Looks kinda thorough to me
Monday, Apr 15, 2013 - Posted by Rich Miller
* Earlier this month we looked at Professor Laurie Reynolds’ thesis about how the Illinois Supreme Court might rule that the Nekrtiz/Cross pension reform was constitutional, even though it appeared to defy the state Constitution’s prohibition against diminishing or impairing benefits. The Tribune editorial page approvingly quoted from her analysis over the weekend and concluded…
The overriding truth here is that all legal speculation is just that. If merely reading statutes, case law and constitutions could settle disputes, we wouldn’t need judges to think more broadly about what’s just. In this dispute, the Illinois Supreme Court could decide that, yes, pensioners are losing some future benefits, but are receiving two gains of great value in return: much healthier pension funds, and a fiscally stable state better able to fund their still-generous benefits.
I don’t disagree that it’s possible the Illinois Supremes could rule this way. With a court, almost anything is possible.
* But there was also this…
As for the 1970 convention: “I have looked at the convention history surrounding the adoption of the pension clause, and it is remarkably scant,” [Professor Reynolds] says. “There was very little delegate discussion of this clause, and I’m not sure how helpful the constitutional history will be to the court’s analysis.”
* I dunno about that. If you click here you can see some pretty extensive Con-Con floor debate, much of it foreshadowing today’s debate.
* Also, according to the analysis prepared by the Senate Democrats’ Eric Madiar, there were at least two attempts to water down the pension language’s impact. Both were rebuffed. The first would’ve tacked some language onto the front of the pension clause itself. The proposed additional language is italicized…
Subject to the authority of the General Assembly to enact reasonable modifications in employee rates of contribution, minimum service requirements and other provisions pertaining to the fiscal soundness of the retirement systems, membership in any pension or retirement system of the state or any local government, or any agency or instrumentality of either, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired
The second attempt would’ve provided some “intent” language read into the record…
The statement provided, in pertinent part, that while the proposed Pension Clause “is taken from the Constitution of New York,” “it should not be interpreted as embodying a Convention intent that it withdraws from the legislature the authority to make reasonable adjustments or modifications in respect to employee and employer rates of contribution, qualifying service and benefit conditions, and other changes designed to assure the financial stability of pension and retirement funds.”
That move was also rejected, leading Madiar to conclude…
The contemporaneous nature of the Commission’s overtures and their rejection by Convention delegates show that the drafters (1) were cognizant of the Clause’s broad limitation on legislative power and (2) intended to immunize pension benefit rights (e.g., employee benefits payments, conditions or contribution rates) from any adverse, unilateral action by General Assembly.
* Voters, of course, had to approve the new Constitution. Madiar looked at the official explanation provided to Illinoisans…
The Convention stated in its official text and explanation of the proposed Constitution that under the Pension Clause “provisions of state and local governmental pension and retirement systems shall not have their benefits reduced.” And, “membership in such systems shall be a valid contractual relationship.”
The Convention’s official explanation also stated that the Clause was a new section “and self-explanatory.” The Convention’s official text and explanation was mailed to each registered voter in Illinois and published in newspapers throughout the State prior to the special referendum election held in December 1970 to approve the proposed Constitution
- RNUG Fan - Monday, Apr 15, 13 @ 12:05 pm:
There is the Chief Justices statement on how he rules…..Looks like the University presidents should have read this before they had a panic!
- wordslinger - Monday, Apr 15, 13 @ 12:14 pm:
–If merely reading statutes, case law and constitutions could settle disputes, we wouldn’t need judges to think more broadly about what’s just.–
LOL. That’s one way of looking at it.
I think the idea is for judges to decide disputes arising from interpretations of statutes, case laws and constitutions, not just “merely” tossing them aside to arrive at a “just” (read that “The Trib’s”) conclusion.
- RNUG - Monday, Apr 15, 13 @ 12:15 pm:
Having gone and read the actual 1970 Con-Con debate transscripts on the pension clause and also some of the subsequent testimony by the drafters in some of the pension clause cases, the authors were pretty clear about their intent. They also made it clear they expected something like today’s “crisis” would come and they wanted to protect the pensioners against it.
- Rod - Monday, Apr 15, 13 @ 12:17 pm:
The Madiar analysis never looked at the modification of pension benefits in the situation of a public pension default where the state becomes the guarantor. The discussion as I read it was about laws that could modify public pensions and what constituted the totality of the pension benefit.
Once a public pension defaults I would suggest the situation will change and so will the legal analysis.
- archimedes - Monday, Apr 15, 13 @ 12:18 pm:
I don’t know - the Trib continues to quote the prior opinions from law firms stating that future benefits not yet earned could be reduced - and suggesting that HB3411 does just that. It does not. It reduces benefits that have already been earned.
- Norseman - Monday, Apr 15, 13 @ 12:20 pm:
While I know its impossible to accurately predict a court ruling. An adverse ruling would be against the plain language of the constitution.
With respect to Reynolds. She lost credibility in my eyes when I saw Reynolds’ statement about “scant” discussion of the clause. As Rich pointed out, Madiar had an extensive discussion on the subject of convention history.
- RNUG - Monday, Apr 15, 13 @ 12:26 pm:
Rod,
Ever since the 1975 funding case, the state has in effect been the guarantor; that case made it clear in the comments the State had to pay the pensions when due. And without looking it back up, I believe the testimony in one of those cases made it clear the drafters also intended to protect such enhancements as the AAI.
- Rich Miller - Monday, Apr 15, 13 @ 12:29 pm:
===The Madiar analysis never looked at the modification of pension benefits in the situation of a public pension default where the state becomes the guarantor===
Actually, that very point was debated at the Con-Con. A Mr. Borek brought it up: https://capitolfax.com/wp-content/Picture3_15.png
(Page six of the transcripts.)
- Waldi - Monday, Apr 15, 13 @ 12:31 pm:
If it was a contract that the State had with the Tribune that it was now attempting to renege on my guess is that the Tribune editorials would be so positive about it.
- Waldi - Monday, Apr 15, 13 @ 12:34 pm:
Sorry - I meant to say the Tribune editorials WOULDN’T be so positive.
- Anonymour - Monday, Apr 15, 13 @ 12:48 pm:
It seems the Chicago Tribune is calling for blatant judicial activism. How odd.
- soccermom - Monday, Apr 15, 13 @ 12:53 pm:
I have a read all of the legal opinions on this issue (apparently I am being punished for having a terrific time in a previous life) and I have to say that Madiar’s argument is the most convincing.
- facts are stubborn things - Monday, Apr 15, 13 @ 1:04 pm:
Professor Reynolds has little credebilty on the topic. She is comfusing the true statement that the pension cluase of the IL constitution is not an absolute right (just as free speech is not absolute…you can not yell fire in a movie theator)with the fact that the pension clause of the IL constitution means exactly what it says and to not uphold the pensoin clause the court would have to find a reason that the state cannot meet its pension obligations without causing great harm to the state. How do you claim that the state is in crisis, when we have not moved to a graduated tax system,taxed servies,taxed pensions, reamertized the pension debt, moved pension costs to the local districts, made further changes to new employees not yet hired, making further cuts to the existing budget, pass a law ending retiree health care completly for that matter etc. etc. etc.
- facts are stubborn things - Monday, Apr 15, 13 @ 1:08 pm:
This whole pension issue is a result of a political calculation that the GA can spend the pension dollars over a 40 year period - providing free services to the votors - until they create a huge pension liability and blame it on the pension system and make the retirees put their own money back in to make the system whole so they can do this all over again over the next 40 years.
- Cincinnatus - Monday, Apr 15, 13 @ 1:12 pm:
WWRD?
What Would Rauner Do?
- foster brooks - Monday, Apr 15, 13 @ 1:14 pm:
Didn’t someone post a supreme Court case earlier that the state can’t use economic woes to reduce pensions?
- Captain Illini - Monday, Apr 15, 13 @ 1:18 pm:
Retired persons and tier 1 employees are on sound legal pension footing, and the GA knows this. Attempting to undermine that footing is going on now, while simultaneously running out the clock on potential legal fixes. Soon, (right after the end of session) the next election comes into play, where slogans decrying the inability to deal legally, ethically, etc. will enter the political arena when the next list of candidates (some incumbent) will espouse their ability to fix the system (cue Quadraphinia…)
- Rich Miller - Monday, Apr 15, 13 @ 1:18 pm:
BTW, I just noticed that MJM was a “Yes” vote on the pension language clause.
- D P Gumby - Monday, Apr 15, 13 @ 1:19 pm:
Rather than arguing about the Ill.Const., why are we not arguing about the fallacy of the so-called “pension default”. The scant evidence of that doomsday scenario argues that such resolutions as amortizing the purported debt is a more rational solution than breaching the constitutional contract.
- dave - Monday, Apr 15, 13 @ 1:23 pm:
**What Would Rauner Do?**
Spend more money trying to convince people that the constitution says something other than what it says?
- facts are stubborn things - Monday, Apr 15, 13 @ 1:44 pm:
Not sure that a another political calculation is not already underway….is it better to go into the next election without a pension fix? If nothing happens, then pension payments simply force spending cuts in other areas, something republicans always say they want.
- Rod - Monday, Apr 15, 13 @ 1:49 pm:
Rich thanks for the cite on the constitutional convention discussion of the pensions defaulting. Clearly the idea of the state limiting its loses in such a situation was thought of as a possibility and was opposed by the majority.
In the situation of a default I suspect the issue will be raised again and given the weaker fiscal situation of the state seen as more realistic by both courts and the Assembly.
The first test case of a default might be the General Assembly Retirement System, wouldn’t it? (http://www.sj-r.com/blogs/pensionQA/x1578915242/The-first-system-to-be-insolvent-GARS)
I suspect the courts will be not be happy to order the citizens of Illinois to pay the full 85 percent of GA members final salary after just 20 years of service, along with every additional year they stayed on 3 percent of their initial pension is to their retirement checks. GARS in the situation of a default might be the test case and probably it would generate limited public sympathy I suspect.
For everyone’s sake including the retired members of the Assembly it would be best to avoid a default, but we are creeping in that direction. But a GARS default might very well bring about innovative legal thinking.
- Dewey Dilligent - Monday, Apr 15, 13 @ 2:02 pm:
At Foster Brooks….Not a supreme court case, but a con-con quotation:
“I would presume that the purpose of this proposal is to make certain that irrespective of the financial condition of a municipality or even the state government that those persons who have worked for often substandard wages over a long period of time could at least expect to live in some kind of dignity during their golden years.” -Delegate James Kemp
Not an opinion of Dewey’s, just a fact.
- Roadiepig - Monday, Apr 15, 13 @ 2:12 pm:
Thanks Rich for bringing up the misstatement by prof. Reynolds that there was “scant discussion ” over the pension protection clause by Con Con delegates. Madiar’s analysis proves that is far from the truth, and say otherwise means that Reynolds is either being disingenuous or too uninformed to be taken seriously .
- Dewey Dilligent - Monday, Apr 15, 13 @ 2:15 pm:
Wasn’t the funding status of the funds in the 70’s around 40%, the same as today? If so, is an imminent default really imminent?
This was the only reference I could find:1976: An 8/11/76 article doesn’t break out the TRS from a half-dozen other funds, but the executive director of the Illinois State Employees Retirement System, Michael Mory, is quoted as saying “a good rule of thumb is that these kinds of pension programs should be currently funded to about two-thirds of their expected future payout needs. The Illinois programs are funded at only about 40 per cent.”
http://www.chicagomag.com/Chicago-Magazine/The-312/March-2011/Illinois-Teacher-Pensions-Always-in-Distress-Mode/
- Where will it end - Monday, Apr 15, 13 @ 2:19 pm:
I’m not in the legal profession, but;
Illinois courts declared the General Assembly and the Governor violated the Illinois Constitution when they attempted to eliminate the cost-of-living adjustments (COLA) to judicial salaries provided by law for the 2003 and 2004 fiscal years.
In Justice Rarick’s court opinion he stated; One thing we cannot do (the courts), however, is ignore the Constitution of Illinois, and no principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem.
- Formerly Known As... - Monday, Apr 15, 13 @ 2:21 pm:
@RNUG - that is my reading as well. It seems fairly clear what they sought to achieve and felt that placing such protections in the Constitution itself would prevent any sort of twisting or manipulation by future generations (us).
- Dewey Dilligent - Monday, Apr 15, 13 @ 2:23 pm:
I think the legal discussion that has not happened should focus on “The Benefit.”
What exactly is it?
The IL Supreme Court has ruled that a municipality can lower the retirement age, even if that has an incidental impact(lowering) of the pension benefit.
So what is the benefit exactly?
a) The Pension Formula? Years x Multiplier x Final Salary (or maybe just years, or just multiplier, but not salary)
b) COLA
c) Both a + b
d) Retiree Health care - Court Case to Decide
e) The Retirement age - Peters v Springfield says NO, not a benefit
f) All of the Above
g) The benefit is simply membership in a pension fund and the benefits of membership shall not be diminished, i.e. you cannot prevent someone from being a member if they qualify for that plan
- Michelle Flaherty - Monday, Apr 15, 13 @ 2:29 pm:
Foster,
Google “Jorgensen v. Blagojevich” and read the last few graphs of the decision. You’ll find what you’re looking for.
- Robert the Bruce - Monday, Apr 15, 13 @ 2:45 pm:
Professor Reynolds is a law professor focusing on state and local laws. So much of an expert, she actually wrote some books about them!
http://www.law.illinois.edu/faculty/profile/lauriereynolds
And yet I think Rich and the majority of the commenters know more about the amount of discussion at the 1970 Con-Con and Jorgensen v. Blagojevich than she seems to.
This is an amazing blog! It’d be neat to have her join in this discussion so we could ask her these questions.
- unbiased observer - Monday, Apr 15, 13 @ 3:04 pm:
this is pretty simple situation…
Illinois fiscal situation heading off the cliff.
1) there are really only 2 things which will be able to make a quick difference in this situation:
they are increased revenue and pension reform.
both need to be done. addressing this massive fiscal crater by only raising taxes and not addressing the pensions is both politically unlikely and economically ridiculous.
we will see what the judges say. it will be very difficult for them to decide against pension reform. this will be a highly visible, highly politically charged decision. this will not be a decision only reviewed by a few esoteric policy wonks like the folks who post and read this site. everyone in the state will be watching this decision. there will be enormous political implications and don’t think the judges wont be aware of that.
the only arguments most anti pension reform folks have are judicial, legal theories. if common sense pragmatism were what was being employed when trying to solve this decision, every option would be on the table for solutions. not every option EXCEPT pension reform as many on this site seem to suggest.
- Algonquin J. Calhoun - Monday, Apr 15, 13 @ 3:18 pm:
Unbiased Observed:
“the only arguments most anti pension reform folks have are judicial, legal theories”
You’re joking, right? You’re version of “reform” is theft, pure and simple, since you think that’s right. Why bother to have constitutions, laws, regulations, etc., if at some point, people “want” to do something that’s to their own benefit, rather than abide by those nasty, in the way, legal requirements.
- Anon. - Monday, Apr 15, 13 @ 3:22 pm:
==the only arguments most anti pension reform folks have are judicial, legal theories.==
Which are the only things judges are supposed to concern themselves with.
==if common sense pragmatism were what was being employed when trying to solve this decision, every option would be on the table for solutions. not every option EXCEPT pension reform as many on this site seem to suggest.==
You have it backwards. The GA is proposing to renege only on the State’s contractual obligations to retirees. If they can do that, the pragmatic approach would be to renege on all contracts — share the pain.
- Where will it end - Monday, Apr 15, 13 @ 3:39 pm:
I’m new to this site and have a lot of catching up to do. However, I was able to follow most of the conversation and logic until the posting of:
unbiased observer
To say that since this subject and consequent court cases will be highly watched by most everyone in the state and that there will be enormous political implications is enough to supersede the Illinois Constitution is very disturbing.
Should our judges be more concerned with public opinion and how our politicians feel more so than the Law?
I don’t pretend to understand all the arguments but I truly do hope that the judges make their rulings following contract law and the Illinois constitution and not just because there will be enormous political implications.
- Robert the Bruce - Monday, Apr 15, 13 @ 3:43 pm:
==The only arguments most anti pension reform folks have are judicial, legal theories.==
Did the Unfrozen Caveman Lawyer just join our blog?
- PublicServant - Monday, Apr 15, 13 @ 3:54 pm:
Welcome to CapitolFax, “Where will it end”. You have correctly categorized the position of “Un”biased Observer, who is anything but unbiased. His statements reflect his belief that his reality, and the conditions he states are needed to correct the problem, trump all. Period. Logic need not be employed. Nor is it really conversation. It’s his pronouncement. Pesky things like the Constitution and Rule of Law need not be followed. Oh, and the veiled threat to Judges…”You are being watched…”
Yeah…You would do well to skip over his rants relatively quickly when looking for logic and conversation. Again, welcome to CapitolFax.
- Meaningless - Monday, Apr 15, 13 @ 4:03 pm:
I wonder if Madigan, Nekritz, Biss, Cross, The Tribune editorial staff, and now Prof Reynolds have ever heard of Lorrie Morgan’s song … “What Part of No Don’t You Understand”? as in NO, you cannot diminish or impair earned pension benefits! Wouldn’t every citizen of Illinois be better served if our politicians tried to create a solution in a constitutional manner? There are many brilliant options already offered such as re-amortization, graduated income tax, taxing more services, elimination of outlandish tax breaks, along with increased employee contributions that make so much more sense.
- siriusly - Monday, Apr 15, 13 @ 4:13 pm:
If we are going back in time on this one, maybe we should look back to see what the benefit levels were at the time the Constitution was approved. Clearly there have been some “enhancements” since that date. Can’t be diminished. Does that mean ever ? Or based on what levels. That is one large part of the unreasonable costs we face.
The other part, is GA’s the failure to pay of course.
- RNUG - Monday, Apr 15, 13 @ 4:29 pm:
sirously,
Based on the resolved cases to date, it has been stated by various courts that rules in place at time of hiring PLUS enhancements granted by the General Assembly are protected. If the courts really mean it, and they have to date, it doesn’t matter what the benefits were in 1970.
To expand / paraphrase, the courts assumed the GA knew what they were doing when granting enhancements and had made the judgment the State could afford to pay for them. And Nardulli’s ruling on the health insurance was an end run around the pension clause, so I’m not sure it can be considered … plus we haven’t heard the end of that case.
The previous stances by the courts are part of the reason I believe the courts won’t buy into this manufactured crisis caused by the systematic failure of the state to fund the pensions adequately on an annual basis.
- titan - Monday, Apr 15, 13 @ 4:36 pm:
@siriusly - as to the unfunded liability, essentially all of the problem is the GA’s skipped payments. As to long term health of the system (and changes in the general landscape of pension systems), changes for new hires would be fully lawful and could be done.
- Six Degrees of Separation - Monday, Apr 15, 13 @ 4:42 pm:
Siriusly,
Doesn’t matter. Of course, pensions were changed as time went on, and not sure all the changes were “wise”. However, the employee hired in 1992 and still working can’t be held to the standard of an employee hired in 1971 and retired in 1992…the plain language of the constitution dictates the terms that are applicable to each employee during their period of employment should be enforced accordingly.
- Six Degrees of Separation - Monday, Apr 15, 13 @ 4:46 pm:
As to long term health of the system (and changes in the general landscape of pension systems), changes for new hires would be fully lawful and could be done.
And WERE done, creating a two-tiered pension system that has held up without a constitutional challenge.
- Michelle Flaherty - Monday, Apr 15, 13 @ 5:00 pm:
You know, the court could ignore the Illinois Constitution on this one.
The Cubs could win the World Series this Year.
And …
http://www.youtube.com/watch?v=LMIy_KiBpKU
- Norseman - Monday, Apr 15, 13 @ 5:11 pm:
Great comment Michelle!
- geronimo - Monday, Apr 15, 13 @ 6:48 pm:
As far as pensions changing over time and the implication that benefits have changed for the better, along with that, employees have also steadily paid more of their income into the pension fund (as legislators were contributing less and less).
- Anonymour - Monday, Apr 15, 13 @ 8:23 pm:
I’m just a caveman lawyer, and this Professor Reynolds of yours doesn’t seem to know what legislative history is, or plain language, or canons of construction, or the proper role of the judiciary. But what do I know? I’m just a caveman lawyer.
- wishbone - Monday, Apr 15, 13 @ 8:54 pm:
“…every option would be on the table for solutions, not every option EXCEPT pension reform as many on this site seem to suggest.”
Of course, this is the obvious and only solution. The courts will not completely take over the responsibility for running the state from legislative and executive branches.
- RNUG - Tuesday, Apr 16, 13 @ 1:40 am:
My guess is when it does get to the courts, the courts will again issue the minimum order they can (ala 1975). They will tell the State the pensions are protected and it’s the GA’s problem to figure out how to pay for them. The only way I could see the courts taking a more activist role is if the scenario of unconstitutional changes is repeated multiple times, at which point the courts may directly issue an order that he Comptroller pay the pension funds (ala judge’s COLA) … and still leave it up to the GA to figure out where the cash is coming from.
- David0316 - Tuesday, Apr 16, 13 @ 7:26 am:
Rather than wasting time speculating on what the Supreme Court would decide, the General Assembly should put forth a reasoned constitutional amendment on pensions. The alternate language shown above and considered at ConCon would be a good starting point for an amendment. Let the voters decide. Every proposal to fix the pensions is challenged by the opposition as being unconstitutional. Fix the constitution first.
- Where will it end - Tuesday, Apr 16, 13 @ 7:40 am:
Most agree that the main cause of the financial mess Illinois faces is the fact that the legislature didn’t follow the law and make the pension payments. Instead, they twisted the law and passed other laws that said they didn’t have to follow the previous law to make it easier for today.
Is pushing for a constitutional amendment just doing what the legislature did to get into this mess? We don’t like what the constitution says we have to do so we will change the constitution to make it easier. The legislature did the same, change the law because it was easier to NOT follow it.
Maybe we should spend more time following the law and much less time trying to come up with ways to get out of it.
- PublicServant - Tuesday, Apr 16, 13 @ 7:40 am:
Well Dave, only problem with that is that you’d have to change the US Constitution first. See, specifically, Article 1, Section 10 as it pertains to a state’s ability to “pass any … Law impairing the Obligation of Contracts”, but nice try.
- Sue - Tuesday, Apr 16, 13 @ 8:19 am:
The Supreme Court imo is not going to do something which results in Illinois being unable to maintain all other programs simply to allow for full funding of existing pension obligations and/or put the State in the position of having to drastically raise taxes in order to satisfy the pension payments- At the end of the day the Court will come out with an opinion which recognizes the fiscal reality that nothing short of a draconian tax increase and/or the reduction of all other state programs would allow for full funding- The Justices are elected and unlike federally appointed judges are not isolated from political pressure- Without all of the whining as to who is responsible for the mess the legislature and several Governors have created- does anyone seriously believe the Court will come out with a ruling which imposes huge tax hikes and/or leaves the State essentially insolvent
- PublicServant - Tuesday, Apr 16, 13 @ 8:21 am:
No Sue they won’t specify huge tax hikes. See RNUG above at 1:40am for what is much more likely.
- David0316 - Tuesday, Apr 16, 13 @ 8:27 am:
The US Supreme Court has on numerous occasions interpreted Article 1, Section 10 as it pertains to a state’s ability to “pass any … Law impairing the Obligation of Contracts”as not being absolute. State statutes are filled with laws that regulate contracts. Consumer protection legislation and labor laws are key examples. These have all been upheld as constitutional.
- PublicServant - Tuesday, Apr 16, 13 @ 8:31 am:
OK, well see ya in court Dave. Pay your bills.
- Sue - Tuesday, Apr 16, 13 @ 8:33 am:
Public Servant- the US Supreme Court in a depression era ruling decided that the State (Kansas) could void private contracts when the State’s financial welfare was at stake- the court essentially ruled that in a financial emergency rules otherwise thought inviolable were up for grabs- Illinois finds itself in the impossible position of having made promises it now cannot keep- to some extent(perhaps to a large extent) these promises were forced onto the legislature by Union lobbying which resulted in a never ending stream of pension benefit increases with the assumption that paying for them was someone else’s problem
- Anon. - Tuesday, Apr 16, 13 @ 8:39 am:
==the US Supreme Court in a depression era ruling decided that the State (Kansas) could void private contracts when the State’s financial welfare was at stake==
And the US Supreme Court has also held that it is much more suspicious of the “financial welfare” argument when the state is trying to void its OWN contracts.
- PublicServant - Tuesday, Apr 16, 13 @ 9:28 am:
Sue, if unions could force things on the legislature, we wouldn’t be having this argument, but you go ahead and keep believing that unions control the legislature.
- steve schnorf - Tuesday, Apr 16, 13 @ 1:11 pm:
As I point out in Tuesday’s Capitol Fax, the emergency and what bis necessary to resove it is overstated