Separation of powers is at stake

Separation of powers is at stake

By:  LeRoy Goldman

Two three-judge panels from the U.S. Court of Appeals in Washington and the 4th Circuit Court of Appeals in Richmond, Va., issued contradictory rulings Tuesday on a crucial portion of the Affordable Care Act.

At issue in Halbig v. Burwell, the Washington case, and King v. Burwell, the Richmond case, is whether the Obama administration may legally provide subsidies in the form of tax credits to people who have signed up for coverage under Obamacare in the 36 states that opted not to create state-run exchanges but rather rely on federally established exchanges.

The panel in Washington struck down the subsidies. The panel in Richmond upheld them. If the subsidies are stricken, Obamacare will be severely wounded.

When appellate courts issue contradictory rulings, the dispute is often settled by the U.S. Supreme Court. The Obama administration hopes to avoid having to defend the constitutionality of the president’s signature piece of legislation yet again before the justices. Thus, it will ask the full D.C. Court of Appeals to review and hopefully reverse the decision of its three-judge panel.

The ploy may work. The full court has four new members, all nominated by President Barack Obama.

If that happens, the Supreme Court could choose to duck the issue. It shouldn’t because these two cases raise issues that go far beyond the constitutionality of the subsidies in question. The broader and far more important legal principle these cases present concerns the integrity of the doctrine of separation of powers. And that’s why these cases need to be decided by the Supreme Court.

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But prior to addressing separation of powers, let’s be clear about the dispute respecting subsidies. It all comes down to a few words in the ACA.

Writing for the majority in the D.C. Circuit Court, Judge Thomas Griffith stated that Section 36B of the Internal Revenue Code, enacted as a part of the ACA, makes tax credits available as a form of subsidy to individuals who purchase health insurance through exchanges that are “established by a state under Section 1311 of the Act.” Thus the majority held that the ACA unambiguously restricts the Section 36B subsidies to insurance purchased on exchanges established by the state, not by the federal government.

Not so, says the Obama administration. It argues that a reading of the entire ACA makes clear that subsidies are to be available in all exchanges. In addition, those supporting the federal government’s position have argued that the language of Section 36B and Section 1311 is a drafting error. This argument is preposterous.

I should know. I served as the staff director of the Senate Health Subcommittee during the 1970s. I was intimately involved in the passage of many Senate bills. I know the process firsthand. The drafting is done by the Office of the Senate Legislative Counsel. Its staff is one of the most unique, professional and competent legislative offices I have ever encountered.

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Those in the Office of the Senate Legislative Counsel know the body of law for which they are responsible in intimate detail. They never infuse their own personal or policy views into the drafting of legislation. They systematically point out issues that need to be addressed and resolved between existing law and the language of any new bill such as the ACA.

It’s inconceivable that the language of sections 36B and 1311 and its meaning in the context of existing law and the rest of the ACA were not vetted by the Legislative Counsel, relevant Senate legislative committee staff and the Obama administration.

The obvious explanation for the language in sections 36B and 1311 was the expectation by the Senate Democrats and the administration that the subsidies would entice all states to establish exchanges. They were wrong.

And now the Obama administration is trying to dig itself out of a hole of its own making by arguing that sections 36B and 1311 don’t mean what they clearly say.

The administration’s position strikes at the heart of the doctrine of separation of powers. It proposes to establish the chilling precedent that the executive branch is no longer obligated to implement laws passed by Congress. Rather, it is free to alter them as it wishes.

That is a precedent that should be opposed by all who respect the rule of law, regardless of their political persuasion.

These cases present an issue of grave constitutional consequence that goes far beyond the subsidies. The remedy is the exercise of judicial review by the Supreme Court. The way to uphold the integrity of separation of powers is to uphold the integrity of separation of powers. A 9-0 vote is the best resolution, but 5-4 will suffice.

LeRoy Goldman is a former Times-News columnist. He can be reached at:  EmailMe.

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A Romney return in 2016?

July 17, 2014

LeRoy Goldman

“Oh, no, no, no. No, no, no, no, no. No, no, no.”

This is what Mitt Romney said to Ashley Parker of the New York Times when she interviewed him last January and asked him about 2016. I have no reason to doubt Romney’s repeated denials. After all, he had failed in his bid to secure the GOP presidential nomination in 2008, a blessing in disguise in that no Republican had any chance of winning that year. And, after winning the nomination in 2012, he and his campaign came to election night believing they were going to win. But he lost the popular vote by four points, and not surprisingly got hammered in the Electoral College because he lost all of the battleground states except North Carolina.

The shock of that unexpected defeat was for Romney and his entire family a cathartic moment. They decided it was time for him and for them to move on. Thus, not only has he repeatedly denied any interest in 2016, he has done nothing to give the lie to those denials. There is no comparison between Romney’s consistent denials and Hillary Clinton’s speaking tour, book tour and faux presidential teases.

But maybe, just maybe, Mitt Romney has a rendezvous with destiny.

It’s Republicans’ turn

Looking back at presidential elections over the past half century reveals a repetitive pattern. Once elected, most presidents get reelected. Ike won twice. LBJ won what would probably have been JFK’s second term. Nixon won twice. Reagan had two terms. Clinton was reelected. George W. Bush had two terms. And President Obama is in his second term.

The other basic pattern that has characterized the American electorate is that after two terms, the voters turn the reins of government over to the opposing party. Thus, the Republicans captured the White House in 1952, 1968, 1980, and 2000, while the Democrats did so in 1960, 1976, 1992, and 2008.

If the pattern holds, the Republicans should have the upper hand in the 2016 presidential election. And there is plenty of evidence that should buoy Republican spirits while depressing those of their Democratic opponents.

Obama’s failures help

President Obama’s approval rating is in the tank. A large majority of the American people continue to believe the country is headed in the wrong direction. The president’s only major legislative accomplishment, Obamacare, ripped the nation in half and was the determinative factor that enabled the GOP to take control of the House of Representatives in 2010.

In addition, the president has not been able to close the deal with Congress on the major issues confronting the country: debt reduction, entitlement reform, tax reform, immigration reform, energy independence and jobs. In foreign relations his track record is similarly barren. The United States is no longer respected by its allies or feared by its enemies. It matters not whether one looks at Eastern Europe, the Middle East or Asia, the United States no longer projects strength, freedom and hope. Instead America projects indecision and incoherence.

Finally, the Obama administration is reeling under the drip, drip, drip of scandals on their watch that they can’t wish away or blame on the House Republicans. You know their names; IRS, Benghazi, VA, NSA, healthcare.gov, and now the flood of children illegally crossing our southern border.

Given all of this, it would appear that the GOP ought to be able to coast to victory in 2016. History is on its side, and the ineptitude and bungling of the Obama administration and their Democratic allies on Capitol Hill have been nothing short of stunning.

An underwhelming field

But ask yourself: Why would Hillary Clinton be making all the right moves to become the nominee of the Democratic Party in 2016 if the nomination was doomed to failure? There is no doubt she’s politically savvy. Thus, it’s obvious that she believes she can win. What gives her that confidence?

The answer is that the prospective field of GOP nominees is a field of losers. Ponder these names: Paul, Rubio, Cruz, Santorum, Christie, Walker, Jindal, Perry, Huckabee, Ryan, and Bush. With the exception of former Florida Governor Jeb Bush, none of these other aspirants can put together an electoral majority that wins the White House.

And among the 11 contenders, Jeb Bush is the reluctant dragon. It’s not just his mother who doesn’t want him to run. More significantly neither does his wife, Columba.

No, if Republicans are to win in 2016, they must look elsewhere for their nominee. And that is why it’s only a matter of time before the party elders turn to Mitt Romney.

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You can reclaim the Senate - you really can

LeRoy GoldmanOPINION  12:09 a.m. EDT July 6, 2014

You can reclaim the Senate - you really can

The recent death of Republican U.S. Sen. Howard Baker of Tennessee reminded me how much the Senate has changed for the worse. In fact the change is so profound that only the demented or the delusional would now argue that the Senate functions at all.

Of course, it didn’t use to be this way. I know. I had the privilege of working in the U.S. Senate for most of the 1970s as the staff director of the Senate Health Subcommittee. Back then, and until the mid-1990s, the Senate functioned and functioned well. Sure, it was not perfect. Sure, there were many who were deeply opposed to the actions it took. But the Senate of those days grappled with controversial bills, debated them, perfected them by permitting the minority party to offer amendments to them, and then passed them. Filibusters were rare because both sides understood the danger of letting that genie out of the bottle.

Instead of filibusters hamstringing the legislative process, the Unanimous Consent Agreement was the procedural mechanism of choice used to advance, amend, and pass most all legislation. The UCA described in detail the procedures that would govern the consideration of a bill. It could take days or even several weeks to get a UCA drafted and approved. But once drafted and adopted, the green light was on for that bill. And a UCA meant just what it said. It required unanimous agreement of all 100 senators. How was that achieved, and more importantly, achieved over and over again?

The answer to that question comes in two parts. One part is today beyond our grasp. The other isn’t. Back then the Senate Republican and Democratic caucuses were diverse. The Republican Caucus was mainly conservative, but it also had moderates like Jack Javits of New York, Chuck Percy of Illinois and Mark Hatfield of Oregon. The Democratic Caucus was mainly liberal, but it also had conservatives like John Stennis of Mississippi, Russell Long of Louisiana and Vance Hartke of Indiana. That diversity on both sides of the aisle produced compromise, mutual respect, and trust. Today that diversity is no more. Now the Republican Caucus is monolithically conservative, and the Democratic Caucus is monolithically liberal. Unsurprisingly, the two no longer work together or trust each other.

And their respective leaders, Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY), personify all that is dysfunctional in the Senate today. They loathe one another. There isn’t a smidgen of trust between them. They each understand their job is a zero-sum game in which the only option is to win at the expense of the other.

With the cowardly acquiescence of the members of both caucuses, the two leaders have been able to aggrandize their own power such that it has destroyed the integrity of the Senate and the legislative process.

For example, Reid now writes major legislation in his own office. That circumvents the normal working of the Senate’s Legislative Committees. It makes a mockery of legislative hearings and mark-up sessions. It precludes the bipartisan give and take that otherwise would occur during the legislative committee process. And then Reid employs a tactic known as “filling the tree”, which precludes the Republicans from offering amendments to his bill. And guess what McConnell does in retaliation? He threatens or mounts a filibuster against the bill. And that produces the gridlock that has suffocated the Senate.

If the GOP recaptures the Senate this November, this problem will continue. Reid and McConnell will simply swap their destructive roles.

Reid and McConnell have got to go. Neither of their caucuses will purge them. But you can. This November there will be 36 Senate seats up for grabs, including the one here in North Carolina between Kay Hagan and Thom Tillis.

Write or call both Hagan and Tillis and tell them that you will not vote for them this November unless they openly renounce any intention of voting for either Reid or McConnell as Senate leaders. Also tell each of them that they must also renounce support for the secret voting procedure that both parties employ in electing their respective leaders.

Sending this message to Hagan and Tillis will put the fear of God into them. It will corner both of them. As the press picks up on the movement you will have begun, it will spread to other states. Since the Senate won’t save itself, do it for them. It’s called, We The People.

LeRoy Goldman is an unaffiliated voter who lives in Flat Rock. He can be reached at:  EmailMe

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