choices given–all heavily indoctrinated ASAM facilities with close ties to the state Physician Health Programs.
Interestingly, PHS had mandated thrice weekly 12-step meetings for a duration of three months. The Board took it upon themselves to extend it from three months to 2-years–an ultra vires act outside the scope and power of the Board and an obvious Establishment Clause violation. The Board also gave PHS carte blanche managerial prerogative to “submit proof of said participation” at the thrice weekly 12-step meetings. PHS chose names and telephone numbers of fellow attendees at anonymous meetings as the burden of proof! I informed the Board that obtaining unique identifiers such as names and telephone numbers to provide to a State substance abuse monitoring agency would be a tall order as “anonymous” is half its name. They did not take this into consideration. PHS also mandated under threat of my license that I could no longer use the asthma inhalers that had been controlling my asthma for the past decade.
But the requirement that I humiliate myself by attending meetings at which I don’t belong and try to convince anonymous attendees to breach their anonymity wasn’t enough. I had to do it while wheezing. The Board forbade me from any of my asthma MDIs and essentially all of the propellants were replaced with ethanol by Federal mandate to protect the Ozone. Dr. Knight and I looked into alternatives previously and decided that due to the severity of my asthma and the control achieved by my current medications I would continue them as prescribed. As cold and exercise were two major contributors to asthma attacks I had to stop going to the gym and I had 19 major asthma attacks during that winter. My PCP documented the wheezing and shortness of breath at my checkups.
And to kick a wheezing fellow asking inappropriate requests at A.A. while he’s down, the Board extended PHS requirement of thrice weekly mandated AA meetings from 3 months to 2 years on their own accord. This is an inappropriate ultra vires act by the Board. It is outside the scope of their authority and an obvious Establishment Clause violation.
It soon became apparent that my attorney was doing nothing. At a meeting with PHS I told them that getting names and phone numbers at 12-step meetings was inappropriate and that Dr. Chinman was asking personal questions. My attorney turned to me and said “Well they have to ask questions. They need to make sure you’re not just paying somebody to say you were at a meeting? It then dawned on me that he had insisted on blaming the positive PEth test on my asthma inhalers and never even contacted the labs. He also refused to call Hazelden to verify that they had not made the request for phone numbers. I was told that this is the case with most PHPs. They refer you to a few attorneys who they know well and give a lot of business who will not bite the hand that feeds them. Another component of this rigged game.
It has now become clear why this occurred at this time. Nevertheless the Board has outlined the decision making process from beginning to end right here in the February 6th, Board Order.
The modified Letter of Agreement specifically states that I must attend 3 “12-step” meetings per week and obtain a “sponsor.” No alternatives were offered and it is well established that mandated AA or 12-step by the State is in violation of the 1st Amendment. The Board then suspended me for allegedly not complying with the 12-step requirement. My suspension was, in fact, an Establishment Clause violation.
This non-response is unacceptable. The Establishment Clause violations have been pointed out to the Board. Whether or not I have an open matter with the Board is irrelevant. Who identifies the violation is irrelevant as the law is clear on this matter.
The Proof PHS required was the name and phone number of a fellow attendee who they could call to verify my attendance. PHS mandated thrice weekly 12-step meetings per week for 3 months then once per week. The Board then again violated the Establishment Clause by taking it upon themselves to lengthen my sentence. and extended it from 3 months to 2 years.
The act of obtaining phone numbers at anonymous meetings not only violates the rights of the person being forced to do it but the rights of the other attendees. The basic tenet of AA is that it is for people who desire to be there and the spiritual foundation of is anonymity. Anonymity, by definition, refers to an individual’s personal identity, or personally identifiable information, being unknown. Signing a first name to a card provides anonymity. Providing a first name and a telephone number most assuredly does not as it is a unique identifier, not unlike a social security number or driver’s license number, and can easily be used to uniquely identify that person. Consequently, trolling for phone numbers to be given to an unfamiliar non-governmental state affiliated agency from anonymous members of a categorically anonymous group that considers anonymity as the spiritual core of its existence, presents a tall order.
Nevertheless, despite being half of its name, the BORM accepted the statement from PHS that obtaining names and phone numbers at 12-step meetings was accepted without question and I was not allowed to challenge or question the decision before the BORM.
Difficult as it was, I was able to provide them with phone numbers despite PHS’ attempts to make it as difficult as possible as documented in the attached e-mails and letters that include my concern that this Sisyphean task was merely designed as a failsafe to deem me noncompliant with the BORM should the need arise. It was.
In addition to coercion PHS continued to engage in threats, intimidation, and “torture” (an act committed by a person acting under the color of law specifically intended to inflict severe physical pain or suffering upon another person within his custody or physical control).
On 11/8/2012 the BORM found I was in violation of this agreement and referred the case to the full Board for sanction based on alleged “noncompliance” with the ordered attendance.
The First Amendment states in the “Establishment Clause that “Congress shall make no law respecting an establishment of religion.” Acts of direct coercion, threats backed by legal sanctions, are barred by the Establishment Clause.
Legally, Alcoholics Anonymous is established as a religious organization. And so is Narcotics Anonymous. This is well established and as far as United States courts are concerned AA and NA are, beyond a doubt, organizations that engage in religious activities and their meetings qualify as religious services.
Was the object of the coercion religious rather than secular?
Develop an active sponsor relationship and provide consent for this sponsor to confirm twice a year with PHS that he/she is your sponsor.
The Board wrote this up in the letter of agreement without offering any other options.
Coercion-point two—also is clearly present by force of law and threat of penalty. The elements of coercion are 1. A forced choice, 2. Threat of sanction, 3. Coercive ijntent.
The BORM states if I attempt to negotiate or dispute PHS’ recommendation I will be “immediately suspended.” Your money or your life.
Mandating phone numbers as proof of attendance makes this particularly egregious as they inappropriately demanded I engage in a religious based program and violate the basic principles of the program (anonymity).
Moreover, the request for mandated 12-step attendance was not made out of “good faith” or beneficence. It was a retaliatory act designed to punish me because I questioned the results of a drug test that was done on July 1st, 2011 and reported as a confirmatory positive for alcohol use.
Because PHS had previously (2008) misrepresented the results of a drug test to justify sending me to an out of state facility for an evaluation where the facility fabricated neuropsychological testing to support “denial and cognitive impairment” resulting in forced inpatient rehabilitation I requested that the BORM allow an evaluation at an independent facility that did not have a referral relationship with PHS (and the inherent conflicts of interest that exist).4 The BORM would not consider the requests, said I had to go to one of the choices I was given, and added to more years to my contract because I had the audacity to request an alternative.
I also requested the laboratory (USDTL) “litigation packet.” Considered a legal document, this record is generated in any forensic (as opposed to clinical) laboratory -testing, and records the collection, shipping, handling, and testing of the sample. It is done to document that a drug test was done correctly on the person it was supposed to done on. It follows a specific protocol that involves strict chain of custody followed by MRO review.
PHS was resistant to my request for the “litigation packet,” but I eventually got it and, as Dr. Flood’s opinion letter shows, the test was fabricated. Chain of custody was nonexistent. The BORM refused to look at it. I filed a complaint with the College of American Pathologists (CAP) and an investigation was done which showed that the test was manipulated. Although the lab was sanctioned under threat of losing accreditation by CAP, as a non-governmental organization with no regulations and accountable to no one, PHS continued to support the validity of the test.
On December 4th, 2012 I got the following e-mail documenting that the laboratory issued an amended report mandated by CAP that showed the external chain of custody was not followed and thus making it an invalid test.
The BORM did not consider the logic that the very basis for my forced attendance at AA meetings and all of the other negative consequences thrown at me was this very test. Nor did they take into consideration the fact that the amended report was issued in October and the temporal relationship to them finding me out of compliance with AA meetings.
Instead, the BORM found me out of compliance with PHS which is essentially a lie (noncompliance) based upon a lie (saying that Hazelden recommended 3x per week AA meetings with phone numbers) based upon a lie (a fabricated test).
But the forensic fraud, “color of law” abuse, Civil rights violations, harassment, intimidation, and abuse qualifying as criminal harassment under 42 U.S.C. Â§ 1983 -subject to a systematic scheme of harassment and intimidation Personal humiliation, embarrassment and mental distress) and arguably a violation of the Bill of Rights under cruel and unusual punishment are irrelevant. So too is the arrogant over-the-top bizarrely inappropriate request for phone numbers. Even without these factors entering the picture the Establishment Clause violations are clear. And the fact that they ignored the request to remedy a Civil rights violation is indefensibly unconscionable. They acted with malice, willfulness, and callous and reckless indifference to the safety and rights of my family and me. The “Right to be secure in one’s person” is an aspect of liberty protected by the due process clauses of both the Fifth and Fourteenth Amendments. And “Liberty” is Constitutionally protected by both the Fifth and Fourteenth Amendments, and also a protectable deprivation of due process. The liberty interest is violated and actionable by any conduct of persons acting under color of law that “shocks the conscience” (Massachusetts Civil Rights Act is M.G.L. c. 12 Â§ 11I).
The First Amendment states in the “Establishment Clause that “Congress shall make no law respecting an establishment of religion.” Acts of direct coercion—threats backed by legal sanctions—are barred by the Establishment Clause.
Three federal courts have held that coerced participation in 12-step programs like AA and NA violates the First Amendment. In Kerr v. Ferry, 95 F.3d 472 (7th Cir 1996), the Seventh Circuit held that requiring an inmate to attend NA meetings or risk suffering adverse effects for parole eligibility violated the Establishment Clause. The Second Circuit reached a similar conclusion in Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1997), striking a probation condition requiring attendance at AA meetings.
In 2007 the Ninth Circuit Court of Appeals held that a parole officer’s demand that a convicted drug offender attend Narcotics Anonymous violated the First Amendment rights of the offender who claimed to be a Buddhist (Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007)).
Moreover, the case ruled that “any coercing authority” can be held individually, civilly liable for the First Amendment constitutional rights violation that they perpetrate on people unwillingly and involuntarily forced to go to 12-step programs and the offender was free to sue the parole officer for damages, even though state officials are often immune form such suits.
Warner and Inouye were able to go forward with lawsuits against their officers for damages for violation of their constitutional rights under 42 U.S.C. 1983. (Civil action for deprivation of rights). Numerous federal and district courts and state supreme courts have reached the same conclusion.
What this means is that you can sue a judge, a prison warden, a parole officer, a “counselor, a medical board member, or anyone else in a position of authority who forces you to go to AA meetings.
In cases like this the courts found that the government had forced the person to attend AA or NA. In other cases, where state of local officials simply made participation in AA one option for substance abusers, courts have no found any Establishment Clause violation.
 “For the government to coerce someone to participate in religious activities strikes at the core of the Establishment Clause of the First Amendment, whatever else the Clause may bar.” Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007). The Ninth Circuit articulated the following test in Inouye v. Kemna “with regard to determining whether [Plaintiff] was [subject to] governmental coercion of religious activity . . . : ‘first, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religious rather than secular?’” Id. at 713. “First, [Crofoot] acted in his official state capacity as a parole officer to order [Plaintiff into a 12-step program that contained religious components]. That the state did not run the program itself is ‘of no moment.’” Id. (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)). It is undisputed that Crofoot, Wilding, and Jallins were acting in their official state capacities when they required Plaintiff to participate in the 12-step drug treatment program as a condition of his parole, and subsequently removed and incarcerated him for not participating in the program.
 Shortly after arriving at Empire, I discovered that Empire used a “12-step” recovery program based [on] the principles of Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”), which contains religious components. Among other features, the “12-step” method used by Empire made references to God, involved acknowledgment of a “higher power,” and included prayer. [¶] I am an atheist, and was one in 2007. The substantial religious components to the “12-step” program administered by Empire conflicted with my beliefs. Prior to my release on parole, I had notified correctional authorities of my Atheism, and requested placement in a treatment facility that did not contain religious components.
 (Hazle Decl. ¶¶ 2, 3.) The Parole Defendants do not dispute that the Empire’s 12-step program contained religious components. “As such, on this summary judgment record and given the lack of dispute between the parties in question, . . . the third prong of [Plaintiff’s] Establishment Clause test has been met as well.” Inouye, 504 F.3d at 713-14. Therefore, “the program runs afoul of the prohibition against the state’s favoring religion in general over non-religion,” because of the program’s use of a religious concept of a Higher Power through references to God and prayer. Kerr, 95 F.3d at 480. Accordingly, Plaintiff’s partial motion for summary judgment against the Parole Defendants is granted.
Coercion-point two—also is clearly present by force of law and threat of penalty. The elements of coercion are 1. A forced choice, 2. Threat of sanction, 3. Coercive intent.

matches: v. v. v. v. v. v.