DOMEocracy

hardline political news and analysis

Month: April, 2018

A Civics Lesson for Trump and Sessions

As if we needed any further reminders of the reckless disregard for law and the Constitution rampant in the Trump Era, a panel of Republican federal judges has forcefully rejected efforts to punish so-called Sanctuary Cities by curtailing federal grant funds. It is a fair barometer to assume that when a Republican judge uses terms like “tyranny” to describe the actions of Trump officials, even the GOP’s catatonic congressional leadership should wake up and start acting like they are paying attention.

The remarkably strong decision by judges of the U.S. Court of Appeals for the 7th Circuit is a sharp reminder that it is a good idea for officials not only to check the merits of their arguments, but also the backgrounds of judges before whom they will make appeals. The judicial panel, led by Judge Ilana Rovner, not only belittled the arguments of Attorney General Jeff Sessions’ Justice Department, but also delivered a ringing defense of congressional prerogatives and separation of power that is clearly a matter of low priority to the current occupant of the White House.

At issue was whether Sessions (channeling some of the most reprehensible of Donald Trump’s prejudices) should be able to inflict punishment on so-called Sanctuary Cities that decline to cooperate with the federal government’s aggressive policy of rounding up and deporting undocumented people. Cities like Chicago, the subject of Wednesday’s case, have not voided federal law – the constitutionality of which was settled some time ago by a nasty civil war – but rather have declined to cooperate with actions to terrorize immigrant communities. Trump and Sessions responded to vows of non-cooperation by threatening to withhold DOJ grant funds designated for these defiant jurisdictions.

Not so fast, instructed District Judge Harry Leinenweber last September. Leinenweber, who had been named a federal judge by Ronald Reagan, imposed a nation-wide injunction against punishing Sanctuary Cities for protecting their residents. Yesterday, a 3-panel appeal court in Chicago upheld Leinenweber’s decision, and used some strong language to disclaim the logic and constitutionality of the Administration’s argument.

Unfortunately for Sessions and Trump, the judge writing the decision in the appeal was Ilana Rovner, a Reagan and Bush I appointee who with her mother had fled Latvia as a child in 1942 to escape the invading Nazi army. Such an experience is bound to make an impression on a 4-year old.

Apparently it did. Rovner’s ruling dripped with contempt for the Administration’s arguments. Sessions’ heavy-handed intimidation was described as a thinly disguised effort to use “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” And that wasn’t the mildest of Rovner’s rebuke. “The issue before us strikes at one of the bedrock principles of our nation,” she lectured the Attorney General, “the protection of which transcends political party affiliation and rests at the heart of our system of government — the separation of powers.”

To someone who teaches students about the proper role of the Congress in the law-making process, Rovner’s decision reads like a textbook example. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government” she wrote. “If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”

Indeed, as Rovner wrote, Congress “repeatedly refused” efforts by some members to link the funding of federal programs to immigration policies. Numerous bills have been introduced directing that such linkage be imposed, with such menacing names as the “Stop Dangerous Sanctuary Cities Act” and the “Stop Sanctuary Policies and Protect Americans Act,” but Congress declined to enact these alarming bills. She reminded the Administration of the lesson of which legislative drafters are acutely aware, that the language of the law, on which Congress actually voted, is “the best indicator of Congress’s intent [and] and that absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”

Perhaps Sessions and Trump missed class the day a teacher explained that Congress’ failure to act does not confer special powers on the Executive Branch.

Congress of course can choose to give to the Attorney General, or to anyone else, the power to link the provision of federal funds with certain conditions. But it is up to Congress to make an affirmative decision, not for others in government to assume those powers when Congress fails to do so. Rovner belittles Session’s argument that states and local communities cannot be allowed to interfere with federal law enforcement. “That is a red herring,” she rightly declares, since Sanctuary Cities in no way obstruct enforcement actions by federal officials.

In case the zealots in the Administration missed her point, Judge Rovner further explained that “We are a country that jealously guards the separation of powers, and we must be evervigilant in that endeavor.” But Sessions’ “repeated mantra evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch,” and when the Executive overreaches, it “falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.”

Rovner’s scolding must have stung the White House and Justice Department, but it was surely welcome for teachers of civics throughout the country. It s a sorry state of affairs when conservative judges have to remind the likes of Donald Trump and Jeff Sessions what the Constitution says and judicial precedent means. Probably time to get ready for the Tweet storm about lenient liberal judges.

 

 

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The Art of [Breaking] the Deal

The Trump Administration’s decision to roll back national auto efficiency and emissions standards and challenge California’s right to set tougher criteria will not only make Americans sicker and increase dependency on foreign oil. Trump’s unilateral action will violate an understanding that taxpayers would not finance the revitalization of a non-competitive and inefficient auto industry.

Only a decade ago, Congress agreed to allow tens of billions of taxpayer dollars to be spent out of the financial rescue package in order to save the prostrate desperate U.S. auto industry. Late in 2008, U.S. carmakers begged Congress and the Bush Administration to stave off the collapse of their businesses and the associated loss of millions of jobs in related wholesale and retail enterprises. They were enormously fortunate that congressional leaders were feeling more positively towards auto manufacturers because, a year earlier, a new law had imposed the improved fuel efficiency and emissions standards that would promote competitiveness with Japanese and European rivals.

The negotiations over that legislation had been bitter and protracted. Senators and representatives from Michigan, home of the U.S. industry, had long resisted demands  to modernize their standards. In the midst of the legislative battle on energy policy in November 2007, House Speaker Nancy Pelosi told House freshmen that she would not be bullied as Congress had been for decades. Public officials would set the efficiency criteria, Pelosi declared, not the manufacturers, who would be compelled to implement Congress’ decision. “What were you thinking,” Pelosi reported she had told the auto manufacturers, “to fight [tougher standards] for 30 years?”

Within Congress, reformers like Henry Waxman (D-CA) had long battled the industry’s apologist, Commerce Committee chairman John D. Dingell (D-MI). Sensing that Pelosi and Waxman had the votes, Dingell pleaded to give the auto manufacturers a reasonable time to recalibrate the efficiency of their fleet. Dingell told Pelosi he was prepared to “stuff down the throats of industry” a five-year time frame for industry compliance. “You hate the bill, but you can live with it if you work with me,” Dingell recalled telling Detroit’s big shots. “Otherwise, you’ll get a bill you can’tlive with.”

The resulting Energy Independence and Security Act required auto manufacturers to increase their passenger vehicle and light truck fleet average efficiency to 35 miles per gallon by 2020 – not a 5, but a 13 year glide path — and allowed the Environmental Protection Agency to increase standards when technologically feasible. With growing evidence about the impact of carbon concentration on climate change, President Barack Obama used that authorization to order a fleet average of 50 miles per gallon by 2025.

Only one year later, the manufacturers were at Congress’ door pleading for billions of taxpayer dollars to forestall bankruptcy. Despite their protests that efficiency standards made cars more expensive, they knew it would be futile to seek a relaxation of the mandates while appealing for their bailout. As the financial markets teetered on collapse and jobless claims soared, the Bush Administration and Congress knew that allowing the Big Three auto companies to fail would cause downstream bankruptcies for thousands of auto parts manufacturers, distributors and dealerships with a resulting loss of over a million jobs.

Still, securing the federal aid was far from a certainty, even with the industry pledges to modernize their fleets. Indeed, the new Treasury Secretary, Timothy Geithner, warned congressional leaders that the companies’ recovery plan, due in February 2009, would probably be prohibitively expensive, and that it was “very hard to imagine a sufficiently strong plan outside bankruptcy.” Pelosi, having asked her members to vote for hundreds of billions of dollars for both the Bush and the Obama stimulus plans, plus the TARP financial services bailout, as well as a trillion dollar Omnibus spending bill, was wary of going to the well yet again.  The companies, she advised, would have “to be realistic.” A planned bankruptcy might well be the “best of bad alternatives.”

The earlier legislation setting tough standards for fuel efficiency and emissions reductions helped persuade many reluctant legislators that the auto manufacturers were worth the public risk. Ultimately, the companies received an $80 billion loan using taxpayer funds, with a requirement that they repay it all. To date, unlike other TARP beneficiaries, the auto manufacturers still owe taxpayers billions of dollars.

Now the manufacturers, restructured, back on their feet and competitive again, are cheering on Trump’s decision to weaken the standards that earned them the public’s trust just a decade ago.  Trump’s relaxation of emission and mileage efficiency improvement was “the right decision,” intoned Gloria Bergquist on behalf of the Alliance of Automobile Manufacturers. But Trump’s proposal has drawn angry responses from congressional Democrats. Pelosi dismissed Trump’s rollbacks as part of the “GOP’s dirty energy agenda.”

To many on Capitol Hill, Trump’s announcements looks exactly like a used car salesman’s bait and switch operation, and it is the taxpayer who is getting used. Manufacturers that secured taxpayer subsidies based on compliance with efficiency upgrades are now walking away from their obligations. Car executives should not be surprised if the next time they plead with taxpayers for assistance, they get, as John Dingell had warned, something less salutary “crammed down their throats.”

Ryan’s Decision to Quit

It has been 32 years since a Speaker of the U.S House of Representatives has truly left office of his – or her – own volition. Paul Ryan has not been forced to resign like Jim Wright following a scandal or John Boehner following repeated defections by his own troops. He wasn’t booted out by his own party, like Newt Gingrich, or ousted by an election that ceded power to the opposition like Tom Foley, Dennis Hastert and Nancy Pelosi. Ryan just quit.

Ryan’s decision brings to a close a brief speakership marked by spectacular underachievement. Like Boehner, Ryan proved incapable of effectively managing his deeply riven Republican Conference. Even granted the limited legislative objectives of the modern Republican Party, Ryan has been unable to summon up the political astuteness to perform the most basic function of the congressional majority: to govern.

Only by fashioning the same short-lived coalitions with Democrats as Boehner has Ryan avoided disastrous shutdowns that so delight a substantial portion of his Conference. By stepping up to his obligation to fund the government and prevent the disruption and political damage that inevitably follows shutdowns, Ryan also inflamed the Freedom Caucus/Tea Party faction whose election elevated the GOP to the majority and which now intimidates its Conference colleagues and their leaders.

True, Ryan was able to secure his supreme if misguided goal, a costly tax cut that disproportionately benefits corporations and the wealthy. Together with Senate Majority Leader Mitch McConnell, Ryan shredded conservatives’ so-called commitment to reducing the deficit, not only by pushing through his $1.5 trillion tax cut, but also by bulldozing through Congress an Omnibus spending bill that together added over $1.4 trillion to the Nation’s red ink.

With all due respect to Speaker Ryan’s often touted legislative skills, reducing the taxes of the super-rich and corporations while providing meager cuts to regular Americans (Ryan bragged of a constituent who was receiving $1.50 a month from the tax cut) is not exactly legislative legerdemain. Any demagogue can cut taxes, especially if he doesn’t care about the impact on the deficit.

Moreover, Ryan admitted that his real goal was to inflate the deficit so as to create a rationale for cutting programs like Social Security, Medicare and Medicaid, which benefit tens of millions of Americans, mostly poor, elderly and disabled. Having abandoned h effective deficit-reducing mechanism of the Pay As You Go requirement instituted by Democrats, Ryan instead promoted  a “Balanced Budget Amendment” whose underlying principle he has no ability or interest in honoring.

But Ryan’s failures go even deeper than these examples of his hypocrisy on the question of economic fairness, spending control and deficit reduction. In slavishly capitulating to the erratic, unprincipled and dangerous lurchings of Donald Trump, Ryan has undermined the stature of the institution he was solemnly charged with leading. For nearly a half-century, Democrats and Republicans alike in the House have fought to reassert the role of the Congress as a separate and co-equal branch of government, developing its own legislative initiatives, not simply accepting the demands of an Imperial presidency. Congress, since the 1970s, has engaged in vigorous oversight of the Executive Branch, demanding answers about the spending of funds and the scrutiny of programs that originate with the Congress, and which the President has the responsibility to manage.

Under Ryan, the House has utterly failed in that mission, largely reverting to its onetime status as the pitiful “sapless branch” of government decried by Sen. Joseph Clark (D-PA) a half century ago. Ryan not only weakened Congress by obsequiously deferring to a president who demonstrates contempt for his party’s members, but he severely damaged the honor of the House itself by abandoning the regular legislative order, neutering members of policy committees on both sides of the aisle, restricting opportunities to offer amendments on the floor, and ignoring the pleas of overwhelming majorities of Americans of all ideologies to address issues like gun policy and immigration.

Such a harsh assessment of Ryan’s failed career as speaker undoubtedly will strike some as unkind; doesn’t he deserve compassion, even sympathy, for having to endure the constant pressures, threats and obstructionism from the far-Right Freedom Caucus from which he himself emerged?

Absolutely not. Speakers don’t have the luxury to offer excuses. They play the hand they are dealt as best they can. Nancy Pelosi had to cater to conservatives in her Caucus and deal with an unpopular president whose reckless behavior had driven the nation into two wars as well as an historic recession. John Boehner inherited the speakership by virtue of an extremist minority that showed him little deference and forced him to cut deals with Pelosi and Barack Obama to ensure the continued functioning of the institution he was charged with running.

Ryan has shown no courage and minimal skill. Despite an unearned reputation as a policy wonk, he has little to show for either creative or innovative legislation; in fact, he has little to show for any legislation at all, which may well have been the goal.

He leaves behind a president who adds another trophy of the Washington elite to his wall. He leaves behind a House that has lost institutional capability and public respect. He leaves behind a Conference that is divided and ineffective, one that may well spend much of the rest of this year deciding who might next inherit the job Ryan leaves, or the job he perhaps feared: Minority Leader. From the standpoint of those who care about a functioning, independent House, Paul Ryan has made one sound decision: he quit.