“If Boehner Sues Obama, John Roberts Wins”: Enhancing Judicial Power At The Expense Of The Elected Branches
The story on House Speaker John Boehner’s lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.
In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans’ lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn’t like what he’s done.
What Boehner is claiming now is that Congress, or the House of Representatives in this case, should be able to sue the president for not following the law if no one else would be able to do so.
If that succeeds, however, the big winner in the long run wouldn’t be Congress. It would be the courts.
By the logic of Boehner’s own action (despite what he says), this isn’t about a tyrannical president refusing to obey the law. If House Republicans believed that Obama was an out-of-control dictator, then they couldn’t also believe that a court ruling would be sufficient to constrain him.
What’s actually happening is that the House doesn’t interpret the law in the same way as the president, and the question is how to resolve the variance. Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts’ ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we’d wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor. Those kinds of setbacks are common for senators and executive branch departments; the only thing that prevents the losers, or whole chambers that lost fights in conference, from directly appealing to the courts is that the courts have a doctrine against intervening.
So what can Congress do? If the problem were simply a president who failed to follow the law, then the only real choices would be either to live with it, or impeachment and conviction. But if the problem is merely that the president interprets a law in a way that Congress doesn’t like, then the obvious remedy, as presidency scholar Andrew Rudalevige said recently, is “for Congress to change the law to remove presidential discretion” (I argue the same here).
So put aside the question of whether the administration improperly interpreted the law (it might have). Put aside, too, the silliness of House Republicans attempting to force the president to impose a policy, the employer mandate, which no Republican actually wants to enforce. And put aside the reality that by the time this lawsuit is decided it may well be moot, at least if the mandate takes effect as currently planned. This is about enhancing judicial power at the expense of the elected branches, and it’s a very bad idea.
By: Jonathan Bernstein, Ten Miles Square, The Washington Monthly, July 12, 2014
“The Limits Of Presidential Photo-Ops”: A Bipartisan Hunger For More Political Theater, Just For The Sake Of Symbolism
Senate Minority Whip John Cornyn (R-Tex.), this week, on a presidential photo-op at the U.S/Mexico border:
“If it’s serious enough for him to send a $3.7 billion funding request to us, I would think it would be serious enough for him to take an hour of his time on Air Force One to go down and see for himself what the conditions are,” Cornyn told reporters.
Senate Minority Whip John Cornyn (R-Tex.), three years ago, on a presidential photo-op at the U.S/Mexico border (via Chris Moody):
“What Sen. Cornyn is looking for, President Obama cannot deliver with another speech or photo op, and that’s presidential leadership. Words matter little when there is no action,” said Kevin McLaughlin, a Cornyn spokesman.
I’ll confess that this is one of the unexpected political hullabaloos of the week. It’s not at all surprising that policymakers in both parties are taking the border crisis and the plight of these poor children seriously, but it was hard to predict that much of the political conversation would focus less on a proposed solution and more on whether or not the president literally, physically makes a symbolic gesture by going to the border itself.
Much of the overheated rhetoric has come from the far-right – Sen. James Inhofe (R-Okla.) inexplicably said the president “disrespects our military” by not going to the border – but it’s not entirely partisan. Some congressional Democrats have added to the criticism.
“I hate to use the word ‘bizarre,’ but … when he is shown playing pool in Colorado, drinking a beer, and he can’t even go 242 miles to the Texas border?” Rep. Henry Cuellar (D-Texas) told msnbc’s Andrea Mitchell yesterday.
As best as I can tell, no one in either party has said exactly what they want Obama to do at the border, other than just go there for some undefined period of time before leaving. It appears to be a bipartisan hunger for more political theater, just for the sake of symbolism.
President Obama, at least so far, is pursuing a very different approach.
After meeting with Texas Gov. Rick Perry (R) and a variety of officials in Dallas yesterday, the president held a press conference in which the very first question was on this topic. “There are increasing calls not just from Republicans, but also from some Democrats for you to visit the border during this trip,” the reporter noted. “Can you explain why you didn’t do that?” Obama replied:
“Jeh Johnson has now visited, at my direction, the border five times. He’s going for a sixth this week. He then comes back and reports to me extensively on everything that’s taking place. So there’s nothing that is taking place down there that I am not intimately aware of and briefed on.
“This isn’t theater. This is a problem. I’m not interested in photo ops; I’m interested in solving a problem. And those who say I should visit the border, when you ask them what should we be doing, they’re giving us suggestions that are embodied in legislation that I’ve already sent to Congress. So it’s not as if they’re making suggestions that we’re not listening to. In fact, the suggestions of those who work at the border, who visited the border, are incorporated in legislation that we’re already prepared to sign the minute it hits my desk.”
For the president’s critics, this wasn’t good enough. I’m not sure why.
By: Steve Benen, The Maddow Blog, July 10, 2014
“Obama’s Understated Foreign Policy Gains”: Leadership, Painstaking Diplomacy And Understanding America’s Limitations
It’s been a pretty good couple of weeks for American foreign policy. No, seriously.
On June 23, the last of Syria’s chemical weapons stockpile was loaded onto a Danish freighter to be destroyed. The following day, President Vladimir V. Putin of Russia asked his Parliament to rescind the permission that it had given him to send troops into Ukraine. Meanwhile, there is still cautious optimism that a nuclear deal with Iran is within reach.
What do these have in common? They were achieved without a single American bomb being dropped and they relied on a combination of diplomacy, economic sanctions and the coercive threat of military force. As policy makers and pundits remain focused on Iraq and the perennial but distracting discussion about the use of force, these modest but significant achievements have, perhaps predictably, been ignored. Yet they hold important lessons for how American power can be most effectively deployed today.
Nine months ago, President Obama eschewed military means to punish Syria for its use of chemical weapons and instead negotiated an agreement to remove them. Critics like Senator John McCain blasted it as a “loser” deal that would never work. By refusing to back up a stated “red line” with military force, Mr. Obama had supposedly weakened American credibility.
In Damascus, however, the threat of military engagement by the United States was taken more seriously. And when given the choice between American bombing or giving up his chemical weapons, President Bashar al-Assad of Syria chose the latter.
Four months ago, some pundits confidently declared that Mr. Putin had “won” in Crimea and would ignore a Western response of toothless sanctions. But Russia has paid a serious price for its actions in Ukraine: diplomatic isolation and an economic downturn spurred by capital outflows, declining foreign investment and international opprobrium.
Mr. Putin’s recent effort to tamp down tensions appears to be a response, in part, to the threat of further sanctions. In trying to operate outside the global system, Mr. Putin found that resistance to international norms came at an unacceptable cost.
While it is far too early to declare success on the nuclear talks in Vienna, that the United States and Iran are sitting down at the negotiating table is a historic diplomatic achievement. When Mr. Obama spoke during the 2008 election campaign of his willingness to talk with Iran’s leaders, it led to criticisms that he was naïve about global politics. But his efforts as president to extend an olive branch, even as Iran continued to pursue its nuclear ambitions, enabled America to build support for the multilateral economic sanctions that helped make the current negotiations possible.
While one should be careful in drawing expansive judgments from disparate examples like these, there are noteworthy commonalities. The most obvious is that military force is not as effective as its proponents would have Americans believe. Had the United States bombed Syria or hit Iran’s nuclear infrastructure, it would almost certainly not have been as successful as the nonmilitary approaches used.
Yet, at the outset of practically every international crisis, to bomb or not to bomb becomes the entire focus of debate. That false choice disregards the many other tools at America’s disposal. It doesn’t mean that force should never be considered, but that it should be the option of last resort. Force is a blunt instrument that produces unpredictable outcomes (for evidence, look no further than Iraq, Afghanistan and Libya).
What did work in these three situations was the patient diplomatic effort of building a global consensus. The success of international sanctions against Iran and Russia respectively relied on the support of both allies and rivals. Acting alone, the United States would never have achieved the same results.
It wasn’t just Americans who were outraged by the seizure of Crimea — so, too, were nations that had few interests in the region. The reason is simple: When countries invade their neighbors with impunity, it puts every country at risk. A similar global consensus against chemical and nuclear proliferation, backed by international treaties, also served as the foundation for American diplomacy toward Iran and Syria.
Critics will fairly argue that these outcomes hardly justify great celebration. Mr. Assad has relinquished his chemical weapons, but the bloody civil war in Syria continues. Mr. Putin has backed off in eastern Ukraine, but he’s keeping Crimea. Iran may agree to a nuclear deal, but it will remain a destabilizing power with the potential to upgrade its nuclear capacity.
This speaks to the limitations of American power. The United States cannot stop every conflict or change every nefarious regime. Any foreign policy predicated on such ambitions will consistently fail.
What the United States can do is set modest and realistic goals: upholding global norms and rules, limiting conflicts and seeking achievable diplomatic outcomes. With China flexing its muscles in the Far East, these lessons are more important than ever.
But they are not transferable to every international crisis. Sanctions don’t mean much, for example, to radical nonstate actors like the jihadists of the Islamic State. And unilateral pressure from the United States cannot, for example, bring about the political reforms in Iraq that are needed to stabilize the country. Sometimes, America has no good answer for disruptive events like these.
All too often, though, our foreign policy debates are defined by simplistic ideas: that force is a problem-solver, that America can go its own way and that mere application of American leadership brings positive results. But the results with Syria, Russia and Iran remind us that when American foreign policy is led by painstaking diplomacy, seeks multilateral consensus and acts with an understanding of its own limitations, it can produce positive results. More often than not, boring is better.
By: Michael A. Cohen, Op-Ed Contributor, The New York Times, July 9, 2014
“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History
For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”
What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.
A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:
Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question … because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)
The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”
When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.
But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.
The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.
Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.
Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.
By: Simon Lazarus, The New Republic, July 10, 2014
“Who Wants A Depression?”: The Rich Believe That What’s Good For Them Is Good For America
One unhappy lesson we’ve learned in recent years is that economics is a far more political subject than we liked to imagine. Well, duh, you may say. But, before the financial crisis, many economists — even, to some extent, yours truly — believed that there was a fairly broad professional consensus on some important issues.
This was especially true of monetary policy. It’s not that many years since the administration of George W. Bush declared that one lesson from the 2001 recession and the recovery that followed was that “aggressive monetary policy can make a recession shorter and milder.” Surely, then, we’d have a bipartisan consensus in favor of even more aggressive monetary policy to fight the far worse slump of 2007 to 2009. Right?
Well, no. I’ve written a number of times about the phenomenon of “sadomonetarism,” the constant demand that the Federal Reserve and other central banks stop trying to boost employment and raise interest rates instead, regardless of circumstances. I’ve suggested that the persistence of this phenomenon has a lot to do with ideology, which, in turn, has a lot to do with class interests. And I still think that’s true.
But I now think that class interests also operate through a cruder, more direct channel. Quite simply, easy-money policies, while they may help the economy as a whole, are directly detrimental to people who get a lot of their income from bonds and other interest-paying assets — and this mainly means the very wealthy, in particular the top 0.01 percent.
The story so far: For more than five years, the Fed has faced harsh criticism from a coalition of economists, pundits, politicians and financial-industry moguls warning that it is “debasing the dollar” and setting the stage for runaway inflation. You might have thought that the continuing failure of the predicted inflation to materialize would cause at least a few second thoughts, but you’d be wrong. Some of the critics have come up with new rationales for unchanging policy demands — it’s about inflation! no, it’s about financial stability! — but most have simply continued to repeat the same warnings.
Who are these always-wrong, never-in-doubt critics? With no exceptions I can think of, they come from the right side of the political spectrum. But why should right-wing sentiments go hand in hand with inflation paranoia? One answer is that using monetary policy to fight slumps is a form of government activism. And conservatives don’t want to legitimize the notion that government action can ever have positive effects, because once you start down that path you might end up endorsing things like government-guaranteed health insurance.
But there’s also a much more direct reason for those defending the interests of the wealthy to complain about easy money: The wealthy derive an important part of their income from interest on bonds, and low-rate policies have greatly reduced this income.
Complaints about low interest rates are usually framed in terms of the harm being done to retired Americans living on the interest from their CDs. But the interest receipts of older Americans go mainly to a small and relatively affluent minority. In 2012, the average older American with interest income received more than $3,000, but half the group received $255 or less. The really big losers from low interest rates are the truly wealthy — not even the 1 percent, but the 0.1 percent or even the 0.01 percent. Back in 2007, before the slump, the average member of the 0.01 percent received $3 million (in 2012 dollars) in interest. By 2011, that had fallen to $1.3 million — a loss equivalent to almost 9 percent of the group’s 2007 income.
That’s a lot, and it surely explains a lot of the hysteria over Fed policy. The rich are even more likely than most people to believe that what’s good for them is good for America — and their wealth and the influence it buys ensure that there are always plenty of supposed experts eager to find justifications for this attitude. Hence sadomonetarism.
Which brings me back to the politicization of economics.
Before the financial crisis, many central bankers and economists were, it’s now clear, living in a fantasy world, imagining themselves to be technocrats insulated from the political fray. After all, their job was to steer the economy between the shoals of inflation and depression, and who could object to that?
It turns out, however, that using monetary policy to fight depression, while in the interest of the vast majority of Americans, isn’t in the interest of a small, wealthy minority. And, as a result, monetary policy is as bound up in class and ideological conflict as tax policy.
The truth is that in a society as unequal and polarized as ours has become, almost everything is political. Get used to it.
By: Paul Krugman, Op-Ed Columnist, The New York Times, July 10, 2014
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