“If Boehner Sues Obama, John Roberts Wins”: Enhancing Judicial Power At The Expense Of The Elected Branches
The story on House Speaker John Boehner’s lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.
In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans’ lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn’t like what he’s done.
What Boehner is claiming now is that Congress, or the House of Representatives in this case, should be able to sue the president for not following the law if no one else would be able to do so.
If that succeeds, however, the big winner in the long run wouldn’t be Congress. It would be the courts.
By the logic of Boehner’s own action (despite what he says), this isn’t about a tyrannical president refusing to obey the law. If House Republicans believed that Obama was an out-of-control dictator, then they couldn’t also believe that a court ruling would be sufficient to constrain him.
What’s actually happening is that the House doesn’t interpret the law in the same way as the president, and the question is how to resolve the variance. Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts’ ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we’d wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor. Those kinds of setbacks are common for senators and executive branch departments; the only thing that prevents the losers, or whole chambers that lost fights in conference, from directly appealing to the courts is that the courts have a doctrine against intervening.
So what can Congress do? If the problem were simply a president who failed to follow the law, then the only real choices would be either to live with it, or impeachment and conviction. But if the problem is merely that the president interprets a law in a way that Congress doesn’t like, then the obvious remedy, as presidency scholar Andrew Rudalevige said recently, is “for Congress to change the law to remove presidential discretion” (I argue the same here).
So put aside the question of whether the administration improperly interpreted the law (it might have). Put aside, too, the silliness of House Republicans attempting to force the president to impose a policy, the employer mandate, which no Republican actually wants to enforce. And put aside the reality that by the time this lawsuit is decided it may well be moot, at least if the mandate takes effect as currently planned. This is about enhancing judicial power at the expense of the elected branches, and it’s a very bad idea.
By: Jonathan Bernstein, Ten Miles Square, The Washington Monthly, July 12, 2014
“You Don’t Bring A Lawsuit To A Gunfight”: It’s Clear Republicans Have Found Yet Another Area For Intra-Party Arguing
House Speaker John Boehner (R-Ohio) has heard members of his party call for President Obama’s impeachment for reasons that are unclear, but yesterday, he made clear that he’s not on board.
When asked Wednesday by NBC News what he thought about the failed vice presidential nominee and half-term Alaska governor’s demand that Congress remove Obama from office, the Ohio Republican said, “I disagree.”
Boehner is leading a charge to sue the Obama administration over what he sees as an abuse of executive power, but the speaker has said the lawsuit is not a step toward impeachment.
Got it. The House Speaker is prepared to file a lawsuit against the president for reasons Boehner can’t explain, but presidential impeachment isn’t part of the House Republican leadership’s plan.
So, does that put the matter to rest? Not yet, it doesn’t.
Former half-term Alaska Gov. Sarah Palin (R) told Fox News, “You don’t bring a lawsuit to a gunfight and there’s no room for lawyers on our front lines.” (One hopes that Palin was speaking metaphorically and that she doesn’t actually see political disagreements with the White House as a “gunfight.”) The comments came on the heels of a written piece in which the Alaska Republican said conservative voters should “vehemently oppose any politician” who “hesitate[s] in voting for articles of impeachment.”
What we’re left with is the latest wedge dividing the party. It’s not yet a litmus test for the right, but four months before the 2014 midterms, it’s clear Republicans have found yet another area for intra-party arguing.
The Hill ran an interesting piece yesterday noting that much of the disagreement is about tactics, not ideology.
Staunch House conservatives are quashing calls for President Obama’s impeachment.
They argue an impeachment trial would be a doomed effort, with a Democratic Senate, that could hurt Republicans in the midterm elections.
For those who see the far-right impeachment crusade as silly, this may seem reassuring, but I’d like to pause to note a relevant detail: rank-and-file GOP lawmakers aren’t balking at impeachment because it’s dumb and unnecessary; they’re balking because they doubt it’ll advance their broader political goals.
The piece in The Hill is filled with quotes from House Republicans who are sympathetic to the idea of impeachment, but who worry about the electoral consequences and/or have no hopes that the Senate would remove Obama from office.
I emphasize this because, at least so far, I haven’t seen any GOP lawmaker say something like, “I disagree with impeachment because the president hasn’t committed an impeachable offense.” For much of the Republican Party, that Obama is guilty of serious wrongdoing is apparently a foregone conclusion, for reasons only they understand.
Byron York, meanwhile, suggested yesterday that the Speaker, arguably the top Republican official in the federal government, may ultimately have to simply declare whether impeachment is on or off the table. It’s what Nancy Pelosi did in 2006, and it’s what Boehner may have to do in 2014.
That sounds about right, though it’s worth remembering that the weak Speaker isn’t necessarily the final word on the subject. As we talked about the other day, the Speaker didn’t want to create a debt-ceiling crisis, but the far-right insisted and Boehner went along. The Speaker didn’t want a government shutdown, but the far-right insisted and Boehner went along. The Speaker didn’t want to hold several dozen “repeal Obamacare” votes, but the far-right insisted and Boehner went along. The Speaker didn’t want to kill immigration reform, but the far-right insisted and Boehner went along.
Now the Speaker is cool to impeachment. Whether others in his party care about Boehner’s preferences remains to be seen.
By: Steve Benen, The Maddow Blog, July 10, 2014
“Enough With The Katrina Analogies”: The Ethical Merits And Demerits Don’t Quite Match Up
It’s more obvious every day that a certain element of the conservative movement is focused on achieving revenge for the humiliation suffered by George W. Bush during his second term, and wants Barack Obama to be understood as walking the same downward path to ignominy. And so any time the president has a public relations setback or a policy problem, it’s his “Iraq” or “Katrina.” The latter has unsurprisingly become the preferred label for the sudden surge in border crossings at the Rio Grande attributable to events in Central America, and now for the president’s refusal to do photo ops at the border.
Before the practice gets too far out of hand, TNR’s Alec MacGillis offers a brisk refutation of the meme:
[T]here is the failure to consider even the most basic differences in context between the crisis in New Orleans and the Gulf coast in 2005 and what has been unfolding on the border. In the former instance, we were presented with an administration that willfully downplayed both the immediate threat of the approaching storm and the broader threat that, if the climatologists are to be believed, was represented by the storm.
In the latter instance, we are presented with an administration struggling to contain one particularly dramatic manifestation of a problem—a broken immigration policy—that the administration itself has been trying to fix, has indeed made its chief priority for the remainder of the president’s term, but has been stymied in comprehensively addressing by the identity crisis-driven obstructionism and indifference of the party that controls the House of Representatives. Other than that, yes, this is just like Hurricane Katrina. And the women and children lingering on the border, and the overwhelmed Border Patrol personnel trying their best to manage their presence, will be awaiting the magic word of whether the president’s caravan will be arriving on the horizon, which will surely solve everything.
I’d say there’s one more pretty big difference between Bush’s handling of Katrina and Obama’s handling of the “border crisis.” Bush was criticized by liberals for failing to take quick compassionate action to save lives threatened by flooding. Obama’s being criticized by conservatives for failing to immediately ship children back across the border in cattle cars; some seem to think they should simply be shot on sight. The ethical merits and demerits don’t quite match up.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, July 9, 2014
“This Just Shouldn’t Be Possible”: Job Creation Trips Up GOP Message Machine
The more America’s job market improves, the tougher it is for Republicans to explain what’s happening. According to GOP talking points, tax hikes, regulations, and “Obamacare” are dragging down the economy, making it impossible for employers to create jobs.
And yet, the unemployment rate is at a six-year low, we’re on track for the best year for jobs since the Clinton era, and we just broke the record for the most consecutive months of private-sector job gains. For the right, this just shouldn’t be possible.
So how do Republicans reconcile the reality and their rhetoric? At least at Fox News, the answer is to ignore the inconvenient truths. Dylan Byers noted:
We won’t do the screen shots this time, but per usual FoxNews.com is the one major news site downplaying Thursday’s positive employment report. CNN, MSNBC, The New York Times, The Wall Street Journal and The Washington Post are all leading their sites with the news (in large fonts, no less). Fox News has it buried in fine print on a sidebar.
It’s hard to argue that such a decision is a matter of unbiased editorial judgment.
Ya think?
Given recent history – good news is ignored, bad news is trumpeted – it’s probably safe to assume the right’s not-so-subtle approach is intended to keep the bubble intact for conservative audiences.
But even funnier was House Speaker John Boehner’s (R-Ohio) unintentionally hilarious statement in response to the new jobs report.
The headline clearly says the press released relates to the “June 2014 Unemployment Report,” but remarkably, the Speaker of the House managed to issue a statement that ignores the June 2014 Unemployment Report.
“The House has passed dozens of jobs bills that would mean more paychecks and more opportunities for middle-class families. But in order for us to make real progress, the president must do more than criticize. From trade to workplace flexibility, there’s no shortage of common ground where he can push his party’s leaders in the Senate to work with us. Until he provides that leadership, he is simply part of the problem. For our part, we will continue to listen to and address the concerns of Americans who are still asking ‘where are the jobs?’”
Look, it’s the day before a major national holiday. It’s quite possible that Boehner never even saw the job numbers and this statement was written days ago and released to the media by some poor intern stuck in a largely empty office.
But given the importance of jobs to the American public, is it really too much to ask that Boehner put a little effort into this? Let’s unpack the response to jobs data that managed to ignore jobs data:
* “The House has passed dozens of jobs bills.” Actually, it hasn’t. If you look at Boehner’s list of “jobs bills,” it’s primarily a bunch of bills written for and by the oil industry, encouraging drilling everywhere. Here’s the challenge for the Speaker’s office: put together a jobs bill, subject it to independent scrutiny, find out how many jobs it would create, and get back to us. We’ve been waiting for three years. It hasn’t happened.
* “[T]he president must do more than criticize.” Well, he has. Obama has sent real, independently scored bills that would create jobs. The House Republican majority has so far failed to even vote on them.
* “Until he provides that leadership, he is simply part of the problem.” Boehner is practically allergic to leadership, unable to convince his own far-right caucus to listen to him on most issues, making this a curious line of attack. Regardless, the president, unlike the hapless Speaker, has lowered unemployment and has presented real plans to expand on this progress. Can Boehner say the same?
* “For our part, we will continue to listen.” To whom? I can think of a whole lot of measures that Americans have urged Congress to pass, which Boehner has ignored entirely. Who exactly does the Speaker think he’s listening to?
* “[A]ddress the concerns of Americans who are still asking ‘where are the jobs?’” They’re right here. If the Speaker’s office looked at the jobs report before commenting on the jobs report, this would have been obvious.
By: Steve Benen, The Maddow Blog, July 3, 2014
“Keeping Regulation At Bay”: One More Step Toward The Next Meltdown
The delaying tactics we told you about nearly two years ago have worked beautifully. The bailout worked (if not for homeowners, at least for the banks). It worked so well that the underlying problems that led to the financial crisis have remained largely ignored.
The regulations that have been written (and continue to languish during their extended comment period) are on their way to being eliminated or weakened yet again by Congress. The House helped out this week by passing a bill (HR 4413) that ensures that if any regulations do get approved, they will be difficult to enforce.
As we reported back in 2012, JPMorgan Chase in London managed to avoid examination and enforcement by the Commodities Futures Trading Commission simply by labeling their massive speculation in credit default swaps as “portfolio hedging.” It was a loophole big enough for a whale to swim through.
Another loophole made enormous by HR 4413 is the cutoff separating “end users” from “swap dealers.” In the CFTC draft regulations written after Dodd-Frank initiated oversight on the swap business, any market player with more than $100 million in swaps per year was considered a dealer, and subject to stricter oversight and capital requirements.
After the industry complained, the CFTC agreed to delay that stronger oversight for two years and put in a temporary $8 billion cap that was due to drop to $100 million later this year. The bill that passed the House makes that $8 billion cap permanent. Now any firm that wants to do $100 billion in business without regulation has the option to create 13 separate companies.
From the point of view of the people who profit from the lack of regulation, streamlining the lack of oversight is financially sound. After all, real estate values in waterfront Greenwich estates, the Hamptons, and even Park Avenue will likely suffer if bankers and hedge fund managers make less money.
For those who trade in opaque markets, profits are maximized when some participants have information that their customers and competitors don’t have. An open market with published prices and capital reserves would limit profits and return on equity. Complying with regulations and keeping records available for supervisory review costs money. It all cuts into profits.
And if profits get squeezed by an overbearing, overregulating government, how can a valuable part of our capital markets survive? It’s not cheap, after all, to employ the people needed to execute this business that virtually no one understands and that the government doesn’t want to regulate.
Remember when AIG Financial Products blew up? Even though there were traders, accountants, clerks, lawyers and others from Lehman who found themselves jobless, the Treasury Department decided to pay more than a million dollars in bonus payments to each of the valuable AIG employees that had bet so big, and so badly.
Thankfully, the lobbyists hired by the industry have figured out how to keep the business profitable, and how to turn the task of complying with new regulations into a potential new profit center. They helped incorporate a brilliant strategy into HR 4413, and got 265 members of the House to vote for it.
The CFTC will be required to create and publish cost-benefit studies prior to adopting new compliance policies, and those studies will be subject to judicial review. That will take some time. After the CFTC rules go into effect, market participants will be free to argue that the cost estimates were inaccurate. Because the studies are subject to judicial review, the companies being regulated can theoretically get the government to pay them for any additional costs they incur when complying. With a little creative accounting, maybe the swap dealers will turn a profit on compliance departments.
While the delaying tactics written into the bill keep regulation at bay, trading in credit default swaps will continue as it has, with the risks it has, here and abroad. Over half of the hundreds of trillions of dollars in swaps on the books of our banks belong to foreign subsidiaries. A condition of the new bill requires the CFTC and the SEC to certify that derivatives regulations are not already in place in those foreign jurisdictions before they become subject to the new “regulations.” All a bank or hedge fund needs to do is dispute the nature of existing derivatives regulations in their legal places of business overseas, and any oversight can come to a grinding halt while they all work it out. In the meantime, they can enter into lots of credit default swap contracts.
Perhaps the most brilliant part of HR 4413 is hidden in the budget. The congressionally mandated increased workload has no accompanying increase in the commission’s budget. It won’t be easy to run thousands of legal and economic analyses without the people to do it or the money to hire them.
Speaking of people, the bill passed in the House also peculiarly reinvents the org chart. Key regulatory and enforcement personnel currently report directly to the commissioner of the CFTC, but under the new law, those people would instead report to five different members of the commission. Hiring, firing, and departmental budgeting will be decided by all five members together.
Have you ever reported to five bosses at the same time? I did, for about a year, and it’s nearly impossible to get anything done.
By the way, in case you thought our government didn’t have a sense of humor, Congress tells us we can call HR 4413 the “Customer Protection and End User Relief Act.”
Correction: The “hundreds of trillions of dollars” figure cited in the 12th paragraph refers to all swaps, not just credit default swaps as this post originally stated.
By: Howard Hill, Former Investment Banker, The National Memo, June 27, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 