“Legislative Interpretations”: Did Those Republican Judges Ever Go To Law School?
Six federal judges ruled Tuesday on the legality of subsidies being provided for low-income subscribers under so-called Obamacare. The two with solid Republican credentials found the program illegal.
With all due respect to these members of the esteemed federal bench, I have to question whether they really went to law school – or, if they did, whether they ever tended a class in legislation. Because if they did, they should have been aware of two fundamental principles of legislative interpretation: (1) courts should defer to the obvious intent of the legislature; and (2) they should also defer to the interpretation of legislation provided by the administrative agency charged with its enforcement.
The statute provides for health exchanges in the states to run the program, and provides a back up for federal exchanges to administer them when the states decline to participate. The statute includes a provision that allows the Internal Revenue Service to provide tax subsidies to those enrolled in the “state” exchanges.
It is clear that Congress never expected 36 states (mostly those controlled by Republican governors or legislatures) to opt out. It should be equally clear that Congress never intended to deny subsidies to those citizens living in opt-out states.
But the two Republican judges sitting on the U.S. Court of Appeals for the District of Columbia, blindly adopted the bizarre argument of the law’s challengers that under a literal reading of the statute only state enrollees were entitled to the subsidies.
On the same day, another federal appeals court sitting in Virginia unanimously ruled the other way. In that decision, Judge Andre Davis ridiculed the argument adopted by the two majority judges in D.C. He wrote that “[plaintiffs want to] deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose… could not be more clear.” But that was precisely the “tortured, nonsensical” position taken by the D.C. duo to the dismay of their colleague, the senior judge on the D.C. Circuit, Harry Edwards.
Then comes the Chevron doctrine. Chevron is a long-standing doctrine established by the Supreme Court that it was the obligation of courts when interpreting statutes to give deference to the interpretation of the statute by the administrative agency entrusted by Congress with its implementation.
In this instance, it was the Internal Revenue Service which had primary responsibility for implementing the health care subsidies. But the D.C. majority ignored the IRS interpretation.
To be fair to the D.C. majority, there is another doctrine which they chose to follow. It is called “textualism,” and its primary exponent is Justice Anton Scalia, the legal guru of conservatism. And this principle seems to say implement the clear terms of the statute no matter how absurd – or “nonsensical” – the result. But as Scalia’s critics like to point out, he generally invokes that principle only when it brings about a result he is ideologically comfortable with.
Obviously, these cases will have to be reconciled by the United States Supreme Court. And, fortunately for the millions of persons entitled to health care subsidies in the 36 states with federal health exchanges, Scalia’s “textualism” does not have a lot of adherents, even among his conservative colleagues on the high court.
By: Frank Askin, Distinguished Professor of Law and Director of the Constitutional Litigation Clinic at Rutgers Law School-Newark; The Huffington Post Blog, July 30, 2014
“None Dare Call It Impeachment”: We Will Look Back On This Moment In Washington As The Week That Irony Died
Let’s talk about something cheerful. How about impeachment?
Hey, it’s been a depressing month for news. If you want to look on the bright side, you’ve got to work with what you’ve got.
The possibility of actual impeachment is not something that keeps Barack Obama up at night. Modern history suggests there’s nothing Congress could do that the American public would hate more. Yet impeachment talk has been bounding around the Republican right for ages. The South Dakota Republican Party passed a resolution calling for impeachment at their annual convention this year. (We all know the famous saying: “As South Dakota goes, so goes North Dakota.”) Sarah Palin brings up impeachment virtually every day. Some members of Congress use it to energize the crazy base.
For instance, Representative Ted Yoho of Florida once posted a list of arguments for impeachment on his campaign website. I am mentioning this in part because it’s always fun to write “Ted Yoho.” Also because I don’t think I’ve ever had an opportunity to note that during his previous election season, Ted Yoho told a church group that he wished the right to vote was limited to property owners.
Last week, the Democrats started picking up the impeachment banner in the form of pretending to take the Republican threats seriously. White House senior adviser Dan Pfeiffer said it would be “foolish to discount the possibility.” Democratic fund-raisers sent out warnings of impending impeachment danger to their own base and were tickled by the enthusiastic response.
Now, Republican leaders are desperately trying to change the subject. The House speaker, John Boehner, called impeachment talk “a scam started by Democrats at the White House.” Karl Rove claimed Obama was trying to create a “constitutional crisis where none exists.”
“Do you think anyone in Washington in the G.O.P. is serious about impeachment?” demanded the radio host Glenn Beck. “Do you think one person? Have you spoken to one person? No one. So who wants it? The president does.” Actually, as Kendall Breitman pointed out in Politico, Beck had called for impeachment his very own self about a year earlier.
Meanwhile, in the House of Representatives, the majority party was busy showing the nation its serious side by voting to sue President Obama for violating the Constitution. Look, everybody has their own way of demonstrating that they’re sticking to the business at hand. Republicans are upset about the president’s attempt to deal with problems by executive order when Congress fails to address them with legislation. Obama’s record when it comes to executive orders is actually rather paltry compared with some of his Republican predecessors. Nevertheless, the Republicans have many, many complaints, all of which involve mention of the founding fathers.
You could not help but suspect that if Speaker Boehner had it to do all over again, he’d never have brought this idea up. Democrats cheerfully urged a really, really long debate on the subject, but the Republican-dominated Rules Committee decided that the whole thing should be dispatched with as quickly as possible. So fast, in fact, that it gave the lawsuit against the president the same debate time as a bill on deregulating pesticides.
The Republicans focused on — yes! — the founding fathers. It was, said Representative Candice Miller of Michigan, a battle against “tyranny, Mr. Speaker. Tyranny.” She is the leader of the Committee on House Administration, the only woman to lead a House committee under the current leadership. We will not dwell on the fact that Miller’s committee is basically in charge of housekeeping.
Meanwhile, the Democrats kept bringing up the I-word. “I sincerely believe that you are trying to set the stage for a despicable impeachment proceeding,” said Representative G.K. Butterfield of North Carolina. Representative Pete Sessions of Texas, the House Rules chairman, denied that suing the president was a step on the slippery slope to impeachment. He did that by defending the impeachment of President Clinton, which was, of course, so exceedingly successful that Clinton now is the most popular individual in the nation except perhaps for Boo the World’s Cutest Dog and the hamster that eats tiny burritos.
Rather than suing the president for everything he’s ever done, the Republicans tried to improve their legal prospects by picking a particular executive order. They settled on the one postponing enforcement of part of Obamacare that requires businesses to provide health coverage for their employees. “Are you willing to let any president choose what laws to execute and what laws to change?” demanded Boehner.
“Not a single one of them voted for the Affordable Care Act,” said Louise Slaughter, the top Democrat on the House Rules Committee. “They spent $ 79 million holding votes to kill it. And now they’re going to sue him for not implementing it fast enough.”
We will look back on this moment in Washington as The Week That Irony Died.
By: Gail Collins, Op-Ed Columnist, The New York Times, July 30, 2014
“Show Some Courage”: Survivors Call Out Cowardly GOP On Domestic Violence And Guns
Christy Martin is a legendary boxer. Since she started out at age 21, Martin has won 49 of her 57 total fights, with 31 KOs. She’s also a survivor of domestic abuse who was nearly murdered by her ex-husband four years ago. It’s the latter that brought her to Washington this week. In 2010, Martin was stabbed three times by the man she says had been threatening to kill her for 20 years. After stabbing her repeatedly, her ex-husband James Martin shot her and left her for dead. Martin survived by flagging down a passing car and begging to be taken to the hospital.
“As I lay there, I could hear the gurgling. I knew my lung had been ruptured, but I wasn’t dying fast enough,” Martin told MSNBC on Wednesday. “So he came back 3o minutes later and shot me with my own 9mm.”
Martin is just one of the women in Washington to testify before the Senate Judiciary Committee in support of a law that would tighten gun restrictions for domestic abusers in dating relationships and stalkers. A bill sponsored by Minnesota Sen. Amy Klobuchar — the Protecting Domestic Violence and Stalking Victims Act — would close existing holes in background check laws that allow domestic abusers and stalkers to own guns.
The data on the correlation between domestic violence and gun deaths makes the gaps in policy frighteningly clear. More than 60 percent of women killed by a firearm in 2010 — the year Martin was shot — were murdered by a current or former intimate partner. The presence of a firearm during a domestic violence incident increases the likelihood of a homicide by 500 percent.
What Congress — particularly Republicans in Congress — has before it right now is an opportunity to enact meaningful gun reform that will save women’s lives. Around 50 women’s lives every month, to be precise. They’ve had and blown this opportunity before, when mass shootings have galvanized public support for common-sense proposals to keep people safe from deadly gun violence. The same support exists for restrictions that limit violent offenders’ ability to access guns. As Laura Bassett and Emily Swanson at the Huffington Post noted this week, Republican voters break with the National Rifle Association when it comes to restrictions on stalkers and domestic abusers:
More than two-thirds of GOP voters (68 percent) said they would support or strongly support a new law stripping guns from convicted stalkers, according to a new poll by The Huffington Post and YouGov. Fifty-nine percent of Republican voters, and two-thirds of voters overall, support expanding gun restrictions for convicted domestic abusers to include non-married dating partners.
The NRA has said it strongly opposes both proposals, which the Senate will consider on Wednesday in its first-ever hearing on gun violence against women. The gun lobby sent a letter to senators last month urging them to vote against Sen. Amy Klobuchar’s (D-Minn.) legislation to ban convicted stalkers and abusive dating partners from possessing guns. The letter claims that the bill “manipulates emotionally compelling issues such as ‘domestic violence’ and ‘stalking’ simply to cast as wide a net as possible for federal firearm prohibitions.”
It remains to be seen what action Congress will take, and what the GOP will do in the face of strong support for change. They may just do what they’ve done before: ignore the issue. “There are so many people that just don’t realize what’s going on behind closed doors in their neighbor’s home. There are so many people who don’t understand domestic violence,” Martin explained on MSNBC. “It seems like if it’s not happening in our own home, then it’s just not happening.”
“Keeping guns out of the hands of abusers and stalkers will take more than a Senate hearing and carefully worded statements that say all the right things,” former Arizona representative and gun violence survivor Gabby Giffords wrote of the measure. “It will require our leaders to show some courage and stand up for common-sense laws. It will require some hard work. And it will require overcoming the power of those in Washington who continue to fight against these laws.”
By: Katie McDonough, Salon, July 30, 2014
“None Of Ryan’s Ideas Are New”: Stop Calling The GOP The Party Of New Ideas
Paul Ryan, the perennial media darling and the Republican vice-presidential nominee in 2012, has released an anti-poverty plan that has been widely hailed by a group of conservative policy enthusiasts known as the reformicons. According to Ross Douthat, The New York Times‘s house reformicon, the plan represents new and exciting conservative thinking, reflecting the “growing contrast between the policy ferment on the Republican side of the aisle and the staleness and/or small-ball quality of the Democratic Party’s ‘what comes after Obama?’ agenda.”
The problem with this argument is that none of Ryan’s ideas are new, and many of them are the antithesis of exciting.
Yes, the Ryan plan contains some ideas that are genuinely good. Its calls for major criminal justice reform are salutary — mass incarceration is fiscally wasteful as well as wasteful of human lives, and seeing an endorsement from a prominent Republican public official is reason for cautious optimism. It’s easier to propose cuts to corporate welfare in white papers than in the congressional sausage-making process, but to do so is unobjectionable. And proposing reforms to local regulations such as licensing requirements are at least defensible in some cases. None of these ideas are new, but originality is overrated — there is the potential basis for agreement here.
The core social welfare proposals of Ryan’s plan, however, fail both the originality and goodness tests. The plan does, at least, avoid the direct, savage cuts to discretionary spending that were a hallmark of Ryan’s previous budgets. Ryan’s proposal entails converting a great deal of federal anti-poverty spending into block grants to state governments, which would be free to experiment with those funds. There is, to put it mildly, nothing novel about this idea. Going back to conservative southern Democrats in the New Deal, conservatives have advocated giving states more discretion about how to use federal money.
But more to the point, in addition to being very old, the block grant idea is terrible. As the economist Max Sawicky notes, spending through block grants has the effect of creating disincentives for states to spend adequate money on poverty, while also undermining the political basis for maintaining the programs. In addition, giving the states discretion has tended to involve withholding spending from the “underserving” poor, who tend to be overwhelmingly people of color. The intrusive paternalism the Ryan plan encourages is also unattractive.
The notion that “let them eat states’ rights” is a new and exciting idea is particularly perverse given some other recent developments. To the widespread applause of Republicans, a panel on the D.C. Circuit Court of Appeals read the Affordable Care Act as not providing subsidies to people purchasing health insurance on federally established exchanges. According to defenders of the decision, this was not a drafting mistake; they say Congress intended to only make the subsidies available on state-established exchanges, but were surprised by how few states went along.
As a reading of the ACA, this argument is absurd — clearly Congress anticipated that some states would not establish exchanges, which is why the federal backstop was created. Virtually nobody involved in creating the ACA believes that the law was designed to create federal exchanges that wouldn’t work. It is fair to say, however, that some Democrats were surprised by how many states proved unwilling or unable to establish their own exchanges.
But consider the implications of this. The latest conservative legal argument against the ACA boils down to: “you screwed up — you thought the states actually wanted to provide people with health care!” And the Supreme Court re-writing the ACA in 2012 to make it easier for states to reject the Medicaid expansion has also been a catastrophe, with Republican statehouses inflicting easily avoidable pain and suffering on millions of people to prove their anti-Obama bona fides.
So — why is devolving anti-poverty policy to the states supposed to be a great idea again?
Indeed, the experience of the ACA is a compelling repudiation of the idea that giving states more discretion over social policy is a good idea — or that Republicans at the state level genuinely care about helping the poor and the needy. Many statehouses are opposed to federal anti-inequality measures in principle, and even less hostile ones have proved administratively inept. Anti-poverty policy in the U.S. needs more federal intervention, not less.
By: Scott Lemieux, Professor of Political Science, College of Saint Rose in Albany, N.Y; The Week, July 30, 2014
“The GOP Loses Control Of Its Frankenstein Monster”: Speaker Boehner May Hold The Gavel, But He’s Not In Charge
The headline on the L.A. Times story reads, “Boehner rules out impeachment.” But when it comes to what the House Speaker actually said yesterday, the headline isn’t quite right.
“No, no, no, no,” Congressman Greg Walden, who chairs the National Republican Congressional Committee, told Politico when asked whether the House would initiate impeachment proceedings. Boehner told reporters on Tuesday that there were “no plans” to remove Obama, calling the idea “a scam started by Democrats at the White House.”
We already know with certainty that the Ohio Republican is wrong when he blames this on the White House – the impeachment talk has come from GOP lawmakers and it’s been going on for years. Indeed, if this is a “scam,” John Boehner’s own leadership team is in on it – the new House Majority Whip, Rep. Steve Scalise (R-La.) refused to take presidential impeachment off the table during an interview just three days ago.
But then there’s the part about Boehner’s “plans.”
There are a few angles to this story that are running on parallel tracks, all of which carry equal weight. The first is the GOP’s Frankenstein problem: Republican leaders created a monster, doing nothing to tamp down the right’s crusade to tear down the Obama presidency, and they suddenly find themselves scrambling now that the monster is running lose. As Arit John put it, Republicans have “lost control of the impeachment plot they hatched.”
It’s led to, among other things, an awkward dance in which pro-impeachment Republicans try to walk back their own rhetoric now that they realize how happy Democrats are to hear it.
The second is the intra-party tensions that won’t go away. In 2006, Nancy Pelosi disappointed some on the left by definitively ruling out presidential impeachment, taking it “off the table.” Today’s Republican leaders will do no such thing for a very specific reason: too many GOP lawmakers really do support the idea. Indeed, there was palpable disappointment among many on the far-right yesterday when Boehner suggested impeachment isn’t part of his future plans.
As Jonathan Capehart put it, “A ‘No, don’t be ridiculous. We’re not going to impeach the president. Period!’ from Scalise on Sunday or from Boehner today would have put an end to the chatter. But no.”
And finally, there’s the ongoing problem of Boehner’s weakness as House Speaker. By all appearances, Boehner appears genuinely reluctant to pursue an impeachment scheme. When he says he has “no plans” to push such a reckless move, he’s almost certainly telling the truth.
But Boehner also had “no plans” to shut down the government. He had “no plans” to force a debt-ceiling crisis. He had “no plans” to kill immigration reform. He had “no plans” to ignore the Hastert Rule. He had “no plans” to ignore the Boehner Rule.
The point is, it’s become painfully obvious that the Speaker may hold the gavel, but he’s not in charge in any meaningful sense. He may not intend to go after Obama with some ridiculous impeachment crusade, but given Boehner’s weakness and lack of credibility, the decision probably isn’t his to make.
By: Steve Benen, The Madow Blog, July 30, 2014
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