“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 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
“No One To Blame But Themselves”: The GOP’s Impeachment Dilemma Will Only Get Worse
Today John Boehner declared that any talk of Republicans impeaching President Obama is a sinister plot originating in the White House, from which so many other sinister plots have come. “It’s all a scam started by Democrats at the White House,” he said. “This whole talk about impeachment is coming from the president’s own staff and coming from Democrats on Capitol Hill. Why? Because they’re trying to rally their own people to give money and show up in this year’s elections.” Which is partially true. Democrats do want to talk about impeachment, and it does help them raise money (though while an actual impeachment would certainly get Democratic voters to the polls in November, it’s much less likely that just talking about it will do so). But that’s only part of the story.
Boehner and other Republican leaders are now trying to walk an impossible tightrope. On one hand, they’re arguing that they have no interest in impeaching the president — they know that it would be a political catastrophe if they did — and any suggestion to the contrary is nothing but Democratic calumny. On the other hand, they’re arguing that Obama is a lawless tyrant who is trampling on the Constitution. If that contradiction has put them in a difficult situation, they have no one to blame but themselves.
Like so many of their problems, this one has its roots in the uncontrollable Tea Party beast that they nurtured but can’t control. It’s true that the only prominent Republicans explicitly calling for impeachment are ones like Michele Bachmann, Rep. Louie Gohmert (R-Tex.), or Sarah Palin. But you can see the quandary in people like Majority Whip Steve Scalise (R-La.), who was on Fox News Sunday this week, and when Chris Wallace tried to pin him down to say that Republicans wouldn’t impeachment Obama, Scalise wouldn’t do it.
It’s probably because Scalise knows that impeachment isn’t supported just by his party’s fringe. According to a YouGov poll taken earlier this month, 89 percent of Republicans think “Barack Obama has exceeded the limits of authority granted a President by the US Constitution,” and 68 percent think there is “justification for Congress to begin impeachment proceedings against President Obama at this time.” Even when given a number of options including “President Obama has abused his powers as president which rise to the level of impeachable offenses under the Constitution, but he should not be impeached,” 63 percent still said he ought to be impeached. A CNN poll found a smaller number of Republicans saying Obama should be impeached, but still a majority of 57 percent.
So the idea that Boehner characterizes as a crazy Democratic slander is the majority position among Republican voters. And they didn’t get the idea from nowhere. They got it because the people they trust — Republican politicians and conservative media figures — have been telling them for years, but with particularly ferocity in the last few months, that Barack Obama is a lawless tyrant who is trampling on the Constitution. They’ve been hearing this not just from the Sean Hannitys and Steve Kings of the world, but from every Republican, up to and including the GOP congressional leadership, on a daily basis. Of course those Republican voters think he should be impeached. It’s absurd for people like Boehner to turn around and say, “Whoa now, who’s thinking of impeachment? That’s just Democrats saying that.”
And consider the odd situation in which that leaves the President. As much as he has been under attack from Republicans over executive authority, he has a political incentive to bait Republicans into talking more about impeachment, which would both build pressure for it within the GOP and force them to deny it to the media. The best way for him to do so is to take more unilateral action on issues like immigration. That would incense Republicans, who would then rush to the cameras to decry his lawlessness, which would lead journalists to ask them whether they’re going to impeach him, which would lead them to tie themselves in knots denying it. Obama would get both the policy results he wants and the political benefit of making his opponents look like they’re about to drag the country into a repeat of the farce of 1998.
So yes, the talk of impeachment is in part a plot by the White House. But they’re only exploiting the pressure that exists within the GOP — pressure that John Boehner and the rest of the party leadership helped create. And if you think you’ve seen Republicans squirming uncomfortably over the question up until now, just you wait.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, July 29, 2014
“Lazy, Incompetent And Irresponsible”: The House GOP’s Underwhelming Response To A Crisis
Three weeks ago, President Obama presented a pretty credible solution to the humanitarian crisis at the U.S./Mexico border. The White House requested $3.7 billion in emergency funding that would build detention centers, add immigration judges, and beef up border security, all while expediting deportations to discourage an additional influx.
A week later, asked if his chamber would approve Obama’s plan, House Speaker John Boehner (R-Ohio) told reporters, “I would certainly hope so,” though he cautioned against optimism.
My Grand Unified Theory of Boehner has long held that the Speaker’s political instincts are fairly sound, but he invariably has to take a less reasonable course because his radicalized caucus will tolerate nothing else. In the case of the border crisis, Boehner wanted to approve Obama’s proposed solution, but House Republicans ruled out the possibility, and with two days remaining before Congress takes a five-week break, they finally came up with a counter-offer.
Republicans hope to pass $659 million in supplemental spending for the border crisis before leaving for the August recess, Speaker John A. Boehner said after a GOP conference meeting Tuesday.
The Ohio Republican said the House will “attempt to move this bill” on Thursday and that he anticipated the measure would have “sufficient support,” but that there was still “a little more work to do to” to shore up the votes.
This is not a bill anyone should take pride in. After complaining literally for months about this crisis, the fact that this proposal is the best the House GOP could come up with is pretty powerful evidence to bolster the post-policy thesis.
To address the crisis, the White House wants to spend nearly $4 billion, while Senate Democrats are writing a related package that would spend nearly $3 billion. House Republicans, meanwhile, want to spend $659 million – about a fifth of the original total eyed by the Obama administration – two-thirds of which would go to border security.
Apparently, no one told the GOP lawmakers that the current crisis doesn’t really have anything to do with border security. That, or lawmakers were told, but they didn’t care.
Making matters just a little more absurd, the House bill will run through Sept. 30. In other words, it’s a bill to tackle the problem for the next two months, at which point Congress would have to start over.
Why can’t the House GOP pass a real legislative response to the crisis they claim to take seriously? It gets back to something we talked about last week.
There is a group of far-right lawmakers in the House who don’t want to approve anything, in part because they don’t want to address the problem and in part because if the lower chamber does pass a bill, it might lead to a compromise with the Senate,
And House Republicans really don’t like compromises.
It led Boehner to pursue a bizarre strategy, in which he demanded that the White House urge House Democrats to support a Republican bill, since the Speaker couldn’t round up enough GOP support on his own. Dems, not surprisingly, balked.
Which in turn led Republicans to create an even worse proposal, intended to please far-right members, who wouldn’t support anything else.
So what happens now? The House will try to pass this weak bill before leaving town. As best as I can tell, there are no reliable headcounts yet, and it remains a distinct possibility that the GOP-led chamber will defeat the GOP-written bill.
If, however, the House manages to pass its measure, it would need support from the Senate and White House, which would have to decide fairly quickly whether the bill is better or worse than nothing. In theory, the Senate would approve its alternative and the two chambers would work on a possible compromise, but with lawmakers ready to leave town in a couple of days for a month off, there simply isn’t time.
By: Steve Benen, The Maddow Blog, July 29, 2014
“The Nail In Your Political Coffin”: An Open Letter To John Boehner And House Republicans
Dear Mr. Speaker…
On behalf of Democrats everywhere, I would like to ask you to impeach President Obama. Please. I implore you. Nothing would make us happier. You know you want to. You know that merely suing him is not going to satisfy you and your rabid brethren. Impeachment is the only solution. So just go ahead and do it. You have our full and unyielding support!
And why are we so supportive? Because it’ll be the nail in your political coffin. It will finally convince moderate Republican and independent voters that you’re nothing but a worthless cabal of self-serving, tone-deaf, obsessed, manic, hateful, polarizing obstructionists. With your approval ratings swirling in the toilet, and your intransigence paralyzing Washington, impeachment would obliterate any shred of doubt that America’s best interests are the last of your priorities. Not the economy, not jobs, minimum wage, immigration, education or the environment. Screw America. If only you guys worked half as hard at doing your job as you do at tearing down Obama…
He’s Kenyan! He’s an illegal alien! He’s a socialist! He’s a constitutional criminal! He must be stopped! You do realize how crazy you sound, right? And we love every convoluted, insane word of it.
We also support you in this mad quest because we know it will ultimately have no impact on Obama’s presidency or the liberal agenda. To the contrary, it will empower him. Think of all the executive orders he’ll use to push through his policies after he’s impeached. He’ll make you the laughingstock of Washington.
You might want to pay attention to history. What happened to the post-impeachment Bill Clinton? How did former Speaker Newt Gingrich and his merry band of revolutionaries, of which you were one, materially affect his presidency with their venomous lynching? Clinton emerged the victor from that shameful partisan witch hunt. He was acquitted by the Senate, became the most popular politician on the planet, and is still the guy who can charm the pants off folks on both sides of the aisle. And Newt? He was forced to step down as Speaker, left Congress shortly thereafter, and cost his party appreciable seats. And you lost your leadership post for the next decade.
Mr. Speaker, if you relish being this decade’s Gingrich, and want to feel what it’s like to suffer humiliating defeat again over an out-of-control obsession with destroying a Democratic president, we will gleefully watch as you drive the GOP crazy-car straight off the cliff and into utter irrelevance and obsolescence.
By: Andy Ostroy, The Huffington Post Blog, July 29, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 