U.S. Politics VI

[Annelise]

[quote]This is big news: Democrats have mapped out their legislative strategy for passing health care reform this year. According to George Stephanopoulos, Democrats will work with Republicans to build consensus around a plan, and then, if that doesn't work, they'll write the revenue-generating-and-substracting provisions of whatever health care plan they come up with into the FY 2010 budget resolution. As important: the budget reconciliation process, which circumvents moderate Democratic and GOP discontent in the Senate, will NOT be used to set up a carbon emissions credit trading system. Cap-and-trade was always the tougher sell to Congress. Americans don't understand it; members of Congress from coal-producing states worry about job losses in their state (they call it a transfer of wealth); consumers would be forced to pay more in the short-term for energy. Why did Obama chose health care? Here's a good explanantion from the perspective of policy. Politically, health care reform is more easily swallowed than cap-and-trade and probably less expensive, especially if Obama endorses large-but-incremental incisions over massive surgery.[/quote][url="http://politics.theatlantic.com/2009/03/choosing_health_care_over_cap-and-trade.php"]http://politics.theatlantic.com/2009/03/ch...p-and-trade.php[/url]

In related news, GOP (and some Dems) react to the possibility of the budget option:

[quote]White House press secretary Robert Gibbs said again Monday that it’s too early to say whether Democrats will use the budget process to ram through the president’s legislative agenda.

But Senate Republicans — and even some Democrats — have a message for the Obama administration: Don’t even think about it.

Sen. Orrin G. Hatch (R-Utah) said Monday that using budget reconciliation to obviate the need for 60-vote supermajorities “would be a mess.” Sen. Bob Bennett (R-Utah) said doing so would “sour” relations in the Senate. Senate Minority Whip Jon Kyl (R-Ariz.) said the White House risks turning legislation into a “purely partisan exercise.”

And a senior Republican Senate aide said the GOP could respond to such a move by going “nuclear” — essentially shutting down the Senate through the use of parliamentary maneuvers such as forcing the reading of bills and amendments and prohibiting committees from meeting for more than a few hours at a time.

The Republicans weren’t alone.

Sen. Robert C. Byrd (D-W.Va.), the Senate’s longest-serving member and father of reconciliation, has tried to drum up opposition to the idea of pushing substantive legislation through the budget reconciliation process. And Sen. Tom Carper (D-Del.) warned Monday that Democrats could do “serious damage to our bipartisan effort” if they start talking “in earnest about putting [health care reform] in reconciliation.”

The budget reconciliation question goes right to the heart of what kind of president Obama wants to be — one who gets his agenda through Congress, no matter where the bodies fall in the process, or one who restores a sense of bipartisanship to Washington.

So far, the White House is playing coy about its plan — while simultaneously engaging in an active backstage campaign to pave the way for employing the parliamentary technique, should it be necessary.[/quote][url="http://www.politico.com/news/stories/0309/20400.html"]http://www.politico.com/news/stories/0309/20400.html[/url]

I'm as unhappy about the bonuses as the next guy, but I still can't say I'm sorry that this has been put on pause:

[quote]BONUS TAX BENCHED: If you watched the White House reaction on the Sunday shows, you saw this coming. The Washington Post’s Paul Kane and Shalaigh Murray report that the Senate probably won’t take up the 90 percent tax on bailout exec bonuses: “Jarred by a cool reception from the White House and fears of unintended consequences across the financial world, Senate leaders are likely to delay until late next month legislation to punitively tax bonuses at banks and investment firms that receive federal aid. … Slow-walking the legislation would allow more time for leaders of American International Group, the troubled insurance giant at the center of the controversy, to attempt to recoup the targeted bonuses voluntarily. New York Attorney General Andrew M. Cuomo said yesterday that 18 of the 25 AIG Financial Products employees who received the biggest retention payments had agreed to return them, amounting to more than $50 million.”[/quote][url="http://www.politico.com/huddle/"]http://www.politico.com/huddle/[/url]


Whaddya think? Will anyone return the money voluntarily? Since they took it in the first place, I'm thinking [i]hell[/i] no.. unless honestly afraid for their lives.

[Ser Scot A Ellison]

I like how the AIG bonus stink distracted from the purchase of long term securities by the Fed last week. They turned on the printing presses and made $300,000,000.00. I hope it helps but it's going to be intersting either way.

Here's something I just saw on CNN. Campbell Brown criticizing the Obama Administration for breaking its promise to have a five day comment period on the White House website for any "Non-Emergency" legislation:

[url="http://www.cnn.com/2009/POLITICS/03/23/campbell.brown.transparency/index.html"]http://www.cnn.com/2009/POLITICS/03/23/cam...ency/index.html[/url]

[Ser Aardvark]

I know some of the constitutional experts the papers have quoted have said that the Evil AIG bill is Constitutionally kosher but I've heard from others (including my dad, a law prof) that it is still questionable and an appeal has a decent chance at getting a split vote (at least). I had a whole list or arguments and precedents written up but it seems to have vanished from the material sphere.

Okay found it. The best framework we have is Nixon v. GSA 433 U. S. 425 which says we needs the following to be a Bill of Attainder:

1) Gives out a punishment traditionally judged to be prohibited by the Bill of Attainder Clause.
2) It can not reasonably be said to further nonpunitive legislative purposes.
3) Whether the legislative record evinces a congressional intent to punish.

I would say the first two is a no (as far as I understand there isn't a historical precedence of Bill of Attainder being used to tax someone or something out of oblivion and it does apply to all TARP recipients of over $5,000,000,000) but the third is undeniable. I haven't had the time (and I don't have the expertise) to really tear apart this case but does a bill need to offend all three to be declared bad or just one?

[Piper]

[quote name='Ser Aardvark' post='1731488' date='Mar 24 2009, 10.09']I know some of the constitutional experts the papers have quoted have said that the Evil AIG bill is Constitutionally kosher but I've heard from others (including my dad, a law prof) that it is still questionable and an appeal has a decent chance at getting a split vote (at least). I had a whole list or arguments and precedents written up but it seems to have vanished from the material sphere.[/quote]

The constitutionality of the bill is interesting (though perhaps worthy of its own thread?). My argument might be that the 16th Amendment is pretty clear:

[i]The Congress shall have power to lay and collect taxes on incomes, [b]from whatever source derived[/b], without apportionment among the several States, and without regard to any census or enumeration.[/i]

Emphasis mine.

Seems pretty clear-cut to me, but I'm not aware of the case law in this area.

[Ser Scot A Ellison]

Piper,

Is it your position that Congress can pass a law saying, "Piper shall pay 100% of his income to the U.S. Government" and that such a law would pass Constitutional muster?

[Tempra]

[quote name='Ser Scot A Ellison' post='1731473' date='Mar 24 2009, 09.48']I like how the AIG bonus stink distracted from the purchase of long term securities by the Fed last week. They turned on the printing presses and made $300,000,000.00. I hope it helps but it's going to be intersting either way.

Here's something I just saw on CNN. Campbell Brown criticizing the Obama Administration for breaking its promise to have a five day comment period on the White House website for any "Non-Emergency" legislation:

[url="http://www.cnn.com/2009/POLITICS/03/23/campbell.brown.transparency/index.html"]http://www.cnn.com/2009/POLITICS/03/23/cam...ency/index.html[/url][/quote]


Another broken promise? I don't think any president in my lifetime has broken so many promises, so fast, as this president. Another good reason to ignore just about every campaign promise from any candidate.

[DanteGabriel]

[quote name='Tempra' post='1731508' date='Mar 24 2009, 10.23']Another broken promise? I don't think any president in my lifetime has broken so many promises, so fast, as this president. Another good reason to ignore just about every campaign promise from any candidate.[/quote]
You have a short memory, but that is par for the course for Republican apologists these days.

[Ser Scot A Ellison]

DG,

I think the Obama promise of a five day comment period is a good idea. I hope he goes back to it.

[Tempra]

[quote name='DanteGabriel' post='1731511' date='Mar 24 2009, 10.25']You have a short memory, but that is par for the course for Republican apologists these days.[/quote]


How many campaign promises did Bush I, Bush II, and Reagan (or Clinton for that matter) break in their first 64 days of office? Please list them. And i'll list Obama's and we can compare.

[Piper]

[quote name='Ser Scot A Ellison' post='1731505' date='Mar 24 2009, 10.21']Piper,

Is it your position that Congress can pass a law saying, "Piper shall pay 100% of his income to the U.S. Government" and that such a law would pass Constitutional muster?[/quote]

Scot,

I think that would be a consistent reading of the 16th amendment, yes. But I'd have to do some research on the case law, otherwise I'm stuck in Hugo Black-esque purely textualist reading.

The argument that such a law would be a bill of attainder, though, I think fails on two points: firstly, as I understand it, the common law use of the bill of attainder is criminal punishment, not taxation or the like*; but even if it was, the 16th amendment postdates the proscription against such bills.


* I would draw analogy to [url="http://en.wikipedia.org/wiki/Smith_v._Doe"][i]Smith v. Doe[/i][/url], where the relevant laws were not ex post facto because they were not "punitive." Not that I necessarily agree with the case, but that's the law.

[Ser Scot A Ellison]

Piper,

Oh, I don't think the tax would qualify as a "Bill of Attainder" or "Ex Post Facto Law" because it is a tax not a criminal penalty. That said it's a frightening amount of power. As Chief Justice Marshall said in [u]McCullough v. Maryland[/u], "The power to tax is the power to destroy."

[Piper]

[quote name='Ser Scot A Ellison' post='1731522' date='Mar 24 2009, 10.36']Oh, I don't think the tax would qualify as a "Bill of Attainder" or "Ex Post Facto Law" because it is a tax not a criminal penalty. That said it's a frightening amount of power. As Chief Justice Marshall said in [u]McCullough v. Maryland[/u], "The power to tax is the power to destroy."[/quote]

It's a terribly frightening amount of power. I thing Congress may do well to remember what else Marshall wrote in that case:

[i]But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all Government.[/i]

(taking that quote out of context, obviously)


But I'm curious: do you think such laws are Constitutional, and if not, on what grounds?

[Ser Scot A Ellison]

Piper,

I think they are probably Constitutional under the rational of [i]Doe[/i]. However, I think they are politically incredibily problematic. Congress shouldn't pass a punitive tax because people are pissed off. That's not the roll of government. Tax should only be about raising revenue, in my opinion. I think when it is used to punish, as in the AIG case, it's moving from being purely about revenue to being truely punitive.

All that said, as I type, I wonder if the Court would see such an overtly political act as the AIG bonus tax as punitive and invalidate it based upon the facts surrounding the passage of that law.

Then again the 16th amendment doesn't restate the limitations of the Ex Post Facto or Bill of Attainder clauses, does that mean, with regard to taxation, those clauses were superceded by the 16th Amendment? It's an interesting question.

[Anya, Vengeance Demon]

[quote name='Tempra' post='1731508' date='Mar 24 2009, 10.23']Another broken promise? I don't think any president in my lifetime has broken so many promises, so fast, as this president. Another good reason to ignore just about every campaign promise from any candidate.[/quote]

Seriously. I'm terribly, terribly upset that Obama has failed to extend a symbolic gesture that is ultimately meaningless. Won't somebody PLEASE think of the children?

[Piper]

Thanks Scot, an interesting take.



Ser Aadvark, I'll try to read over that case at some point soon, thanks for pointing it out.

[Tempra]

[quote name='John Quincy Adams' post='1731532' date='Mar 24 2009, 10.47']Seriously. I'm terribly, terribly upset that Obama has failed to extend a symbolic gesture that is ultimately meaningless. Won't somebody PLEASE think of the children?[/quote]

I'm more worried about his broken promise to kick lobbyists out of the white house, to remove earmarks, and signing statements to name but a few.

But hey, our president appeared on leno. He's cool.

[Annelise]

[quote name='Ser Scot A Ellison' post='1731512' date='Mar 24 2009, 10.27']I think the Obama promise of a five day comment period is a good idea. I hope he goes back to it.[/quote]

I do too. The Ledbetter bill is frankly puzzling to me. But the stimulus and the omnibus, I would think that was a matter of seeing them as necessary and time sensitive, and didn't want to give the opposition time to mount a PR campaign to turn public opinion or give the public time to wear out their reps and lose critical votes.

I think what Tempra says is good to bear in mind when considering candidates. Campaign promises often get tossed for one reason or another. Obama's kept faith with a number of things I'm happy about though, so I'm obviously not as dissatisfied as others about broken promises. But yes, I think we all have to pre-accept some disappointment on that score or it's just being naive.

[Ser Scot A Ellison]

Annelise,

I do have issues with the very short amount of time given to Legislators to review the stimulus bill before the vote was called. That's a huge amount of money to allocate and something that [i]needed[/i] to be reviewed. Further, isn't that how we got the Dodd Amendment that allowed the AIG bonuses in the first place?

[Anya, Vengeance Demon]

[quote name='Tempra' post='1731549' date='Mar 24 2009, 10.56']I'm more worried about his broken promise to kick lobbyists out of the white house, to remove earmarks, and signing statements to name but a few.[/quote]

"But a few"? Why not give us the whole list? (And I'm curious what, specifically, Obama promised re: earmarks.)

[Annelise]

[quote name='Tempra' post='1731549' date='Mar 24 2009, 10.56']But hey, our president appeared on leno. He's cool.[/quote]

That's what you think it was about? Really?

Scot,

I thought we got the Dodd amendment because the cap was questionable legally because of the previous contract. It's possible public pressure could have kept the cap in, true, but would that make the reasons it was supposedly pulled any less an issue? I don't view having to explain such things to the public as bad but it is complex legislation, and not hard to hang up on stuff like the bonus cap.. while the economy flounders in uncertainty, waiting to see what sort of action is or is not going to be taken... Wrt the omnibus, someone correct me if I'm wrong but I thought that the deadline was looming in a few days and that going back in the drawing board could have resulted in a Federal shutdown until they hashed something out.

In short, I'm not saying I agree with quickpitching the public, but I understand why they do it. Lawmakers drawing up legislation very quickly, like the bonus tax, worries me more because it doesn't seem like they are taking time to think it through. (The stimulus and omnibus were far longer in creation and negotiation).



Did anyone notice that a volcano in Alaska erupted? I couldn't help but think of Bobby Jindal.