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A divided three-judge panel in the nation’s capital ruled Tuesday morning that the federal government cannot provide Affordable Care Act subsidies through exchanges run by the federal government—a decision that, if it stands, would functionally end Obamacare as it exists today.
Halbig v. Sebelius is based on an idea first advanced by a conservative scholar deeply opposed to the healthcare law. It involves a drafting error in the Affordable Care Act—a “glorified typo,” in the words of the Center for American Progress’s Ian Millhiser.
The law creates exchanges for buying individual health insurance plans in each state, and says states can either create their own or have the federal government step in and do it for them. Twenty-seven states, usually controlled by conservative governors or legislatures, declined to create exchanges and have federal ones.
But in the section governing subsidies, a literal reading of the law appears to limit federal subsidies to people who are buying in “an Exchange established by the State.” The conservative activists behind this lawsuit—and the two judges who agreed with them Tuesday—say this means that people who aren’t in exchanges “established by the state,” that is the people in twenty-seven states with federal subsidies, are ineligible for subsidies.
The language is indeed a little unclear, and that line should have made it explicit that subsidies would be available in all exchanges, state or federal. But the Supreme Court has long held that ambiguous language in isolation does not vitiate the otherwise discernible intent of a law—and here it’s extremely easy to figure out what the Democrats who passed the ACA intended, not least because they filed a brief with the court explaining that, of course, the subsidies were supposed to go to any person in an exchange.
To believe otherwise, as the two judges in this case claim to do, would be to assume that Democrats intended to pass a law that would fail within a few years of enactment.
That’s just what would happen if this decision holds. A recent Urban Institute study found that 7.3 million people—close to two-thirds of all Americans enrolled in exchanges—would lose $36.1 billion in subsidies. People would start dropping out of the exchanges and declining to buy insurance because they couldn’t afford it; in turn, health insurance companies would have to jack up premiums for existing customers to make up for the lost revenue. The individual insurance market would essentially collapse in twenty-seven states.
As a political matter, that could be a bit tricky for the conservative politicians celebrating the decision, like South Carolina Senator Lindsey Graham. The 183,000 South Carolinians projected to receive subsidies on the federal exchange there would lose their subsidies, which cover about 80 percent of the premium costs should Tuesday’s decision in Halbig be affirmed by the Supreme Court. Most of those people are probably middle or lower-middle class, since they are eligible for subsidies.
That’s a tough thing to champion, even for conservative politicians. They should also be wary of an ultimate victory for the plaintiffs in Halbig because, conservative governors would feel immense pressure to enact a state exchange to avoid the massive loss of subsidies and skyrocketing premiums.
But we’re a long way from that. The Obama administration—which has already said subsidies will continue to flow as Halbig is litigated—quickly asked for an “en banc” ruling from the entire DC Circuit Court of Appeals, which has a majority of Democratic nominees. It would likely not rule in favor of the plaintiffs, and were the Supreme Court to consider that decision, most legal experts just don’t see enough existing case law for the conservative majority to affirm the plaintiff’s view. If it does, however, Obamacare will spin badly off its axis.
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For years the pro-choice movement has had to battle a wide array of restrictions passed on the state level, from onerous regulations on abortion clinics to “fetal pain” bills that deliberately give women bad information about abortion procedures. In fact, from 2011 through 2013, more than 200 state laws were passed that make it harder for women to access abortion services.
But the Senate Judiciary Committee held an important hearing Tuesday on a bill that could, in one swoop, clear out most of those laws. The Women’s Health Protection Act, introduced last year by Senators Richard Blumenthal and Tammy Baldwin, enumerates many of these laws that would be expressly prohibited and keeps abortion providers from being singled out by legislation that doesn’t apply broadly to most other medical services in the state.
Republican Senators and witnesses at the hearing, as one would expect, objected strenuously to the legislation. They relentlessly brought up the case of Dr. Kermit Gosnell, a Philadelphia-area abortion doctor who repeatedly broke the law and carried out gruesome, illegal abortions. Their message was that these state laws just aim to make abortion safer and avoid more cases like Gosnell’s.
In reality, Gosnell was already operating well outside the bounds of the law and is actually a better example of what would happen were abortion to be outlawed entirely. As Nancy Northrup, president of the Center for Reproductive Rights, testified at the hearing, that is the real and often stated goal of these laws:
[O]pponents of women’s reproductive rights, seeking to make an end run around public opinion and the Constitution itself, have shifted their strategy. They have resorted to obfuscating their true agenda by pushing laws that pretend to be about one thing but are actually about another. They claim these laws are about defending women’s health and well-being, and improving the safety of abortion care—but they most assuredly are not. They are wolves in sheep’s clothing. They are advanced by politicians, not by doctors, often based on model legislation written by explicitly anti-abortion groups.
When Mississippi enacted such a law in 2012, a state senator put it quite plainly: “There’s only one abortion clinic in Mississippi. I hope this measure shuts that down.” Others showed their hands as well. Lt. Governor Tate Reeves stated that the measure “should effectively close the only abortion clinic in Mississippi” and “end abortion in Mississippi” when the bill passed the state Senate. Governor Phil Bryant, in vowing to sign the bill, said that he would “continue to work to make Mississippi abortion-free.” When he actually signed it, he said, “If it closes that clinic, then so be it.” Right now, Mississippi’s sole clinic is holding on by virtue of a temporary court order.
The legislation has essentially no chance of passing this Congress, but for pro-choice advocates, presents a chance to at least go on the offensive. It also may be needed in coming months as a backstop to a potential Supreme Court decision that could severely restrict abortion access.
Many federal courts have blocked this sort of state legislation as de facto abortion bans, as Northrup noted. But legal experts are increasingly convinced the Court may take up one of these cases in the next term—and that five conservative justices could move to affirm these abortion-restricting laws and effectively hollow out Roe v. Wade. The Women’s Health Protection Act would be a simple way to neutralize that decision, should it come.
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The standoff at the Bundy Ranch in Clark County, Nevada, has faded from the headlines, but a startling report released today by Southern Poverty Law Center warns that the incident may have some long-lasting, and potentially bloody, consequences.
Many of the militia members that flocked to the ranch were part of the anti-government Patriot Movement, an extremist movement with a long history but that gained serious steam during the Obama presidency. In 2008 there were about 150 Patriot groups nationwide—and there are over 1,000 today.
The SPLC report finds that this reawakened movement has drawn a very dangerous lesson from the standoff, which ended with the Bureau of Land Management backing off and leaving the ranch: a lesson that the federal government can be scared off by heavily armed militias.
That’s not to say the Bureau of Land Management should have engaged in a firefight, but the report makes clear the Patriot Movement has been energized by the “victory.” Already, a couple that was at the ranch undertook a headline-grabbing shooting spree in Las Vegas after getting amped for conflict weeks earlier in Clark County. The report highlights several other low-level incidents that haven’t gotten much media attention.
It also details, through interviews with militia members who were at the ranch—goaded on, also, by support from conservative politicians and media outlets—just how eager many participants were for battle. Here are the twelve scariest findings from the report:
1. “Almost overnight, thanks largely to the Bundy’s video going viral on antigovernment websites, the family’s fight with the federal government became a touchstone for various Tea Party Republicans, libertarians, antigovernment Oath Keepers and militia members, many of whom saw in the footage the beginnings of a war.”
2. “After watching the video from his home in Anaconda, Montana, 650 miles away, Ryan Payne, 30, an electrician and former soldier who had deployed twice to the Iraq war, became enraged […]
“Payne left that day with another member of his militia, Jim Lardy, and drove through the night, a few sleeping bags in tow, burning up cell phones hoping to bring every militia member they could. On April 9 he sent out an urgent call for the militias to mobilize. ‘At this time we have approximately 150 responding, but that number is growing by the hour,’ he wrote, offering directions to the Bundy ranch. ‘May God grant each and every one of you safety, wisdom and foresight, and courage to accomplish the mission we have strived for so long to bring to fruition. All men are mortal, most pass simply because it is their time, a few however are blessed with the opportunity to choose their time in performance of duty.’”
3. “In a low-lying wash where gates held the Bundy herd, an angry, heavily armed crowd grew, defying orders and engaging in a tense game of chicken with BLM rangers in riot gear demanding through loudspeakers that they disperse. They shouted profanities and gripped their weapons.
“Militia snipers lined the hilltops and overpasses with scopes trained on federal agents. What happened was not unplanned. As Payne later told the SPLC, he had ordered certain gunment ‘to put in counter sniper positions’ and others to hang behind at the rance. ‘[M]e and Mel Bundy put together the plan for the cohesion between the the Bundys and the militia…. Sending half of the guys up to support the protestors…and keep overwatch and make sure that if the BLM wanted to get froggy, that it wouldn’t be good for them.’”
4. “Writing on his blog hours after the standoff, Mike Vanderboegh, an aging government-hating propagandist from Alabama who heads the III Percent Patriots, characterized the standoff in grandiose terms. ‘It is impossible to overstate the importance of the victory won in the desert today,’ he gushed. “The feds were routed—routed. There is no word that applies. Courage is contagious, defiance is contagious, victory is contagious. Yet the war is not over.’”
5. “Ignoring the fact that Bundy and his followers were the ones who drew their weapons, U.S. Rep. Jason Chaffetz (R-Utah) told The Los Angeles Times, ‘You can’t just show up with guns blazing and expect to win the hearts and minds of the public.’ Chaffetz, a firm advocate of those protesting the BLM, concluded, ‘The federals need a little more Andy Griffith and a lot less Rambo.’”
6. “A month after the standoff, San Juan County, Utah, Commissioner Phil Lyman led a protest against a ban on the use of motorized vehicles in Recapture Canyon that was meant to protect archaeological sites from damage.”
“Waving Gadsden flags just like those draped over the slain officer in Las Vegas and decrying the actions of the BLM, Lyman and several dozen ATV riders—including members of Bundy’s family—rode into the canyon to defy BLM authority. Lyman told the SPLC that the ride was meant to be a peaceful protest, but he did little to conceal his rage over what he characterized as federal tyranny.”
“‘If things don’t change, it’s not long before shots will be fired,’ Lyman said, joining other conservative lawmakers such as Chaffetz in warning of violence if the federal government didn’t rein in the BLM. ‘We can avoid it. But it’s not going to be by the people changing their attitudes and accepting more intrusion into their lives. It’s going to be by the federal government acknowledging people’s freedom.’”
7. “This May in Texas, militias and their allies came to protest a BLM survey of more than 90,000 acres along the Red River, fearing the federal government was planning a land grab.”
8. “A month earlier in Utah, two men pointed a handgun at a BLM worker in a marked federal vehicle while holding up a sign that said, ‘You need to die.’”
9. “In New Mexico’s Otero County, a brewing confrontation between state and federal officials ended after BLM officials opened gates cutting off water for grazing cattle to protect the jumping mouse. Again, there were conspiracy theories demonizing BLM efforts to protect the environment.”
10. “[I]n mid-June, more violence erupted, as a BLM ranger and a California Highway Patrol officer were shot and wounded, allegedly by a self-declared sovereign citizen, Brent Douglas Cole, who was camping outside of Nevada City, Calif.”
11. “None of this has tamped down the rhetoric. The Bundy standoff has actually brought the spotlight to the antigovernment movement, and its leaders are soaking up the attention. Polarizing figures such as former Arizona sheriff Richard Mack and Stewart Rhodes of the Oath Keepers have been eager to take advantage of the moment. Mack, a longtime militia darling who has led a push for county sheriffs to stand against federal law enforcement agencies, told one crowd, ‘We don’t believe that bureaucratic policies and regulations supersede the Constitution. I came here because I don’t believe the BLM has any authority whatsoever. Grazing fees do not supersede life, liberty and the pursuit of property.’”
12. “Among [Bundy’s current supporters] are politicians belonging to the Independent American Party (IAP)— the same party whose banner rabidly anti-immigrant former U.S. Rep. Tom Tancredo ran under during his bid for to become governor of Colorado. In late May, at an IAP event to honor Bundy for ‘his courage in standing up for state sovereignty,’ Bundy and his wife, Carol, signed paperwork to join the Nevada chapter. ‘Cliven Bundy is my hero,’ Janine Hansen, an IAP candidate running for Nevada’s 2nd congressional district, told a gathering of supporters. ‘We cannot allow this incredible opportunity that Cliven has given us to die.… It’s time that we are no longer serfs on the land in the State of Nevada. It is time that we become sovereign in our own state, our own sovereign state. It is long past time. We are not the servants of the BLM.’”
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The Department of Justice will not investigate whether the Central Intelligence Agency illegally spied on staffers of the Senate Intelligence Committee and removed documents from committee servers, McClatchy confirmed Thursday. The CIA also claimed committee staffers took documents from the intelligence agency without authorization, and that claim will also not be investigated.
“The department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation,” Justice Department spokesman Peter Carr told McClatchy.
It’s a fizzling denouement to one of the more fascinating political dramas of the Obama era. Earlier this year, without any warning, Intelligence Committee chairwoman Dianne Feinstein took the Senate floor and delivered a lengthy, forceful speech directly accusing the CIA of spying on private committee computers and removing sensitive documents. It was an unprecedented public eruption of tensions between the security state and the legislative branch.
The backstory is that the Intelligence Committee conducted an extensive investigation into Bush-era torture, and produced a 6,300-page report that is not yet public. It’s reportedly a “searing” indictment of the agency—and the CIA responded by denying many of the damning charges.
The problem is that investigators came across what’s known as the “Panetta review,” an internal review ordered by the former CIA director that reportedly confirms most of the worst findings about torture by CIA agents. It’s this review that Feinstein publicly charged the CIA with removing from private committee computers after gaining illegal access.
This is a serious charge—it’s not substantially any different from CIA agents breaking into a physical Senate office and removing files.
What’s odd about Justice’s refusal to pursue a formal investigation is that Feinstein claims Brennan essentially admitted the cyber break-in. This is what she said during her speech back in March:
[O]n January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.
According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.
Instead, the CIA just went and searched the committee’s computers.
A second-party retelling of a confession may not be enough to obtain a conviction, but it’s hard to imagine there is not enough smoke here to at least pursue an investigation. Aside from the immediate implications regarding Bush-era torture—and, with the revelations this week about CIA spying in Germany, an agency that may essentially be going rogue—the incident raises grave concerns about constitutional separation of powers, as Feinstein herself noted in her speech.
Feinstein said she is at least happy that Justice won’t investigate the CIA’s claim that committee staffers essentially stole the Panetta report from CIA computers, a charge she firmly rebutted, at length, in her March speech.
Others took a more aggressive stand. Senator Mark Udall, a member of the committee, doesn’t think this is over:
As DOJ says they won’t wade into CIA/Senate spat, Sen. Mark Udall says: “We shouldn’t let this drop.” He says Senate needs to take a stand.
— Jeff Zeleny (@jeffzeleny) July 10, 2014
Senate Majority Leader Harry Reid didn’t directly criticize the Justice Department on Thursday, but did restate that he believed the CIA was engaged in wrongdoing.
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Democrats in the House and Senate will unveil legislation that would reverse the immediate effects of Burwell v. Hobby Lobby and force closely held corporations to provide contraceptive coverage to employees regardless of whether the owners object.
A common misconception about the case is that the Court ruled the Affordable Care Act violated the religious freedom precepts laid out in the Constitution by requiring contraceptive coverage. It clearly didn’t—rather, the Court’s five conservatives ruled it violated the 1993 Religious Freedom Restoration Act, which forbid the federal government from “substantially burden[ing] religious exercise without compelling justification.”
All it would take, then, to undo the immediate effects of the ruling would be for Congress to go back and pass legislation overriding the RFRA.
That’s what Democratic Senators Patty Murray, Mark Udall and Dick Durbin are proposing to do with their bill unveiled Wednesday morning, the Protect Women’s Health from Corporate Interference Act. In the House, Representatives Louise Slaughter, Diana DeGette and Jerrold Nadler have a companion bill with the same name.
The legislation would explicitly forbid employers from refusing to offer health coverage, including contraceptives, that is otherwise guaranteed by federal law, and would make explicit that the RFRA cannot override the Affordable Care Act. It would still allow exemptions for houses of worship and religious non-profits.
“After five justices decided last week that an employer’s personal views can interfere with women’s access to essential health services, we in Congress need to act quickly to right this wrong,” said Murray. “This bicameral legislation will ensure that no CEO or corporation can come between people and their guaranteed access to health care, period. I hope Republicans will join us to revoke this court-issued license to discriminate and return the right of Americans to make their own decisions, about their own health care and their own bodies.”
The immediate prospects of the legislation are fairly dim: or rather, it is certainly dead on arrival in the Republican-controlled House, and faces a tough path in the Senate, where it will come for a vote next week.
But the idea is to begin legislative momentum now for an eventual reversal of the RFRA—and in the meantime, put Republican Senators on the record now about whether they think corporate executives should be making healthcare decisions for their female employees.
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With all due respect to Michael Hoza, his nomination to be US ambassador to Cameroon isn’t exactly a thrilling political development. Few people outside his professional circle likely even know who he is, and no US senators have raised substantive objections to his nomination.
Nor should they—he’s a career foreign service officer with a stellar résumé, and has worked extensively in Africa.
Yet Hoza has been awaiting a Senate confirmation vote since mid-January, one of 145 nominees languishing on the Senate calendar. He is waiting alongside nominees to a wide variety of offices and positions, from the associate director of the Office of Science and Technology Policy to assistant secretaries at the departments of Energy and Defense.
Perhaps if these nominees were wildly controversial or had long records demanding extensive examination, the Senate would be properly exercising its constitutional duty to advise and consent on appointments. But many of these nominees are almost laughably benign, and if recent history is a guide, will eventually receive a bipartisan confirmation vote.
So why are these nominees waiting so long? Routine obstruction by Republican senators who are deliberately stretching out the confirmation process for virtually every nominee to come through the Senate. And now Senate majority leader Harry Reid is threatening to once again enact rules reform that would neutralize the GOP’s slow-down tactics.
“If they’re going to continue this, maybe we’ll have to take another look at that. It’s outrageous what they’ve done,” Reid said on the Senate floor Monday when he returned from the July 4 holiday. “There’s no other way to look at what they’re doing. This is obstruction for obstruction’s sake.”
Though Democrats did enact the so-called “nuclear option” eliminating filibusters on executive and judicial nominations (Supreme Court excepted), the cloture process is still in place—and it allows for as much as thirty hours of debate per nominee. Republicans have been regularly using all of the time they can, which dramatically slows the Senate down.
Reid has options for changing the Senate rules to combat the slow-down, which he has said wouldn’t happen until next year (and, of course, if Democrats retain the majority). One possibility is “use it or lose it” reform, which has been advocated by several good government groups, like Fix the Senate Now. Basically, senators would have to use that debate time to actually debate the nominee in question, or they would forfeit it.
So if Senator John Cornyn wants to spend ten hours on the Senate floor talking about the nominee for US smbassador to the Democratic Republic of Timor-Leste (waiting nearly six months for a vote), he’s welcome to do so, but he almost surely wouldn’t.
This is a particularly effective way of speeding up the Senate because Republicans can’t argue they are losing any means to exercise minority rights—they can still actually use the thirty hours on any nominee they choose. They would just have to explain why they object, which is a tall order since Republicans apparently approve of many of the nominees they are nonetheless slowing down.
A report by Common Cause in May found nineteen examples of Republican senators chewing up cloture time on judicial nominees who were later confirmed unanimously by the Senate. Many executive branch nominees go through the same process. Republicans draw out the process and then end up voting for the nominee, as this chart from the report notes:
The level of obstruction is unprecedented. The average wait time for an executive branch or independent agency nominee is now nine months, according to Common Cause. There are around 110 executive branch or independent agency nominees awaiting action—and at this time in the George W. Bush presidency, there were only thirty-two. The number of cloture votes being forced for executive branch nominees are at record highs:
This obstruction is taking place largely out of the public eye—nobody particularly cares who is the assistant undersecretary to some alphabet-soup agency. But these are crucial posts in the everyday machinations of the federal government.
Take Hoza, for example, awaiting confirmation to be US ambassador to Cameroon. That country has been plagued by violence from the extremist Boko Haram group for months, and has been widely criticized, including by neighboring Nigeria, for being slow to respond to the threat.
Would having a US ambassador in the capital city of Yaounde have helped speed the response? We won’t ever know. Hoza has been on the Senate calendar since January 15, waiting for a vote.
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For years, the National Rifle Association has pressed candidates for local and national offices to answer questions about gun control policy. The highly publicized results, which help form a candidate’s often sacred “NRA rating,” not only affect races in the short term but help shape policy long after as politicians are hemmed into a particular position on guns before even taking office.
Now, a leading pro-gun control group is launching a counter-effort: Everytown for Gun Safety, funded by former New York City Mayor Michael Bloomberg, will soon present federal candidates in the 2014 midterms with a ten-part questionnaire about gun control policy. Bloomberg has committed to spending $50 million on the midterms, and the questionnaire is a good starting point for evaluating where candidates stand.
In many cases, this is the first time these candidates will be asked in detail about gun control policy. Among the questions, which you can read in full here:
Does the candidate support closing the gun show loophole?
What about loopholes that allow people to buy guns online without a criminal background check?
Does the candidate support increased penalties for straw purchases and gun trafficking?
Should the size of ammunition clips be restricted? (There is no baseline given).
Some of the questions are traps, in a sense, for candidates who normally hew close to the NRA line and oppose any restrictions on gun rights whatsoever. For example, one question asks if the candidate supports laws to keep guns out of the hands of people who have been convicted of stalking or of abusing a dating partner. (Current federal law only prohibits gun ownership by people convicted of spousal abuse, but not domestic violence more generally.) Any sensible answer to the question would be yes, and a “no” answer is a campaign ad waiting to happen.
Other questions are clearly designed to build political support among potential members of the next Congress for things like expanded background checks or even smaller-bore policy items like increased funding for the federal background check database.
But there is one curious omission, especially for a group whose name is supposed to recall the horror of the shootings in Newtown, Connecticut: no question asks about an assault weapons ban. There was notable state-level action around restricting assault weapons after Newtown, but congressional Democrats dropped this from last spring’s major gun control legislation. Apparently Everytown for Gun Safety isn’t too interested in pushing Congress forward on this issue.
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President Obama overstepped his power when he named three people to the National Labor Relations Board at the end of 2011, the Supreme Court decided unanimously on Thursday.
Here’s the background: since 2009, Senate Republicans undertook routine obstruction of President Obama’s appointments by wielding a filibuster that required sixty votes to break. They did this against all sorts of nominees, for offices big and small; in some cases, Republicans didn’t even bother to claim a substantive problem with the nominee. The only criteria for a filibuster, at times, seemed to be that Obama nominated that person.
One area where this was extremely problematic was the National Labor Relations Board—three members had their five-year terms expire in 2012, and Senate Republicans filibustered Obama’s replacements. With three empty seats, the NLRB would not have a quorum to function, and the practical effect would be that US labor law would no longer be enforced. (It’s not hard to see this as the GOP’s goal here).
The White House didn’t want this to happen, and Obama contemplated and ultimately made “recess appointments” to the three seats.
The law around presidential appointments during recess has historically been vague. Article II, section 2, clause three of the Constitution grants the president “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That was a sensible clause for an era when it could take weeks for Congress to return to Washington via horse and buggy—if the war secretary died of tuberculosis, it would not be practical to wait that long to confirm a replacement.
In the modern era, how should that clause be interpreted? Presidents began making recess appointments when the Senate gaveled out of session, even for a few days, which was clearly within the letter of the law, though probably not the original spirit. That was legally fine—even three Supreme Court members were appointed in that fashion.
In the aughts, to prevent President Bush from placing un-confirmable nominees into office when the Senate broke for recess, Senator Harry Reid devised a strategy to hold “pro forma” sessions every three days. This consisted of a senator coming to the floor when everyone else was out of town, gaveling the Senate into session, and then right back out. As a technical matter, the Senate was always in session, and the president could not make recess appointments.
Republicans later adopted this strategy, but Obama—bolstered by a lower-court ruling that those pro forma sessions were not legitimate—decided in late 2011 to issue three recess appointments to the NLRB to keep it functioning in late 2011 in the midst of some pro-forma sessions. This is what is at issue in Thursday’s case, NLRB v. Canning.
The administration urged the justices to look at the practical matter here: the Senate was not really in session in any true sense, and the pro-forma sessions every three days were an obvious ploy by Republicans to prevent recess appointments.
The justices disagreed:
In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.[…]
The Solicitor General asks us to engage in a more realistic appraisal of what the Senate actually did. He argues that, during the relevant pro forma sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, according to C-SPAN coverage, almost empty; and in practice attendance was not required.
We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. From a legal perspective, this approach would run contrary to precedent instructing us to “respect…coequal and independent departments” by, for example, taking the Senate’s report of its official action at its word. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session. Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch.
In effect, this ends all recess appointments by the president, except in a rare scenario outlined by the Court in which the House and Senate disagree about the congressional calendar.
What does all this mean? In the short term, not much: Obama withdrew those now-illegal appointments, and the Senate confirmed three others to the NLRB earlier last year. Democrats then undertook rules reform this year that eliminated the filibuster on non-judicial appointments. That removed any real need for Obama to make recess appointments.
But, should things go poorly for Democrats in November, the Senate will become Republican. If history is a guide, they will block any further Obama appointments almost as a matter of reflex. And now recess appointments will be out of the question.
The long-term implications for organized labor here are also dire, as Ian Millhiser at the Center for American Progress has been relentlessly pointing out. The three seats in question here have terms that expire in 2018.
So: imagine a scenario in which Republicans hold the Senate in 2018, and refuse to confirm a Democratic president’s nominees to the NLRB, even if they are entirely noncontroversial. There will now be no recourse, and the NLRB will go dark.
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The GOP scandal machine kicked into a new gear this week when the Internal Revenue Service disclosed late Friday that two years of e-mails belonging to IRS official Lois Lerner are missing and apparently permanently lost.
Lerner has, for some time, been the focal point of the Republican Party’s grand theory of Tea Party persecution as the IRS official supposedly leading politically motivated probes of tax-exempt conservative groups. Coupled with Lerner’s repeated invocation of her Fifth Amendment rights in congressional hearings, the missing e-mails are treated as prima facie evidence of a nefarious plot. “If you think, by the way, that the Lois Lerner e-mails are lost, you need to wake up. There is no way those e-mails are gone,” Rush Limbaugh thundered on Monday. “[The administration is] thinking nobody’s gonna try to stop them, nobody’s gonna push back, nobody’s gonna call them on it. It’s just the way that they’re gonna deal with it.”
While Republicans’ grand theory about the IRS “scandal” has a few holes, to put it lightly, they are correct to be mad here. It’s unacceptable that a high-ranking government official’s e-mails are missing.
Moreover, this is not an uncommon occurrence. Federal record-keeping borders on abysmal. Time and again crucial documents from many different agencies have gone missing. This episode reveals a much more banal form of federal noncompliance and malfeasance than what’s alleged by Limbaugh and company—but a much more real scandal.
In 2010, only 5 percent of federal agencies had a “low risk” of losing records, according to a review by the National Archives. Meanwhile, 46 percent were classified as having “high risk” and 49 percent were at a “moderate risk.” The 2012 review, the most recent one conducted by the National Archives, showed some improvement—20 percent of federal agencies were in the “low risk category” and 36 percent were “high risk.” That’s encouraging, but still far from an acceptable standard.
The basic problem is the federal government has been very slow to adapt its technology to the demands of permanently archiving millions of electronic records, mainly in the form of e-mails. The Federal Records Act theoretically requires agencies to do so, but enforcement is rare, penalties are relatively low, and only the federal government can force compliance.
The government, incidentally, appears to be in no particular rush to fix the system. In August 2012 the National Archives and the Office of Management and Budget said agencies don’t need to have a system to manage their permanent and temporary records in an easily accessible electronic format until December 31, 2016.
This has lead to a patchwork system of record-keeping and frequent data losses. “The truth is the disappearance of agency records is not unusual. Government-wide, records are routinely lost or simply not preserved,” Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said in a statement. “Unless and until Congress gets serious about fixing this widespread problem by amending the Federal Records Act to include increased penalties and to allow outside groups to sue agencies not complying with the law, we’ll inevitably have other missing e-mail scandals.”
The Lerner e-mail imbroglio is pretty clearly a result of a poorly designed record-keeping system. The agency said in a letter to Congress that until 2012, it used digital tape to back up its e-mail servers—but every six months, those tapes were erased and reused. (The IRS has since extended the life of those tapes.) Complicating this arrangement was that employees could only use 500 megabytes of space on the e-mail server, and then had to start deleting e-mails or moving them to their hard drives.
So while the IRS possesses, and has turned over, 67,000 of Lerner’s e-mails, there is a two-year gap from 2009 to 2011. What happened, according to the agency, was that she hit her storage limit and began moving e-mails to her hard drive—which crashed in 2011, and the data on it was deemed unrecoverable. The e-mails were no longer on the agency server, the IRS was not backing up individual employees’ computers, and the digital tapes from when they were on the server had already been recycled.
There’s no evidence that Lerner was acting maliciously, though Congress should—and certainly will—investigate whether Lerner was deliberately deleting those e-mails, knowing that the digital records of them were ephemeral.
It wouldn’t be the first time that federal e-mail records of high importance—that almost surely revealed wrongdoing—were deleted under suspicious circumstances.
In 2009, the Department of Justice’s Office of Professional Responsibility finished a high-profile probe into how the memos that allowed the United States to engage in torture were crafted. One problem: OPR was looking for e-mails between Deputy Attorney Generals John Yoo and Patrick Philbin, but found that most of Yoo’s e-mails were “deleted and…reportedly not recoverable.” OPR said its investigation was “hampered by the loss of Yoo’s and Philbin’s email records.” Yoo has maintained the e-mail losses were accidental, perhaps even a technical glitch—but it’s probably too late to ever know. Once again, overwriting backup tapes was a central problem—and even there, DoJ didn’t adhere to its own guidelines on overwriting.
The Securities and Exchange Commission issued a controversial directive that SEC enforcement staff should destroy any records created as a result of a preliminary investigation. Accordingly, more than 9,000 case files were destroyed—among them investigations into the activities of Bernie Madoff, into Goldman Sachs trading in credit default swaps in 2009, and into financial fraud at Wells Fargo and Bank of America leading up to the financial crisis. When the SEC later went back to conduct investigations into how it missed so much fraud, crucial pieces of the record were gone forever. CREW sued to stop the deletion, but a federal court ruled the Federal Records Act was written narrowly enough to allow it.
Then there’s the big one: the loss of millions of e-mails from the Bush White House. Former Bush officials screaming about the IRS lost e-mails should perhaps stop and reflect upon this incident. The Bush White House revealed in 2007 that as many as 5 million e-mails from March 2003 to March 2005 had gone missing. They were no longer on the White House servers and digital backups were not maintained. Consequently, investigations into wrongdoing at the White House—like Patrick Fitzgerald’s inquiry into the leaking of Valerie Plame’s name to reporters—were significantly hampered by missing e-mails. The Obama administration launched an effort to recover some of those e-mails, but millions more are gone forever.
Lerner wasn’t the first official to have an embarrassing e-mail gap, and she likely won’t be the last. CREW wrote this week to Representative Darrell Issa, chair of the House Committee on Government and Oversight, and his Senate counterpart Tom Carper, asking for a thorough review of government record-keeping problems and the need to amend the Federal Records Act.
Given Issa’s stated, deep concern for the IRS scandal, perhaps he will act quickly.
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The unfortunate re-eruption of warfare in Iraq will lead to many more questions for Hillary Clinton about her past support for the war—a rather unfortunate thing from her point of view, given the issue was a key reason for her 2008 Democratic presidential primary loss.
Her answer to one such question at a forum in Toronto reveals Clinton still has serious trouble talking about the war in a language recognized by those who opposed it—and there are a great many.
According to Alex Seitz-Wald of National Journal, this is what Clinton said at an event sponsored by the Toronto Region Board of Trade:
Clinton says “smart political move” would have been to recant on iraq vote earlier, but “I couldn’t break faith with” service members.
— Alex Seitz-Wald (@aseitzwald) June 16, 2014
That statement echoes some of the worst impulses of the Bush administration, which were to frame supporting the war publicly as a matter of “supporting the troops.”
One of the central animating concerns of the anti-war movement—from the Cindy Sheehan encampment to a young Senator named Barack Obama’s describing soldiers from Illinois who had been badly maimed by battle—was for the thousands of US troops dying, and the thousands more being injured, in what was ultimately a needless war. When George W. Bush would bash war opponents as people who didn’t “support the troops,” the anti-war refrain was: that’s exactly what we’re doing. Hillary perhaps does not accept that argument—or if she does, it’s hard to tell.
When Terry Gross went after Clinton last week on NPR on gay marriage, she was trying to get at a basic question: Did Hillary always support gay marriage but withhold her public support for political reasons? What about all the people being denied rights, how might they have been helped sooner if she spoke out?
Here, Hillary seems to be pre-answering that same question as it applies to Iraq, and giving a pretty terrible answer for why she didn’t speak her mind on the war.
UPDATE: There is now video of Hillary’s full response to this question, which are hardly exculpatory. Transcript of the response where it begins in earnest (at 1:01) below the video.
CLINTON: I kept trying to say “Well if we knew then what we know now it would not have ever come for a vote,” all of which was true, but just sort of avoided the fact of my saying “You know I just got it wrong, plain and simple. I made a mistake.” I thought a lot about that, because people said well—“You’re not saying you made a mistake for political reasons.” Well in fact, in the Democratic Party at that time, the smart political decision, as so many of my colleagues did, was to come out and say “Terrible mistake, shouldn’t have done it,” and you know blame the Bush administration. I had this sense that I had voted for it, and we had all these young men and women over there, and it was a terrible battle environment. I knew some of the young people who were there and I was very close to one Marine lieutenant who lead a mixed platoon of Americans and Iraqis in the first battle for Fallujah. So I felt like I couldn’t break faith with them. Maybe that doesn’t make sense to anybody else but me, but that’s how I felt about it. So I kept temporizing and I kept avoiding saying it because I didn’t want there to be any feeling that I was backing off or undercutting my support for this very difficult mission in Iraq.
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