The reform of the economic governance in the EU binds the Member States to set up independent bodies monitoring the compliance with fiscal rules entitled to check – either ex ante or ex post – the respect of the balanced budget clause and of the medium term objective as well as to provide macroeconomic forecasts and to prevent macroeconomic imbalances. Such body, which shall be independent or at least endowed with functional autonomy vis à vis budgetary authorities, shall be composed of members selected on the basis of their merits and expertise in matters of economics and public accounts. Italy has just adopted the first measures of adaptation to the new EU norms, in particular by means of Const. Law no. 1/2012 and Organic Law no 243/2012, opting for the establishment of a brand new body, set within the Parliament, the Ufficio parlamentare di bilancio. Following the examination of the most significant EU provisions devoted to the new independent body, in the first place the contribution aims at analysing the constitutional status, the composition and the functions of the Italian Court of Auditors (Corte dei conti) that, in theory, could have served as the new "independent fiscal body" for Italy, although after some amendments to the existing norms; in the second place, following the examination of the rules concerning the Ufficio parlamentare di bilancio, the contribution focuses on the reasons behind the choice of the legislator to marginalize the Court of Auditors. Finally, waiting for the revision of the Italian Law on public accounts and of the parliamentary Rules of procedures, some proposals for a prospective and fruitful interplay between the Court of Auditors and the Ufficio parlamentare di bilancio have been made in order to foster a solid and loyal cooperation between the two bodies. ; La riforma della governance economica dell'Unione europea vincola gli Stati membri a dotarsi di un organismo indipendente di bilancio con funzioni di controllo, preventivo e successivo, sul rispetto della clausola dell'equilibrio di bilancio e dell'obiettivo di medio termine, di elaborazione di previsioni macroeconomiche e di sorveglianza contro il rischio squilibri macroeconomici. L'organismo, dotato di indipendenza o quantomeno di autonomia funzionale rispetto alle autorità di bilancio, deve essere guidato da soggetti selezionati sulla base della loro professionalità e competenza in materia di economia e di finanza pubblica. L'Italia ha adottato le prime misure di adeguamento alle nuove norme europee, in particolare attraverso la l. cost. n. 1 del 2012 e la legge rinforzata n. 243 del 2012, scegliendo di istituire un nuovo organismo ad hoc, incardinato presso le Camere, l'Ufficio parlamentare di bilancio. Dopo una disamina delle principali previsioni europee sull'organismo indipendente di bilancio, il contributo si propone di esaminare anzitutto la posizione costituzionale, la composizione e le funzioni della Corte dei conti, che in via di principio, mediante opportune modifiche delle norme vigenti, avrebbe potuto configurarsi come "ente indipendente di bilancio" per l'Italia; successivamente, dopo un'analisi della disciplina riguardante l'Ufficio parlamentare di bilancio, il contributo si sofferma sulle ragioni della scelta operata dal legislatore, che, in qualche misura, ha marginalizzato il ruolo della Corte dei conti. Infine, in attesa della riforma della legge di contabilità e dei regolamento parlamentari, si prospettano alcune ipotesi di raccordo tra Corte dei conti e Ufficio parlamentare di bilancio, in ossequio al principio di leale collaborazione interistituzionale. ; Reforma zarządzania przychodami i wydatkami krajów Unii Europejskiej zobowiązuje kraje członkowskie do utworzenia niezależnej jednostki budżetowej wyposażonej w kompetencje kontrolne wstępne i dalsze; jednostka ma działać zgodnie z klauzulą o równowadze budżetowej i średnioterminowej strategii, opracowania prognoz oraz dozorowania ryzyka wahań makroekonomicznych. Jednostka ciesząca się niezależnością lub co najmniej autonomią w zakresie funkcjonowania i zachowania równowagi wobec organów zarządzających budżetem, musi być prowadzona, w zakresie ekonomii i finansów publicznych. przez podmioty wyłonione na podstawie profesjonalizmu oraz kompetencji. Artykuł odnosi się do głównych założeń europejskich dotyczących niezależnej jednostki budżetowej i przedstawia w szczególności uwarunkowania prawne, skład oraz kompetencje Trybunału Obrachunkowego, który po wprowadzeniu odpowiednich zmian prawnych, mógłby we Włoszech przejąć i pełnić tę rolę. Po przeprowadzonej gruntownej analizy działania parlamentarnego biura budżetowego, Autorka skupia się na przedstawieniu powodów wyboru ustawodawcy, który w pewnym stopniu zmarginalizował rolę Trybunału Obrachunkowego.
The reform of the economic governance in the EU binds the Member States to set up independent bodies monitoring the compliance with fiscal rules entitled to check – either ex ante or ex post – the respect of the balanced budget clause and of the medium term objective as well as to provide macroeconomic forecasts and to prevent macroeconomic imbalances. Such body, which shall be independent or at least endowed with functional autonomy vis à vis budgetary authorities, shall be composed of members selected on the basis of their merits and expertise in matters of economics and public accounts. Italy has just adopted the first measures of adaptation to the new EU norms, in particular by means of Const. Law no. 1/2012 and Organic Law no 243/2012, opting for the establishment of a brand new body, set within the Parliament, the Ufficio parlamentare di bilancio. Following the examination of the most significant EU provisions devoted to the new independent body, in the first place the contribution aims at analysing the constitutional status, the composition and the functions of the Italian Court of Auditors (Corte dei conti) that, in theory, could have served as the new "independent fiscal body" for Italy, although after some amendments to the existing norms; in the second place, following the examination of the rules concerning the Ufficio parlamentare di bilancio, the contribution focuses on the reasons behind the choice of the legislator to marginalize the Court of Auditors. Finally, waiting for the revision of the Italian Law on public accounts and of the parliamentary Rules of procedures, some proposals for a prospective and fruitful interplay between the Court of Auditors and the Ufficio parlamentare di bilancio have been made in order to foster a solid and loyal cooperation between the two bodies. ; La riforma della governance economica dell'Unione europea vincola gli Stati membri a dotarsi di un organismo indipendente di bilancio con funzioni di controllo, preventivo e successivo, sul rispetto della clausola dell'equilibrio di bilancio e dell'obiettivo di medio termine, di elaborazione di previsioni macroeconomiche e di sorveglianza contro il rischio squilibri macroeconomici. L'organismo, dotato di indipendenza o quantomeno di autonomia funzionale rispetto alle autorità di bilancio, deve essere guidato da soggetti selezionati sulla base della loro professionalità e competenza in materia di economia e di finanza pubblica. L'Italia ha adottato le prime misure di adeguamento alle nuove norme europee, in particolare attraverso la l. cost. n. 1 del 2012 e la legge rinforzata n. 243 del 2012, scegliendo di istituire un nuovo organismo ad hoc, incardinato presso le Camere, l'Ufficio parlamentare di bilancio. Dopo una disamina delle principali previsioni europee sull'organismo indipendente di bilancio, il contributo si propone di esaminare anzitutto la posizione costituzionale, la composizione e le funzioni della Corte dei conti, che in via di principio, mediante opportune modifiche delle norme vigenti, avrebbe potuto configurarsi come "ente indipendente di bilancio" per l'Italia; successivamente, dopo un'analisi della disciplina riguardante l'Ufficio parlamentare di bilancio, il contributo si sofferma sulle ragioni della scelta operata dal legislatore, che, in qualche misura, ha marginalizzato il ruolo della Corte dei conti. Infine, in attesa della riforma della legge di contabilità e dei regolamento parlamentari, si prospettano alcune ipotesi di raccordo tra Corte dei conti e Ufficio parlamentare di bilancio, in ossequio al principio di leale collaborazione interistituzionale. ; Reforma zarządzania przychodami i wydatkami krajów Unii Europejskiej zobowiązuje kraje członkowskie do utworzenia niezależnej jednostki budżetowej wyposażonej w kompetencje kontrolne wstępne i dalsze; jednostka ma działać zgodnie z klauzulą o równowadze budżetowej i średnioterminowej strategii, opracowania prognoz oraz dozorowania ryzyka wahań makroekonomicznych. Jednostka ciesząca się niezależnością lub co najmniej autonomią w zakresie funkcjonowania i zachowania równowagi wobec organów zarządzających budżetem, musi być prowadzona, w zakresie ekonomii i finansów publicznych. przez podmioty wyłonione na podstawie profesjonalizmu oraz kompetencji. Artykuł odnosi się do głównych założeń europejskich dotyczących niezależnej jednostki budżetowej i przedstawia w szczególności uwarunkowania prawne, skład oraz kompetencje Trybunału Obrachunkowego, który po wprowadzeniu odpowiednich zmian prawnych, mógłby we Włoszech przejąć i pełnić tę rolę. Po przeprowadzonej gruntownej analizy działania parlamentarnego biura budżetowego, Autorka skupia się na przedstawieniu powodów wyboru ustawodawcy, który w pewnym stopniu zmarginalizował rolę Trybunału Obrachunkowego.
"As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?" James Madison, Federalist No. 51At the end of its annual term, the Supreme Court has proven itself once again as a "temperate and respectable body" of justices by delivering, among others, two landmark decisions. The first one demolishes the infamous Bush legacy of sacrificing the Constitution's article I section 9 Suspension clauses in its bogus "war against terror". The second one represents a literal interpretation of the Second Amendment as the unambiguous individual right to bear arms. The first decision has already inflamed political discussions and will no doubt be at the center of the presidential debates leading to the national election in November. Surprisingly, the second one has proved much less controversial, a sign of changing times in the American discourse.On June 12, 2008, in its ruling in Boumediene v. Bush, the court recognizedhabeas corpus rights for the Guantánamo prisoners. Less than a week later, in another landmark ruling, District of Columbia v. Heller, it overturned the Washington DC ban on handguns by rejecting the view that the Second Amendment's "right to bear arms" applied only to the collective service in a "well regulated militia". Instead, it recognized it as an individual right.Since most likely it will fall to the next president to replace some of the Supreme Court judges, Americans should put aside for a moment the media- induced frenzy about the candidates' increasingly fierce competition to get the last sound bite in, the minute-to-minute coverage of exchange of insults and name-calling, and reflect upon the far-reaching ideological consequences that electing one or the other candidate will have on the composition of the Supreme Court.Both Supreme Court rulings were passed by a 5 to 4 vote, showing a deeply divided court over matters that affect the essence of American constitutional system of government and will have long-term consequences for life in America. As it stands now, the court is evenly divided between a conservative and a liberal bloc of four justices each, with Anthony Kennedy delivering the decisive swing vote. Since the future of the court will be decided by the next election, this consideration should be given at least as much weigh as any other in the voters' choice for president.In Boumediene v. Bush, the court delivered a critical decision in the protection of the basic right of any prisoner, including the ones in Guantánamo, to challenge their confinement before a federal judge. This constituted the court's third rejection of the Bush administration's policy on those it detains in its fight against terrorism. The Guantánamo base in Cuba, which has been controlled by the Unites States since the Spanish-American War (1898) under a long-term lease, was considered by this administration to hold a unique legal status that had allowed the Pentagon to avoid review of its activities by federal courts. By declaring unconstitutional a provision of the Military Commission Act of 2006 which denied jurisdiction to the federal courts on habeas corpus petitions by those detainees to challenge their designation as enemy combatants, the Court repudiated the fundamentals of the practice of using Guantánamo as a jail where federal jurisdiction could not reach.The majority decision was written by Justice Anthony M. Kennedy, a Reagan appointee, who often plays the deciding role of "balancer", sometimes siding with the conservative bloc, sometimes with the progressive one. He was joined by the more liberal judges, John Paul Stevens, David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg. The dissenting opinion was authored by Justice Antonin Scalia, also a Reagan appointee and the most reactionary of the group, who stated, in apocalyptic terms, that the "nation will live to regret" this decision and that more Americans were going to be killed as a result of it. He was joined by George W. Bush's appointees, Samuel Alito and Chief Justice John G. Roberts.In the second decision, District of Columbia v. Heller, after seven decades of holding that the Second Amendment's right to bear arms is a collective right (only as part of a "well-regulated militia"), the court now ruled that to keep arms at home for self protection is an individual right. This decision was criticized by authorities of the major U.S cities as a setback in their fight against crime and gun violence. However, both presidential candidates Obama and McCain praised the decision as an endorsement of individual rights. Obama emphasized the court's description of the right as "not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe." Although most liberals do not share this view, the Democratic Party's platform in 2004 had already endorsed the Second Amendment as an individual right, as part of the strategy of appealing to the center of the political spectrum in general, and to independent voters in particular, on matters of security. In Senator Obama's case, even if it does not directly contradict any earlier statements, the endorsement surprised some groups, since it does not fit his ideological profile. The media pundits interpreted it as his present strategy to capture the center of the political spectrum, which is probably correct. But it may also be a sign of how accurately Barack takes the pulse of the country. After episodes such as the Virginia Tech massacre that shook the country last year, many law-abiding citizens both young and old, both Republican and Democrat, have increasingly been vocal about the need to own a gun for self-protection.It was now the turn of Antonin Scalia to write the majority decision. A Reagan appointee and, together with Clarence Thomas, the most ideologically conservative of the nine justices, Scalia argued that this is a fundamental constitutional right that takes certain policy choices off the table. While recognizing the problem of handgun violence in the country, Scalia maintained that the "intactness of the Constitution" takes precedence over any other concerns. Ironically, his dissenting opinion on Boumediene v. Bush shows no concern for the wholeness of the Constitution's Suspension clause on habeas corpus, a sign of how human contradiction is not the preserve of presidential candidates only.The dissenting opinion to District of Columbia v. Heller by Justice John Paul Stevens, who was appointed by President Ford but most of the time votes with the liberal bloc, stated that the majority's decision was based on a "strained and unpersuasive reading of the Constitution", which omits any mention of other purpose (other than a "militia") related to the right to bear arms, such as hunting or personal self-defense. Justices Breyer, Souter and Baden-Ginsburg joined him in the dissenting opinion. Justice Kennedy sided with the conservative majority in this case.The majority's decision has enormous symbolic significance. It overturned a 70-year old decision that had rejected the individual-right interpretation, but one that, in the popular debate was extremely controversial and divided people along ideological and regional lines. But in reality, the narrow way in which the Scalia decision was written gives enough reassurance that other gun-control laws and regulations will not be affected. For example, the prohibition of carrying concealed weapons is upheld, as are the federal ban on possession of machine guns and longstanding prohibitions on the possession of firearms by felons and the mentally ill. It has defused rather than inflamed the political debate, and both candidates have endorsed it. It is thus fair to say this was not a major setback for liberal-minded Americans.On the other hand, the Boumediene v. Bush decision is a blow to all those who have made the "war on terror" a centerpiece of their new value system after 9-11. Senator Lindsay Graham (Republican from South Carolina) called it "irresponsible and outrageous" and said he would do anything in his power to have it overturned, even if that may take a Constitutional amendment.The decision ignited a serious debate between the two presidential candidates.While Obama praised the Boumediene decision, McCain was outraged by the court's decision to give rights to "unlawful combatants." He sent former Republican candidate and New York mayor Rudy Giuliani to represent him on CNN's American morning. Giuliani accused Obama of having a "pre-September 11th mentality". Obama later defended his position saying he clearly understands the threats America faces but emphasized the fact that it is the failed policies of George Bush that cause the US so many problems around the world. He added that McCain clearly would represent a continuation of those policies based on fear and his unwillingness to look toward the future.This year the Supreme Court has delivered an equal amount of victories to each bloc. This balance may shift if some of the judges were to die or retire on the next eight years. Given that the conservatives are the youngest members of the Court (Roberts and Alito, the George W. appointees, are in their 50s, Thomas Clarence is 60 and Scalia is 72), a McCain presidency may have to replace some of the most reliable liberal judges (John Paul Stevens is 88, Ginsburg is 75) and thus shift the balance in the conservatives' direction. Of course, appointing Supreme Court judges is not an accurate science since, as seen by the decisions above, it is hard to predict, when nominating them, what thinking processes will determine their opinions. The greatest examples of this are Justice Kennedy, who was a Reagan appointee, but often leads the more liberal bloc, as well now retired Sandra Day O'Connor, another Reagan appointee that brought non-ideological balance to the Rehnquist court. At any given time, two opposing forces shape the judges' opinions: the pull of precedent that gives a binding continuity to court decisions, and the push of social change that propels some of the thinking forward, in accordance to the prevailing cultural mood. The final decision is then further shaped by the judges' erudition, idiosyncrasy and ideology. Given the fragile balance present in the Roberts court, and with so many important cases decided by such a narrow margin, the power of the next President to set the future direction of the high court is a vital element that should enter into the voters' considerations next November 4th.Briefly put, the future of the Supreme Court and its ability to make the best decisions so that "reason, justice, and truth can regain their authority over the public mind", is in the hands of American voters. Senior Lecturer, Department of Political Science and Geography Director, ODU Model United Nations Program Old Dominion University, Norfolk, Virginia
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Despite protestations of opponents not quite up on things, as long as Louisiana treads carefully a bill working its way through the Legislature will have the practical effect of displaying a legal-paper-sized copy of the Ten Commandments in every public school classroom, and even some private school ones, from kindergarten on up and deemed constitutional.
HB 71 by Republican state Rep. Dodie Horton would mandate this. The bill states that they can use public funds or accept donated copies. Further, any private school that accepts state funds, which at present would be some nonpublic elementary and secondary education schools and perhaps even private colleges, would be subject to the same. The bill passed the House of Representatives with few dissenters and now moves along to the Senate.
Misperceptions about the issue abound. For one thing, two states already have such laws in place (and several others are considering these). Less demonstrative is North Dakota's, now three years old, which simply states that local school boards can order this along with a display of other historical documents. In place for about a couple of decades, South Dakota's leaves open in the public school system the authority to place a copy as long as it is not too conspicuous, giving the option the post other documents of cultural, legal, and historical significance as well.
Importantly, none of these laws have been challenged constitutionally. This is because of the evolving jurisprudence behind the First Amendment and religion. Until the 1970s, the Constitution wasn't considered to inhibit posting the Ten Commandments, but then U.S. Supreme Court decisions first declared religious expression that didn't have an obvious secular purpose were banned, then specifically applied that to the Ten Commandments. That became relaxed in 2005 when the Court decided that a passive display if inconspicuous enough met the test of secularity. Recently, the court ruled that secularity wasn't abrogated if the sufficiently inconspicuous expression occurred at a state sanctioned event on state property even if funded by state taxpayers.
HB 71 does go further, in three ways. First, it makes no mention of other documents, whose presence can dial back the conspicuousness of the display. The bill does put some parameters in place to limit that with the reasonable small minimum size, but that still would leave room for displays that could be deemed conspicuous if not clustered with other similar-sized secular objects.
Second, it requires display, but off-handedly. The exact language says authorities may use public funds to construct copies or accept donated legal versions, but does not state they must choose either of these routes. This attempts to tie not too blatantly tax dollars spent compulsorily to trigger religious expression. Because of this inability to mandate spending on that, technically this could leave a legal limbo where an authority doesn't spend funds to purchase these so these wouldn't get posted, yet the law requires them to do it. However, the legal escape here is the donation acceptance language. Practically speaking, if an authority has a donation offer, it would have to accept that if it's unwilling to spend the money, and undoubtedly plenty of organizations sympathetic to the bill's intent will step in with donated versions meeting the law's criteria and essentially force any and all balky authorities into posting up.
Third, the requirement extends to nonpublic education entities. However, as these are under no compulsion to accept state funds – such as schools participating in the state's voucher program for students from low-income backgrounds in underperforming schools – that causes the extension, it can be argued that this is not compulsorily forcing these entities into expression.
As currently constituted, the bill becoming law would provide an interesting test case that would be much more likely that the existing Dakotas laws to draw litigation. Even so, ultimately it would stand a good chance of being upheld by the judiciary. Still, one improvement could be a severability clause in case a hypothetical court decision found a part but not all of it unconstitutional.
But if legislators wanted to skip that possibility, either they would have to alter the bill or depend upon the Board of Elementary and Secondary Education to develop implementation rules, as the bill instructs, that do the same. These could add criteria such as additional documents for display.
Regardless, the bill appears on course to break new legal ground, whether it ends up in litigation. For that reason it potentially is momentous – for those who haven't been paying attention, Horton already helped to put God back in classrooms last year with what would become Act 264 that mandated the display of "In God We Trust" as the national motto – and worthy of passage.
Andy Warhol summed up our modern, technology-driven world: "In the future, everyone will be world-famous for 15 minutes." But Barbara Jordan turned this idea on its head. In 15 minutes, she delivered a speech that gave her lasting, worldwide fame. She was only 38 when she, on national television, argued for the indictment of Richard M. Nixon for high crimes and misdemeanors. Surrounded by more senior members of the House Judiciary Committee, mostly men with far more experience in government and law, Jordan gave a speech that was so brilliant, she stunned the committee and mesmerized those watching on television. Here is how she opened: "Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: 'We, the people.' It's a very eloquent beginning. But when that document was completed on the seventeenth of September in 1787, I was not included in that 'We, the people.' I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in 'We, the people.' Today I am an inquisitor. An hyperbole would not be fictional and would not overstate the solemness that I feel right now. My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution." Jordan's Watergate speech is flawless in its eloquence. Few people ever reach these persuasive heights – you find it in Lincoln, and Kennedy and Martin Luther King. And you find it here in Barbara Jordan, a rare talent for setting logic on fire. She was persuasive because she was anchored in the Constitution rather than anger or political posturing. Many worried at the time that agreeing to file articles of impeachment was the same as throwing Richard Nixon out of the White House without due process. She opens the constitution and teaches: "It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the President should be removed from office. The Constitution doesn't say that." Jordan had a beautiful blend of legal and common language, a style that the man on the street can follow and be moved by. She tried to allay these fears by explaining, in Constitutional terms, that all the House can do is vote for impeachment, which is an indictment. The Senate must have the trial and decide guilt or innocence – and punishment. She again follows the technical explanation with a simpler one: "The framers of this Constitution were very astute. They did not make the accusers and the judgers — and the judges the same person." She follows this razor-like rationale, guided only by the Constitution, to this conclusion: "Has the President committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That's the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision." Nixon resigned a few days later. I don't think he cared to face this inquisitor. And it wasn't just Jordan's infallible logic that supporters admired and opponents feared. It was her divine voice and impeccable diction that animated that logic, seeming to place it beyond rebuttal. I have a friend, Dr. Juliet Garcia, who served on a bank board with Jordan. She says Jordan "could read the agenda and make it sound profound." When Barbara died in 1996, having devoted her life to serving Texas, Ann Richards remembered her this way. "There was simply something about her that made you proud to be a part of the country that produced her. And she forever redefined what it meant to be a Texan in the eyes of this nation." Jordan's life was truly a succession of firsts: first African-American woman to serve in the Texas State Senate, first African-American Texan elected to Congress, first woman to deliver a keynote address at the Democratic National Convention, first woman to have a statue erected in her honor at UT Austin, and – this makes me smile – even in death she achieved another first. She was the first African American to be buried in the Texas State Cemetery. I do miss her. We sure could use her voice, and her logic, today.
FEATURES OF QUALIFICATION OF ADMINISTRATIVE OFFENCES IN THE SPHERE OF MANAGEMENT ACCORDING TO THE LEGISLATION OF UKRAINDemskij А. S. In the article the objective side of the individual formulations of legal violations in the sphere of economic activity, a constitutional feature of which is causing material damage to the state, the lender, to society as a whole. It was found that in most cases administrative liability in the event of illegal actions of significant, large and very great harm to the public interest, with the result that in some cases the offender is generally avoids any responsibility.Keywords: composition of the offense, the objective side, the amount of damage, a public entity, the administrative penalty, the qualifying features. Statement of the problem. With the adoption on 15 November 2011 the law of Ukraine "On amendments to some legislative acts of Ukraine regarding humanization of responsibility for offenses in the sphere of economic activity" (hereinafter – the Law № 4025-VI) and its entry into force on 18 January 2012, radically changed the abstract descriptions of wrongful acts in the field of financial, budget, enterprise, economic activity. Changes qualitative differences between criminal and administrative misconduct in the sphere of economic activity. Constructive elements of administrative offense, especially the objective side require additional study and specific research. Due to the global humanization of responsibility for offenses in the sphere of economic activity remain a number of unresolved issues of the effectiveness of administrative responsibility for certain offenses.The purpose of this paper is to study a thorough analysis of the characteristics of the objective side of certain crimes in the sphere of management and identification of specific features of qualification of the offences.Analysis of main researches and publications shows that after the adoption of the Law 4025-VI of the comprehensive work on this problem was conducted.The main material of the study. Naturally, the attraction of the offender to administrative responsibility and imposing an administrative penalty may only be subject to the availability of two components – the events of the offence and the legal structure of an administrative offense (article 9; clause 1, part 1 of article 247 of the Cao). Thus, if the event of the offence States the existence of illegal, guilty, harmful acts for which administrative liability, the offense provides for a system of objective and subjective symptoms, the characteristics of which in the legal literature, written and rather well studied, is constant and not only in the work of these authors, and in General in the scientific literature, administrative and judicial practices, both domestic and abroad (on the territory of the former USSR).However, drastic economic, political and social changes that occur from time to time, cause a corresponding dynamism in the development of legislation on regulation of public relations in the field of management, including measures of administrative and legal impact on this relationship.Given the above, in our opinion, the structure and content of some articles of the administrative code should be:1. Article 162-3 of the administrative code to read as follows:Article 162-3. Violation of rules of delivery of precious metals and precious stonesEvasion of statutory mandatory delivery for affinage or compulsory sale of extracted from the bowels received from secondary raw materials, subjects or precious metals or precious stones, as well as evasion from obligatory delivery to the refining or compulsory sale of bought up precious metals, precious stones, jewelry or household goods or scrap such goods –entail imposition of a fine from one hundred to five hundred free minima of incomes of citizens.The same actions committed by a group of persons, or these acts are committed on a large scale – pulling for the imposition of a fine from five hundred to one thousand free minima of the income of citizens with confiscation of precious metals, precious stones, jewelry or household products, or scrap of such products.Note. Violation of rules of delivery of precious metals and jewels admits made in the large size, if the value referred to in this part of the article items are not delivered or sold, exceeds five hundred non-taxable minimum incomes of citizens.2. In the dispositions of articles 164-15, 166-16, 166-17 Cao respectively the words "unless caused great material damage to the creditor"; "and caused great material damage"; "if such actions have caused great material damage to creditors or the state" should be deleted.This structure of the articles will bring the offender to administrative responsibility regardless of the size of the damage, which will create the commitment and the certainty of reaction of bodies of authority and their officials in the Commission of the offense.
The paper describes the legal status of political parties represented in the Sejm and the Senate. This special status is granted by Article 11 of the Polish Constitution which establishes the principle of political pluralism which gives parties the possibility to influence the formulation of the policies. The paper then examines the conditions of the establishment and operation of deputy associations in Parliament of the Republic of Poland, the internal organisation of parliamentary clubs and their decision-making procedures. The article discusses also the implications of several draft amendments to the rules of procedure of the Sejm intended to institutionalise parliamentary opposition (the so called "democratic package"). The Author draws a conclusion that the existing legal framework for functioning of political parties in the parliament does not fully respect the essence of the constitutional mechanism that really works. As he argues, certain political principles, e.g. the separation of powers, have become less significant, whereas the gap between the ruling majority and the opposition has widened. Ultimately, the Author draws attention also towards the problem of growing authoritarianism of the Polish regime, harming the parliament by seeking to marginalise permanently the opposition parties. ; Il punto di partenza per analizzare il funzionamento dei partiti politici all'interno di un parlamento è costituito indubbiamente dal principio costituzionale del pluralismo politico. L'art. 11 c. 1 della legge fondamentale polacca recita: "La Repubblica di Polonia garantisce la libertà di fondare parititi politici e la libertà della loro attività. I partiti politici riuniscono i cittadini polacchi, rispettando il principio di libertà ed eguaglianza, per concorrere con metodo democratico alla formazione della politica nazionale. Non vi è dubbio che dal disposto sopraccitato si possono dedurre due aspetti di questo principio, il primo dei quali consiste nello stabilire la libertà di formazione e di azione dei partiti politici. Tale libertà non ha un carattere illimitato, risultando già dalla carta costituzionale stessa il divieto di esistenza per partiti politici e organizzazioni di altro genere che, semplificando, potrebbero essere definite come partiti comunisti, nazisti o fascisti (art. 13).Un secondo aspetto del pricipio di pluralismo politico è costituito dal fatto che l'art. 11 c. 1 della costituzione richiama esplicitamente il concorrere con metodo democratico alla formazione della politica nazionale. Tale formulazione non va intesa alla lettera. Essa non significa infatti che i partiti politici (o i loro organi) esercitano direttamente il potere nello Stato in quanto titolari di competenze degli organi dello Stato (art. 6 della legge sui partiti politici). Già da tempo (1993) nella giurisprudenza della Corte Costituzionale polacca si ritiene che questa funzione dei partiti politici deve essere realizzata tramite i meccanismi parlamentari. Infatti la Corte Costituzionale affermó in tale occasione che essa deve "essere esercitata tramite i meccanismi parlamentari. Un elemento di collegamento fondamentale tra un partito politico e tale meccanismo divennero in pratica i club parlamentari dei partiti (.)". Secondo la Corte Costituzionale ciò significa "tra l'altro, garantire ai partiti politici una situazione giuridica in cui possano liberamente esercitare la loro funzione democratica di formare la politica nazionale, in particolare tramite il parlamento. Tali requisiti si riferiscono anche alla normativa concernente l'organizzazione e le modalità di funzionamento del parlamento. Per essere conforme ai suddetti principi costituzionali la normativa in oggetto non può limitare la libertà di azione dei partiti politici né del loro funzionamento all'interno del parlamento". Di conseguenza è da ritenersi che, dal momento che il diritto dei parlamenti di associarsi all'interno del parlamento viene dedotto dalla libertà generale dei partiti politici, la libertà della formazione dei gruppi parlamentari ha in realtà valenza costituzionale. ; W artykule analizuje się najważniejsze elementy statusu prawnego partii politycznych w Sejmie i Senacie, który jest konsekwencją wyrażonej w art. 11 konstytucji zasady pluralizmu politycznego, oznaczającej m.in. konieczność stworzenia partiom prawnych możliwości wpływania na funkcjonowanie ciała ustawodawczego. Poddano analizie m.in. takie zagadnienia, jak: warunki organizowania się deputowanych na forum parlamentu, wpływ organizacji parlamentarzystów na prace obu izb, kwestia wewnętrznej organizacji klubów parlamentarnych, oraz podejmowania przez te organizacje decyzji, a także założenia zmian statusu opozycji parlamentarnej wyrażone w szeregu projektów zmian regulaminu Sejmu (tzw. pakiet demokratyczny). W konkluzjach stwierdzono m.in., że prawna konstrukcja funkcjonowania partii politycznych w parlamencie nie do końca oddaje istotę realnie działającego mechanizmu ustrojowego. Widoczny jest spadek znaczenia niektórych zasad ustrojowych (np. podziału władz), a z drugiej strony wzrost znaczenia podziału na większość rządzącą i opozycję. W Polsce od listopada 2015 r. należy również co najmniej odnotować pojawienie się pewnych elementów rządów autorytarnych, widocznych także na forum parlamentu, gdzie przybierają one przede wszystkim postać permanentnego marginalizowania partii opozycyjnych.
The paper describes the legal status of political parties represented in the Sejm and the Senate. This special status is granted by Article 11 of the Polish Constitution which establishes the principle of political pluralism which gives parties the possibility to influence the formulation of the policies. The paper then examines the conditions of the establishment and operation of deputy associations in Parliament of the Republic of Poland, the internal organisation of parliamentary clubs and their decision-making procedures. The article discusses also the implications of several draft amendments to the rules of procedure of the Sejm intended to institutionalise parliamentary opposition (the so called "democratic package"). The Author draws a conclusion that the existing legal framework for functioning of political parties in the parliament does not fully respect the essence of the constitutional mechanism that really works. As he argues, certain political principles, e.g. the separation of powers, have become less significant, whereas the gap between the ruling majority and the opposition has widened. Ultimately, the Author draws attention also towards the problem of growing authoritarianism of the Polish regime, harming the parliament by seeking to marginalise permanently the opposition parties. ; Il punto di partenza per analizzare il funzionamento dei partiti politici all'interno di un parlamento è costituito indubbiamente dal principio costituzionale del pluralismo politico. L'art. 11 c. 1 della legge fondamentale polacca recita: "La Repubblica di Polonia garantisce la libertà di fondare parititi politici e la libertà della loro attività. I partiti politici riuniscono i cittadini polacchi, rispettando il principio di libertà ed eguaglianza, per concorrere con metodo democratico alla formazione della politica nazionale. Non vi è dubbio che dal disposto sopraccitato si possono dedurre due aspetti di questo principio, il primo dei quali consiste nello stabilire la libertà di formazione e di azione dei partiti politici. Tale libertà non ha un carattere illimitato, risultando già dalla carta costituzionale stessa il divieto di esistenza per partiti politici e organizzazioni di altro genere che, semplificando, potrebbero essere definite come partiti comunisti, nazisti o fascisti (art. 13).Un secondo aspetto del pricipio di pluralismo politico è costituito dal fatto che l'art. 11 c. 1 della costituzione richiama esplicitamente il concorrere con metodo democratico alla formazione della politica nazionale. Tale formulazione non va intesa alla lettera. Essa non significa infatti che i partiti politici (o i loro organi) esercitano direttamente il potere nello Stato in quanto titolari di competenze degli organi dello Stato (art. 6 della legge sui partiti politici). Già da tempo (1993) nella giurisprudenza della Corte Costituzionale polacca si ritiene che questa funzione dei partiti politici deve essere realizzata tramite i meccanismi parlamentari. Infatti la Corte Costituzionale affermó in tale occasione che essa deve "essere esercitata tramite i meccanismi parlamentari. Un elemento di collegamento fondamentale tra un partito politico e tale meccanismo divennero in pratica i club parlamentari dei partiti (.)". Secondo la Corte Costituzionale ciò significa "tra l'altro, garantire ai partiti politici una situazione giuridica in cui possano liberamente esercitare la loro funzione democratica di formare la politica nazionale, in particolare tramite il parlamento. Tali requisiti si riferiscono anche alla normativa concernente l'organizzazione e le modalità di funzionamento del parlamento. Per essere conforme ai suddetti principi costituzionali la normativa in oggetto non può limitare la libertà di azione dei partiti politici né del loro funzionamento all'interno del parlamento". Di conseguenza è da ritenersi che, dal momento che il diritto dei parlamenti di associarsi all'interno del parlamento viene dedotto dalla libertà generale dei partiti politici, la libertà della formazione dei gruppi parlamentari ha in realtà valenza costituzionale. ; W artykule analizuje się najważniejsze elementy statusu prawnego partii politycznych w Sejmie i Senacie, który jest konsekwencją wyrażonej w art. 11 konstytucji zasady pluralizmu politycznego, oznaczającej m.in. konieczność stworzenia partiom prawnych możliwości wpływania na funkcjonowanie ciała ustawodawczego. Poddano analizie m.in. takie zagadnienia, jak: warunki organizowania się deputowanych na forum parlamentu, wpływ organizacji parlamentarzystów na prace obu izb, kwestia wewnętrznej organizacji klubów parlamentarnych, oraz podejmowania przez te organizacje decyzji, a także założenia zmian statusu opozycji parlamentarnej wyrażone w szeregu projektów zmian regulaminu Sejmu (tzw. pakiet demokratyczny). W konkluzjach stwierdzono m.in., że prawna konstrukcja funkcjonowania partii politycznych w parlamencie nie do końca oddaje istotę realnie działającego mechanizmu ustrojowego. Widoczny jest spadek znaczenia niektórych zasad ustrojowych (np. podziału władz), a z drugiej strony wzrost znaczenia podziału na większość rządzącą i opozycję. W Polsce od listopada 2015 r. należy również co najmniej odnotować pojawienie się pewnych elementów rządów autorytarnych, widocznych także na forum parlamentu, gdzie przybierają one przede wszystkim postać permanentnego marginalizowania partii opozycyjnych.
This report examines the Government of Canada's legislation that may impact oil sands environmental management in Alberta. It focuses on the evolution, and current state of, pertinent federal legislative Acts in the environmental, natural resource, and energy policy sectors. As detailed below, five Acts form the core of the review. A limited number of additional Acts, policies, and Canada-Alberta agreements are examined given their direct applicability to oil sands activity. In particular, the report focuses on descriptively setting out the implications and potential impacts stemming from recent legislative changes spurred by the passage of the 2011 and 2012 federal 'omnibus' budget implementation bills (Bills C-38 and C 45, respectively). These bills not only amended a large existing suite of legislation in the environmental, energy, and natural resources sectors, they also created new legislation with direct implications for oil sands environmental management. This report reviews and assesses these changes. The five Acts that form the core of this examination are: the Fisheries Act (FA, 1985), the Canadian Environmental Protection Act (CEPA, 1999), the Canadian Environmental Assessment Act (CEAA, 1999 and 2012), the Species at Risk Act (SARA, 2002), and the Migratory Birds Convention Act (MBCA, 1994). The study takes a 'project life cycle approach' to descriptively examine if, and how, federal legislation applies to oil sands environmental management in relation to (1) the pre-construction phase; (2) the operational phase; and, (3) the reclamation and post-certification phase. The focus of this study is exclusively on federal legislation. However, the constitutional division of powers in Canada's federal system necessitates some attention to intergovernmental and multi-level governance issues. As such, the report includes a brief overview of federalism and its continued relevance for legislation in the environmental, natural resources, and energy sectors with a focus on environmental management. Passed in 2011 and 2012, Bill C-38 and Bill C-45 are recent Acts and have yet to be subjected to few, if any, descriptive or analytical scholarly examinations. The dearth of studies is even more extreme from an environmental management perspective. This study therefore uses primary document analysis of the above listed Acts as its core method. This is supplemented with reference to secondary academic sources, Government of Canada policy documents and audits, media sources, access to information requests, and recent joint panel reviews conducted as part of the environmental assessment of some existing oil sands projects. Finally, a series of informal consultations were also conducted with senior federal officials from multiple departments to seek comment and clarification on the legislation examined and for technical clarifications as required. The findings detailed in this study suggest that Bills C-38 and C-45 are watersheds in environmental and natural resources policy sector governance in Canada. The Acts fundamentally reorient the Government of Canada's approach to environmental regulation, Canada-Alberta environmental assessment processes and represent a clear shift towards greater Ministerial discretion for regulation under several Acts amended by the two omnibus budget implementation bills. The report documents that, from a federal perspective, only a few provisions in each of the Acts are directly applicable to environmental management. The general pattern identified in amendments is a clear attempt to devolve, delegate, and harmonize federal activity in the policy sector with the Government of Alberta. From a project life cycle perspective, federal legislation was found to be most pronounced at the pre-construction phase (front-end) through project applications for permitting under federal legislation and the environmental assessment processes. However the permitting and environmental assessment regimes reviewed also included some provisions requiring monitoring, reporting, and enforcement that have implications for the operational and reclamation and post-certification phases. The current federal administration has made its explicit intention to reduce if not remove regulatory delay, duplication, and burden to expedite economic and resource development. As this report emphasizes, a review of pertinent legislation and consultations with government officials reveals a considerable degree of uncertainty remains related to environmental management. Not all new potential regulations under the amended budget implementation bills have been brought into force. In some instances, transitional provisions apply while in others regulations are expected but had not yet been publicly disclosed. As such, officials and official government documents were unclear as to their applicability to environmental management. The report concludes that recent legislative changes have increased uncertainty related to the application of federal legislation to oil sands development. This is due to the lack of precedent by which to understand its application, and because not all regulations have been brought into force. The report concludes this uncertainty is particularly acute for the reclamation and post-certification phase because of the limited reclamation and certification that has occurred to date.
This report examines the Government of Canada's legislation that may impact oil sands environmental management in Alberta. It focuses on the evolution, and current state of, pertinent federal legislative Acts in the environmental, natural resource, and energy policy sectors. As detailed below, five Acts form the core of the review. A limited number of additional Acts, policies, and Canada-Alberta agreements are examined given their direct applicability to oil sands activity. In particular, the report focuses on descriptively setting out the implications and potential impacts stemming from recent legislative changes spurred by the passage of the 2011 and 2012 federal 'omnibus' budget implementation bills (Bills C-38 and C 45, respectively). These bills not only amended a large existing suite of legislation in the environmental, energy, and natural resources sectors, they also created new legislation with direct implications for oil sands environmental management. This report reviews and assesses these changes. The five Acts that form the core of this examination are: the Fisheries Act (FA, 1985), the Canadian Environmental Protection Act (CEPA, 1999), the Canadian Environmental Assessment Act (CEAA, 1999 and 2012), the Species at Risk Act (SARA, 2002), and the Migratory Birds Convention Act (MBCA, 1994). The study takes a 'project life cycle approach' to descriptively examine if, and how, federal legislation applies to oil sands environmental management in relation to (1) the pre-construction phase; (2) the operational phase; and, (3) the reclamation and post-certification phase. The focus of this study is exclusively on federal legislation. However, the constitutional division of powers in Canada's federal system necessitates some attention to intergovernmental and multi-level governance issues. As such, the report includes a brief overview of federalism and its continued relevance for legislation in the environmental, natural resources, and energy sectors with a focus on environmental management. Passed in 2011 and 2012, Bill C-38 and Bill C-45 are recent Acts and have yet to be subjected to few, if any, descriptive or analytical scholarly examinations. The dearth of studies is even more extreme from an environmental management perspective. This study therefore uses primary document analysis of the above listed Acts as its core method. This is supplemented with reference to secondary academic sources, Government of Canada policy documents and audits, media sources, access to information requests, and recent joint panel reviews conducted as part of the environmental assessment of some existing oil sands projects. Finally, a series of informal consultations were also conducted with senior federal officials from multiple departments to seek comment and clarification on the legislation examined and for technical clarifications as required. The findings detailed in this study suggest that Bills C-38 and C-45 are watersheds in environmental and natural resources policy sector governance in Canada. The Acts fundamentally reorient the Government of Canada's approach to environmental regulation, Canada-Alberta environmental assessment processes and represent a clear shift towards greater Ministerial discretion for regulation under several Acts amended by the two omnibus budget implementation bills. The report documents that, from a federal perspective, only a few provisions in each of the Acts are directly applicable to environmental management. The general pattern identified in amendments is a clear attempt to devolve, delegate, and harmonize federal activity in the policy sector with the Government of Alberta. From a project life cycle perspective, federal legislation was found to be most pronounced at the pre-construction phase (front-end) through project applications for permitting under federal legislation and the environmental assessment processes. However the permitting and environmental assessment regimes reviewed also included some provisions requiring monitoring, reporting, and enforcement that have implications for the operational and reclamation and post-certification phases. The current federal administration has made its explicit intention to reduce if not remove regulatory delay, duplication, and burden to expedite economic and resource development. As this report emphasizes, a review of pertinent legislation and consultations with government officials reveals a considerable degree of uncertainty remains related to environmental management. Not all new potential regulations under the amended budget implementation bills have been brought into force. In some instances, transitional provisions apply while in others regulations are expected but had not yet been publicly disclosed. As such, officials and official government documents were unclear as to their applicability to environmental management. The report concludes that recent legislative changes have increased uncertainty related to the application of federal legislation to oil sands development. This is due to the lack of precedent by which to understand its application, and because not all regulations have been brought into force. The report concludes this uncertainty is particularly acute for the reclamation and post-certification phase because of the limited reclamation and certification that has occurred to date.
Having an eviction record "blacklists" tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it recognizes that a young person's behavior does not define how he or she will act as an adult. Similarly, evictions due to foreclosure, discrimination, or retaliation, for example, do not predict a tenant's future behavior. Reliance on these records is misplaced. Sealing eviction records at the point of filing and holding private screening companies accountable for reporting sealed records would protect tenants who are currently haunted by the ghost of eviction without ever having been evicted.
In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians' political classification, the United States District Court for the Northern District of Texas viewed the preferences as based upon a racial classification, to which strict scrutiny applies. The court concluded that ICWA was unconstitutional, potentially opening the door to allow the same abusive practices to resurface in regard to removal and adoption of Indian children.
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Last month, Human Rights Watch released a report documenting massacres of migrants and asylum seekers by U.S.-trained Saudi border guards. Far from holding the Saudi government accountable, the Biden administration announced last week the first proposed arms sale to Saudi Arabia in over a year, and the sale includes repairs and spare parts for some of the very same equipment to carry out what Human Rights Watch describes as possible crimes against humanity.The proposed sale comes just months after the Biden administration released its Conventional Arms Transfer policy — which, on paper, elevates human rights concerns in the administration's arms transfer policy. The sale demonstrates the need for more congressional attention to the human consequences of U.S. arms sales. Meanwhile, Congress is now poised to consider repealing the overly-vague authorizations underpinning the "war on terror" that expanded executive power over war-making after the Senate passed a repeal of the 2002 Iraq war authorization in March. However, despite interest from both members of Congress and the public, further legislative action to address long standing gaps in foreign policy accountability does not look promising this year. Over the summer, the House and Senate passed their respective versions of the National Defense Authorization Act (NDAA), the defense policy bill that serves as an annual vehicle to pass many foreign policy laws. Largely absent from either chamber's versions were measures to reassert congressional oversight for the use of military force and arms sales, two of the chief ways that the U.S. fuels armed conflict around the world. Although the House and Senate versions contain some reporting requirements on weapons and the use of military force, more ambitious reform proposals were left on the cutting room floor. Among the nearly 8,000 bills introduced since the start of the 118th Congress, several would explicitly address congressional oversight of foreign policy. These bills were excluded from the FY2024 NDAA and are not likely to become law on their own — Congress only enacts about 2 percent of proposed stand-alone legislation. However, these proposals provide an important foundation for ongoing conversations about the policy changes required to ensure effective oversight of U.S. defense and national security policy including through war powers reform, increased arms sales oversight, and improved human rights standards.War Powers ReformFollowing the September 11, 2001 terrorist attacks, Congress passed far-reaching authorizations for the use of military force that both Democratic and Republican administrations have used to conduct lethal force operations throughout the world, including in places where the U.S. is not a party to the conflict, where the adversaries did not exist at the time of the September 11 attacks, and even in the absence of an ongoing armed conflict. In an effort to counteract this over-extended executive authority, the Reclamation of War Powers Act (HR. 3370), introduced by Rep. Jim Himes (D-Conn.), would limit funding for any new military engagement without explicit approval from Congress — essentially preventing the president from authorizing any more activity via the two-decades-old AUMFs. It would also create additional reporting requirements for the president when utilizing emergency executive authority. Additionally, Sen. Dick Durbin's (D-Ill.) Accountability for Endless Wars Act of 2023 (S.1151) would establish sunset provisions for both future and existing authorizations for the use of military force and declarations of war, requiring that any future authorizations terminate 10 years after enactment. The bill would repeal currently active authorizations after six months, forcing Congress to reauthorize the U.S. military's active engagement in Somalia, Yemen, Syria, and elsewhere.Flipping the Script on US Arms Transfers Oversight The National Security Reforms and Accountability Act, or NSRAA, (HR. 4928) is a bipartisan bill recently reintroduced by Reps. Jim McGovern (D-Mass.) and Nancy Mace (R-S.C.) that seeks to reassert Congress's national security powers in three key areas: war powers, arms exports, and national emergencies.
The portion of NSRAA addressing weapons exports would "flip the script" on how Congress approves U.S. arms transfers. Current law requires Congress to muster supermajorities in both chambers to block a president's proposed arms sale in light of a near-inevitable veto. Given this high barrier, Congress has never been able to block presidents of either party from arming human rights abusers, even when the endless supply of weapons to foreign governments is unpopular in Congress and with the U.S. public.
The flip-the-script approach, first introduced by then-Senator Joe Biden in 1986, would require an affirmative congressional vote to approve a subset of the riskiest arms transfers. This process would require Congress to pass risky arms sales by voting for them, as it does other bills, rather than allowing concerning arms sales to proceed in the absence of a congressional vote of disapproval which, historically, has been impossible to achieve. Human Rights and U.S. Security Assistance In addition to an increasingly expansive global military presence, the United States is the world's largest arms dealer, responsible for selling roughly 40 percent of all weapons in the global market. Many of these weapons go on to fuel conflict, human rights violations, and civilian harm, and there are credible reports of the negative impact of the U.S. commercial arms trade in countries that import American-made weapons. Despite the known risks, human rights and civilian harm issues are often not adequately considered in arms transfer decisions — the term "human rights" does not even appear in the Arms Export Control Act, the main statute governing U.S. arms exports. What's more, current U.S. "end-use monitoring" processes don't actually monitor the use of U.S.-origin weapons in human rights violations or civilian harm.
The Stop Arming Human Rights Abusers Act (HR.1471), introduced by Rep. Ilhan Omar (D-Minn.), would explicitly prohibit the United States from selling weapons to any foreign country found to be in violation of international human rights law or international humanitarian law, which would likely include several prominent buyers of U.S. weapons. The bill would establish a new federal commission to monitor and enforce this mandate.
The Safeguarding Human Rights in Arms Exports Act of 2023 (SAFEGUARD) was reintroduced this year in both the House and Senate. Introduced by top foreign policy Democrats in the House and Senate, the SAFEGUARD Act would make significant changes to the Foreign Assistance Act and Arms Export Control Act, including by clarifying that the human rights restrictions in the Leahy Law apply to all U.S. arms sales. It would also increase notifications to Congress when arms sales are proposed to a country where gross human rights violations have occurred, ban arms exports to countries where the government has committed genocide or war crimes, and mandate that the U.S. government track whether U.S. weapons are used to violate human rights or international humanitarian law. Ironically, and notwithstanding the strength of the bill, the SAFEGUARD Act's sponsor Sen. Menendez was recently indicted on corruption charges involving, in part, helping funnel weapons to Egypt, whose regime has an abysmal human rights record.
Although Rep. Meeks introduced SAFEGUARD as an amendment to the House NDAA in its entirety and Rep. Sara Jacobs (D-Calif.) introduced an amendment that drew from SAFEGUARD's provisions on end-use monitoring of U.S. weapons for human rights violations, neither made it into the versions of the FY24 NDAA that are now being reconciled.
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Deliberations on the NDAA will continue this fall, with a reconciled bill expected to reach President Biden's desk by the end of the year. While the current NDAA drafts leave much to be desired, there are still opportunities to improve transparency and oversight of U.S. military engagement, security assistance, and arms transfers — no matter the recipient country or political party in control of Congress or the executive branch. Congress should take up and pass these bills, which are critical to protecting our constitutional balance of powers, providing accountability for U.S. taxpayer dollars, and maintaining U.S. legitimacy on the world stage.
Stvaranje Evropske unije bespovratno je narušilo tradicionalno ustrojstvo drţava, pa i samog meĊunarodnog poretka. Uspostavljanje strukture koja obuhvata više centara moći u okviru kojih se (ne)ravnopravno donose odluke od znaĉaja za ţivot graĊana, uticalo je na slabljenje nacionalnih, a nedovoljnu samostalnost nadnacionalnog nivoa unutar nje. Stalno pregovaranje i lobiranje na kojima poĉiva Unija pruţa mogućnost za ostvarivanje ciljeva pojedinih interesnih grupa i drţava. Koncept demokratije je ovakvim stanjem najviše izgubio. Pojаm demokrаtije je teško definisаti, isto koliko je komplikovаno pronаći kriterijume za njeno identifikovanje a koji su primjenljivi nа sve politiĉke sisteme. Situаcijа se dodаtno usloţnjаvа kаdа je ove kriterijume neophodno prepoznati u okviru nedovršenog politiĉkog sistema kаkаv je onаj u Evropskoj uniji. Problemi u demokrаtskoj legitimizаciji Unije, koji se jаvljаju uporedo sа uspjesimа u integrаciji, otvаrаju pitаnje primjenljivosti "stаndаrdnog" modelа demokrаtije nа ovu tvorevinu. Prirodа funkcionisаnjа Evropske unije, u kojoj je na snazi uprаvljаnje nа više nivoа, zаhtijevа prilаgoĊаvаnje demokrаtskih principа njenom specifiĉnom politiĉkom sistemu. Mada ne postoji konsenzus meĊu teoretiĉаrima koji su dali doprinos objašnjavanju pojma demokratije u Evropskoj uniji dа li postoji demokratski deficit unutar nje, kаo ni koji su nаjbolji uslovi zа rаzvoj аutentiĉne demokrаtije u EU, moguće je identifikovati brojne strukturne probleme demokratije u politiĉkom sistemu Evropske unije. U okviru postojećeg institucionаlnog mehаnizmа Evropske unije problemi nastaju usljed isprepletenih nаdleţnosti izmeĊu institucijа i osjetnog jаĉаnjа izvršne u odnosu nа zаkonodаvnu grаnu vlаsti. Centrаlnu ulogu od institucija imа Sаvjet koji funkcioniše po principu meĊuvlаdine sаrаdnje. Prаktiĉno nijednа evropskа politikа ne moţe se usvojiti bez djelovаnjа ove institucije i uplitаnjа drţаvа ĉlаnicа, što Savjet ĉini glavnim zakonodavnim tijelom Unije. Evropski parlament, sa druge strane, iako neposredno izabran, zbog svojih još uvijek ogrаniĉenih nаdleţnosti, i dаlje je glаvni uzroĉnik demokrаtskog deficitа u Uniji. Stoga bi talas demokratizacije institucija Unije trebalo da obuhvati "prelivаnje" moći sа Sаvjetа nа Evropski pаrlаment i jаĉаnje meĊuinstitucionаlne sаrаdnje izmeĊu Evropskog pаrlаmentа i Evropske komisije. Evropskа unijа nemа ureĊenje poput trаdicionаlne nаcionаlne drţаve. Ne postoji ni demos nа evropskom nivou, te, stoga, nemа ko dа obezbijedi neophodni legitimitet evropskim politikama. Iako je nesumnjivo da politike Evropske unije proizvode velike koristi zа njene grаĊаne, ovа reаlnost, zаjedno sа rаzvijenim mehаnizmimа konsultovаnjа sа grаĊаnimа, ipаk ne umаnjuje kljuĉni problem u komunikаciji Unija – graĎani: mаnjаk аdekvаtnog predstаvljаnjа grаĊаnа, što je zа zаjednicu kojа se u svojim osnivаĉkim dokumentimа deklаriše kаo predstavniĉka ipak nedostаtаk. Ni sаmi grаĊаni ne pokreću politiĉku debаtu o specifiĉnim evropskim pitаnjimа nа nivou koji bi bio izаzov zа nаcionаlne vlаde. Demokrаtskа legitimizаcijа evropskih institucijа zаhtijevа i veću ulogu politiĉkih pаrtijа i njihovu revitаlizаciju nа evropskom nivou, kao i otvoreno politiĉko takmiĉenje koje ukljuĉuje grаĊаne. Proces integrisаnjа zemаljа Evropske unije prouzrokovаo je ozbiljne demokrаtske probleme ne sаmo nа nivou Unije, već i u drţаvаmа ĉlаnicаmа. "Problemi demokratije" u drţavama ĉlanicama koji proizilaze iz funkcionisanja Unije drugаĉije se reflektuju u rаzliĉitim nаcionаlnim politiĉkim sistemimа. Pritisku koji dolаzi od integrisаnjа unutar Evropske unije bolje se prilagoĊavaju drţаve koje imаju federаlno od onih koje imаju unitаrno ureĊenje. Federаlni kаrаkter ureĊenjа u drţаvi već podrаzumijevа više nivoа odluĉivаnjа i decentrаlizаciju vlasti, pа se ovаj sistem lаkše prilаgoĊаvа uprаvljаnju nа više nivoа unutаr Evropske unije. To ne moţe biti sluĉаj sа zemljаmа koje su trаdicionаlno centrаlizovаne. Dalji razvoj Evropske unije moţe ići u pravcu zadrţavanja trenutnih principa integrisanja uz obrazloţenje da su demokratske drţave ĉlanice garant legitimiteta Unije. Na taj naĉin bi i dalje meĊuvladin princip imao primat u odnosu na nadnacionalni. Model koji bi trаnsformisаo Evropsku uniju u zаjednicu demokrаtskog kаrаkterа jeste federаlni. Evropskа unijа posjeduje elemente federalizma, a toj konstrukciji nedostaje kаpаcitet zа oporezivаnje i mogućnost predlaganja izmjena osnivаĉkih, konstitutivnih, ugovora. Trenutno postojanje federalnih elemenata u funkcionisanju Unije ukazuje da njihovo dodatno osnaţivanje neće neminovno dovesti do njene trаnsformаcije u zajednicu federalnog karaktera, ali će svakako uticati na smanjivanje postojećeg demokratskog deficita.Nauĉno-istraţivaĉki pristup korišćen u ovom radu odreĊen je predmetom i ciljevima istraţivanja. Znaĉajnu primjenu imale su metodologija svojstvena politiĉkim naukama, komparativna metoda, analiza sadrţaja dokumenata, kao i specijalizacija. U dokazivanju postavljenih hipoteza primjenu su našle i sinteza, generalizacija, indukcija i dedukcija. ; The creation of the European Union has irreversibly undermined the traditional establishment of states, including the international order thereof. The establishment of a structure encompassing multiple power centers entailing (un)equal decision making relevant to the lives of citizens, has triggered the downturn in national, subsequently weakening the supranational level of autonomy within it. Constant negotiations and lobbying representing the cornerstones of the Union, provides for an opportunity for achieving the objectives of individual groups and states. In the light of the above, the democracy concept has suffered the most. The democracy concept is difficult to define, being leveraged by the complication in finding criteria for its identification which are applicable to all political systems. The situation is further complicated in case of a need to identify these criteria within an unfinished political system like the one in the European Union. The problems behind democratic legitimization of the Union, arising along with the integration success, are opening up the question of the applicability of "standard" democracy model to this creation. The nature of the European Union functioning governed by the multiple levels management, requires adjustment of the democratic principles to its specific political system. Although there is no consensus among theorists who have contributed to clarifying the democracy concept in the European Union on neither whether there is a democratic deficit within it, nor what are the best conditions for the development of a genuine democracy in the EU, nevertheless it is possible to identify a number of structural problems of democracy in the political system of the European Union. In the framework of existing institutional mechanism of the European Union, the problems arise because of overlapping responsibilities between the institutions and the appreciable strengthening of the executive over the legislative branch of government. The Council plays the central role, operating on the principle of intergovernmental cooperation. Practically not a single European policy may be adopted without the operation of this institution and the interference of the member states, making the Council the leading legislative authority of the Union. The European Parliament, on the other hand, although directly elected, due to its still limited competences, being the main trigger of the democratic deficit in the Union. Thus, the wave of democratization of the EU institutions should include the "spillover" of power from the Council to the European Parliament and strengthening the inter-institutional cooperation between the European Parliament and European Commission. The European Union has not been grounded as the traditional national state. Demos don"t exist at the European level and, therefore, there is no one to provide the necessary legitimacy of the European policies. Although undoubtedly, the European Union policies are generating great benefits for its citizens, this reality, along with developed mechanisms of consultation with citizens, however, does not reduce the key problem in communication between the Union - citizens: lack of adequate representation of citizens, representing a deficiency having in mind that its founding documents are declaring it as a representative Community. Even the citizens themselves are failing to launch political debate on specific issues at the European level that would be a challenge for the national governments. Democratic legitimization of European institutions requires a greater role of political parties and their revitalization at the European level, as well as open political competition involving the citizens The integration process of the European Union counties has caused serious democratic problems not only at the level of the Union, but also in the member states. "Democracy problems" in the member states deriving from the functioning of the Union are reflected differently in different national political systems. Unlike unitary governments, federal ones are better adapting to the pressure deriving form the integration within the European Union. Federal feature of organization in the state already implies the multiple levels of decision making and decentralization of powers, thus the system is easily adapting to the multiple levels of management within the European Union. This is not the case with countries that are traditionally centralized. The further EU development may be directed in retaining the current integration principles with the rationale that the democratic member states represent legitimacy guarantor of the Union. In the light of the above, the intergovernmental principle should supersede the supranational. However, a model that would transform the EU into a democratic community is federal. The European Union has elements of federalism and this structure lacks the capacity for taxation and possibility of proposing amendments to founding, constitutional contracts. Currently the existence of federal elements in the functioning of the Union is pinpointing that its further strengthening will not inevitably lead to the transformation of the Union into the community with federal character, but will most likely impact on reducing the existing democratic deficit However, the model that would transform the European Union into the Community with democratic feature is the federal one. The European Union has the federalism features, and this structure suffers the lack of taxation capacity and the option of proposing amendments to the founding and constitutional treaties. The current existence of federal elements within the functioning of the Union is implying that its additional strengthening will not inevitably generate the transformation of the Union into the Community of federal feature, yet it will affect the decline in the current democratic deficit. Scientific methods used in this thesis are based on specific topic and research objective. Therefore, the methodology inherent in political science, comparative method, content analysis of documents, as well as specialization are used to a large extent. In proving the hypotheses a great usage has found the synthesis, generalization, induction and deduction.
A new crop of worker advocacy organizations has grown up in the last decade, and has coalesced into an organizational form known as the "worker center." Just as worker centers have tended to shy away from utilizing NLRB processes to protect worker rights, the status of worker centers under the NLRA has remained cloudy and subject to debate. Specifically, the NLRB and the courts have not addressed whether organizations like worker centers, which seek to improve the lot of employees in marginal industries but in most cases do not aspire to negotiate with their employers, are statutory labor organizations. As the ROC-NY example indicates, worker centers that use aggressive tactics that constrain employer prerogatives will inevitably face employer-initiated litigation seeking to restrict their activities, invoking the various restrictions of the NLRA that hinge upon the "labor organization" definition. In this paper, I explain how the Act's protections can be utilized by worker centers, and suggest a framework that adjudicators can use to address the question of worker centers' status under the Act. The NLRA is a mostly unexplored area for worker centers. As discussed throughout this paper, engaging the nation's labor laws has risks as well as potential opportunities. Although worker centers can assist workers in using the rights the NLRA guarantees to all "employees" under Section 7 of the Act, they must be wary of the negative consequences that may result if they are categorized as NLRA "labor organizations," which would subject them to various restrictions built into the law. Classification as a "labor organization" could also subject a worker center to the requirements of the Labor Management Reporting and Disclosure Act (LMRDA) of 1959, which includes financial reports to the U.S. Department of Labor and regulation of internal governance practices. In order to make clear what is at "stake" for worker centers with national labor laws, this paper discusses the positive rights, negative possibilities, and collateral consequences posed by the NLRA, LMRDA, and other laws related to labor. First, in the following section, I discuss the emerging worker center movement, identifying the key features of worker centers that bear on their treatment under federal labor laws, and profiling four organizations that exhibit different tendencies within the worker center movement. Part III is a systematic over of how worker centers can use the employee protections offered by the NLRA, in particular the right to engage in concerted activity for the purpose of mutual aid or protection. As this section demonstrates, many worker center organizing activities will receive protection under the Act, and the jurisdictional limitations on coverage for the most part will not affect worker centers. However, recent cases suggest that certain types of concerted activity involving charged political speech, such as missing work to participate in mass rallies for immigration reform, may not receive the Act's protection. Section IV canvasses the negative implications of federal labor law for worker centers, which mostly apply only if the organization in question is deemed a "labor organization." For example, the NLRA restricts picketing by labor organizations in certain situations where a union election has recently been held, as well as most forms of secondary boycotts. The NLRA also restricts aspects of organizational form and operations, such as by requiring that hiring halls be non-discriminatory, and disallowing labor organizations to receive funds from employers. Potentially more worrisome is the LMRDA, which mandates that financial and other reports be filed with the federal government, and grants members of labor organizations a Union Bill of Rights and more possibilities to bring suit. Lastly, Section IV discusses other consequences of the Act, such as exemption from antitrust liability for the actions of labor groups and assesses whether the exemption applies to worker centers. The remaining sections pick up on a larger debate about how worker centers should be treated under the Act. I begin in Section V by discussing in broad terms three different schools of statutory interpretation, and how the NLRB approaches questions of statutory interpretation. In Section VI I present three ways in which the question of whether some group is a "labor organization" may be approached. The first, which I dub the "traditional approach," applies the "labor organization" definition to novel situations without reference to the legal or social context in which the question is raised. However, based on recent case law that has increased the Act's flexibility to allow some internal employee participation plans for limited purposes, much worker center activity, and even dealings with the employer, will not rise to the level required to make out a statutory labor organization. The remaining two approaches examine the "labor organization" question contextually, both with regard to the legal setting in which the question is raised and the broader factual scenarios envisaged by the Act's founders as subjects of regulation. Through analysis of past cases, I attempt to demonstrate that the Board has always been sensitive to such contextual factors and purposive concerns. In fact, different rules seem to apply in different contexts; not only does the definition of "labor organization" seem to apply differently to various manifestations of worker activity, but more surprisingly, the term seems to take on different meaning depending on the statutory context in which it is raised. Turning towards the nature of worker centers as hybrid social movement organizations that focus on the workplace, I examine how similar organizations have been treated by the Act in the past, and the underlying constitutional concerns that weigh against regulation of such organizations under traditional labor laws. In the background of this analysis are historical realities that should inform how the law develops to meet a new form of worker advocacy organization. The rise of worker centers takes place against an economic and political backdrop very different from that faced by the NLRA's drafters. While the labor movement in this country has secured a relatively well-off existence for those lucky enough to be union members, the norm of unionization as well as the viability of the NLRA faces considerable doubt as it marches on past its seventieth year in existence. It is not surprising, then, that most worker centers have forgone traditional representation processes in favor of private litigation based on federal and state employment laws concerning wages, hours, and occupational safety. Rather than building a labor aristocracy, worker centers target the poorest workers who have the least stable employment. The immediate goal of such centers is not to build middle-class citizens, but to ensure minimum compliance with the law. As such, the worker center movement shares a common heritage with the 1960s civil rights movement: in the earlier struggle, participants waged a political and legal fight for equal treatment under the law, and a social fight to eliminate a system of second-class citizenship. Today's marginal and often undocumented foreign workers share this cause and also wage their fight on these levels. Therefore, it is not surprising that worker centers have made recourse to civil rights rhetoric and tactics to improve the conditions of the workers they support. Each of these tactics, including the publicized making of demands, the holding of rallies, consumer leafleting, and the initiation of lawsuits, have been accorded some degree of First Amendment protection. Looking at both the constitutional norms underlying worker center activities most likely to be challenged, as well as the purpose of the NLRA provisions most likely to be used to restrict those activities, I argue that the NLRB and the courts should be wary in subjecting worker centers to the limitations of the Act. However, in their protests, worker centers can easily be robbed of their cloak of civil rights petitioners to be left simple labor picketers. To the extent that worker centers approximate the functions and purposes of labor unions, this outcome seems appropriate. Therefore, a principal goal of this paper is to provide guidance to worker centers on how to stay on the permissible side of the labor organization classification, as well as how to make the most of the protective aspects of labor law.
