“The Ultimate Slap”: How Obama Can Stick It To Netanyahu
Benjamin Netanyahu says he’s definitely coming to Washington to deliver a speech about Iran to a joint session of Congress. He’ll almost certainly oppose a nuclear deal whose details aren’t public yet. The whole “tawdry and high-handed stunt,” as Senator Patrick Leahy put it, will be correctly read as an insult to the president.
So how best for Obama to make his displeasure known? He’s already denied Netanyahu an audience. But if Obama really wants to stick it to the Israeli prime minister, he should fight to ink a deal with Iran before the March speech on Capitol Hill. That would dare Netanyahu to come and forcefully denounce a major global foreign policy achievement.
Democrats, at least, will be loathe to turn their backs on Obama. The speech already faces stiff opposition from the party—fifteen members of the House and three senators are on board for a boycott. Even some right-leaning pro-Israel groups, if the current rifts among the Israel lobby are any indication, might not openly revolt against a deal.
What Obama has going for him is the ability to correctly cast this an issue of avoiding a confrontation with Iran rather than seeking one. It worked last year when Obama beat back a sanctions bill that would’ve quashed talks, and it will work this time. Imagine Netanyahu declaring, as he did after the interim deal with Iran, that an comprehensive accord limiting Iran’s nuclear program is a “historic mistake” when Obama has half the American body politic at his back.
What’s more, the international community is on Obama’s side, too, and Netanyahu knows it. In his statement yesterday, affirming the trip amid all the pressure, Netanyahu mentioned his “profound disagreement with the United States administration and the rest of the P5+1”—referring to the US’s international partners in Iran talks. Last week, Netanyahu vowed to “stand up to Iran and the international community.”
The most onerous maneuvering for Obama, then, isn’t managing politics, domestic or international, but getting the deal itself. This, however, might not be as difficult as it sounds. Iranian Foreign Minister Javad Zarif hinted this week at how close the sides came to an agreement when he said at a security conference in Munich that the last extension of talks in November wasn’t “necessary or useful.”
The extension, though, was useful for Obama: whereas in November his party was coming off a beating in midterm elections, today the economy is in better shape and Obama seems to be feeling his oats. The sort of swagger he showed in the State of the Union address will only serve to help the president sell an agreement.
Ironically, the most detailed information the public has about a potential nuclear deal comes through Israeli officials, who are informed by the United States and its negotiating partners about talks, then go leak it to the press. Even if the Israelis are releasing accurate information about the negotiations—something they have a spotty record on—the fear-mongering about the likely outcome doesn’t capture its complexity.
Luckily for Obama, as things are lining up opponents of a deal aren’t themselves much interested in nuance and complexity. Aside from a few hardline pro-Israel Democrats, most of the opposition will come from Republicans and hawks in the Bill Kristol mode—in other words, those who, like Netanyahu himself, have poor records on matters of war and peace.
When the administration comes out and focuses on how opponents of a deal are pushing the United States to war, the hawks will object that they are being labeled warmongers. The administration isn’t quite making the “warmonger” argument, but the salient point is that killing a deal would bring us closer to confrontation. That’s why inking a deal ASAP would be good policy, and why it’s the high road to delivering the ultimate slap to Netanyahu.
By: Ali Gharib, The Nation, February 11, 2015
“A Time To Veto”: Exercising Authority Under The Constitution In Precisely The Way Our Founders Intended
President Obama is poised to reject legislation meant to force the approval of the Keystone XL tar sands pipeline, in what would be his third veto since taking office six years ago.
Pipeline proponents, naturally, are howling.
Obama, though, is exercising his veto authority under the Constitution in precisely the way our founders intended: as a check on Congressional overreach at odds with the good of the country.
The president is the only public official elected to represent all the American people. That confers upon the president, uniquely, an obligation to act on behalf of the entire country, not simply a collection of congressional districts or states, in a way that reflects the common will and advances the national interest.
The Constitution enshrines the presidential veto as a vital tool for fulfilling that role, and leaders throughout our history have found it essential. Presidents stretching back to George Washington have used the veto 2,563 times to reject legislation passed by both houses of Congress.
Ronald Reagan used his veto power 78 times — the most of any president in modern times. Obama, at the other end of the scale, has vetoed just two bills so far — fewer than any other president in 160 years.
Rarely is the veto more clearly in order as now.
Under long-established procedure, the question of whether to approve a project like a pipeline that would cross a U.S. border hangs on a single criteria: is the project in the national interest? It is the president’s job — and properly so — to make that determination.
In assessing whether the Keystone XL tar sands pipeline meets the criteria, Obama has put the U.S. State Department in the lead, with expertise added from an array of other government agencies that oversee commerce, transportation, energy, environment and other important areas central to the national interest.
The Republican-led House gave final congressional approval today to a bill meant to force approval of the tar sands pipeline in a way that would usurp presidential authority, short-circuit the deliberative process of informed evaluation already underway and supersede the president’s obligation to determine whether the project is good for the country.
Those are three good reasons to veto the bill.
There is, though, one more, and it goes to the heart of our system of checks and balances.
The tar sands pipeline is not a project designed to help this country. It is a plan to pipe some of the dirtiest oil on the planet — tar sands crude mined from Canada’s boreal forest using some of the most destructive industrial practices ever devised — through the breadbasket of America to Gulf coast refineries where most of the fuel will be shipped overseas.
It would create 35 permanent American jobs, according to the Canadian company that wants to build the pipeline. And the tar sands crude would generate 17 percent more of the carbon pollution that is driving climate change than conventional crude oil produces.
It would put our heartland at grave and needless risk of the kind of pipeline accidents we’ve seen nearly 6,000 times over just the past two decades. It would cross more than 1,000 rivers, streams and other waterways and pass within a mile of some 3,000 underground wells that supply irrigation and drinking water to communities and farms across Montana, South Dakota and Nebraska. And it would deepen our addiction to the fossil fuels of the past when we need to be investing in the clean energy options of the future.
That is not a project that serves our national interest. It is, instead, a project that’s about big profits for big oil, big payoffs for industry allies on Capitol Hill and big pollution for the rest of us.
If that’s what the Republican leadership in Congress wants to drop on the president’s desk, here’s what’s going to happen. The president is going to do what other presidents going back to George Washington have done more than 2,500 times: stand up for what’s best for all Americans, and veto this terrible bill.
By: Rhea Suh, The Blog, The Huffington Post, February 11, 2015
“Deluded And Dysfunctional, The Republicans Have Lost The Plot”: They’ve Run Out Of People To Blame For Not Compromising
Recently, in an effort to embarrass Republicans pandering to their scientifically challenged base, Senate Democrats proposed a series of votes on climate change. While most Americans and the overwhelming majority of scientists believe climate change is real and people are the primary cause of it, Republican voters are evenly divided on whether it exists at all, and reject the idea that we are responsible.
One amendment, by the Democratic senator Brian Schatz, stated simply that climate change is real and human activity significantly contributes to it. Republican senator John Hoeven offered a compromise: take the word “significantly” out. When asked why, he said: “It was about finding that balance that would bring bipartisan support to the bill.”
Reaching across the aisle in search of compromise and consensus is the professed goal of almost every candidate for public office in the US, particularly in recent times, when presidents have come to personify not unity but division. Over the past six decades, the 10 most polarising years in terms of presidential approval have been under either George W Bush or Barack Obama.
As a means, bipartisanship is, of course, an admirable goal: the more politicians are able to work together, put the interests of their constituents first and get things done, the better. The grandstanding, bickering and procedural one-upmanship that characterises so much of what passes for politics is one of the things that makes electorates cynical and drives down voter turnout.
But as an end in itself, bipartisanship is at best shallow and at worst corrosive. For it entirely depends what parties are joining together to do. This is particularly true in America, where constituencies are openly gerrymandered, both parties are funded by big money, and legislation is often written by corporate lobbyists.
Bipartisan efforts over the past couple of decades have produced the Iraq war, the deregulation of the financial industry, the bank bailout made necessary by that deregulation, the slashing of welfare to the poor, and an exponential increase in incarceration. As the hapless Steve Martin says to his hopeless travel companion, John Candy, in Planes, Trains and Automobiles: “You know, I was thinking, when we put our heads together … we’ve really gotten nowhere.”
Comity in the polity is overrated and should certainly not be mistaken for what is right or even popular. And even if it wasn’t overrated, bipartisanship is not always possible. Half of Republicans still believe the US did find weapons of mass destruction in Iraq, over half believe climate change is a hoax, and almost half do not believe in evolution. There is a limit to how much agreement you can reach with people with whom you disagree on fundamental matters of fact, let alone principle.
But if the parties cannot work together, they are at least supposed to work separately. What has become evident since Republican victories in November’s midterm elections, which delivered them both houses of Congress, is that they don’t just have a problem compromising with Democrats – they cannot even compromise with each other. For the past four years they have revelled in their dysfunctionality, using Obama as a foil. Apparently unaware that brinkmanship is supposed to take you to the edge, not over it, they have shut down the government and almost forced the nation to default on its debts through a series a spectacular temper tantrums.
As the Republican congressman Marlin Stutzman pointed out in a particularly candid moment 18 months ago, when Republican obduracy caused a government shutdown, “We have to get something out of this. And I don’t know what that even is.”
These hissy fits have invariably been aimed at forcing Obama to undo the very things he pledged to do if elected, and to which Republicans have no plausible, coherent response: during his first term that was Obamacare; now it is immigration reform. Opposition, in short, had become not a temporary electoral state but a permanent ideological mindset in which their role was not to produce workable ideas but to resist them.
When they won the Senate as well as the House, they were supposed to work together to produce Republican legislation that Obama would be forced to veto, definitively exposing the real source of the gridlock. In fact, they are simply imploding under the weight of their own obstinacy. They’ve run out of people to blame for not compromising with them. So now they’re blaming each other.
“The Republicans are like Fido when he finally catches the car,” the Democratic senator Charles Schumer told the New York Times. “Now they don’t have any clue about what to do. They are realising that being in the majority is both less fun and more difficult than they thought.”
Their current internal feud was prompted by Obama’s executive order for modest immigration reform, which was enacted last November. It aims to prevent the deportation of up to 5 million undocumented immigrants living in the US, provide many with work permits, and shift the focus of immigration control to deportations of convicted criminals and recent arrivals.
The Republican-controlled House, where funding bills must originate and legislation can be passed by a simple majority, has voted for a Department of Homeland Security (DHS) bill that would eviscerate Obama’s reforms. But to get the bill through the 100-seat Senate they need 60 votes. Senate Republicans have only 54 seats and Democrats, who are unanimously opposed to the bill, keep filibustering it.
In a functional party the Republican Speaker, John Boehner, would work out what changes he could make to the bill to give the Republican Senate majority leader, Mitch McConnell, a fighting chance of getting the requisite majority to pass legislation they could both take credit for. Instead, Boehner has offered McConnell not compromise but commiserations. “He’s got a tough job over there; I’ve got a tough job over here. God bless him, and good luck.”
The House has sent the same bill to the Senate twice. The Senate has failed to pass it several times. In effect, they’ve treated the Republican-controlled Senate no differently to how they treated its Democratic predecessor, with similar results. Reflexively, House Republicans have their bottom lip extended and at the ready. “We sent them a bill,” representative Michael Burgess told Politico, “and they need to pass it. They need to pass our bill.” A tantrum is not far off. “Politically, [McConnell] needs to make a lot of noise,” says representative John Carter.
Senate Republicans, meanwhile, roll their eyes, count to 10 and wait patiently for the noise to give way to reason. “We can go through the motions, sure, but I don’t think we’re fooling anybody,” said Republican senator Jeff Flake about the prospect of another doomed vote. “Because we need [Democratic] support to get on the bill.”
If they don’t find a solution by 27 February, then the DHS will be shut down and Obama won’t have had a thing to do with it. The true source of the gridlock over the past six years will be clearer than ever. The emperor will be out there, twerking, in the buff.
“It’s not an issue of commitment, it’s a matter of math,” said the Republican senator John McCain – perhaps failing to realise that math, like science, is no competition for blind faith and bad politics.
By: Gary Younge, The Guardian, February 9, 2015
“The Supreme Court At Stake”: Overturning Obamacare Would Change The Nature Of The Supreme Court
In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.
The court very nearly got the answer wrong with an exceedingly narrow reading of Congress’s commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congress’s tax power.
I thought the court was seriously misguided in denying Congress the power under the Commerce Clause to intervene in a sector of the economy that accounts for more than 17 percent of the gross national product. But even I have to concede that the debate over structure has deep roots in the country’s history and a legitimate claim on the Supreme Court’s attention. People will be debating it as long as the flag waves.
But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.
At the invitation of a group of people determined to render the Affordable Care Act unworkable (the nominal plaintiffs are four Virginia residents who can’t afford health insurance but who want to be declared ineligible for the federal tax subsidies that would make insurance affordable for them), the justices have agreed to decide whether the statute as written in fact refutes one of the several titles that Congress gave it: “Quality, Affordable Health Care for All Americans.”
If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very “death spiral” that the Affordable Care Act was designed to prevent.
It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasn’t received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, it’s neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)
The precise statutory issue is the validity of the Internal Revenue Service rule that makes the tax subsidies available to those who qualify by virtue of their income, regardless of whether the federal government or a state set up the exchange on which the insurance was bought. The challengers’ argument that the rule is invalid depends on the significance of two sub-clauses of the act that refer to “an exchange established by a state,” seemingly to the exclusion of the federally established exchanges.
But other parts of the complex and interlocking description of how the subsidies work suggest no such limitation. They point strongly in the opposite direction. For example, if a state chooses the option not to set up its own exchange, an option 34 states have exercised, the law requires the United States Department of Health and Human Services to “establish and operate such exchange within the state.” (Justice Antonin Scalia loves to quote dictionaries, and the government’s brief obliges him by quoting the definition of “such” from Black’s Law Dictionary, a standard legal reference: “that or those, having just been mentioned.”) The government argues that in this exercise of “cooperative federalism,” the federal government simply acts as the state’s surrogate; functionally, the federal exchange “is an exchange established by the state.” The law’s other relevant sections support that interpretation. For example, one section provides that any “applicable taxpayer,” defined by income, will be eligible for the subsidy, making no reference to where the taxpayer purchased the insurance.
I could go on about the intricacies of the statute, but the intricacies aren’t my point. Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text. (They do disagree on such matters as the legitimacy of using legislative history, or on what weight to give a law’s ostensible purpose; I’m referring here to how they actually read a statute’s words.)
Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” (Justice Scalia was addressing a lawyer for the state of Texas, who was arguing for a very narrow reading of the Fair Housing Act. The justice’s skepticism toward the state’s statutory argument has been, in my opinion, widely misinterpreted to mean that Justice Scalia will rule for those seeking to preserve the law’s current broad meaning. I believe, rather, that Justice Scalia will accept the broad statutory reading and then go on to find that the Fair Housing Act so interpreted is unconstitutional. That important case is Texas Department of Housing and Community Affairs v. the Inclusive Communities Project.)
Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s. Justice Clarence Thomas wrote in a 1997 opinion that in a statutory case, courts have to look at “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”
Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that “the sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”
Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision “is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute.”
These examples all come from a brief filed on the government’s behalf by a group of law professors who are specialists in statutory interpretation, administrative law or constitutional law. One is Charles Fried, a law professor at Harvard who served as solicitor general during the second Reagan administration. (Another signer of this brief is my Yale colleague, William N. Eskridge Jr., one of the country’s leading authorities on statutory interpretation.)
Readers of this column may recall my expression of shock back in November when the court agreed to hear King v. Burwell. A three-judge panel of the federal appeals court in Richmond, Va., had unanimously rejected the challenge to the law, and the plaintiffs’ appeal didn’t meet the normal criteria for Supreme Court review. A defeat for the government — for the public at large, in my opinion — seemed all but inevitable.
While I’m still plenty disturbed by the court’s action, I’m disturbed as well by the defeatism that pervades the progressive community. To people who care about this case and who want the Affordable Care Act to survive, I have a bit of advice: Before you give up, read the briefs. (Most, although not all, are available on the website of the American Bar Association. ) Having read them this week, I’m beginning to think for the first time that the government may actually prevail.
The challengers have submitted a bunch of me-too arguments from the usual ideological suspects that offer various versions of the narrative concocted to validate the acontextual reading of the law that eliminates subsidies on the federal exchanges. That narrative depicts a highly implausible scenario in which the states — which under the Constitution couldn’t actually be compelled to set up their own exchanges — were given a powerful incentive: Set up your exchange or, if you exercise your choice to default to the feds, your citizens will lose their right to the tax subsidies that will enable them to afford insurance.
The problem for the challengers is that the statute itself nowhere says that, and no one in a position of power appears to have believed at the time that the law would do any such thing. In recent weeks, supporters of the law have had a great deal of fun digging up old statements and video clips demonstrating the contemporaneous belief of prominent Republicans that the subsidies would be available to everyone. The website Talking Points Memo posted one such revelation the other day about Representative Paul Ryan, who at the time was the ranking Republican on the House Budget Committee.
Beyond what various people hoped or expected, there is a deeper issue that the challengers ignore but on which the government’s briefs are utterly persuasive. A fascinating brief filed in support of the government by an unusual coalition of 23 red-state and blue-state attorneys general (some from states with their own exchanges and others from federal-exchange states) maintains that the challengers’ narrative would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election.”
This brief, written in the Virginia attorney general’s office, continues: “Every state engaged in extensive deliberations to select the exchange best suited to its needs. None had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the A.C.A. as the availability of tax credits. Nothing in the A.C.A. provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck.”
There are abundant Supreme Court precedents that require Congress to give states “clear notice” of the consequences of the choices a federal law invites them to make. Justice Samuel A. Alito Jr. invoked that principle in a 2006 case interpreting the Individuals With Disabilities Education Act, a case cited by the 23 attorneys general. The government’s own brief, filed by Solicitor General Donald B. Verrilli Jr., observes that “it would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation” in technical sub-clauses.
To accept the challengers’ narrative, the government’s brief asserts, “the court would have to accept that Congress adopted that scheme not in a provision giving states clear notice of the consequences of their choice, but instead by hiding it in isolated phrases.” The court should interpret the statute “to avoid the disrespect for state sovereignty” inherent in that unlikely account.
Among the two dozen other “friend of the court” briefs filed on the government’s behalf is one from a group of small business owners (significant because the earlier case against the Affordable Care Act was brought by a small-business federation) and several from the health care industry. The Catholic Health Association, representing 600 Catholic hospitals, along with Catholic Charities, filed a brief explaining the significance of the Affordable Care Act for health care providers that serve, as the Catholic hospitals do, a high proportion of low-income patients.
So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.
I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.
By:
“The Bottom Rungs Of The Economic Ladder”: Boehner Undermines His Own Minimum-Wage Argument
When policymakers debate increasing the minimum wage, there’s nothing wrong with them drawing on their personal experiences when making a decision. Some members of Congress, however, really aren’t good at it.
A couple of years ago, for example, Rep. Marsha Blackburn (R-Tenn.) argued against raising the minimum wage above $7.25 an hour because, when she was a teenager, she made $2.15 an hour and she “appreciated that opportunity.”
What Blackburn didn’t realize is that inflation exists – when she made $2.15 an hour as a teen, in inflation-adjusted terms, that was over $12 an hour in today’s money. The Tennessee Republican was trying to argue against a minimum-wage hike, but she ended up doing the opposite.
A related problem popped up over the weekend, when House Speaker John Boehner (R-Ohio) appeared on “60 Minutes” and CBS’s Scott Pelley asked if Congress might increase the “federal minimum wage.” The Republican leader replied:
“It’s a bad idea. I’ve had every kinda rotten job you can imagine growin’ up and gettin’ myself through school. And I wouldn’t have had a chance at half those jobs if the federal government had kept imposing [a] higher minimum wage. You take the bottom rungs off the economic ladder.”
Again, there’s nothing wrong with Boehner, like Blackburn, drawing upon his personal experiences. The trouble is that Boehner, like Blackburn, is flubbing the details.
Sam Stein set the record straight:
[W]hen Boehner was first taking on those “rotten jobs,” the minimum wage was actually at its historic high. And when the wage later dipped relative to inflation, Congress passed a series of hikes that raised it some more.
According to Department of Labor statistics, the minimum wage stood at $1.60 an hour in 1968 – the highest it has ever been when adjusted for inflation…. At first, Boehner went into sales – selling plastics, specifically – after his brief stint with the Navy ended. In 1971, he enrolled in Xavier University. According to a recent Politico profile, Boehner took a number of odd jobs while attending school there, among them “a series of humbling janitorial and construction jobs.” He would graduate in 1977.
On “60 Minutes,” Boehner expressed relief that the government didn’t keep “imposing” a higher minimum wage at the time, but in reality, the government actually did keep “imposing” a higher minimum wage, raising in 1974, 1975, and again in 1976 – just as Boehner was working through college.
And adjusted for inflation, those minimum wages had greater purchasing power than the minimum wage now. If Boehner looks back at that era fondly, he has no reason to create tougher conditions for low-wage workers now.
Keep the political context in mind: the debate about the minimum wage has been ongoing for quite a while, it was a major issue in last year’s elections, and the Speaker no doubt expects questions about the policy during interviews like these. But as of the weekend, his go-to talking point is demonstrably wrong.
By: Steve Benen, The Maddow Blog, January 27, 2015
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