I have received a fair number of emails over the debate last week featuring my views on executive power on the Senate floor. The debate concerned the growing fight over immigration and I have been asked by journalists if I believe that the President is also violating the Separation of Powers with the suggestion of unilateral measures in the area. I am indeed troubled by the suggestion of a new round of unilateral actions by the President. However, the details are still unclear.
Archive for the ‘Congress’ Category
Posted in Congress, Constitutional Law, Free Speech, International, Justice, Politics, Society, tagged George J. Tenant, J. Cofer Black, Sen. Ron Wyden, Senate Select Intelligence Committe on 1, July 27, 2014 | 30 Comments »
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
Since the Senate Select Committee on Intelligence voted in April of this year to declassify its long-awaited Torture Report, the intelligence agencies have been working behind the scenes to convince the Executive Branch to further sanitize it or keep it entirely secret. Needless to say, the declassification process used to prepare the report for public consumption has been dragging on. With the CIA and other defense agencies working overtime to keep a lid on the report, the truth may never reach the public.
What can Congress do to make sure that its report gets declassified and distributed to the public if the President agrees with the intelligence agencies and does not order the release? (more…)
There is an interesting twist this morning on the controversy over the Halbig decision that we have previously discussed. As I have stated in testimony before Congress and columns, I do not view the law as ambiguous and agree with the conclusion in Halbig as a matter of statutory interpretation, even though I think that the change ordered by the Obama Administration makes sense. Nevertheless, the White House and various supporters have insisted that the key language in the law linking tax credits to exchanges “established by a State” was a typo and nothing more. One of those voices has been Jonathan Gruber, a Massachusetts Institute of Technology economist who played a major role in the drafting of the law and was paid almost half of a million dollars to consult with the Administration on the law. He told MSNBC recently that “It is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.” However, a libertarian group just uncovered a video showing Gruber saying quite clearly after the passage of the law that this provision was a quid pro quo device: state exchanges for tax credits. Conservative sites have lit up over the video below showing Gruber essentially describing the very tradeoff identified in Halbig.
Below is my column today in the Chicago Tribune on the rivaling rulings in the D.C. Circuit and the Fourth Circuit over a critical provision under the Patient Protection and Affordable Care Act (ACA). As an academic interesting in statutory interpretation and legisprudence, the opinions are fascinating and capture two different but well-argued views of the role of both courts and agencies in dealing with legislative language.
As I have written about in columns and testimony, the most significant challenge to Obamacare was never Hobby Lobby but Halbig vs. Burwell that has been pending in the D.C. Circuit. I described Halbig in my testimony as a live torpedo in the water for Obamacare. Well, that torpedo just hit. The D.C. Circuit has found that the Obama Administration effectively rewrote the law on a critical provision dealing with tax credits and state exchanges. It is another major blow against the Administration and more importantly another judicial finding that President Obama exceeded his authority in his effort to “go it alone” in ordering such changes to federal laws.
Submitted by Darren Smith, Weekend Contributor
House hopeful Gavin Seim declined to agree to a required use permit in placement of his campaign signs calling the permitting and removal of his signs a violation of his free speech and his right to participate in government.
Moses Lake City Manager Joe Gavinski claims the policy somehow protects the public. The city’s government permits six campaign free speech zones within its jurisdiction.
By Mike Appleton, Weekend Contributor
“Taking a child he placed it in their midst, and putting his arms around it he said to them, ‘Whoever receives one child such as this in my name, receives me; and whoever receives me, receives not me, but the one who sent me.’ “
-Gospel of Mark, Ch. 9, verses 36-37, New American Bible (Thomas Nelson, 1989)
“If kids come in my backyard, I’ll shoot them.”
-unidentified Murietta, California resident protesting the sheltering of undocumented child immigrants (July 1, 2014)
“Collective fear,” wrote Bertrand Russell, “stimulates herd instinct, and tends to produce ferocity toward those who are not regarded as members of the herd.” The ugliness in Murietta, California several weeks ago provided ample evidence, if any were needed, of the power of collective fear. But even more disturbing than the angry shouts at frightened children unable even to understand the words hurled at them has been the reaction of political leaders. Appearing on Fox News Sunday, Gov. Rick Perry demanded that the President dispatch National Guard troops to the border, for who knows what purpose. Rep. Louie Gohmert (R. Texas) has been even more vocal. Most of you may recall Rep. Gohmert’s rants several years ago about “anchor babies” born in the United States to be trained as terrorists. This time around he is claiming that the Administration is encouraging the influx of unaccompanied children as part of a plot to turn America “blue” and “ensure Republicans will never get elected again.” Of course, that will require that all of these tens of thousands of children survive the various diseases with which he also claims them to be infected and carrying over the border. Rep. Gohmert could be dismissed as another congressional crackpot but for the fact that he currently serves as vice chair of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. (more…)
Back in March of this year—during oral arguments in the Hobby Lobby case—Sahil Kapur (Talking Points Memo) said he thought that the conservative Supreme Court Justices “appeared broadly ready to rule against the birth control mandate under Obamacare.” He added that “their line of questioning indicated they may have a majority to do it.” Kapur reported that Chief Justice Roberts and Justices Scalia and Alito “expressed no sympathy for the regulation while appearing concerned for the Christian business owners of Hobby Lobby and Conestoga Wood who said the contraceptive mandate violates their religious liberty and fails strict scrutiny standards under the 1993 Religious Freedom Restoration Act (RFRA).”
During oral arguments, Justice Scalia said, “You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That’s not terribly expensive stuff, is it?”
There are a couple of things I think Justice Scalia should know. First, the four contraceptive methods that Hobby Lobby objected to paying for—Plan B, Ella, and two intrauterine devices—are not abortifacients. They do not prevent the implantation of a fertilized egg into the uterus—which the owners of Hobby Lobby consider to be abortion. Instead—according to the Food and Drug Administration—the four contraceptive methods in question prevent fertilization of an egg. Second, the cost of intrauterine devices can be quite considerable—especially to a woman working for minimum wage or for a company like Hobby Lobby.
The US Senate Appropriations Defense Subcommittee just approved the transfer of $351 million to Israel for the Iron Dome missile defense system — that will bring the appropriations this week for Israel to $621 million. There has been virtually no debate about such huge payments to another nation’s defense budget when cities and schools continue to cut back on programs for lack of fund. In Fairfax county, our kids are being placed in classes of over 30 kids with a single teacher because there is no money to hire more staff. Congress has cut historic programs and environmental projects for lack of a few million dollars but approves these transfers with little debate. It is not just Israel, as we have previously discussed, but the continuation of huge expenditures abroad in various countries from Pakistan to Iraq to Afghanistan to Egypt. It is not necessarily the ultimate appropriation decision as much as the lack of any discussion on such budgetary priorities and policies that is so striking.
This morning I will be testifying as the lead witness before the House Rules Committee on the authorization of litigation by the House of Representatives to challenge the unilateral actions of President Obama. The authorization makes it clear that the House will focus on the ACA changes. The hearing will begin at 10 am in H-313 in The Capitol building. It will be aired live on C-Span 3.
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
We have heard the phrase for quite some time now. “Corporations are people”. It sounds so simple, but what does it mean in practice? The corporate structure is designed to protect individual shareholder assets from creditors of the corporation. If you maintain your corporate structure requirements and corporate book, the individual’s assets cannot be attached or claimed by a creditor of the corporation.
Corporations are also afforded special tax breaks and tax rates that individual persons cannot take advantage of. How has the Hobby Lobby decision altered or not altered the corporate veil protection provided to corporations? (more…)
By Darren Smith, Weekend Contributor
Democrat congressional hopeful Estakio Beltran published a rather unique campaign ad on YouTube. In the video he declares: “They call me a long shot. They say I can’t win in this district. But what happens to an elephant when it stands around, doing nothing, for too long?”
The camera panned to an elephant piñata, and then back to Estakio, who blasted it the face with a pump-action shotgun.
“My name is Estakio Beltran,” he said. “And I approved this message.”
Below is my column today in USA Today on the Obama Administration’s decision to cut off water to legal marijuana growers. Notably, the business concern today for the rollout of legal pot sales in Washington is greater demand than supply. I previously wrote about how a little known board had effectively moved to end the debate over the Redskins name, an example of agencies increasingly intervening in social and political disputes. This move by the Bureau of Reclamation is a prime example of such intervention into political disputes and a troubling precedent for the future.
Below is my column yesterday in the Sunday New York Daily News on the unfolding controversy over President Obama’s unilateral actions to circumvent Congress. The pledge of the President to “go it alone” has already resulted in court losses for the Administration and a growing separation of powers crisis. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority. I happen to believe that the President is right in many of these areas but that does not excuse the means that he is using to achieve these goals.
By Mark Esposito, Weekend Contributor
I think it was Winston Churchill who reminded us that the “supreme virtue” of government is action. In fact, the greatest of modern British prime ministers, who often marked his staff memoranda in red with the words “Action This Day,” counseled that ” I never worry about action, but only inaction.” Action in recognizing problems. Action in mobilizing support and action in addressing the causes of human suffering and improving the lives of those over whom you have power and authority.
On this side of the Atlantic, the framers understood this seemingly obvious facet of government. Jefferson wrote, “The purpose of government is to maintain a society which secures to every member the inherent and inalienable rights of man, and promotes the safety and happiness of its people.” Protecting individual rights and promoting the security and happiness of those individuals is the essential business of government. Not “either-or” but both.