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Speaker Boehner should form a national unity government with Democrats

Originally published October 10, 2015


The collapse of House Republicans this week is the logical result their party’s governing philosophy – or the lack of it. In his first inaugural address, Ronald Reagan told the nation, “Government is not the solution to our problem. Government is the problem.” Conservatives took that maxim to heart. So that some twenty years later, Grover Norquist, a Reaganite advocate of low taxes, could proudly proclaim, “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”

By the time that John Boehner became House Speaker and began presiding over the least productive Congress ever, it made sense for him to claim, with a straight orange face,

“We should not be judged on how many new laws we create. We ought to be judged on how many laws we repeal.”

The problem with a governing philosophy of “repeal” (especially with control of only one branch of government) is that it leads to government shutdowns, credit defaults and downgrades and “careening from crisis to crisis,” as Hillary Clinton once described it. What President Obama said is indisputably true:

“This is no way to run the greatest country on Earth.”

Yet Madison designed the People’s House as the branch of government most responsive to public opinion. And the Taliban wing of the Republican Party, also known alternatively as the Tea Party or Freedom Caucus, is nothing, if not responsive to the loudest wingnut yelling from the back row of its members’ town hall meetings in their gerrymandered districts back home.

Boehner has come to rely on the true “silent majority” in his caucus: namely, those Republicans who vote “no” but hope for “yes.” How else to explain his repeated flouting of the so-called Hastert Rule under which a Speaker only brings to the floor for a vote a bill that commands the majority of the Republican majority?

Boehner has been forced to break the Hastert Rule repeatedly in the last two and a half years to win support for must-pass legislation. He’s relied on Nancy Pelosi to bring the votes of her virtually unified Democratic caucus to pass key bills opposed by the Republican majority, including

  • the fiscal cliff bill (passed by 191 Democrats and 85 Republicans)
  • Hurricane Sandy relief (192 Democrats and 41 Republicans in favor)
  • extension of the Violence Against Women Act (all 199 Democrats and 87 Republicans voting “yea”)
  • raising the debt ceiling in 2013 after the Republicans shut down the government trying to abolish Obamacare (198 Democrats and 87 Republicans in favor)
  • the “clean” the debt ceiling bill in 2014 (untethered to the Keystone Pipeline or increasing
  • the military budget (193 Democrats and a mere 28 Republicans saying yes)
  • the “clean” bill funding the Department of Homeland Security in 2015 (without rescission of President Obama’s executive orders on deferred action for undocumented immigrants) (193 Democrats and 28 Republicans)
  • and most recently on September 30, 2015, the “clean” continuing resolution to fund the government (including Planned Parenthood) (186 Democrats and 91 Republicans)

As Denny Hastert, in happier days, predicted himself about repeated violations of his eponymous rule,

“Maybe you can do it once, maybe you can do it twice, but when you start cutting deals where you have to get Democrats to pass the legislation, you’re not in power anymore.”

Boehner’s “clean” C.R. last month was his eighth (and perhaps last) violation of the Hastert Rule. Before suffering a vote of “no confidence” led by the Freedom Caucus, he quit, explaining, “It’s become clear to me this prolonged leadership turmoil would do irreparable harm to the institution.”

But now his handpicked successor, Kevin McCarthy, has withdrawn his name from consideration because he could not get enough votes from his own party. The hard right, however, lacks sufficient numbers to elect its own Speaker. But without its support, the regular right can’t get to a majority of the House either — leaving Boehner in the Speaker’s chair until he can be replaced.

Zip-a-Dee-Doo-Dah, indeed!

Neither Paul Ryan nor anybody else foolish enough to take the Speaker’s gavel under current circumstances is the answer – because to gain the necessary support of the Freedom Caucus, he or she would need to promise a new government shutdown or national credit breach.

The solution is obvious. Boehner should assemble what in any other country would be considered a government of national unity. He planned to resign his seat in Congress and retire anyway. That means he doesn’t ever have to stand for reelection in a Republican primary again and has nothing to lose. He might as well leave on his own terms as a patriot, perhaps even a political hero! He can become the speaker he always hoped to be.

He could lead a coalition of the center right and the center left. It’s the same de facto governing majority of legislators that he’s relied on in the past to bypass the Tea Party rejectionists. Such a unity government could rule until the next election, when all bets are off. But in the meantime, it would keep the government open, pay the bills the government has already incurred without default and maybe give us something to be proud of: cooperation and common sense by our leaders. No, not you, Donald Trump.


Roberts will save Obamacare, but Kennedy may disappoint on marriage equality

Originally published February 3, 2015

04597ef027f0b92f8e95c9539a56396cIf past is prologue, then the marquee Supreme Court rulings this term will be a replay of 2012 and 2013. Three years ago, Chief Justice Roberts switched sides, and engaged in some rather apparent legal gymnastics, to uphold the constitutionality of the Affordable Care Act. And two years ago, Associate Justice Kennedy wrote a sweeping majority opinion striking down the federal Defense of Marriage Act, but failed to join with liberals to affirm a federal constitutional right of same-sex couples to marry. Roberts seemed motivated to maintain by the legitimacy of the High Court by not striking down President Obama’s signature legislative accomplishment; Kennedy by a libertarian sense that it is up to the states, not the federal government, to define marriage.

Assuming nothing has changed in the interim, there’s little reason to think either justice has changed his respective mind on any of these issues.

In King v. Burwell, the Court will have to decide whether the federal government may continue providing subsidies to assist individuals who purchase health insurance in the federal exchange because the state in which he or she resides refused to create its own marketplace. The case comes down to whether a mere Scrivener’s error in merging the text from two Senate committees into a 1,000-plus page bill can defeat the legislation – despite the clear congressional intent, scoring of the bill and administrative interpretation to the contrary.

The original question before the Court in 2012 was whether the individual mandate of the ACA exceeded Congress’ authority under the Commerce Clause. Roberts said, “yes,” but didn’t want to strike the entire law. When he couldn’t get any of his fellow conservatives to sever the good from bad, he turned to the liberals who also took an all-or-nothing approach based upon the design of the ACA. Obamacare rests on three, interrelated legs: (1) the abolition of pre-existing conditions and lifetime caps, which the insurance companies can only afford due to (2) the individual mandate that broadens the risk pool, but which requires everyone to purchase insurance that is only affordable for some if (3) premiums for those making up to four times the poverty rate ($47,080 in 2015) are subsidized. Take away any one of the legs, and the entire enterprise fails – or descends into a so-called “death spiral.”

Roberts saw the logic of the liberals and stretched to find the penalties associated with the individual mandate as a tax, clearly constitutional under the taxing and spending powers of Congress. In doing so, Roberts got a twofer. He restored the legitimacy of the Supreme Court that had badly suffered after its party-line, blatantly political holding in Bush v. Gore. And he laid the groundwork for reeling in the Commerce Clause, a favorite target of conservatives, upon which most of the welfare state has been based since the Great Depression.

So what has changed since? Well, despite website problems during its initial rollout, the ACA has been a smashing success, enrolling millions more insureds than predicted, holding down healthcare inflation and premiums and causing the number of uninsured to plummet. In other words, the equities in favor of saving Obamacare are exponentially greater today than before the program began last year. If Roberts were to torpedo the ACA now, it is no overstatement to say that millions of people will lose insurance and many will die as a result.

And the efficacy of the case against the ACA in Burwell is so legally, factually and morally infirm that it won’t take much effort by the Chief Justice justify upholding the law, again. Robert’s self-created image as a judicial umpire – only calling balls and strikes as presented to him – will be enhanced, at no jurisprudential cost.

Kennedy’s position on marriage equality is more interesting. As the author Romer v. Evans (1996), Lawrence v. Texas (2003) and the aforementioned U.S. v. Windsor (2013) (striking down, respectively, Colorado’s anti-gay Amendment 2, anti-sodomy law nationwide and DOMA), Kennedy has penned some beautiful phrases about the rights of LGBT Americans.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal…. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect…. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,… and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Yet, in 2013, on the same day that Windsor was announced, Kennedy joined the dissent in the Proposition 8 case, Hollingsworth v. Perry, that would have found standing and wished to rule on the merits of a national, constitutional right to gay marriage. It was almost inconceivable to believe that if Kennedy desired to find such a constitutional right, the four liberals on the Court would not have, enthusiastically, joined him.

Instead, Roberts became the unintentional hero of gay marriage in California, forming a heterodox majority finding that those seeking to uphold Proposition 8 lacked standing to defend it – thus affirming the lower courts’ rulings striking the law from the books and allowing same sex marriage to resume in the Golden State.

The seeming contradiction between Kennedy’s positions on DOMA versus Proposition 8 may be explained by his political and judicial philosophies. His decisions over the years are consistent with those of an old fashion Eisenhower Republican with a libertarian sense of a limited federal government, reserving plenary powers to the states. This explains why he would view the federal government’s definition of marriage under DOMA as an intrusion into a domain traditionally exercised by the states. And at the same time, not wish to commit the same sort of intrusion by having the Supreme Court craft a federal right to marriage equality.

So what has changed since? Well, actually quite a lot. Numerous federal courts have now followed the logic enunciated in Kennedy’s own majority decision in Windsor to strike down same gay marriage state bans, and now same sex couples in 36 states and the District of Columbia can get married. Thousands of gay couples have wed as a result. A negative Supreme Court ruling would leave the status of these marriages in legal limbo, a message Kennedy would seem loathe to send, especially given his Windsor decision’s consternation at how the children of same sex parents would view their families as second class citizens.

Even more, as one federal court after another has struck down state bans on same sex marriage over the last three years, the Supreme Court has refrained from interfering with their rulings – refusing review them or even grant temporary stays. Since it takes only four justices to grant certiorari, tea-leave-readers believed this showed that other conservative members of the Court (Scalia, Alito, Thomas and Roberts) didn’t have confidence that Kennedy would vote with them.

The optimistic view is that the Court has allowed litigation and legislatures around the country to marinate on the subject and is now primed to take the temperature of public sentiment, which has swung markedly in favor of marriage equality. But there is something tautological about that theory. If Kennedy never really intended Windsor to create the foundation for a federal, constitutional right to gay marriage, then the rulings by numerous courts that have relied upon Windsor to affirm such a right may be suspect.

A more pessimistic view, one that I hold, comes from the two questions certified by the Court when it granted review in Obergefell v. Hodges (in which conservative jurists on the Sixth Circuit Court of Appeals distinguished themselves as being the only appellate court to uphold state bans on same sex marriage): First, do the Equal Protection/Due Process Clauses of the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And second, does the Full Faith and Credit Clause require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

My humble prediction: Kennedy will say “no” to the first proposition, and “yes” to the second. In fact, there would be no need for the second certified question if a majority of the justices were prepared to affirm the first proposition.

And the silver lining: the Full Faith and Credit Clause will, over time, bring marriage equality to all 50 states as married gay couples that recognize same sex unions relocate around the nation. In fact, using this Clause was always an alternative, some think stronger, basis on which to move the cause of marriage equality forward. It has the advantage of being incremental and less threatening. And it may avoid the type of backlash that the Court has experienced when it has federalized big, social issues, such as abortion in 1973 in Roe v. Wade, which we have been fighting ever since (and despite the fact that there was a move toward liberalization of abortion law before the Court weighed in and polarized the sides, some say even spurring the creation of the Moral Majority).

Maybe that kind of incremental progress of which he is the father is what Justice Kennedy really wants as his legacy.

Is Neel Kashkari a secret judicial activist or just targeting public schools?

Originally published October 26, 2014

336b89844e95656ac8efe1eb6a9fa979In trying to unseat California Governor Jerry Brown, his Republican challenger, Neel Kashkari, has run one television advertisement, repeatedly, called “Betrayal.” You’ve seen the ad, which features Kashkari rescuing what appears to be a drowning child from a pool. The pool is supposed to be a metaphor for California’s failing schools under Brown’s leadership – with Kashkari giving the youth a tug out of danger.

What Kashkari doesn’t say in the 30 second commercial, however, is that he is being specifically critical of the decision by Governor Brown to appeal a Los Angeles Superior Court judge’s ruling earlier this year – which ruling is a blatant example of conservative judicial activism.

The fact that Kashkari has made this semi-notorious court case the centerpiece of his gubernatorial campaign shows both his desperation to find something to run on and his hypocrisy in choosing an issue that contradicts the supposed traditional Republican view of the judiciary.

The case in question is Vergara v. California, in which Superior Court Judge Rolf Treu, a Pete Wilson appointee to the bench, ruled in June that the California Education Code’s teacher tenure and removal procedures violate the fundamental right of schoolchildren to an equal and quality education. Of all the causes for low-performing schools, Treu decided that these particular rules were to blame for ineffective teachers who were situated in schools serving poor and minority students – as opposed to say, low teacher pay, infrastructure disrepair or educational funding sequestration.

It was an interesting ruling given that two of the plaintiff students actually attend charter schools (which do not have teacher tenure) and another two (the Vergara sisters themselves) attend a pilot public school in Los Angeles where there is no tenure and teachers can be fired without cause, including “ineffectiveness.”

Sounds like Judge Treu decided to wade into a raging political fight about educational reform – but he did so on the basis of rather general principles of constitutional law, citing, of all things, Brown v. Board of Education, the 1954 Supreme Court ruling that invalidated “separate but equal” in racially segregated schools. When liberals used to do this kind of thing late last century, the conservatives called it judicial activism by unelected judges.

Now conservatives want in on what they formerly criticized.

USA Today opined that “[t]he decision, if upheld, also could clear the way for lawsuits about issues that are rarely fought in courts.”

The newspaper went on:

The case used a novel approach, borrowing civil-rights strategies from unions and school advocates, who have used lawsuits to fight to equalize school funding between rich and poor districts. . . . “Now it’s going to be a strategy that both sides use when they can’t win in political branches,” [quoting an education lobbyist sympathetic to the ruling].

And Kashkari is rather vague about what education policies of Brown he is complaining. All he says is in the ad is that “when kids in failing schools begged Jerry Brown for rescue. . . . HE BETRAYED THEM.” You need to go to Kashkari’s website to see another web video referencing the Vergara case more directly.

Yet, teacher tenure was nowhere in Kashkari’s crosshairs before the June 10, 2014 ruling in Vergara. A review of Kashkari’s 33-page “Education Plan To Transform Schools,” which is also posted on his website, makes no mention of teacher tenure reform. In fact, his plan’s only mention of “tenure” is to bemoan the lack of “tenured professors” in the California State University system, which he believes would help ameliorate the “bottleneck” of courses. So a natural question would be: if tenure helps attract and keep qualified university teachers, why is it so bad for primary school teachers?

Kashkari’s real educational agenda is pretty obvious from the plan on his website, the main focus on which is to promote private charter schools to replace, or become a deregulated model for, traditional school. Charter schooling must not poll well because Kashkari does not mention it by name in any of his television advertising.

Kashkari frames the debate with Brown as one over the latter’s “betrayal” of failing schools – without ever saying expressly how he proposes to privatize, deregulate and defund them. Instead, he embraces a brazen example of conservative judicial activism on an issue he never cared about as the core of his campaign.

Conservative judges forget about original intent in striking ObamaCare subsidies

Originally published July 24, 2014

Court of Appeals for the District of Columbia Circuit ruled earlier this week that an incomplete description of the insurance marketplace in one section of the Affordable Care Act should be strictly construed to deprive millions from receiving needed subsidies and doom the law to failure. Despite the absence of any evidence that the lawmakers who passed the law intended this outcome, and contrary to the IRS’ implementation of the statute, two conservative judges on the appellate court used what has been described as a “typo” to justify their statutory (mis)interpretation.

What ever happened to Justice Scalia’s rule of original meaning?

2d33a7880bda45aabe1ee88793d6932bIn a widely quoted lecture that Justice Scalia gave in 2005, he explained that he was an “originalist.” His manner of interpreting the Constitution or a federal statute is to “begin with the text” and then “to give that text the meaning that it bore when it was adopted by the people.” He rejected strict constructionism, colorfully explaining,

“I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.”

Justice Scalia meet Circuit Judge Thomas B. Griffith , who wrote the majority opinion in Halbig v. Burwell.

Judge Griffith focused on one phrase in the nearly one thousand-page statute that allowed the government to provide tax subsidies to those who purchased their insurance through an exchange “established by the State.” No mention in that sub-section of the federal exchanges set up by Department of Health and Human Services, which steps in when a particular state chooses not to organize its own exchange. So Judge Griffith re-wrote the statute to say that tax subsidies were “only” available for the state exchanges, not the federal exchanges.

Never mind that the federal exchanges are referenced on equal footing with the state exchanges in numerous other sections in the text of the law; never mind that every state must either have a state or HSS exchange; and never mind that the entire statutory scheme of mandates and group ratings necessitates subsidies for all marketplaces so that people can afford the insurance they are required to carry, whether they buy it on a state or federal exchange, and that the IRS’ implementation of the law was reasonable and consistent with the intent of Congress when it passed the ACA.

And we don’t have to guess about the original intent of the framers of the Affordable Care Act. They are all still around, and none say there was a hidden intent to bury a poison pill deep within the text of the bill to forbid insurance subsidies for the federal exchanges. Indeed, when the Congressional Budget Office scored the ACA before its passage, federal exchange subsidies were included as costs, and no one gave it a second thought.

As it turns out, this outrageous example of conservative judicial activism will likely not stand for long. The three-judge panel that issued the ruling in Halbig consisted of two conservative Republican and one Democratic appointees. The circuit court will likely grant en banc review. And in light of Harry Reid’s breaking of the filibuster for judicial appointments late last year, President Obama was able to fill longstanding vacancies on that court, so that Democratic appointees are now in the majority, 7-4.

And the same day as the D.C. Circuit announced its ruling, the Fourth Circuit Court of Appeals in Richmond, Virginia ruled exactly the opposite on the very same issue.

But really, it shouldn’t require a judge appointed by a Democrat to reasonably interpret a statute. Even Justice Scalia could do that, at least one hopes he could, as an “originalist” who abhors sloppy legal work.

Can Congress sue Obama?

Originally published June 26, 2014

In a word, no.


Wednesday morning the Speaker of the House, John Boehner, told reporters that he was considering legislation authorizing a lawsuit on behalf of Congress against President Obama for violation of unspecified executive orders. The ostensible basis for the suit would be the president’s alleged failure to faithfully execute the laws as written.

While such a lawsuit might have political merits for Republicans in the run-up to the midterm elections, it would not be legally meritorious.

The Boehner Complaint faces at least two preliminary hurdles:

  • lack of Congressional standing to sue; and
  • lack of a justiciable dispute based on the political question doctrine

We recently learned in the Proposition 8 case, Hollingsworth v. Perry, that courts will only hear actual “cases” or “controversies” under Article III of the Constitution. In other words, a litigant may only seek a remedy for a personal and tangible harm. If litigants’ only interest is to vindicate the constitutional validity, or invalidity, of a generally applicable law, they lack standing to sue. The Supreme Court has repeatedly held, such a “generalized grievance” insufficient to confer standing.

The Roberts Court has shown no problem in abrogating longstanding judicial precedent when it was an obstacle to conservative jurisprudence. Still, except under Obama, there has not been a big push on the right to establish some new doctrine of Congressional standing that may be exercised by the institution as a whole. In fact, to do so would run up against the second hurdle that a Boehner action would face: the concept that the separation of powers between the executive and legislative branches dictates that the least dangerous branch, the judiciary, not place its thumb on the scales.

As nicely summarized in a recent International Trade Court opinion:

“The political question doctrine, recognizing our constitutional separation of powers principle, does exclude some disputes from judicial determination. Under this doctrine, a subject matter is not appropriate for judicial resolution where it is exclusively assigned to the political branches or where such branches are better-suited than the judicial branch to determine the matter. [See Baker v. Carr, 369 U.S. 186, 211 (1962); Japan Whaling Association v. Am. Cetacean Society, 478 U.S. 221, 230 (1986) (“The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as `courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.'”) [Citation.]”

The factors as enunciated in Baker v. Carr, for deciding whether a political question is present are as follows:

  • a textually demonstrable constitutional commitment of the issue to a coordinate political department;
  • or a lack of judicially discoverable and manageable standards for resolving it;
  • or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
  • or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  • or an unusual need for unquestioning adherence to a political decision already made;
  • or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Some of the suggested executive orders that may be the subject of the Boehner Complaint include (1) delaying certain implementation deadlines for the Affordable Care Act; (2) reallocating appropriations under the Affordable Care Act; (3) deferred action to stop deportation of undocumented aliens who arrived as children; and (4) raising the minimum wage and giving other protections to federal contractors.

50bc0d6feff1d5de09fd758fbf5396f1Leave aside the fact that Obama is actually issuing executive orders at a rate more slowly than any president since Grover Cleveland.

The courts have often applied the political question doctrine to find a lack of justiciability in cases arising from the president’s exercise of his conduct of military and foreign policy. Obamacare and immigration might be too tempting of targets for the conservative Supreme Court to ignore.

8fdf52f68e2ad7d610e854b3f83de106But the Chief Justice, most particularly in the Proposition 8 case, has shown that he is not interested in the Court wading into controversies in which it does not belong, which might further tarnish the reputation of the Court. It is a little more than ironic that the same Republicans who for decades have decried judicial activism are now looking to the courts to do their bidding against the Executive Branch. And it is hard to think of an example of a more truly “political question” than the President’s use of executive orders to take action where a “do-nothing” Congress under the minority control of a recalcitrant Tea Party faction has failed to act on so many issues for so long.

Boehner has a constitutional remedy for his grievances, if he’s willing to use it – it’s called impeachment. And there is a political answer for why Republicans won’t pursue it against another Democratic president: because it’s a political loser.

State of the Union Speech reveals Obama’s new “Solitary Executive” doctrine

Originally published January 28, 2014

President Obama Works In The Oval Office At The White HouseThe two Dicks – Nixon and Cheney – had to fall back on the Unitary Executive Theory to justify executive action that was otherwise illegal. As demonstrated in tonight’s State of the Union speech, President Obama doesn’t need this theory because he’s not proposing anything illegal – he has full authority as the nation’s CEO to raise federal contractor’s pay. But his new domestic policy doctrine might be called the “Solitary Executive” because it is almost impossible to get any constructive legislation through Congress.

President Nixon famously told David Frost, “Well, when the president does it, that means that it is not illegal” with reference suppressing domestic dissent for the greater good of the nation’s security interests. Vice President Cheney used the same excuse in the Scooter Libby trial to justify his disclosure of classified information – again under the guise of protecting national security. Cheney, of course, wasn’t the president, and his Nixonian interpretation of Constitutional authority was lacking.

In tweaking the implementation of the Affordable Care Act or moving to raise minimum wage for federal contractors, the Right has charged Obama with taking executive action that exceeds his Constitutional authority. The Unitary Executive Theory would say “no,” but that theory misses the boat, and apparently only applies to Republicans anyway. The executive branch’s administrative powers, as delegated in many instances by Congress itself, make the Obama Administration’s actions perfectly legal.

The real problem for Obama is that since 2010, he has been unable to get Congress to pass any new law that actually helps, as oppose to hinders, the economic recovery. Obama passed the American Recovery Act (i.e., the fiscal stimulus bill) through a Democratic Congress in his first year in office in 2009. Once the Tea Party took control of the House in the 2010 mid-term elections, the best deal Obama could strike with John Boehner at the time was for mild stimulus in the form of tax cuts in December 2010. By 2011, the federal government began creating a fiscal drag on the economy with sequestration, tax hikes and no new stimulus. By default, the Federal Reserve, an independent administrative agency within the executive branch, has had to fill the gap with its monetary policy of quantitative easing – without which we would be back in recession.

The problem is that while loose monetary policy has kept the economy growing, its disproportionate benefits have gone to upper income, exacerbating income inequality.

As the president said this evening before the joint session,

“What I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class. Some require Congressional action, and I’m eager to work with all of you. But America does not stand still – and neither will I.

“So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”

Obama needs a little Solitary Executive action to level the playing field: from using the Environmental Protection Agency to limit power plant carbon emissions to further deferred action on immigration to keep the pressure up for comprehensive reform. His State of the Union proposals are a positive step in that direction.

So many Tea Party metaphors, so little time

Originally published October 31, 2013

Since the Tea Party faction of the Republican party came to power in the 2010 mid-term elections, it has put a hold on any forward thinking macro-economic policy. It has done so by either enacting regressive fiscal measures (such as sequestration) or blocking any new legislation (including any new stimulus, jobs or infrastructure bill proposed by the President) – let alone by its recent threat to allow a national default if the Affordable Care Act was not repealed. As the radicalism of the Tea Party has increased, the vibrancy of the metaphors used to describe its tactics has become equally intense.

I have likened its members to the anti-Federalists, who favored a loose confederation of states and opposed adoption of the U.S. Constitution. The comparison was meant to be somewhat ironic because Tea Party types, such as Michelle Bachmann, like to pretend that they are acting in preservation of the Constitution that created the federal system of government which they seek to undermine, or even destroy.

An even older comparison can be made to the French Revolutionaries who instituted the Reign of Terror (which we would have revisited in the event of a national default) and devoured their own children (featuring Ted Cruz as a latter-day Robespierre). The Jacobin Club that ran the Committee on Public Safety was probably one of the first manifestations of the totalitarian mindset that infected the coming centuries. In truth, it’s difficult to decide whether Senator Cruz has more of a propensity toward Jacobin purity or McCarthyite slander, but both metaphors work well.

The most accurate metaphor that I’ve heard for the Tea Party Caucus is that they are neo-Confederate insurrectionists. The reference to the Civil War is right on, especially since the rise of the Tea Party marks the take-over of the Republican Party by the forces of the Old Confederacy of the southern states. And while Lincoln fought to preserve the Union, this “Suicide Caucus,” as they have been dubbed by more establishment Republicans, seeks to dissolve it. Jefferson Davis also thought he was standing up for “constitutional liberty,” a favorite Tea Party phrase, which actually means the opposite of what it says.

On this Halloween, one last metaphor for the Tea Party: zombies who don’t know they’re dead yet. Beware the undead!


Any bargain for the middle class would be nice – let alone a grand one

Originally published June 30, 2013

Today the president proposed a “grand bargain for middle-class jobs” – offering Republicans to swap a lower corporate tax rate for a jobs program that would invest in education, training and public works projects. The corporate tax rate would be cut from 35% to 25%, and paid for by closing those infamous loopholes that allow some big companies to pay nothing in taxes . In exchange, Congress would authorize $50 billion in new infrastructure and education spending. If successful, Obama’s initiative would be the first new injection of fiscal stimulus since December 2010 right after the mid-term elections returned control of the House to the Republicans.

President Obama Makes Economic Policy Speech At An Amazon Fulfillment CenterIn past negotiations with the Republicans, Obama’s only leverage has come from the threat of higher taxes. In the New Year’s Eve 2011 fiscal deal, Obama obtained a payroll tax holiday and extension of unemployment benefits (good fiscal stimulus), but only because he agreed to extend the Bush Tax Cuts for another year. His original “Grand Bargain” talks with John Boehner over the summer of 2011 collapsed because the Republicans couldn’t accept any tax hikes on the wealthy. And the New Year’s Day 2013 tax deal essentially traded the expiration of the Bush Tax Cuts for the upper 2% for making those cuts permanent for everyone else.

The problem is that since late 2010, the president has been unable to gain any new fiscal stimulus programs. Instead, he has been saddled with Sequestration won by the Republicans as their prize for not allowing us to breach the Debt Ceiling – leaving it up to the Fed Chairman Bernanke to keep the recovery rolling with his monetary expansionary policy. But sequestration has resulted in slower economic growth and only proven, as if it were needed, that austerity in difficult economic times is bad policy.

So will the lure of corporate tax reform be sufficient to entice Republicans to do something positive for working class Americans? Probably not, at least initially since Tea Partiers only want the government to move in one direction: downward. But the Tea Party’s prime issue, the deficit, seems to be waning as the nation’s balance sheet improves along with the economy. And it’s an election year, so members of Congress may actually want something they can brag about to the folks back home. Remember of Paul Ryan and others in his caucus were decrying the American Jobs Recovery Act — the original stimulus – but at the same time asking for stimulus spending and bragging about it back in their home districts?

We could use some more pump-priming in the form of infrastructure, education and training spending, and there is certainly the need for those programs in the country. The middle class could use just a good bargain. It need not be grand.

Republican governors are rethinking Medicaid expansion under ObamaCare

Originally published February 28, 2013

New Jersey Governor Chris Christie Gives Annual State Of The State AddressJust today Governor Chris Christie announced that New Jersey would accept expanded Medicaid coverage provided by the Affordable Care Act. Christie joins a growing list of Republican governors who have similarly signed on to this important component of ObamaCare. The divide between Republican governors accepting and those rejecting Medicaid expansion seems to be breaking down by politics and demographics.

Of the approximately 30 million individuals that the ACA was designed to insure, about half are mandated to purchase coverage in the newly created exchanges, with financial assistance when needed, and the other half, who are more economically disadvantaged and fall within 133% of the poverty rate, are slated to get coverage through the expansion of Medicaid that the states administer. When the Supreme Court upheld the constitutionality of the Affordable Care Act last June, its ruling embedded what some saw as a poison pill on Medicaid expansion.

Seven of the nine justices found law’s offer of new Medicaid dollars to the states unconstitutional because it was an all-or-nothing deal. If a state chose not accept the expansion, then it lost all of its preexisting Medicaid funding. Or in Chief Justice John G. Roberts, Jr.’s words, Medicaid expansion is a “gun to the head” because the “threatened loss of over 10 percent of a State’s overall budget… is economic dragooning that leaves the States with no real option but to acquiesce.” The remedy, approved by a slightly different 5 member majority, was to let each state choose for itself whether to accept Medicaid expansion.

In the immediate aftermath of the Supreme Court ruling, Democrats were bullish on the states choosing to participate.

Jack Lew, the President’s then Chief of Staff, now Treasury Secretary, expected the “vast majority of states” to accept Medicaid expansion. He explained the legal and economic justification for doing so:

“To be clear, the expansion of Medicaid coverage for those who can’t afford it was upheld. . . . And states are now in a position where the federal government is saying we will pay 100 percent of the cost of covering those people.”

Nancy Pelosi, the top Democrat in the House, concurred, saying, “I don’t think governors will turn that down. People have the need, the urgency is there. . . . Once this bill is rolling and people experience benefits of it, it’s very hard for a state to say [no].”

But “no” the states led by Republicans began to say.

Starting in early July, from Bobby Jindal of Louisiana to Nikki Haley of South Carolina to Rick Perry of Texas, Republican governors started rejecting Medicaid expansion. Governor Perry put it with his characteristic bluntness: “If anyone was in doubt, we in Texas have no intention to… expand Medicaid under ObamaCare.”

Something interesting unfolded, however, after the November elections when even House Speaker John Boehner had to concede that the Affordable Care Act is the “law of the land” and would not be repealed. Several Republican governors announced that their states would, in fact, accept Medicaid expansion. Some are hard right conservatives, including Jan Brewer of Arizona, and just last week, Rick Scott of Florida, who was such a nemesis to ObamaCare that his state was the lead plaintiff that sued to overturn it in the courts and vowed never to implement it.

So what’s going on?

First, it’s economics. It is financial malpractice for a governor to reject federal funding that the taxpayers of his or her state have already paid for – which malfeasance is compounded by the suffering that would be inflicted on the poorest among us that the program was designed to aid. In Florida, for example, without Medicaid expansion, some 1.3 million people would go uninsured and the state would lose $26 billion in aid over the next 10 years. Even more, state-run hospitals were facing the literal prospect of bankruptcy because they are counting on the extra Medicaid funding to make up for the loss a federal indigent care reimbursement program that they traded for the ACA. Similarly, in New Jersey, Medicaid expansion will cover 300,000 new low income earners and bring an infusion of $1.7 billion to the state next year.

Indeed, the federal government will cover all of the expansion for the first three years, after which federal coverage will still remain at 90%. A pretty good deal.

But, second there’s always the politics. To date, 28 states and the District of Columbia are participating or leaning in favor, including now 8 states led by a Republican. Another 16 states have rejected the program or are leaning against it – all with Republican governors.

There is an obvious divide between the dueling Republican governors. Those opting out are thought to have national ambitions to seek the Republican nomination for president in 2016, including the aforementioned Jindal, Haley and Perry, along with Scott Walker of Wisconsin. By contrast, those opting-in face reelection in their home states next year, including Scott in Florida and John Kasich in Ohio. Or they hail from states with large minority, especially Latino, populations that would not look kindly on their governor forgoing this program, which may explain Arizona’s Brewer as well as New Mexico’s Susana Martinez and Nevada’s Brian Sandoval.

We saw a similar divide among House Republicans on their New Year’s Day vote to avoid the Fiscal Cliff. Boehner let the bill come to vote, and it was passed by a combination of moderate Republicans and Democrats — with the acquiescence of practical Republicans. But all of the up-and-coming crop of Republicans, including Jeff Flake, Tim Scott, Mike Pence and Shelley Moore Capito, followed Eric Cantor in voting against the compromise.

And how to explain Chris Christie, who is also thought to hold 2016 presidential dreams? He’s up for reelection in New Jersey this year and demonstrated during Hurricane Sandy that he knows how to bring home the bacon. It boils down practical local versus ideological national politics for Republican governors deciding to accept Medicaid expansion.

Chris Christie – New Jersey

New Jersey Governor Chris Christie Gives Annual State Of The State AddressAccording to the Advisory Board Company, which is keeping track of each state’s decision on Medicaid expansion, Chris Christie became the latest Republican governor to in his Feb. 26 budget address to announce that New Jersey will participate. The ACA provision is expected to extended Medicaid coverage to about 300,000 uninsured New Jersey residents

Jan Brewer – Arizona

Supreme Court Hears Oral Arguments On Arizona Immigration LawGov. Jan Brewer (R) in her 2013 State of the State speech, delivered on Jan. 14, announced that Arizona will participate in the Medicaid expansion, which would extend health care services to an estimated 300,000 more state residents. Brewer noted that the expansion plan will “include a circuit-breaker that automatically” would reduce enrollment if federal reimbursement rates decrease.

Rick Scott – Florida

Florida Gov. Scott Visits Opening Of Advanced Pharma FacilityGov. Rick Scott (R) on Feb. 20 announced that the state will participate in the ACA’s Medicaid expansion, citing HHS’s conditional support for a waiver to shift most of the state’s Medicaid beneficiaries into a managed-care program. However, Scott said that Florida would only participate in the expansion for three years before reevaluating the decision. Supporters of the ACA heralded Florida’s shift as a major reversal; Scott mounted his successful campaign for governor in 2010, in part, by being one of the nation’s foremost critics of President Obama’s planned health reforms.

Rick Snyder – Michigan

Governor Snyder Holds Roundtable On Detroit's Financial CrisisGov. Rick Snyder (R), in a statement released on Feb. 6, announced that his fiscal year 2014 budget proposal includes a plan to expand the state’s Medicaid program under the Affordable Care Act. The plan would extend Medicaid benefits to about 320,000 eligible residents. Snyder said the plan contains safeguards that will ensure the financial stability of the program and protect against changes in the government’s financial commitment to the expansion.

Brian Sandoval – Nevada

National Clean Energy Summit 4.0 Takes Place In Las VegasGov. Brian Sandoval (R) on Dec. 11 announced that the state will participate in the Medicaid expansion. “Though I have never liked the Affordable Care Act because of the individual mandate it places on citizens, the increased burden on businesses and concerns about access to health care, the law has been upheld by the Supreme Court,” Sandoval said in a statement, adding, “As such, I am forced to accept it as today’s reality and I have decided to expand Nevada’s Medicaid coverage.”

Susan Martinez – New Mexico

c3edf3f076705bfdcfe4c3d8fae824ecGov. Susana Martinez (R) on Jan. 9 announced that her state will participate in the Medicaid expansion, which potentially could extend health coverage to nearly 170,000 additional low-income uninsured residents. Martinez noted that contingency measures will be established if federal funding for the expansion diminishes, which would mean scaling back the expansion by dropping newly covered beneficiaries from the Medicaid rolls.

Jack Dalrymple – North Dakota

e7017f22aad6d275c7e075cf640e3c9cGov. Jack Dalrymple (R) in January said the politics associated with the ACA should not prevent North Dakota from participating in the Medicaid expansion. He is supporting a bill that would allow the state health department to access federal funds allocated through the ACA. Dalrymple also said he will include the expansion in his budget proposal and that members of his staff will testify in favor of the expansion before state lawmakers.

John Kasich – Ohio

Bipartisan Governors Delegation Meets With Obama At White HouseGov. John Kasich (R) on Feb. 4 announced that the state will be participating in the Medicaid expansion, the Cleveland Plain Dealer reports. He made the announcement in his two-year budget announcement, but warned that Ohio would “reverse this decision” if the federal government does not provide the funds it has pledged to the expansion.

House Republicans have become passive-aggressive

Originally published January 18, 2013

Earlier in the week, many took note of John Boehner’s second abrogation in as many weeks of the so-called Hastert Rule in the House – that the speaker would not bring a bill to the floor for a vote of the full House unless it could garner a majority of the majority Republicans. Which raised a question: how long could Mr. Boehner keep his job if he cannot command a majority of his caucus on the big issues of the day (in this case, the Fiscal Cliff deal and Hurricane Sandy relief)?

House Speaker Boehner Holds Ceremonial Swearing In For House MembersTurns out the answer is that Boehner does command the vast majority of his caucus. All but the minority, hardcore Tea Party wing that always says no to whatever President Obama proposes (even if it was their party’s idea in the first place). These were the folks that effectively vetoed the president’s legislative priorities over the last two years, caused the county to lose its AAA credit rating over the debt ceiling show-down in 2011 and would have been happy to sail over the Fiscal Cliff this New Year.

But the Tea Party, rejectionist wing of the Republican Party is no longer calling the shots. It turns out that Boehner has assembled a coalition of moderates and pragmatic conservatives. The moderates vote with a majority of Democrats to pass bills into law on a bipartisan basis. And the pragmatic conservatives vote “no” with the wholehearted expectation and desire that the bill will pass without the need for their votes. This allows the pragmatic conservatives to vote against these bipartisan bills – thus keeping their conservative credentials pristine in the event of a primary challenge back home – while allowing the government to function.

The New York Times dubbed these pragmatic conservatives the “Vote No/Hope Yes Caucus.” Based upon those who went on record voting in favor of the Fiscal Cliff deal and Hurricane Sandy relief in the last two week, there appear to be between 49 and 85 moderate Republicans in the House coalition. On the opposing extreme (meant literally here), the Tea Party Caucus in the last session of the House proudly boasted 59 members. And this number is consistent with the 50 or so Republicans hold-outs that tanked Boehner’s “Plan B” alternative to Obama’s grand bargain proposal to resolve the Fiscal Cliff. That means that pragmatic conservatives comprise somewhere around one-third to one-half of the 233 members of the entire Republican House caucus.

It may be a passive-aggressive form of governance, but at least these pragmatic conservatives are permitting Washington to function – if not taking responsibility for their votes.

President Obama is using carrots and sticks to keep these pragmatic conservatives from joining with the rejectionist wing. From immigration reform to gun safety to taxes and spending, the president is taking case to the voting public, which just returned him to office for a second term and who will blame Republicans for a government shut-down, default or other self-imposed calamity. At the same time, the stealthy bipartisan approach allows these pragmatic conservatives to benefit from good legislative outcomes without any fingerprints.

Conservative columnist Charles Krauthammer today endorsed this form of pass-aggressive governance. Krauthammer’s theory is that Republicans cannot rule from the House; Obama just won reelection and he should be given enough rope to hang himself with his liberal policies. At least his first two observations are well grounded. Says Krauthammer:

“The general rule is: From a single house of Congress you can resist but you cannot impose. . . .

* * *

“Republicans should simply block what they can. Further tax hikes, for example. . . .

“Aren’t you failing the country, say the insurgents? Answer: The country chose Obama. He gets four years.

“Want to save the Republic? Win the next election.”

Win the next election, indeed. Good luck on that, but in the meantime, it seems President Obama has figured out a way, along with Speaker Boehner, to permit the People’s business to move forward – begrudgingly inch-by-inch.

Krauthammer, though, is right about winning the next election, but in the opposite direction. If President Obama hopes to enact much of his bold second terms agenda, Democrats need to take back the House majority in the 2014 mid-term elections.