“Boehner’s Constitution Of Convenience”: Sermonizing Politicians Cannot Meet Even Their Most Rudimentary Responsibilities
People who live in glass houses shouldn’t throw stones. Especially when your glass house is the House of Representatives. Speaker of the House John Boehner made headlines last month, when he launched a misguided lawsuit against President Obama for ostensibly violating “his constitutional authority.” Yet if anybody is treading on the Constitution, it is Boehner himself. Speaker Boehner and his conservative caucus have shown a blatant disregard for the Constitution’s Sixth Amendment, which guarantees criminal defendants “the assistance of counsel.” In the process, they have failed to meet their basic constitutional responsibilities.
Boehner is cynically using the very process he refuses to fund for others less fortunate. In announcing his decision to sue the President, Boehner made the anodyne observation that “the legislative branch has an obligation to defend the rights and responsibilities of the American people.” These rights include those contained in the Sixth Amendment, which specifies the procedures of criminal prosecution. Notably, the Amendment protects the fundamental rights of criminal defendants to a speedy trial and to be represented by legal counsel.
Congressional Republicans’ extreme budget cuts threaten the core of the Sixth Amendment. Since 2010, Congress slashed hundreds of millions of dollars from the federal judiciary and federal public defense programs. Simultaneously, Congressional Republicans allowed states to enact draconian cuts to public defense. From Michigan to Mississippi, state legislators balanced their budgets on the backs of poor Americans who rely on public defenders. States rights are all well and good, but states do not have the right to violate the Constitution. Despite efforts by Democrats in Congress to stop the damage, Congressional Republicans refused to increase appropriations and provide reasonable levels of funding.
The results have been catastrophic. And the victims are some of the most vulnerable people in our society: low-income Americans trapped in a biased justice system. As noted by the ACLU and other advocacy organizations, the “deep cuts to the federal public defenders’ budget” resulted in “significant layoffs, 15-20 day furloughs, and the complete elimination of defender training.” Continuing on this dangerous path, according to the advocacy coalition, would “decimate the federal defender system.” On the state level, the consequences have been equally devastating. According to the Brennan Center for Justice, many state public defenders spend as little as six minutes per case because of paltry funding. The Brennan Center also found that public defenders often juggle “more than 300 cases at one time.”
Gideon v. Wainwright (1963) and Argersinger v. Hamlin (1972) are unequivocal: the Sixth Amendment of the Constitution entitles criminal defendants to effective legal representation. Congress has the responsibility to secure this right with appropriate funding. And it is not doing so. Low-income Americans are paying a very real price for this constitutional abdication.
Tea Party Republicans frequently pontificate about the Constitution. The 112th Congress, in which John Boehner was elevated to Speaker, began with a ceremonial reading of the document “for the first time ever.” The House Republican Caucus introduced a rule in 2011 that requires all legislation to “cite its specific constitutional authority.” Republicans routinely allege that President Obama’s actions menace the Constitution. To quote Republicans in Congress, America faces a “constitutional crisis” because “King Obama” has “rewritten the Constitution for himself.” But when it is time to actually stand up for the Constitution, these sermonizing politicians cannot meet even their most rudimentary responsibilities. America doesn’t need politicians who lecture about the Constitution; we need politicians who follow it.
Conservative Republicans don’t stop at undermining public defense. They also embrace extreme cuts to civil legal assistance. While not protected by the Sixth Amendment, civil legal aid is a vital component of the safety net. Every year, it helps 1.8 million low income Americans facing everything from domestic violence to foreclosure. Like criminal legal aid, it is also egregiously underfunded. Almost every House Republican supported a 2011 plan to chop nearly 20% from the annual appropriation of the Legal Services Corporation (LSC), the nation’s primary provider of civil legal aid. For some Republicans, these severe cut to LSC did not go far enough. 170 Republicans, or 70% of the Congressional Republican Caucus, subsequently voted to eliminate all funding for the LSC.
Fortunately, the Obama Administration and Congressional Democrats have successfully blocked the most radical reductions in public defense. Attorney General Holder and Solicitor General Verrilli have been tireless advocate for reversing the cuts and establishing an equitable judicial system.
Ironically, Speaker Boehner resorted to the American justice system to sue President Obama, the very system he has worked relentlessly to underfund for indigents. Instead of suing Obama, he should start fixing the system he and his colleagues broke.
By: Duncan Hosie, The Huffington Post Blog, August 26, 2014
“It’s Your Money”: Speaker Boehner’s Lawyer Is Charging The American Taxpayer $500 An Hour To Sue Obama
Last January, a Washington attorney named David Rivkin co-authored an article in Politico Magazine that laid out a legal theory that Speaker John Boehner (R-OH) now plans to use to sue President Obama because the president is not implementing Obamacare fast enough. Yet, as ThinkProgress laid out shortly after Boehner announced that he would file the lawsuit, Rivkin’s legal theory rests upon “a glaring misrepresentation of a recent Supreme Court decision that undermines much of the basis for this lawsuit.”
Nevertheless, Boehner decided to hire Rivkin to represent the GOP-led House in its suit against the president. Rivkin’s price? $500 an hour, all charged to the American taxpayer.
The contract caps Rivkin’s fees at a total of $350,000, although, if past is prologue, this cap will rise quickly. During the litigation challenging the Defense of Marriage Act, Boehner hired former Solicitor General Paul Clement to defend anti-gay discrimination at a fee of $520 per hour. Although an early iteration of Clement’s contract capped his total fees at $500,000, the total cost of Boehner’s legal services rose to $2.3 million. Clement’s legal fees were also charged to the American taxpayer.
However much money Rivkin ultimately collects from the American people, he is unlikely to win his lawsuit if the judges who consider it follow existing law. As a general rule, a plaintiff bringing a lawsuit must have actually been injured in some way by the person they are suing. Neither Boehner nor any other member of Congress, however, has been injured by President Obama’s decision to delay implementation of the provision of the Affordable Care Act at issue in this case. Additionally, in a 1997 case called Raines v. Byrd, the Supreme Court explained that suits brought by members of Congress alleging that their institutional rights as lawmakers have been injured are highly discouraged.
Nevertheless, it’s worth noting that the Roberts Court has shown a willingness to abandon established law when Obamacare is involved, so there is no guarantee that Rivkin will lose.
By: Ian Millhiser, Think Progress, August 25, 2014
“The White Whale”: Empowering Captain Ahab To Shut Down The Federal Government
Maybe it’s just a coincidence, but yesterday, as part of his 180 degree turn on the topic, Sen. Marco Rubio was said to be “hinting” that Republicans might just, oh, shut down the government or something if Barack Obama took major executive action to expand (or even maintain) DACA. Today Rubio’s new ally on immigration policy, Steve King of Iowa, was more explicit, per a report from the Des Moines Register‘s Kathie Obradovich:
Congressman Steve King said today the threat of another government shutdown could be Republicans’ leverage to pass border security and immigration legislation this fall.
Congress must act before the end of September to either approve a budget or continue spending at current levels to avoid a government shutdown. House Speaker John Boehner has said he expects action on a short-term continuing resolution next month.
King, R-Kiron, said “all bets are off” on a continuing resolution if President Barack Obama follows through with reported plans to deal with immigration issues without Congress.
“If the president wields his pen and commits that unconstitutional act to legalize millions, I think that becomes something that is nearly political nuclear …,” King said. “I think the public would be mobilized and galvanized and that changes the dynamic of any continuing resolution and how we might deal with that….”
Even if Obama does not act unilaterally on immigration reform, King says he believes the continuing resolution is still a bargaining chip for GOP priorities. “When we hear some of our leaders say there will be no government shutdown, that’s the political equivalent of saying there will be no boots on the ground,” he said.
Now the congressional leadership probably won’t like this kind of talk. But like Rubio himself, they’ve pretty much delegated immigration policy to Steve King. So they can’t really complain if Captain Ahab thinks every conceivable issue in Washington is subordinate to bringing down the white whale.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, August 27, 2014
“The Sky Is Falling!”: The Coming Return Of “Dems In Disarray!”
Be warned: “Dems In Disarray” is on its way back. That phrase is familiar to you if you’re a reader of the political press, because it has appeared in headlines so often it became a cliché long ago. The bitter joke among professional liberals is that political reporters are so predisposed to write about Democratic infighting that it will be applied to anything; if two Democratic members of Congress go to lunch and one orders a hamburger while the other gets a chicken sandwich, the reporter at the next table will start writing his “Dems In Disarray!” story.
Or at least that was the case for as long as anyone could remember, until Republican intra-party conflicts became so intense that they dominated everyone’s attention. And for the last few years, Democrats have been uncharacteristically unified, in both their policy goals and their tactics. But with likely losses in the upcoming midterm elections, followed by the winding down of the Obama presidency, we’re going to be hearing more and more about internal Democratic disagreement.
The stories are just starting to trickle in now. Here’s Politico, writing about how state and local Democratic officials are “going rogue” and taking on the Obama administration over policy. There are the endless stories about the Democrats wishing the President would play less golf, and the stories about Democrats who wish he would invite them along. As we get closer to November, we’ll probably be seeing more and more about Dem candidates “distancing” themselves from Obama, doing what’s best for themselves instead of what’s (supposedly) best for their party.
It isn’t that there’s something inaccurate about these stories in and of themselves. But if there is a change afoot, it has less to do with any sudden increase in Democratic disagreement than it does with some completely predictable political factors.
The first is the midterm election. Democrats could do almost everything right from here to November and still have a terrible night on November 4th. Redistricting and a more efficient distribution of voters have left Republicans with a built-in advantage in the House, so that they can hold on to a comfortable majority even if more people vote for Democrats for Congress, as happened in 2012. In the Senate, Democrats are defending more seats than Republicans this year, many of which are in conservative states. The Democrats running in those states would have to distance themselves from any Democratic president, but particularly one who’s so hated by conservative voters.
Then there’s the fact that the Obama presidency is approaching its final two years. At such a time, every ambitious Democrat is going to look for ways to forge a unique identity and elevate their profile. That means both more disagreement with the White House, and more competition for attention between Democrats, even those who aren’t running for president.
So there may in fact be less Democratic unity than we’ve seen in recent years. At the same time, it’ll be easy to make too much of the supposed disarray. At the moment it doesn’t look like there’s going to be much of a contest for the 2016 Democratic presidential nomination, a truly remarkable fact. While there are some policy differences within the party, you don’t see organized factions squaring off against each other in any meaningful way. There may be a “fight for the soul of the GOP” going on, but Democrats aren’t doing much soul-fighting.
And while there is some simmering displeasure with the President over issues like government surveillance and immigration, his approval among Democrats actually remains fairly high. His current approval among Democrats — around 80 percent — is where he’s been for significant portions of his presidency. That approval was in the 90s in the initial honeymoon period, then stayed around 80 percent for most of 2010 and 2011, then rose back up in the election year of 2012 as partisan loyalties became more salient, then settled back again. As a point of comparison, George W. Bush’s approval among Republicans fell as low as 55 percent in the final months of his presidency.
So when you see those “Dems In Disarray” headlines, not just this year but in the waning days of the Obama presidency, keep in mind that unless there’s a dramatic change, there won’t actually be anywhere near the level of “disarray” that these accounts suggest.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, August 25, 2014
“McConnell’s Genius Pitch”: Vote GOP, Get Another Shutdown
Senate Minority Leader Mitch McConnell (R-KY) is often hailed as one of Washington’s most tactically cunning politicians, and for the most part it’s true. But McConnell does have a serious political flaw: His tendency to actually tell the truth about those tactics.
Senator McConnell did it again in an interview with Politico, published on Wednesday. Previewing a Republican-controlled Senate, McConnell made it clear that he plans to escalate congressional confrontation with the president, potentially leading to another government shutdown:
In an extensive interview here, the typically reserved McConnell laid out his clearest thinking yet of how he would lead the Senate if Republicans gain control of the chamber. The emerging strategy: Attach riders to spending bills that would limit Obama policies on everything from the environment to health care, consider using an arcane budget tactic to circumvent Democratic filibusters and force the president to “move to the center” if he wants to get any new legislation through Congress.
In short, it’s a recipe for a confrontational end to the Obama presidency.
“We’re going to pass spending bills, and they’re going to have a lot of restrictions on the activities of the bureaucracy,” McConnell said in an interview aboard his campaign bus traveling through Western Kentucky coal country. “That’s something he won’t like, but that will be done. I guarantee it.”
When asked if this strategy could force a government shutdown, McConnell “said it would be up to the president to decide whether to veto spending bills that would keep the government open.”
“He could,” McConnell later said of the probability that President Obama would veto must-pass appropriation bills that are loaded with riders to undo policies that the White House supports. “Yeah, he could.”
It’s difficult to overstate what a horrible idea this is. Although some Republicans may not have noticed it, the last government shutdown was a debacle. The GOP’s hopeless effort to blackmail President Obama into defunding the Affordable Care Act failed miserably, wasting $24 billion and dragging Republicans’ poll numbers into the sewer along the way.
The poll numbers haven’t really recovered, but the combination of President Obama’s own political struggles and a very favorable electoral map still have them set up to make gains in 2014. In fact, Republicans have a good chance of winning the Senate. But promising to ramp up the brinksmanship that caused the last shutdown gives Democrats their best argument for why voters should deny Republicans full control of Congress.
Democrats recognize this, of course; numerous party leaders have already turned McConnell’s remarks against him, and they are certain to resurface in Democratic campaign pitches from now until November. Alison Lundergan Grimes, the Democrat giving McConnell the fight of his career in Kentucky’s Senate race, surely appreciates the minority leader’s Kinsley gaffe most of all.
If Republicans do manage to win the majority and follow through on McConnell’s threat, it would virtually guarantee that they don’t hold control for long. The 2016 Senate map is as favorable to Democrats as this year’s is to the GOP. It will be difficult enough for Republicans to hold on to seats in blue states like Florida, Illinois, New Hampshire, Pennsylvania, and Wisconsin; if they spend the next two years threatening vital services for the sole purpose of making a hopeless ideological stand, it will be nearly impossible.
By: Henry Decker, The National Memo, August 21, 2014
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