“Institutional Treason”: Boehner’s Lawsuit Is Betrayal Of Congress
Republicans have finally filed their lawsuit against the president over implementation of the Affordable Care Act. Actually, the president isn’t a respondent; the suit names the Secretary of Health and Human Services and the Treasury Secretary. It’s still a horrible idea.
Michael Lynch and Rachel Surminsky at the Monkey Cage provide one reason: The suit is likely to fail. The first issue is “standing.” To get into court, the House would have to prove that it was damaged by the way the administration carried out the ACA, and courts have consistently rejected that idea. Beyond that, it’s far from clear that the administration’s actions, including the delay of the employer mandate and cost sharing for insurance companies, were beyond the normal discretion the executive branch has to carry out laws. Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.
And if Republicans win, it would be terrible for Congress.
I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.
In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.
Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.
Then, perhaps, the House could consider getting back to legislating.
By: Jonathan Bernstein, Bloomberg View, The National Memo, November 21, 2014
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“There’s No Line Between Law And Politics”: A Reminder; Our Justices Are Politicians In Robes
Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.
The straw that broke her faith? The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.
Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.
But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.
Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.
The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.
And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.
And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.
First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.
So why do so many smart people believe in the difference between law and politics? Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?
It’s not just naivete. The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table.
The triumph of the New Deal brought in a generation of judges who implemented new principles—above all, the legitimacy of the regulatory and welfare state—across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the current Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact. They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.
The fight that started then has only become more pitched. There’s no line between law and politics now because our politics is too divided to generate one. We cannot begin to agree which issues should be taken off the table and handed to courts.
The conservatives on the Supreme Court are aligned, intellectually, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.
The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government. The country is divided, sharply and unrelentingly, over the same questions. What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back. With every grab, the idea that law and politics are separate becomes harder for anyone to believe.
Politics gives law its premises, its basic commitments. Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.
Law, in this sense, is essential work, but its fabric gets torn when the premises change—like ripping a weaving project suddenly into a new kind of garment. It changed in the Civil Rights era, and in the New Deal. And then it stabilized. Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan. All that is solid melts into fetid air.
We’ve been denied what Americans seem perennially to wish for—a Supreme Court that is better than we are—surer, clearer, wiser and more unified. It turns out that was really a wish to be a better version of ourselves. On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics. On the other hand, what broken and disappointing ground it is.
By: Jedediah Purdy, Robinson O. Everett Professor of Law at the Duke University School of Law; The Daily Beast, November 13, 2014
“Clever Little Deceptions”: Behind The G.O.P.’s Misleading Shutdown Statements
Senator Mitch McConnell said yesterday that he would not shut down the government, over immigration or anything else, after he takes over as Majority Leader in January. On the same day, Speaker John Boehner refused to rule out a shutdown. Both were being deceptive, but Mr. McConnell, as usual, was a little more clever about it.
The House produced last year’s government shutdown when it insisted on attaching the repeal of various parts of the Affordable Care Act to spending bills necessary to keep the government open. That was a huge embarrassment for Mr. Boehner, making his caucus appear feral and ungovernable, and he has no desire to repeat it.
But his newly expanded Republican majority actually is a bit wilder than the outgoing one, and it is inflamed by President Obama’s plans to take executive action on immigration by sparing up to 5 million people from deportation. Some on the far right want to pass no spending bills if the president takes action; others, as National Review reported, want to shut down only specific departments, like Homeland Security (which includes Immigration and Customs Enforcement).
Mr. Boehner is playing his customary game of appearing provocative in public, to keep his most extreme members at bay, while trying to cut some kind of deal in private. But if he or his members think a shutdown of the Homeland Security department is going to work, they’re kidding themselves. During the last shutdown, most of the department stayed open, in part because many of its functions are considered essential and are funded by fees rather than Congressional appropriations. To have any real leverage, House Republicans would have to threaten to shut down more than that.
Mr. McConnell wants his chamber to appear reasonable and governable in contrast to the House, and likes to portray himself as the leader who averts shutdowns. But he’s the one who has already threatened to use spending bills to stop any environmental regulations that might restrict the burning of coal, which is the same as a shutdown threat.
His plans are evident in the exact wording of his statement yesterday: “We’ll not be shutting the government down or threatening to default on the national debt.” But if he can pin the shutdown on the president, then he can claim he wasn’t the one who closed the government’s doors. During the last shutdown, the spending bills never reached the president’s desk for a veto, because the House’s demands were rejected by the Senate, and everything was blamed on “Congressional gridlock.” With Republican control of both chambers, things will be different, and a shutdown remains very much on the table.
By: David Firestone, Taking Note,The Editorial Page Editors Blog; The New York Times, November 14, 2014
“The GOP Didn’t Deserve To Win”: Congressional Republicans’ Behavior Over The Last Four Years Deserved No Reward
Voters on Tuesday gave Republicans control of the Senate. But the GOP did not earn this victory.
That’s not because Senate Democrats, led by Majority Leader Harry M. Reid (D-Nev.), deserved to win in the GOP’s stead, and it’s not because this country can do without a sensibly conservative party. It is because the GOP has not been a sensibly conservative party. Congressional Republicans’ behavior over the last four years deserved no reward.
This is the party that repeatedly used the country’s full faith and credit as a bargaining chip during successive, manufactured budget crises.
This is the party that still cannot bring itself to admit that climate change is a risk that deserves a serious response.
This is the party that scuttled even modest immigration reform because elements of the GOP base will label seemingly any viable bill “amnesty.”
This is the party whose leaders resist bringing broadly popular bills up for an up-or-down vote because its right fringe is in constant preparation to stage a revolt.
This is the party so in thrall to comical anti-government activists that it treated simple lightbulb efficiency standards as severe attacks on personal liberty.
This is the party that voted dozens of times to dismantle Affordable Care Act — but never united behind a credible, or even a non-credible, alternative, despite promising for years to offer one.
This is the party that took its fixation with Obamacare so far that it shut down the government in a bizarre political tantrum.
This is the party that has styled its refusal to compromise as a virtue rather than as a pernicious insult to responsible leadership.
Unsurprisingly, exit polls showed little regard for the GOP. It is a measure of midterm voters’ dissatisfaction with the state of the country, President Obama and feckless Democratic candidates that they held their noses and empowered Republicans. The results also fit into a broader trend of red states becoming redder. Yet Republicans — and Democrats — might also take the message that reckless, shortsighted, counterproductive behavior makes for good politics — better, in fact, than having actual results to run on. If fully internalized, that lesson would shut down Congress most of the time.
With President Obama still in office, it is up to Republican leaders to conclude that voters outside the hardcore GOP base did not demand more pettiness in this year’s midterm elections. Among other things, they will have to reign in hectoring partisans such as Sen. Ted Cruz (R-Texas), the architect of the shutdown who, on CNN Tuesday night, argued that Washington can compromise over the next two years — if you define compromise as doing exactly what Republicans want.
And if GOP leaders fail at that, it will be up to voters to give them what they really deserve.
By: Stephen Stromberg, PostPartisan, The Washington Post, November 5, 2014
“Theatrical Posturing, Not Much Lawmaking”: What We Talk About When We Talk About A Republican Senate
Presuming we have a Republican Congress next year, there’s going to be a lot of talk right after the election about what that will change 1) politically and 2) substantively. While I’m ordinarily an advocate of more substantive discussion and less political discussion (not that I have a problem with political discussion, since I do plenty of it myself, it’s just that it should be leavened with consideration of the things that actually matter), there’s a potential problem in the substantive discussion that I think we should be on the lookout for.
For instance, this morning on the radio I heard some energy expert whose name I didn’t catch say that if Republicans take over the Senate, we’re likely to see the government shift its focus toward fossil fuels and away from renewables. Which sounds perfectly logical until you ask how such a shift is supposed to take place.
This is what is often missing from policy discussion: enough acknowledgment of the institutional processes that determine how policies actually get set and altered. If you’re going to say that a Republican Congress is going to produce a particular policy change, you have to be clear that you’re saying the following events will occur:
1. Republicans will write a bill to do the thing.
2. The bill to do the thing will not only pass the House but more importantly garner 60 votes in the Senate, which means it will get the votes not only of Republicans but also of some Democrats, thereby overcoming a Democratic filibuster.
3. President Obama will sign the bill to do the thing.
It’s possible that that sequence of events could occur in some cases. For instance, Republicans have had a feverish desire to build the Keystone XL pipeline for some time, and they’ve come to attach an importance to it that’s way out of proportion to its actual impact. They seem to say with all sincerity that building the pipeline is a key to American prosperity, which is beyond absurd—building the pipeline would create a few thousand temporary jobs, and the number of permanent jobs maintaining it would literally be in the dozens. But President Obama never seemed adamantly opposed to the pipeline, and one could imagine him signing on if he got something in return. You could also see the pipeline getting a few Democratic votes from red state Democrats who want to show that they love the world’s dirtiest fuel (tar sands oil) and are therefore not hippies, so it could get 60 votes.
That might or might not happen, but it’s at least conceivable. It wouldn’t, however, represent some massive shift in our nation’s energy policy, whatever else you might think about it. And it’s an extremely unusual case.
On almost everything else Republicans want to do, either the bills they write won’t overcome Democratic filibusters, or they’ll be vetoed by the President. Much of the time, that will be because instead of embarking on a good-faith effort to find some accommodation with Democrats, they’ll just propose the thing they really want. It might be possible to forge a compromise on tax reform, but that would be a lengthy and involved process, so Republicans will just try to pass a bill slashing corporate tax rates, which won’t become law. There are ways the Affordable Care Act could be improved, but instead of working with Democrats to find them, they’ll be much more inclined to just pass repeal votes, whether it’s repeal of the entire law or repeal of individual provisions one by one (or, more likely, both).
In other words, we’re going to get an awful lot of theatrical posturing, and not very much lawmaking. We shouldn’t mistake the latter for the former.
By: Paul Waldman, Contributing Editor, The American Prospect, November 3, 2014
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