Thursday, October 08, 2015

Is The Impossible Possible-A Coalition Government In The House?

Kevin McCarthy, the person expected to succeed John Boehner as Speaker, has pulled out of the race. This opens the possibility that something may happen that has never happened before in the House of Representatives: the election of a Speaker who achieved a majority by getting support from both parties.

No one would suggest that this would constitute a real coalition government of the type seen in parliamentary democracies. But it could be a pseudo-coalition, one in which the remaining Republican moderates in the House together with most or all of the Democrats vote together to elect a Speaker and as a condition for Democratic support, agreed to hold votes on certain critical legislative measures.

No one is saying it's likely, in fact it is highly unlikely, if for no other reason than it is never happened. Also, for Republicans to make such an arrangement, they would be conceding that they are unable to govern by themselves, which would have significant impact in future elections. It could also lead to the unraveling of the current Republican Party.

Nonetheless, it is at least conceivable if only because it may be the only thing that keeps our government from imploding.

The self-described "Freedom" caucus in the House of Representatives has said that they will not vote for any member to be Speaker unless it is one of their members. The 435 member House has 247 Republicans of which 40 are members of the Freedom Caucus. The House also has two other right wing Republican caucuses, the Tea Party Caucus and the Liberty Caucus, many of whose members overlap with the freedom Caucus. There is no firm count on how many members can be considered moderate. But these other two caucuses have not made the same demand as the Freedom Caucus.

If all of the members of the Freedom Caucus continue with the position they have announced, it will be impossible for a Republican to get the 218 votes necessary to be the next speaker unless that Republican has support from Democratic members. If no person gets 218 votes there is no speaker elected. Under House rules, the current speaker remains in office until his successor is elected. Of course, it is possible for the current speaker to resign.

In the next days things may change. The freedom Caucus and the rest of the radical Republicans may decide that they will support a moderate member. Or the moderate members may decide that they will support a member of the Freedom Caucus. But at this point neither outcome seems possible. While you don't hear much about it, the more moderate members have serious disdain for the freedom Caucus members for what they are doing the Republican Party. And though it may come as a surprise to some Democrats, there are Republican members who do believe in governing. One example is Charlie Dent R(PA) who said that Republican Rejectionist "fragged" McCarthy as they had Boehner. He went on to say

"The challenge for our conference is quite simple. That we need to assemble bipartisan coalitions to pass any important legislation around here, . . . Whoever's going to be the next speaker should not appease this group of rejectionists who have no interest in governing."

We may disagree with them on most issues but they do not have the same death wish for government that the radicals in the Republican Party have expressed.

Time will tell. But there is a lot at stake. Within the next few weeks we have to pass legislation funding the government for fiscal year 2016, which starts on October 1. In addition, soon thereafter legislation needs to be passed raising the debt ceiling. There is also a critical need to pass infrastructure legislation that will include new revenue. On immigration reform, it is too late for the House to pick up and pass the bipartisan Senate bill which passed last year since that occurred in the last Congress. However it would be possible, though it would be highly unlikely, for the House to introduce and pass the same bill that passed the Senate and send it to the Senate for final approval.

Kevin McCarthy's withdrawal from the speakership race is frightening because of the possibility of total legislative gridlock, even worse than what we have seen heretofore. But maybe, just maybe, it presents an opportunity.

Tuesday, June 02, 2015

Correct Outcome In Headscarf Case (EEOC v Abercrombie & Fitch) May Be Bad News For ACA Case (King V Burwell)

The Supreme Court decision in the headscarf case yesterday, EEOC v Abercrombie & Fitch, was a legally correct and very good outcome. The court held that an applicant alleging employment discrimination based on the religion need show only that his need for an accommodation was a motivating factor in the employer’s decision not to hire him, not that the employer had knowledge of his need. (As an aside it seems pretty clear that in this case the employer in fact did have knowledge of the applicants need, but that is a separate question.)

But there is language in it which may suggest a really bad outcome in the pending Affordable Care Act case, King v Burwell.

EEOC v Abercrombie & Fitch, was a straightforward case involving an interpretation of title VII of the Civil Rights Act of 1964. In an 8-1 opinion written by Justice Scalia the Court strictly interpreted the statute to hold that an employee did not have to show that an employer knew that the employee required a religious, accommodation. Rather, a case could be made simply if the employer's unwillingness to provide an accommodation for an employee's religious practice was a motivating factor in the employer's decision.

That ruling is totally consistent with the specific language and the spirit and intent of the law. However, in his opinion, Scalia inserted some language which strongly signals how he will rule in King v Burwell and may signal how other justices will rule. Scalia's opinion says,

Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desir- able result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence.

That language sounds tailor-made for the pending challenge to the ACA in King the Burwell.

To refresh people's memory, King v Burwell also involves a question of statutory interpretation. As explained in this article,
The challengers sole argument is that one section of the law that refers to subsidies says that they are available on "an Exchange established by a State" and that these were established by the Federal Government not by States. The DOJ points out the same law imposes a mandatory requirement for each to set up an exchange, but provides that for any state that elects not to establish an exchange that Federal Government must establish one in its stead, and that for all purpose of the law each of those Federally Facilitated Exchanges is "an exchange established by a State." Here is the summary from the Solicitor General's brief, which eviscerates the challengers' arguments.

The Act provides that each State “shall * * * establish an American Health Benefits Exchange.” 42 U.S.C. 18031(b)(1). But, in a provision expressly designed to respect the sovereign dignity of each State by affording “State flexibility,” 42 U.S.C. 18041, the Act provides two ways for that requirement to be satisfied. First, a State may elect to create the Exchange on its own. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to establish the “required Exchange” itself, then HHS will “establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1). Either choice satisfies Section 18031(b)(1)’s requirement that each State “shall * * * establish an [Exchange].” The text of the Act thus makes clear that an Exchange established by HHS in a State’s stead is, as a matter of law, “an Exchange established by the State.”

That interpretation harmonizes the Act’s text, structure, and purpose. Petitioners’ reading, in contrast, would transform the Act into a hash of superfluities, absurdities, and internal contradictions. It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans. It would thwart the operation of the Act’s interdependent reforms and gut the Exchanges through which those reforms are implemented. And it would destroy the Act’s model of cooperative federalism by trans- forming the Act’s promise of “State flexibility” into a threat that a State may forgo establishing an Exchange for itself only at the price of crippling its insurance market and depriving its citizens of the tax credits at the heart of the Act. The Act unambiguously forecloses that construction. At a minimum, the IRS’s interpretation is a permissible one meriting deference under Chevron.

While it is clear that these cases are entirely different that doesn't mean that those differences will affect Scalia. in the EEOC case, the court was only interpreting a single section of the law which stood by itself without reference to other sections of the law. In King v Burwell, the ACA case, there are many provisions of the law that are totally intertwined and interdependent. Moreover, the traditional rules of statutory interpretation require courts to interpret provisions in a way that is consistent with the overall intent of the law, which in the case of the ACA case requires that the law be upheld. That was not the situation in the EEOC case, which merely involved deciding the appropriate standard of proof in one section of the law.

However I continue to be optimistic about King v Burwell. I find it difficult to believe that Chief Justice Roberts will essentially invalidate the law on this second go-round, which requires him to accept a truly ludicrous theory of statutory construction when he has already cast the deciding vote to uphold the ACA earlier. Similarly I think that Anthony Kennedy will uphold the ACA because even he will ignore knowledge how truly ridiculous the plaintiffs claims are. Thus, with my rose-colored glasses firmly in place, I hope that it will be at least a 6 to 3 decision. But with this Court, anything can happen.

Tuesday, January 27, 2015

Did Netanyahu's Hatred Of Obama Finally Bring Senate Democrats To Their Senses

The Senate Democrats who were at the forefront of the effort that would effectively derail the Iranian nuclear negotiations have finally come to their senses. They sent a letter to the President, the text of which is below, promising not to vote on their bill until at least March 24, 2015. There is little doubt however that this face-saving date can be extended if significant progress is shown in the negotiations.

The President has been on record, most recently in the state of the Union address, opposing this sanctions bill. Even though it would not impose sanctions until June and only if negotiations failed he has made clear that passage of the legislation would effectively torpedo the ongoing negotiations.

“New sanctions passed by this Congress, at this moment in time, will all but guarantee that diplomacy fails  -- alienating America from its allies and ensuring that Iran starts up its nuclear program again, . . . . It doesn’t make sense. That is why I will veto any new sanctions bill that threatens to undo this progress.”

Of course, torpedoing the negotiations is the result that has been sought by many hawks, and is the main reason why Bibi Netanyahu is going to speak before a joint session of Congress.

It has been a mystery why so many Senate Democrats have been willing to go along with this neocon agenda. But until now they have. Yes, we all know that Senators like to preserve their prerogatives when it comes to foreign policy, which could explain some of it. We also know that there is significant skepticism as to whether or not the negotiations with the Iranians will succeed, though that same skepticism is shared by the president and all those who are negotiating this deal.

The President has appealed to these very Senators to pull back this legislation and made clear that if passed he would veto it. One has to wonder why it took till today for the Senators to finally relent. It is very possible that Netanyahu's upcoming speech may have been the trigger. There can be no doubt that Netanyahu's visit is a blatant effort by Republicans generally and the neocons in particular to embarrass the President. It is also clear that they truly do want to torpedo the negotiations. Lastly, Netanyahu appears incapable of passing up any opportunity to interfere with US domestic politics and express his dislike for our President.

Netanyahu's feelings for the President were summarized well in a recent op-ed by Richard Cohen in which he said

It would not surprise me if, at the next Republican National Convention, Benjamin Netanyahu took a seat in the delegates-from-abroad section. The Israeli leader has both allied and associated himself with congressional Republicans who differ with President Obama over whether to impose additional sanctions on Iran and who also — let’s not beat around the bush — hate his guts. Their foreign policy is actually a domestic one: to destroy the president.

Well, it is possible that his overreaching has backfired. In any event it is a good day for peace.

Dear Mr. President:

We remain hopeful that diplomacy will succeed in reversing Iran’s ability to develop a nuclear weapon capability, in accordance with the timeline that the P5+1 and Iran negotiating teams have set for themselves: March 24, 2015 for a political framework agreement and June 30, 2015 to conclude negotiations on the technical annexes of the comprehensive deal.

Congress has always been a partner in the shared goal of preventing Iran from developing a nuclear weapon capability. We remain appreciative of your leadership in seeking to protect the United States, and our allies and partners, from the threat of a nuclear Iran. For more than two decades, the executive and legislative branches of the U.S. Government have worked together in a bipartisan way to implement sanctions legislation that successfully ratcheted up pressure on Iran’s nuclear program. This pressure proved to be decisive in compelling Iranian leadership to enter the latest round of nuclear negotiations in September 2013.

We remain deeply skeptical that Iran is committed to making the concessions required to demonstrate to the world that its nuclear program is exclusively peaceful by March 24 – the deadline agreed upon for a political framework agreement. Considering Iran’s history in nuclear negotiations and after two extensions of the Joint Plan of Action, we are concerned that Iran is intentionally extending the negotiations to improve its leverage at the negotiating table.

We are Democratic supporters of the Iran Nuclear Weapon Free Act of 2015 – a bill that would impose sanctions on Iran only if Iran fails to reach a comprehensive agreement by the June 30 deadline. This bill also includes monthly waivers after June 30 to provide additional negotiating flexibility. We believe that this bill, as introduced, is reasonable and pragmatic, respects the nuclear negotiating timeline, and sends a strong signal to Iran and to the international community that endless negotiations under the interim agreement are dangerous, unacceptable, and could leave Iran with a threshold nuclear weapon capability.

In acknowledgement of your concern regarding congressional action on legislation at this moment, we will not vote for this legislation on the Senate floor before March 24. After March 24, we will only vote for this legislation on the Senate floor if Iran fails to reach agreement on a political framework that addresses all parameters of a comprehensive agreement. This deadline is the critical test of Iranian intentions. We expect that your Administration will consult closely with Members of Congress in the coming months, and look forward to working with you to achieve our shared goal of reversing Iran’s ability to develop a nuclear weapon capability.


Robert Menendez
United States Senator

Charles E. Schumer
United States Senator

Richard Blumenthal
United States Senator

Gary C. Peters
United States Senator

Robert P. Casey, Jr.
United States Senator

Benjamin L. Cardin
United States Senator

Christopher A. Coons
United States Senator

Joe Manchin III
United States Senator

Joe Donnelly
United States Senator

Debbie Stabenow
United States Senator

Many Democratic Members of Congress, both Senators and Representatives, often fail to fully comprehend a basic political truth: when a Democratic President succeeds they succeed and when a Democratic President fails they fail. This political truism is something that Republicans have always understood well. I am really glad that, at least on this issue, these Democratic senators have finally come to their senses.