Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Twenty seven million people without health insurance. I thought Obamacare
was supposed to fight health insurance for everybody despite my
insurance quintupling or was it more than that between the
time Obamacare started today?
Speaker 2 (00:14):
Well, I think your alignce like a poop because it's
called the Affordable Care Act, so you can afford it. Yeah,
so just back off Buco no calling into this program
and this sing Obamacare good grief. Yeah, it'd be nice.
I'm since week usually can't get things to work on
(00:37):
a day to day basis. How could I possibly expect
that we could go back in our archives and find
out what I was talking about during the Obama administration
about the Affordable Care Act? Could you look that up
for me? Dragon? Could you pull that up off off
the archive?
Speaker 3 (00:52):
Well, if they did anything like for you that they
did for me. As soon as I was fired, they
deleted my audio folder. Oh so they may have done
that for you as well.
Speaker 2 (01:01):
Oh oh, or they never started one for me too.
They're like they're like, you know, when I signed my
first contract, They're like, this guy's not gonna last or
don't exact. Yeah, I don't say anything, don't save anything. Yeah,
I think sometimes they just don't realize. I'm realize I'm here.
They just that's the way we like it. I know,
(01:23):
I love it. I love it. So in the United
States District Court for the Northern District of California, the
San Francisco Division, there is a lawsuit filed. The caption
for the lawsuit, which is basically the title of the lawsuit,
is this American Federation of Government Employees that's the AFGE
(01:47):
a fl CIO AFGE Local twelve thirty six, AFG Local
thirty one seventy two American Federation of State County Municipal
Employees AFLCI plaintiffs versus United States Office of Management and
Budget Russell vote in his official capacity. This is a
(02:11):
complaint for declaratory and injunctive relief under the Administrator's Procedure Act.
A complaint for declaratory and injunctive relief is a lawsuit
in which you are asking the court to declare that,
in layman's terms, your interpretation and application of the law
is the way you say it is and should be,
(02:33):
versus the way that the defendants in this case, Omb
and Russell vote the way they say should be. And
of course, the injunctive relief is to stop the Office
of Management and Budget and Russell Vote in his official capacity,
from moving forward with doing anything that you know might
cause them their alleged harm. This lawsuit is the latest
(03:00):
round of lawfare, and this one was launched against the
Trump administrations planning for riffs reductions in force as has
now happened, and as we speak, is now happening. Why
is it happening right now because Congress failed to appropriate
money for the payment of government workers' salaries beyond the
(03:22):
end of the fiscal year, which was September thirty, twenty
twenty five, two days ago. Now, this is an area
of law, just a small caveat here. This is an
area of law that I had to deal with when
I was the General Counsel at FEMA. But I had
very highly specialized trained lawyers to deal with this area
(03:43):
of the law, and I just kind of oversaw it.
So I don't claim to be an expert in this area.
But I is a lawyer. And because I is a lawyer,
that gives me free reigin to talk about whatever I
want to talk about. So they're back my hands now
in anticipation of how to deal with and respond to
a failure to fund. OMB has directed every executive department
(04:10):
and agency to review their employee workforce and then to
make preliminary plans to evaluate the continuing necessity of these
now unfunded positions that they deem are not essential to
government operations. Drag and I are team of two, I suppose,
(04:37):
if which is why I've never ever In fact, we
are having a conversation this morning about a problem with
the app that some of you have reported, and a
problem with the feed from Freedom for the nationally syndicated program,
in which mister Redbeard, the producer, starts rattling off acronyms
(04:58):
and names and stuff, and I'm totally bewildered by everything
he's talking about.
Speaker 3 (05:03):
You did start looking like a monkey doing a math problem, well.
Speaker 2 (05:06):
And and you might as well have been speaking I
don't know lap Vin to me or something, because I
didn't get it. Now I have purposely never wanted to.
In fact, when I started doing the nationally syndicated program,
they actually assigned Now my producer is in Los Angeles,
in in LA, but the company assigned an engineer temporarily
(05:34):
until I can learn how to literally push three buttons.
I have to twist anob That's what I do. Have
to twist anobob. I have to twist a knob and
I have to push three buttons. The the third button,
I then have to twist the knob to connect to
a certain How would you describe that dragon the icess?
Speaker 3 (05:57):
This is the internet connection.
Speaker 2 (05:59):
Yeah, it's just it's it's a fancy internet connection that
connects me directly to Sherman notes. And so that took
that took for me to feel comfortable with it. It
took about three weeks for me to feel comfortable with it.
That's all I know. All I know, and I don't
want to know anymore. Because you take a guy like
(06:19):
Ryan who is started out as a producer, does he
do it? How often do you think he does a
show back?
Speaker 3 (06:26):
There at least once a week right now because of
the football season.
Speaker 2 (06:29):
Oh okay, and that's because Shannon's.
Speaker 3 (06:33):
Not around, correct, Shannon has to do this thing and
Zack has to go do that thing, and so.
Speaker 2 (06:38):
There's nobody else correct, So Ryan has to produce his
show at the same time that he's delivering his show. Now,
I don't know that I could do that now obviously
if Ryan could do it, because Ryan's a dumb ass.
Let's be honest.
Speaker 3 (06:54):
Well, let's face it, you can barely do a double
click on your own computer.
Speaker 2 (06:58):
Exactly, That's exactly right. And I embrace my radio technology incompetence.
And the reason I do is because I don't want
to learn Dragon's job because if they did a reduction
in force, well, now here's the sad thing. Dragons prove
proven that he could do taxpayer relief shots. Yes, so
(07:20):
you could just have the Dragon Redbeard taxpayer relief shot show. Actually,
I need to be careful about it because many people
may say, well, that'd be better than what we get. Now,
he could actually sit back there and just do I
assume you did the taxpayer release shots back there. Yeah,
it's cause you did. Why wouldn't you. So they could
(07:40):
do a reduction in force and just reduce this program
to one person. But they wanted to reduce it to me,
they'd have to train me to be a button monkey
like he is, which is what Cal Derek calls them.
I call them producers because I have the utmost respect
for them, because if I don't show respect for them,
is like glance at my microphone. Huh, my microphone could
(08:03):
go off at any moment, and you would hear a
word I say, I just I heard it click, but
I still see a blue light, so I think, I'm.
Speaker 3 (08:14):
Yeah, you're fine, don't worry.
Speaker 2 (08:16):
Yeah, of course I am working, because you also have
the you have the slight. Oh yeah, it could still
be on exactly exactly. So if you're hearing something of
a podcast or right now you think there's a you
know the towers down, well the tower may be down
for all we know, because I don't take them thirty
days to figure out that all the towers down to.
Speaker 3 (08:34):
We need a new hamster, that's right.
Speaker 2 (08:37):
The reason I point all of that out is what
is essential government operations? I think go back to my
very first few months in DC as General Counsel, having
huge staff of lawyers, some doubt only with freedom of
(08:59):
information acting. Some were program lawyers that dealt with different
at different programs. They dealt with flood insurance, they dealt
with they dealt with legislation. They had lawyers did nothing
but helped write legislation. So they were all very specialized.
Some of them probably could overlap and some like say
(09:23):
for your requests, you have to have a lawyer review
for your requests. Do you need five of them or
ten of them? No, because there's really no I mean,
it has to be reasonable, but there's no timeline that
says you have to answer a full your request within
two days. So you get rid of all but one
for your lawyer because the others are unnecessary. They're not essential,
(09:47):
they're not absolutely essential. The Anti Deficiency Act, I'm going
to refer to it as the ADA, so I don't
have to say Anti Deficiency Act every time, not the
Arrogans with Disabilities Act. This is the Anti Deficiency Act.
That Act prohibits executive branch officials from creating or authorizing
(10:11):
any obligation to spend in excess of the money available,
or authorizing or creating any obligation in advance of appropriations,
unless the law specifies otherwise. This is a mechanism to
control federal spending by stopping the agencies from overspending or
(10:34):
committing taxpayer money that has not been appropriated by Congress.
It includes spending on government employee salaries, but Congress has
provided in other statutes that some government employment positions are
essential to the health and welfare of you and me.
(10:54):
It's kind of scary. He isn't to think that some
government employees are essential to our health and welfare, but
they are. I don't want to board an airplane and
have nobody in the in the towers or in the
regional control centers. I want people who are actually looking
at radar and telling, you know, a flight to descend
(11:16):
to you know, thirty one hundred or whatever. That's what
I want. I want. I want ICE agents to continue.
I think they're essential. I kept hearing them throw in
the word firefighters, the only federally. Maybe I haven't looked
(11:38):
at this. I was just thinking about it. I've heard
firefighters mentioned as essential, but I don't know of any
federal firefighters other than the smoke jumpers that we have
up in Boise to fight wildland fires. So I'm not
sure what they're talking about unless we've got because for example,
(11:59):
at the White House, the firefighting outfit that's there comes
from the DC Fire Department, from the district Fire Department.
They're municipal workers. Anyway. The point is Congress has provided
the summary essential, and those statues provide authorization under the
ADA to incur those salary obligations to those employees even
(12:23):
in the absence of appropriated funds. The best example I
think is ATC their traffic control, or the US military,
or for that matter, FBI agents or ICE agents who
are engaged in law enforcement. But for non essential government employees,
well sucks to be you. Now some reported estimates. You
(12:47):
can find almost any number you want to, but I
would say that the most general reported estimate are that
as many as three hundred thousand non essential, unfunded positions
might be subject to being eliminated under the review process
that was that was ordered by Russ Vote. Who's the
director of Office of Management and Budget and who is
(13:09):
which and who is the subject of this lawsuit in
San Francisco. The lawsuit that I just referenced was filed
last night in the U. S District over for the
Northern District of California. As I said, in the San
Francisco Division, an anti Trump law fair favorite by two
unions that represent federal employees that have been deemed non
(13:30):
essential by statute, not by Russ Vote deciding on his
own that they're non essential. But let me make that clear,
represented by unions that represent federal employees that are deemed
non essential by law, not by discretion, Not because Russ vote,
(13:52):
had had a list of employees and said, okay, you're essential,
you're non essential, you know not not that this is statute. Now,
the relief that they're trying to get in this lawsuit
is as follows. There are four things they're asking for.
Declare that OBM obit DYSLEXI. Declare that OMB ANDPM Office
(14:18):
of Personnel Management. Declare that have the judge declare that
they exceeded their statutory authority. They acted contrary to law.
They acted in an arbitrary and capricious manner in issuing
the Office of Management Budget Lapse Memorandum and the associated
OPM guidance and instructions. Two to vacate, to hold to
(14:43):
set aside, hold unlawful, and to stop the OMB Lapse
Memorandum and the portions of the guidance and instructions that
authorize or at least purport to authorize administration of riffs
reductions enforced during a shut Now as well as, and
this is the catch all phrase, any and all actions
(15:05):
take in pursuit into five US Code Section seven oh
five and seven oh six three and four are to
interpriminary and permanent injunctive relief and of course to get
their attorney's fees, their costs, and other disbursements as appropriate.
The goal the goal of this lawfare is to find
the sympathetic judge, obviously in San Francisco, who will find
(15:30):
some defect in RUSS votes directions to the department, agency,
department and agency heads to simply review their workforce needs
by considering the need to keep the non essential positions
that no longer exist now that they are unfunded. In
other words, look at your employees. Look at everybody who's
(15:53):
been unfunded. Now you are given discretion to decide whether
or not the five them employees in that program office
are all necessary. Maybe one or two are, but three aren't.
The way to look at it is they have authorized.
OMB has authorized the Department and eight of departments and agencies.
(16:16):
Since you have no appropriations to pay salaries, go look
at every non essential employee and see whether they're really
needed or not. Now, the government has been running on
a series You know, I should have mentioned this in
the first hour, But the other thing you need to
(16:38):
understand about this particular CR is that it's just a
continuation of previous crs Because the federal government has been
running on a series of continuing resolutions that authorize the
payment of salaries up to September thirtieth, a couple of
days ago, go back to September twenty five, two twenty four,
(17:01):
Biden signed a CR that funded operations at the same
funding levels as fiscal year twenty twenty four through December
twenty twenty four. On December twenty one, twenty twenty four,
Biden signed another R, extending fundingment for government operations to
March fourteenth of this year. On March fifteenth of this year,
(17:24):
Trump signed a CR extending funding operations to September thirty
of this year. It's been CR after CR after CR.
In other words, Congress has not been doing its job
of passing appropriations bills and actually having a federal budget.
Speaker 4 (17:51):
Michael Tom from South Dakota calling about the government shutdown
and Trump truly is a threat to democracy. The shrine
to democracy last night didn't light up and it was
dark in South Dakota. Can you help me with a
GoFundMe to raise enough money to pay the guy to
(18:11):
flip the switch to light up the sky with the
shrine to democracy. Jesus, this is hard on us in
South Dakota.
Speaker 2 (18:22):
I'm really disappointed in him exactly. I told him what
to do. He didn't even reference the fact that I
told him to go dock Cabella's or someplace and he'll
go home depot or I don't know. Maybe you know
it's so backwards they don't have one. I didn't think
about that. I mean Walmarts whenever. Walmart's like a Starbucks,
(18:45):
they're everywhere. Buy a couple of flashlights and go over
the railing, lean over, shine the lights on, the shine
the light, you know, find TRS glasses, find Washington's big nose,
and shine the lights on. Problem solved.
Speaker 3 (19:03):
Make sure you look for Biden on that too, because
Nancy said that.
Speaker 2 (19:06):
That's right, that he should should be on Trump. Yeah, yeah,
look after that. Or you know, I guess the other
advice would be, and I don't give advice to break
the law, but go find the light switch, just turn
it on.
Speaker 3 (19:21):
There's a visitor center somewhere.
Speaker 2 (19:23):
Yeah, just you know, go in. I mean, you pay
for it, So go in and turn the light on,
flip the switch. We've been operating on CRS for years now,
so what's in play is simply an effort by the
Trump administration to examine the need for all the non
(19:44):
essential government positions that are unfunded as of yesterday. Does
the shutdown provide a basis to simply not bring back
employees into their positions, or can unfunded position simply be
eliminated as beyond the staffing needs of the department of
the agency where these non essential personnel are employed well.
(20:09):
The complaint referred to is thirty one pages long. Yeah,
I'm a SICKO, I read through it. These are the allegations.
Some of the allegations taken directly from the complaint from
the lawsuit. OBM and OPM, like other agencies, are governed
by authorizing statutes. Congress has not granted OMB or OPM
(20:34):
the authority to order federal agencies to downsize or reorganize
themselves to assume final decision making power by requiring agencies
to submit such plans for approval or to riff employees.
Another section thirty one USC. Section thirteen forty two allows
an exception for services provided in emergencies involving the safety
(20:54):
of human life for the protection of property, but that
exception does not include ongoing regular functions of government, the
suspension of which would not eminently threaten the safety of
human life or their protection of property. Another section argues
that to comply with the ADA in the event of
the lapse and appropriations appropriations, agencies prepare shut down plans
(21:15):
or lapse plans that describe the process for shutting down
effective programs. These plans identify the employees excepted from furlough
under the ADA and specify under which of the categories
of exceptions identified by the Department of Justice each employee
qualifies for. And it goes on and on and on.
I mean, there's like a dozen of these. I would
(21:38):
read to you. That's enough to get the to kind
of get the gist if that isn't clear to you
after hearing it, and I didn't read all of them.
Here's the upshot. According to the labor Union plaintiffs, the
Trump administration, they argue, simply cannot carry out a riff
(22:01):
process as provided for it by statute while the government
is shut down because the government employees who would carry
out the riff process are not exempted under the Anti
Deficiency Act and cannot therefore be performing the work necessary
to have a riff as directed by statute. You get
(22:24):
the circular argument. They're saying, Wait a minute, you can't.
The statute authorizes riffs, but you can't do a riff
because the employees that are not exempted cannot be performing
any work to do the riff because they're already furloughed
(22:45):
because there's no money. Well, wait a minute. After the
shutdown ends, the government can't engage in a rift because
all employees are back in their jobs and they all
enjoy the procedural protections before a riff could be executed.
It's the proverbial catch twenty two. The statutory process for
(23:06):
conducting a riff has provisions that requires certain considerations in
selecting the employees to be terminated, as well as considerations
relating to the order in which the employees subject to
a riff can be highed back. Now normally normally in
the real world, a riff is a numerical reduction in
(23:27):
force where the employees subject to being riffed are determined
based on certain factors. In this case addressed in federal
statute and in the OPM regulations. The statute is Title five,
Section thirty five oh two. Application of that statute presupposes
(23:49):
that all the requirements relating to if a riff is
necessary had been fulfilled, and Section thirty five oh two
and the related regulations specifying how a riff is to
be executed says this, the Office of Personnel Management shall
prescribe regulations for the release of competing employees in a
(24:14):
reduction in force which give due effect to tenure, military presence,
length of service, and efficiency or performance ratings. So a
riff is normally executed by reducing the relevant workforce by
twenty percent. Let's say, the process for determining who's in
(24:37):
the eighty percent that's retained and who's in the twenty
percent removed requires a consideration of what groups of employees
are competing against each other for retention based on job
responsibilities and those other four things tenure, military preference, length
of service, efficiency, or performance ratings. Now, it might be
(25:01):
that there's a particular position is subject to riff, but
the employee holding that position has a retention advantage over
another employee in a different but still competing position. The
employeehose position is eliminated might have a retention preference that
allows that employee to stay employed, while a second employee
(25:25):
without the preference ends up being the one terminated. For example,
there's a preference for veterans. There's a preference for seniority
in linked to service with linked to service, including time
served in the military, but is a shutdown. The distinction
between essential and non essential employees is not subject to
(25:47):
the same preference classifications. The employees deemed essential because of
the job functions they're reporting to work as normal right now.
Will those whose job functions are non essential are not
reporting for duty right now. So what the Trump administration
(26:08):
is doing is simply trying to evaluate the need for
continuing those non essential positions, not the employees in them.
You get the distinction their value. Do we need these positions?
We're going to eliminate your position because it's not necessary.
(26:33):
Now take the game of musical chairs. The music stops,
the non essential employees return, well, there might not be
the same number of non essential positions for them to fill.
That is when the riff process will happen. The competing
employees are too numerous for the jobs that remain. When
(26:56):
Congress finally restores funding, and there will be evaluation of
the retention preferences that I just outline those four preferences
linked the service, military service, et cetera. And then the
regulations used to decide the employees who stay and those
who removed. I know it's convoluted, but that's because Congress
(27:20):
writes these laws and russ Vote has done an amazing
job of just threading that needle perfectly. The riffs are
about the positions. So we don't have money to fund
non essential positions. So let's look at which of those
(27:43):
positions are necessary and not necessary. Let's say we've had
we got five positions. We determine that in a really
good way, three of them are unnecessary. So those three
positions are art done away with. He's the freaking president
(28:05):
of the United States of America. He's in charge of
the executive branch. He has the authority to do so,
to eliminate positions that he deems are unnecessary. Of course,
he has secretaries and under secretaries that make that determination
for him, and he has the omb that helps those
agencies determine which ones are necessary and not necessary. Now
(28:26):
I said five positions, you determine three are unnecessary. When
Congress restores funding, five employees show back up for work.
That is when you riff them, and you riff them
based upon who has preferences. So you have no military experience.
(28:47):
You've only worked here for six months, and this other
person has military experience and they've worked here for three years. Well,
doesn't take a rocket scientist figure out which one gets riffed.
And if you've eliminated three out of the five positions,
you'll do that for all three positions. In my opinion,
(29:11):
the plain is in this lawsuit five by the labor
unions on behalf of their members. I think the lawsuit
doesn't have standing. You know why. Now Standing means that
you brought this lawsuit because you have standing, you have
an immediate harm. Nobody is an immediate harm until you
(29:32):
get riffed. Nobody's been riffed. We're talking about eliminating positions.
No one has been subject to a rift, so there
is no harm to address. Throw out the lawsuit.
Speaker 5 (29:42):
Hey Mike, if the furloughed government employees are going to
get paid anyway, then all we're really doing is paying
them for a vacation. So if I get furloughed, I
don't get paid. And if I want to get paid,
if you vacation time.
Speaker 2 (30:01):
But if a.
Speaker 5 (30:02):
Government employee gets furloughed, they still get paid, Yep, they do.
Speaker 2 (30:11):
In fact, that's done via statute. So whether you're essential
or non essential, you're going to get paid. The difference
is the non essential people are sitting at home in
their boxer shorts, you know, watching Days of Our Lives,
and the essential employees are busy controlling their and defending
the nation and giving you a proctology examination out at
(30:34):
the airport. Interestingly, the Democrats themselves admit that they know
precisely what they're doing. This is Roe tana a Democrat.
I think he's from California.
Speaker 6 (30:48):
In terms of healthcare, the reality is they're just not
being honest. The amount of money that actually is going
towards that people are undocumented is such a small portion
of the Medicaid cuts or the Affordable Care Act, if
at all, And so we can argue that point. But
the reality that even the Vice President would acknowledge, that
(31:09):
anyone who looks at the numbers will acknowledge, is ninety
to ninety five percent of the funding we're talking about
is talking about funding for American citizens.
Speaker 2 (31:18):
Okay, let's assume that he is correct, which I don't,
but let's assume that he's correct. You admit that whether
it's one thousand dollars or a bazillion dollars. You want
illegal aliens to get healthcare, and not only that, but
they're the ones that decide to shut it down. This
is Congressman shre Thanador.
Speaker 6 (31:40):
Returning back to Detroit this morning after the Republicans failed
to show up in.
Speaker 1 (31:46):
The US House.
Speaker 6 (31:48):
We got to make sure Americans have the healthcare that
they need, and if that means we got to check
this government down, so be it.
Speaker 2 (31:55):
Now he's an idiot because the House has already passed
the continuing resolution, so they're not in session. They're waiting
on the Senate. It's the Senate. He's a member of
the House. He's as dumb as AOC. My gosh, these
people are stupid, and yet they just keep getting elected
over and over again. They don't even know how to
(32:18):
do their own talking points. They can't even do their
own spin correctly. Idiots everywhere. Idiots to your left, idiots
to your right. Wherever you look, idiots
Twenty seven million people without health insurance. I thought Obamacare
was supposed to fight health insurance for everybody despite my
insurance quintupling or was it more than that between the
time Obamacare started today?
Speaker 2 (00:14):
Well, I think your alignce like a poop because it's
called the Affordable Care Act, so you can afford it. Yeah,
so just back off Buco no calling into this program
and this sing Obamacare good grief. Yeah, it'd be nice.
I'm since week usually can't get things to work on
(00:37):
a day to day basis. How could I possibly expect
that we could go back in our archives and find
out what I was talking about during the Obama administration
about the Affordable Care Act? Could you look that up
for me? Dragon? Could you pull that up off off
the archive?
Speaker 3 (00:52):
Well, if they did anything like for you that they
did for me. As soon as I was fired, they
deleted my audio folder. Oh so they may have done
that for you as well.
Speaker 2 (01:01):
Oh oh, or they never started one for me too.
They're like they're like, you know, when I signed my
first contract, They're like, this guy's not gonna last or
don't exact. Yeah, I don't say anything, don't save anything. Yeah,
I think sometimes they just don't realize. I'm realize I'm here.
They just that's the way we like it. I know,
(01:23):
I love it. I love it. So in the United
States District Court for the Northern District of California, the
San Francisco Division, there is a lawsuit filed. The caption
for the lawsuit, which is basically the title of the lawsuit,
is this American Federation of Government Employees that's the AFGE
(01:47):
a fl CIO AFGE Local twelve thirty six, AFG Local
thirty one seventy two American Federation of State County Municipal
Employees AFLCI plaintiffs versus United States Office of Management and
Budget Russell vote in his official capacity. This is a
(02:11):
complaint for declaratory and injunctive relief under the Administrator's Procedure Act.
A complaint for declaratory and injunctive relief is a lawsuit
in which you are asking the court to declare that,
in layman's terms, your interpretation and application of the law
is the way you say it is and should be,
(02:33):
versus the way that the defendants in this case, Omb
and Russell vote the way they say should be. And
of course, the injunctive relief is to stop the Office
of Management and Budget and Russell Vote in his official capacity,
from moving forward with doing anything that you know might
cause them their alleged harm. This lawsuit is the latest
(03:00):
round of lawfare, and this one was launched against the
Trump administrations planning for riffs reductions in force as has
now happened, and as we speak, is now happening. Why
is it happening right now because Congress failed to appropriate
money for the payment of government workers' salaries beyond the
(03:22):
end of the fiscal year, which was September thirty, twenty
twenty five, two days ago. Now, this is an area
of law, just a small caveat here. This is an
area of law that I had to deal with when
I was the General Counsel at FEMA. But I had
very highly specialized trained lawyers to deal with this area
(03:43):
of the law, and I just kind of oversaw it.
So I don't claim to be an expert in this area.
But I is a lawyer. And because I is a lawyer,
that gives me free reigin to talk about whatever I
want to talk about. So they're back my hands now
in anticipation of how to deal with and respond to
a failure to fund. OMB has directed every executive department
(04:10):
and agency to review their employee workforce and then to
make preliminary plans to evaluate the continuing necessity of these
now unfunded positions that they deem are not essential to
government operations. Drag and I are team of two, I suppose,
(04:37):
if which is why I've never ever In fact, we
are having a conversation this morning about a problem with
the app that some of you have reported, and a
problem with the feed from Freedom for the nationally syndicated program,
in which mister Redbeard, the producer, starts rattling off acronyms
(04:58):
and names and stuff, and I'm totally bewildered by everything
he's talking about.
Speaker 3 (05:03):
You did start looking like a monkey doing a math problem, well.
Speaker 2 (05:06):
And and you might as well have been speaking I
don't know lap Vin to me or something, because I
didn't get it. Now I have purposely never wanted to.
In fact, when I started doing the nationally syndicated program,
they actually assigned Now my producer is in Los Angeles,
in in LA, but the company assigned an engineer temporarily
(05:34):
until I can learn how to literally push three buttons.
I have to twist anob That's what I do. Have
to twist anobob. I have to twist a knob and
I have to push three buttons. The the third button,
I then have to twist the knob to connect to
a certain How would you describe that dragon the icess?
Speaker 3 (05:57):
This is the internet connection.
Speaker 2 (05:59):
Yeah, it's just it's it's a fancy internet connection that
connects me directly to Sherman notes. And so that took
that took for me to feel comfortable with it. It
took about three weeks for me to feel comfortable with it.
That's all I know. All I know, and I don't
want to know anymore. Because you take a guy like
(06:19):
Ryan who is started out as a producer, does he
do it? How often do you think he does a
show back?
Speaker 3 (06:26):
There at least once a week right now because of
the football season.
Speaker 2 (06:29):
Oh okay, and that's because Shannon's.
Speaker 3 (06:33):
Not around, correct, Shannon has to do this thing and
Zack has to go do that thing, and so.
Speaker 2 (06:38):
There's nobody else correct, So Ryan has to produce his
show at the same time that he's delivering his show. Now,
I don't know that I could do that now obviously
if Ryan could do it, because Ryan's a dumb ass.
Let's be honest.
Speaker 3 (06:54):
Well, let's face it, you can barely do a double
click on your own computer.
Speaker 2 (06:58):
Exactly, That's exactly right. And I embrace my radio technology incompetence.
And the reason I do is because I don't want
to learn Dragon's job because if they did a reduction
in force, well, now here's the sad thing. Dragons prove
proven that he could do taxpayer relief shots. Yes, so
(07:20):
you could just have the Dragon Redbeard taxpayer relief shot show. Actually,
I need to be careful about it because many people
may say, well, that'd be better than what we get. Now,
he could actually sit back there and just do I
assume you did the taxpayer release shots back there. Yeah,
it's cause you did. Why wouldn't you. So they could
(07:40):
do a reduction in force and just reduce this program
to one person. But they wanted to reduce it to me,
they'd have to train me to be a button monkey
like he is, which is what Cal Derek calls them.
I call them producers because I have the utmost respect
for them, because if I don't show respect for them,
is like glance at my microphone. Huh, my microphone could
(08:03):
go off at any moment, and you would hear a
word I say, I just I heard it click, but
I still see a blue light, so I think, I'm.
Speaker 3 (08:14):
Yeah, you're fine, don't worry.
Speaker 2 (08:16):
Yeah, of course I am working, because you also have
the you have the slight. Oh yeah, it could still
be on exactly exactly. So if you're hearing something of
a podcast or right now you think there's a you
know the towers down, well the tower may be down
for all we know, because I don't take them thirty
days to figure out that all the towers down to.
Speaker 3 (08:34):
We need a new hamster, that's right.
Speaker 2 (08:37):
The reason I point all of that out is what
is essential government operations? I think go back to my
very first few months in DC as General Counsel, having
huge staff of lawyers, some doubt only with freedom of
(08:59):
information acting. Some were program lawyers that dealt with different
at different programs. They dealt with flood insurance, they dealt
with they dealt with legislation. They had lawyers did nothing
but helped write legislation. So they were all very specialized.
Some of them probably could overlap and some like say
(09:23):
for your requests, you have to have a lawyer review
for your requests. Do you need five of them or
ten of them? No, because there's really no I mean,
it has to be reasonable, but there's no timeline that
says you have to answer a full your request within
two days. So you get rid of all but one
for your lawyer because the others are unnecessary. They're not essential,
(09:47):
they're not absolutely essential. The Anti Deficiency Act, I'm going
to refer to it as the ADA, so I don't
have to say Anti Deficiency Act every time, not the
Arrogans with Disabilities Act. This is the Anti Deficiency Act.
That Act prohibits executive branch officials from creating or authorizing
(10:11):
any obligation to spend in excess of the money available,
or authorizing or creating any obligation in advance of appropriations,
unless the law specifies otherwise. This is a mechanism to
control federal spending by stopping the agencies from overspending or
(10:34):
committing taxpayer money that has not been appropriated by Congress.
It includes spending on government employee salaries, but Congress has
provided in other statutes that some government employment positions are
essential to the health and welfare of you and me.
(10:54):
It's kind of scary. He isn't to think that some
government employees are essential to our health and welfare, but
they are. I don't want to board an airplane and
have nobody in the in the towers or in the
regional control centers. I want people who are actually looking
at radar and telling, you know, a flight to descend
(11:16):
to you know, thirty one hundred or whatever. That's what
I want. I want. I want ICE agents to continue.
I think they're essential. I kept hearing them throw in
the word firefighters, the only federally. Maybe I haven't looked
(11:38):
at this. I was just thinking about it. I've heard
firefighters mentioned as essential, but I don't know of any
federal firefighters other than the smoke jumpers that we have
up in Boise to fight wildland fires. So I'm not
sure what they're talking about unless we've got because for example,
(11:59):
at the White House, the firefighting outfit that's there comes
from the DC Fire Department, from the district Fire Department.
They're municipal workers. Anyway. The point is Congress has provided
the summary essential, and those statues provide authorization under the
ADA to incur those salary obligations to those employees even
(12:23):
in the absence of appropriated funds. The best example I
think is ATC their traffic control, or the US military,
or for that matter, FBI agents or ICE agents who
are engaged in law enforcement. But for non essential government employees,
well sucks to be you. Now some reported estimates. You
(12:47):
can find almost any number you want to, but I
would say that the most general reported estimate are that
as many as three hundred thousand non essential, unfunded positions
might be subject to being eliminated under the review process
that was that was ordered by Russ Vote. Who's the
director of Office of Management and Budget and who is
(13:09):
which and who is the subject of this lawsuit in
San Francisco. The lawsuit that I just referenced was filed
last night in the U. S District over for the
Northern District of California. As I said, in the San
Francisco Division, an anti Trump law fair favorite by two
unions that represent federal employees that have been deemed non
(13:30):
essential by statute, not by Russ Vote deciding on his
own that they're non essential. But let me make that clear,
represented by unions that represent federal employees that are deemed
non essential by law, not by discretion, Not because Russ vote,
(13:52):
had had a list of employees and said, okay, you're essential,
you're non essential, you know not not that this is statute. Now,
the relief that they're trying to get in this lawsuit
is as follows. There are four things they're asking for.
Declare that OBM obit DYSLEXI. Declare that OMB ANDPM Office
(14:18):
of Personnel Management. Declare that have the judge declare that
they exceeded their statutory authority. They acted contrary to law.
They acted in an arbitrary and capricious manner in issuing
the Office of Management Budget Lapse Memorandum and the associated
OPM guidance and instructions. Two to vacate, to hold to
(14:43):
set aside, hold unlawful, and to stop the OMB Lapse
Memorandum and the portions of the guidance and instructions that
authorize or at least purport to authorize administration of riffs
reductions enforced during a shut Now as well as, and
this is the catch all phrase, any and all actions
(15:05):
take in pursuit into five US Code Section seven oh
five and seven oh six three and four are to
interpriminary and permanent injunctive relief and of course to get
their attorney's fees, their costs, and other disbursements as appropriate.
The goal the goal of this lawfare is to find
the sympathetic judge, obviously in San Francisco, who will find
(15:30):
some defect in RUSS votes directions to the department, agency,
department and agency heads to simply review their workforce needs
by considering the need to keep the non essential positions
that no longer exist now that they are unfunded. In
other words, look at your employees. Look at everybody who's
(15:53):
been unfunded. Now you are given discretion to decide whether
or not the five them employees in that program office
are all necessary. Maybe one or two are, but three aren't.
The way to look at it is they have authorized.
OMB has authorized the Department and eight of departments and agencies.
(16:16):
Since you have no appropriations to pay salaries, go look
at every non essential employee and see whether they're really
needed or not. Now, the government has been running on
a series You know, I should have mentioned this in
the first hour, But the other thing you need to
(16:38):
understand about this particular CR is that it's just a
continuation of previous crs Because the federal government has been
running on a series of continuing resolutions that authorize the
payment of salaries up to September thirtieth, a couple of
days ago, go back to September twenty five, two twenty four,
(17:01):
Biden signed a CR that funded operations at the same
funding levels as fiscal year twenty twenty four through December
twenty twenty four. On December twenty one, twenty twenty four,
Biden signed another R, extending fundingment for government operations to
March fourteenth of this year. On March fifteenth of this year,
(17:24):
Trump signed a CR extending funding operations to September thirty
of this year. It's been CR after CR after CR.
In other words, Congress has not been doing its job
of passing appropriations bills and actually having a federal budget.
Speaker 4 (17:51):
Michael Tom from South Dakota calling about the government shutdown
and Trump truly is a threat to democracy. The shrine
to democracy last night didn't light up and it was
dark in South Dakota. Can you help me with a
GoFundMe to raise enough money to pay the guy to
(18:11):
flip the switch to light up the sky with the
shrine to democracy. Jesus, this is hard on us in
South Dakota.
Speaker 2 (18:22):
I'm really disappointed in him exactly. I told him what
to do. He didn't even reference the fact that I
told him to go dock Cabella's or someplace and he'll
go home depot or I don't know. Maybe you know
it's so backwards they don't have one. I didn't think
about that. I mean Walmarts whenever. Walmart's like a Starbucks,
(18:45):
they're everywhere. Buy a couple of flashlights and go over
the railing, lean over, shine the lights on, the shine
the light, you know, find TRS glasses, find Washington's big nose,
and shine the lights on. Problem solved.
Speaker 3 (19:03):
Make sure you look for Biden on that too, because
Nancy said that.
Speaker 2 (19:06):
That's right, that he should should be on Trump. Yeah, yeah,
look after that. Or you know, I guess the other
advice would be, and I don't give advice to break
the law, but go find the light switch, just turn
it on.
Speaker 3 (19:21):
There's a visitor center somewhere.
Speaker 2 (19:23):
Yeah, just you know, go in. I mean, you pay
for it, So go in and turn the light on,
flip the switch. We've been operating on CRS for years now,
so what's in play is simply an effort by the
Trump administration to examine the need for all the non
(19:44):
essential government positions that are unfunded as of yesterday. Does
the shutdown provide a basis to simply not bring back
employees into their positions, or can unfunded position simply be
eliminated as beyond the staffing needs of the department of
the agency where these non essential personnel are employed well.
(20:09):
The complaint referred to is thirty one pages long. Yeah,
I'm a SICKO, I read through it. These are the allegations.
Some of the allegations taken directly from the complaint from
the lawsuit. OBM and OPM, like other agencies, are governed
by authorizing statutes. Congress has not granted OMB or OPM
(20:34):
the authority to order federal agencies to downsize or reorganize
themselves to assume final decision making power by requiring agencies
to submit such plans for approval or to riff employees.
Another section thirty one USC. Section thirteen forty two allows
an exception for services provided in emergencies involving the safety
(20:54):
of human life for the protection of property, but that
exception does not include ongoing regular functions of government, the
suspension of which would not eminently threaten the safety of
human life or their protection of property. Another section argues
that to comply with the ADA in the event of
the lapse and appropriations appropriations, agencies prepare shut down plans
(21:15):
or lapse plans that describe the process for shutting down
effective programs. These plans identify the employees excepted from furlough
under the ADA and specify under which of the categories
of exceptions identified by the Department of Justice each employee
qualifies for. And it goes on and on and on.
I mean, there's like a dozen of these. I would
(21:38):
read to you. That's enough to get the to kind
of get the gist if that isn't clear to you
after hearing it, and I didn't read all of them.
Here's the upshot. According to the labor Union plaintiffs, the
Trump administration, they argue, simply cannot carry out a riff
(22:01):
process as provided for it by statute while the government
is shut down because the government employees who would carry
out the riff process are not exempted under the Anti
Deficiency Act and cannot therefore be performing the work necessary
to have a riff as directed by statute. You get
(22:24):
the circular argument. They're saying, Wait a minute, you can't.
The statute authorizes riffs, but you can't do a riff
because the employees that are not exempted cannot be performing
any work to do the riff because they're already furloughed
(22:45):
because there's no money. Well, wait a minute. After the
shutdown ends, the government can't engage in a rift because
all employees are back in their jobs and they all
enjoy the procedural protections before a riff could be executed.
It's the proverbial catch twenty two. The statutory process for
(23:06):
conducting a riff has provisions that requires certain considerations in
selecting the employees to be terminated, as well as considerations
relating to the order in which the employees subject to
a riff can be highed back. Now normally normally in
the real world, a riff is a numerical reduction in
(23:27):
force where the employees subject to being riffed are determined
based on certain factors. In this case addressed in federal
statute and in the OPM regulations. The statute is Title five,
Section thirty five oh two. Application of that statute presupposes
(23:49):
that all the requirements relating to if a riff is
necessary had been fulfilled, and Section thirty five oh two
and the related regulations specifying how a riff is to
be executed says this, the Office of Personnel Management shall
prescribe regulations for the release of competing employees in a
(24:14):
reduction in force which give due effect to tenure, military presence,
length of service, and efficiency or performance ratings. So a
riff is normally executed by reducing the relevant workforce by
twenty percent. Let's say, the process for determining who's in
(24:37):
the eighty percent that's retained and who's in the twenty
percent removed requires a consideration of what groups of employees
are competing against each other for retention based on job
responsibilities and those other four things tenure, military preference, length
of service, efficiency, or performance ratings. Now, it might be
(25:01):
that there's a particular position is subject to riff, but
the employee holding that position has a retention advantage over
another employee in a different but still competing position. The
employeehose position is eliminated might have a retention preference that
allows that employee to stay employed, while a second employee
(25:25):
without the preference ends up being the one terminated. For example,
there's a preference for veterans. There's a preference for seniority
in linked to service with linked to service, including time
served in the military, but is a shutdown. The distinction
between essential and non essential employees is not subject to
(25:47):
the same preference classifications. The employees deemed essential because of
the job functions they're reporting to work as normal right now.
Will those whose job functions are non essential are not
reporting for duty right now. So what the Trump administration
(26:08):
is doing is simply trying to evaluate the need for
continuing those non essential positions, not the employees in them.
You get the distinction their value. Do we need these positions?
We're going to eliminate your position because it's not necessary.
(26:33):
Now take the game of musical chairs. The music stops,
the non essential employees return, well, there might not be
the same number of non essential positions for them to fill.
That is when the riff process will happen. The competing
employees are too numerous for the jobs that remain. When
(26:56):
Congress finally restores funding, and there will be evaluation of
the retention preferences that I just outline those four preferences
linked the service, military service, et cetera. And then the
regulations used to decide the employees who stay and those
who removed. I know it's convoluted, but that's because Congress
(27:20):
writes these laws and russ Vote has done an amazing
job of just threading that needle perfectly. The riffs are
about the positions. So we don't have money to fund
non essential positions. So let's look at which of those
(27:43):
positions are necessary and not necessary. Let's say we've had
we got five positions. We determine that in a really
good way, three of them are unnecessary. So those three
positions are art done away with. He's the freaking president
(28:05):
of the United States of America. He's in charge of
the executive branch. He has the authority to do so,
to eliminate positions that he deems are unnecessary. Of course,
he has secretaries and under secretaries that make that determination
for him, and he has the omb that helps those
agencies determine which ones are necessary and not necessary. Now
(28:26):
I said five positions, you determine three are unnecessary. When
Congress restores funding, five employees show back up for work.
That is when you riff them, and you riff them
based upon who has preferences. So you have no military experience.
(28:47):
You've only worked here for six months, and this other
person has military experience and they've worked here for three years. Well,
doesn't take a rocket scientist figure out which one gets riffed.
And if you've eliminated three out of the five positions,
you'll do that for all three positions. In my opinion,
(29:11):
the plain is in this lawsuit five by the labor
unions on behalf of their members. I think the lawsuit
doesn't have standing. You know why. Now Standing means that
you brought this lawsuit because you have standing, you have
an immediate harm. Nobody is an immediate harm until you
(29:32):
get riffed. Nobody's been riffed. We're talking about eliminating positions.
No one has been subject to a rift, so there
is no harm to address. Throw out the lawsuit.
Speaker 5 (29:42):
Hey Mike, if the furloughed government employees are going to
get paid anyway, then all we're really doing is paying
them for a vacation. So if I get furloughed, I
don't get paid. And if I want to get paid,
if you vacation time.
Speaker 2 (30:01):
But if a.
Speaker 5 (30:02):
Government employee gets furloughed, they still get paid, Yep, they do.
Speaker 2 (30:11):
In fact, that's done via statute. So whether you're essential
or non essential, you're going to get paid. The difference
is the non essential people are sitting at home in
their boxer shorts, you know, watching Days of Our Lives,
and the essential employees are busy controlling their and defending
the nation and giving you a proctology examination out at
(30:34):
the airport. Interestingly, the Democrats themselves admit that they know
precisely what they're doing. This is Roe tana a Democrat.
I think he's from California.
Speaker 6 (30:48):
In terms of healthcare, the reality is they're just not
being honest. The amount of money that actually is going
towards that people are undocumented is such a small portion
of the Medicaid cuts or the Affordable Care Act, if
at all, And so we can argue that point. But
the reality that even the Vice President would acknowledge, that
(31:09):
anyone who looks at the numbers will acknowledge, is ninety
to ninety five percent of the funding we're talking about
is talking about funding for American citizens.
Speaker 2 (31:18):
Okay, let's assume that he is correct, which I don't,
but let's assume that he's correct. You admit that whether
it's one thousand dollars or a bazillion dollars. You want
illegal aliens to get healthcare, and not only that, but
they're the ones that decide to shut it down. This
is Congressman shre Thanador.
Speaker 6 (31:40):
Returning back to Detroit this morning after the Republicans failed
to show up in.
Speaker 1 (31:46):
The US House.
Speaker 6 (31:48):
We got to make sure Americans have the healthcare that
they need, and if that means we got to check
this government down, so be it.
Speaker 2 (31:55):
Now he's an idiot because the House has already passed
the continuing resolution, so they're not in session. They're waiting
on the Senate. It's the Senate. He's a member of
the House. He's as dumb as AOC. My gosh, these
people are stupid, and yet they just keep getting elected
over and over again. They don't even know how to
(32:18):
do their own talking points. They can't even do their
own spin correctly. Idiots everywhere. Idiots to your left, idiots
to your right. Wherever you look, idiots
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