Wednesday, April 12, 2017

Federal Hiring Freeze Ends But Restructuring Continues

It was good while it lasted.

President Trump is ending the federal hiring freeze that he put into place in January as one of his first acts as president. The freeze excluded military personnel and key posts in the Departments of Defense, State and the Veteran’s Administration.

Under the exemptions, the Department of Labor estimates that the federal government hired about 4,000 people in January and 2,000 in February. These include staffers to help reduce the backlog of claims at the VA, which recently topped 100,000.

The upside is that even though federal agencies can resume hiring, it will be at a slower pace. Office of Management and Budget Director Mick Mulvaney said that some positions would be permanently unfilled. The elimination of the freeze “does not mean that the agencies will be free to hire willy-nilly,” he told the NBC. “What we're doing tomorrow [Wednesday] is replacing the across-the-board hiring freeze that we put into place on Day One in office and replacing it with a smarter plan, a more strategic plan, a more surgical plan.”

Mulvaney said that federal agencies will be required to submit plans to make themselves leaner and more cost-effective. Even agencies that are slated to receive increased funding under the proposed Trump budget will be required to eliminate redundant and inefficient activities and positions.

“The government reorg is probably the biggest story nobody is talking about,” Mulvaney told the Wall Street Journal. “We’re trying to do something that’s never been done.”

The Trump Administration had ordered agencies to start from scratch in their planning. Mulvaney admits that many of the proposed changes will need congressional approval and said that he was confident that a bipartisan agreement could be reached on improving the government. Under Senate rules, at least eight Democrats need to vote for cloture before the Senate can vote on proposed bills.

“We're not trying to ram it down their throats,” he said.

“This is a big part of draining the swamp,” Mulvaney said. “What you’re talking about doing is restructuring Washington, D.C. and that is how you drain the swamp… This is a centerpiece of his campaign and a centerpiece of his administration.”

Originally published on the Resurgent

United email sheds light on dragging incident

The nation was shocked yesterday by the sight of a man being dragged down the aisle of a United airliner. Now an email from United CEO Oscar Munoz to United employees sheds light on the other side of the story. The Munoz email was revealed by CNBC’s Ryan Ruggiero in a tweet that reprints the letter to employees.

According to Munoz, the incident occurred on Sunday, April 9, at Chicago’s O’Hare airport (KORD) on United Express Flight 3411. It is important to note here that a United Express flight is not an actual United Airlines flight, but a codeshare. The flight status tool on United’s website reveals that the flight was operated by Republic Airlines, a regional airline based in Indianapolis.

That the flight was on board a regional airline is apparent at a glance in the video from the seating arrangements, which are clearly on board a regional jet. Although most passengers don’t realize it, if you fly on anything smaller than a Boeing 737 or Airbus A319, you are probably not flying with the airline that you bought the ticket from, but with one of their regional contractors. Regional employees are generally less experienced and less well trained than mainline carrier employees. Because this incident did occur at a United hub, mainline United customer service agents may have been involved as well.

Munoz goes on to say that the problem arose when gate agents were informed that four Republic crewmembers needed to board the flight to Louisville, Kentucky (KSDF). This apparently occurred after the passengers had already been boarded.

A confidential source within United Airlines says that crewmembers were deadheading. This means that they were traveling while on official airline duty to fly a return flight the next day. Ordinarily, deadheading crewmembers are assigned seats before passengers are boarded to avoid problems like the one Sunday. This “shouldn't have happened since an out-of-place crew situation is usually known before boarding starts.”

The passenger was not bumped due to airline passengers with buddy passes. Passengers who travel on buddy passes have the lowest boarding priority. These are also called “nonrev” or “nonrevenue” passengers and airlines will not bump a revenue passenger for them. As an airline pilot, I remember being pushed back from the gate and seeing my wife and newborn son staring glumly at the departing plane after their nonrev/space available seats were taken by paying passengers from a canceled flight.

Munoz wrote, “We sought volunteers and then followed our involuntary denial of boarding process (including offering up to $1,000 in compensation) and when we approached one of these passengers to explain apologetically that he was being denied boarding, he raised his voice and refused to comply with crewmember instructions.”

“He was approached a few more times after that in order to gain his compliance to come off the aircraft, and each time he refused and became more and more disruptive and belligerent,” Munoz continued. “Our agents were left with no choice but to call Chicago Aviation Security Officers to assist in removing the customer from the flight. He repeatedly declined to leave.”

“Chicago Aviation Security Officers were unable to gain his cooperation and physically removed him from the flight as he continued to resist,” Munoz said. He even claims the man was “running back onto the aircraft in defiance of both our crew and security officials.”

The videos released so far begin with the security officers removing the man from his seat and do not corroborate Munoz’s claims that the passenger was belligerent to United employees. If a passenger videoed the earlier exchanges, those clips may be forthcoming. In any case, the other passengers will probably be questioned by authorities to determine what led up to the incident.

Once the man became belligerent and refused to comply with instructions, there was no way that he was going to stay on the plane. Airline captains have always had wide latitude to remove unruly and disruptive passengers. This is especially true in the post 9/11 world. No flight crew wants to deal with an aggressive and uncompliant passenger at 35,000 feet.

Removal of disruptive passengers is for their safety as well as everyone else’s. If a passenger becomes uncontrollable in the air, they might end up dead. In several cases, aggressive passengers have been restrained by crew and other passengers. Sometimes those passengers have died while being restrained. Uncontrollable passengers might also be shot by an air marshal. This happened in Miami in 2005. If the unruly passenger survives, they can be fined up to $25,000 by the FAA.

In aviation, we talk about “accident chains.” It usually isn’t one thing that leads to an accident and that was the case here. The problem started with United choosing to use contractors instead of its own employees. There was an apparent breakdown in communication that led the gate agent to board the passengers before assigning seats to the deadhead crew. None of the passengers volunteered to take the later flight which required that the airline pick people to bump. The alternative was canceling a flight full of passengers the next day. There was also an apparent failure by the security officers to follow proper procedure while removing the passenger. Finally, there was the choice by the passenger to refuse to follow lawful instructions and to resist orders.

As the United source asked, “Why this guy couldn't just get up and call his lawyer on a $300 Uber ride to Louisville, I don't know. What is wrong with grown adults who in the face of law-enforcement officers, refuse to comply with instructions? And then they are shocked when it gets ugly.”

An additional lesson from the incident is that cellphone videos, while often compelling and sometimes appalling, seldom tell the whole story. In this situation, like many police shootings and fights, the camera records the moment of violence, but without the context of why it occurred. Without the full story, it’s impossible to determine what really happened or why. 

Originally published on The Resurgent

New developments on Trump campaign surveillance

There are two new developments in the story of the alleged “wiretapping” of the Trump team during the campaign. The name of the Trump associate that was the subject of a previously known FISA warrant was named and several congressmen are disputing Rep. Nunes’s claim that the intelligence community inappropriately unmasked subjects of surveillance within the Trump campaign.

The Washington Post reports that the FBI and the Justice Department obtained the warrant to investigate Carter Page as early as last July. The investigation was part of the counterintelligence effort opposing Russian interference in the election. The government claimed that there was probable cause to believe that Page was acting as the agent of a foreign power.

Page was listed as a foreign policy advisor by the Trump campaign in March 2016. In August 2016, Trump spokeswoman Hope Hicks called him an “informal advisor,” the Post notes. By September, when the investigation of Page’s Russia ties was known, Trump spokesman Jason Miller said that Page “has made no contribution to the campaign” and Kellyanne Conway claimed that he was “certainly not part of the campaign that I'm running.” In January, Sean Spicer described Page as “an individual who the president-elect does not know and was put on notice months ago by the campaign.”

In a February interview with the Los Angeles Times, President Trump apparently described his relationship with Page, saying, “I don't think I've ever spoken to him. I don't think I've ever met him. And he actually said he was a very low-level member of I think a committee for a short period of time. I don't think I ever met him. Now, it's possible that I walked into a room and he was sitting there, but I don't think I ever met him. I didn't talk to him ever. And he thought it was a joke.”

Carter Page denied the allegations against him in an interview on Tuesday. “This confirms all of my suspicions about unjustified, politically motivated government surveillance,” he said. “I have nothing to hide.” No charges have been filed.

No charges have been filed against Susan Rice either. Rice was alleged to have improperly handled surveillance by House Intelligence Chairman Devin Nunes (R-Calif.). Nunes claimed in March that intelligence on Trump staffers appeared to have been legally collected, but was concerned that the identities of campaign team members unmasked and details that had no intelligence value were widely disseminated.

Now CNN reports that Nunes’s claims are being refuted by both Democrats and Republicans who have reviewed the same intelligence documents cited by Nunes. The unnamed congressmen said that the requests made by Rice were “normal and appropriate” for a National Security Advisor and that there was “absolutely” no smoking gun in the reports.

Rice has also denied any wrongdoing. “There were occasions when I would receive a report in which a US person was referred to -- name not provided, just a US person -- and sometimes in that context, in order to understand the importance of the report, and assess its significance, it was necessary to find out, or request the information as to who the US official was,” Rice said. “The notion that some people are trying to suggest, is that by asking for the identity of a person is leaking it, is unequivocally false. There is no connection between unmasking and leaking.”

President Trump told the New York Times last week that he believes that Rice broke the law, but has thus far failed to provide evidence or have the Justice Department file charges against her. The president claimed that he would provide the evidence “at the right time.”

There have many conflicting claims and counterclaims in the surveillance scandal. The revelations that Trump aides were under investigation for their ties to Russia is an established fact that was known before the election. The identification of Carter Page as a target of the investigation is likely accurate as well. It is also possible that the investigation was not limited to Page.

The jury is still out on the matter of Nunes’s claim of impropriety on the part of the intelligence community. If there is evidence that Rice or other intelligence officers broke the law, then they should be prosecuted and a sanitized version of the evidence should be made public to support the extraordinary claims of Trump and Nunes.

So far there is no indication that any surveillance was conducted illegally or for purely political purposes. Even Nunes acknowledged that the intercepts of Trump campaign communications appeared to be an “incidental collection” that could result from communication with foreign nationals who are under surveillance. If this is how the intercepts resulted, then the FBI was doing its job.

The one person who has the power to clear up the entire mess is President Trump. The president has access to all the intelligence information available and the power to have relevant portions declassified and released to the public. So far, however, it appears that Mr. Trump is not inclined to clear up the situation. 

Originally published on The Resurgent

Tuesday, April 11, 2017

Trump Administration to Continue Obamacare Subsidies to Insurers

The Trump Administration has announced that it will continue to pay subsidies to insurance companies under the Affordable Care Act says the New York Times. Separate from the subsidies paid to individuals, the subsidies to insurance companies are intended to offset losses that they incur under the Affordable Care Act and total $7 billion per year.

Without the subsidies, more insurance companies would exit the Obamacare marketplaces. Already one-third of counties have only one Obamacare insurer according to the Kaiser Foundation. Kaiser also estimated that without the subsidies, average premiums for the Obamacare silver plan would rise by 19 percent.

The failure of their health care reform bill has left the Republicans between a rock and a hard place. On one hand, disagreement between rival Republican factions makes repealing large parts of Obamacare and reforming the remainder impossible. On the other hand, if the GOP does nothing and Obamacare implodes with prices spiraling out of control, President Trump and Republican leadership would likely bear the brunt of the public displeasure.

The Trump Administration seems to have decided that the least bad option is keep the Affordable Care Act on life support for the time being. Continuing the subsidies will not be popular with the Republican base, but it might buy the president and congressional leaders time to iron out differences between the Freedom Caucus and moderates for a second attempt at reform.

Ironically, the subsidies were the subject of a lawsuit filed by House Republicans against the Obama Administration. The GOP won the case on the grounds that Congress had authorized the subsidies, but had never appropriated funds for them.

“Congress is the only source for such an appropriation, and no public money can be spent without one,” wrote US District Judge Rosemary Collyer in her decision. Ultimately the ruling against the president was stayed pending appeal, allowing the unappropriated subsidies to continue.

At least two Republican leaders say that Congress should appropriate the money. “I don’t think anybody wants to disrupt the markets more than they already are,” Rep. Tom Cole, chairman of the Appropriations subcommittee responsible for health spending told the Times. “It’s a very unstable market.”

“I will do everything I can to make sure that the cost-sharing reduction payments get made,” Rep. Greg Walden (R-Oreg.), chairman of the Energy and Commerce Committee said. Walden said the subsidies are “an obligation we have not only to the insurers,” but also to consumers, and “we cannot leave them high and dry.”

A bill appropriating money for the subsidies might make unlikely bedfellows. Moderate Republicans and those who don’t want to see upheaval in the health insurance industry might find themselves voting with Democrats to preserve the Obamacare subsidy… if only for a little while.

If the appeal continues, the Trump Administration can make the payments without an appropriation from Congress for the time being. This puts the Trump Administration in the awkward position of defending an Obama-era end run around Congress in federal court against House Republicans.

The critical nature of the subsidies on making Obamacare’s health care marketplaces work illustrates a fundamental flaw in the Affordable Care Act. The ACA did nothing to reduce the cost of health care or health insurance, it merely changed who pays. Obamacare shifted the burden of paying the bills from consumers and health insurance companies to the taxpayers. Without government subsidies paid for by taxpayers, the whole house of cards will fall.

Originally published on The Resurgent

Monday, April 10, 2017

Why Trump did not need Congressional approval to strike Syria

After President Trump ordered the US military to launch a strike on the Syrian airbase where this week’s sarin gas attack originated, many on the internet are claiming that he violated his constitutional authority as president. Only Congress can declare war, they say, so President Trump should have obtained a congressional authorization to launch his punitive attack.

This argument is based on a misunderstanding of the Constitution. While it is true that Article I Section 8 says that “The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” the focus should be on what the Constitution does not say.

For example, the Constitution does not say that the president, who it names as the “Commander in Chief of the Army and Navy of the United States,” shall obtain the permission of Congress before deploying the army and navy in combat. The Constitution also does not say that a declaration of war is required before ordering the military to attack.

That the president has the power to order the military into combat unilaterally is not a recent interpretation of the original intent of the Framers. In his excellent book, “The Savage Wars of Peace,” Max Boot details the numerous small, undeclared wars and military actions that the United States has been involved in during our short time on earth.

Proponents of declarations of war might be surprised to learn that America’s first undeclared war occurred in 1801, a scant 14 years after the Constitution was ratified. Although Congress authorized action against Tripoli in 1802, a formal declaration of war against the pirate kingdoms did not come until 1815 under James Madison. Yet if President Jefferson overstepped his constitutional authority in ordering the US Navy and Marines to go to war against the kingdoms of the Barbary coast in what is now Libya, there would have been opposition from the still-living Framers of the Constitution and authors of the Federalist Papers. Jefferson’s opponents criticized his Louisiana Purchase as exceeding his authority instead.

Although the US has been involved in many conflicts, only five wars have been formally declared. These include the War of 1812, The Mexican War, The Spanish-American War, World War I and World War II. That does not mean that all other conflicts were unconstitutional, however.

Congress has authorized the use of military force at least 13 times without declaring war. The first such authorization occurred even before the Barbary wars when Congress authorized John Adams to use military force against France during the Quasi War of 1798-1800. Congress has authorized the president to use military force many times in recent years including in Vietnam, Afghanistan, and twice in Iraq. These authorizations could be construed to fill the constitutional role of a declaration of war.

Many conflicts never had congressional approval at all. One of the largest undeclared wars, The Korean War, was never authorized by Congress. Neither was George H. W. Bush’s deployment of troops to Somalia or Bill Clinton’s deployments to Bosnia and Haiti. President Bush’s invasion of Panama received congressional approval only after the fact. President Obama never went to Congress for approval of his intervention in the Libyan civil war.

An opinion memorandum from the Deputy Counsel to the President from September 2001 quotes the Supreme Court in United States v. Verdugo-Urquidez (1990), “[t]he United States frequently employs Armed Forces outside this country—over 200 times in our history—for the protection of American citizens or national security” and goes on to note, “On at least 125 such occasions, the President acted without prior express authorization from Congress.”

The military actions in Korea, Bosnia and Libya were authorized by the United Nations even though Congress never signed off on them. In some cases, such as the Persian Gulf War, military force was authorized by both Congress and the UN.

In 1973, Congress was concerned enough about the possibility of abuse of presidential war-making authority that it passed the War Powers Act to clarify the constitutional roles of the president and Congress. The WPA requires the president to “consult” with Congress before introducing US troops into hostile or potentially hostile situations. It also requires the president to withdraw American forces after 60 days unless Congress grants approval for continued action.

The requirement to consult with Congress sets a low bar. It allows the president to act quickly and for a short time without a congressional approval. Under both the Constitution and the WPA, there is no specific requirement for the president to seek approval from Congress for a single military strike.

If a sustained campaign against a hostile foe is required, the rules are different. The War Powers Act, but not the Constitution, sets a 60-day time limit for unilateral actions by the president. Even then, neither law requires the president to ask for a formal declaration of war.

Why is Congress granted the power to declare war if such a declaration is not required under the Constitution? A declaration of war has legal implications that an authorization for use of force does not.

“In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of its property, and the apprehension of enemy aliens,” says the Congressional Research Service. “With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc.”

Undeclared and unauthorized military actions are still subject to international law. “Perhaps most important,” notes the CRS, “neither a declaration nor an authorization is necessary to trigger application of the laws of war, such as The Hague and Geneva Conventions; for that, the fact of armed conflict is the controlling circumstance.”

The lack of a declaration or authorization does not mean that the president’s actions are illegal under international or domestic law. President Trump’s strike against Syria was well within his role as commander-in-chief of the US military and his power to set foreign policy. A ground invasion and occupation of Syria would trigger different rules, but would still not require a formal declaration of war.

 Originally published by The Resurgent

Thursday, April 6, 2017

Trump shifts on Syria policy

Donald Trump campaigned on a platform of “America first.” During the campaign, he argued, “We cannot be the policemen of the world. We cannot protect countries all over the world where they're not paying us what we need.” Yesterday, President Trump signaled in a press conference that his attitude on foreign policy may be becoming more interventionist.

The catalyst for the change was this week’s chemical weapons attack in Syria that left at least 70 people, including many children, dead. Evidence points to the use of deadly sarin nerve gas by the Assad regime in the attack.

To make matters worse for the Trump Administration, many cite the comments by Secretary of State Rex Tillerson as a likely encouragement for the Assad regime to conduct the attack. Last week, Tillerson said in Turkey, “I think the status and the longer-term status of President Assad will be decided by the Syrian people,” a statement interpreted by many as indicating the US would not involve itself in ending the Syrian civil war.

“Yesterday's chemical attack, a chemical attack that was so horrific in Syria against innocent people, including women, small children and even beautiful little babies, their deaths were an affront to humanity,” President Trump said in a press conference with Jordan’s King Abdullah. “These heinous actions by the Assad regime cannot be tolerated. The United States stands with our allies across the globe to condemn this horrific attack and all other horrific attacks, for that matter.”

When asked if the attack crossed a “red line,” Trump replied, “When you kill innocent children, innocent babies, babies, little babies, with a chemical gas that is so lethal, people were shocked to hear what gas it was. That crosses many, many lines. Beyond a red line.”

Today sources are reporting that the president is considering options on how to respond, but that a firm decision has not yet been made. Complicating the matter are Trump’s campaign promises to have the United States play a smaller role in humanitarian missions and the fact that Russia is heavily involved in Syria. Over the past few years, Russia has supplied Syria with sophisticated air defenses and modern combat jets that would make an American attack difficult.

In spite of a withdrawal of most Russian units from Syria last year, NBC News noted recently that Russian combat troops are still in Syria, sometimes “within hand grenade range” of American soldiers. The presence of Russian soldiers and airmen heightens the possibility of escalation if Russians are killed by an American response.

In spite of the difficulties, President Trump has laid down the gauntlet. After his strong criticism of President Obama for backing down from his own “red line” comments, Trump has no choice, but to act decisively or lose all credibility with the dictators of the world. How the president handles the situation in Syria will affect how other countries from North Korea to Iran treat his administration.

The choices of strategies for intervention in Syria range from a full-scale invasion to limited air strikes of the sort that then-Secretary of State John Kerry called “unbelievably small” when President Obama faced a similar situation in Syria. A likely response would be use cruise missiles and manned aircraft to attack Syria’s air defenses and facilities where chemical weapons are produced and stored.

In the press conference, Trump seemed undecided on how to react and stuck with his patented brand of unpredictability. “I’m not saying I’m going to be doing anything, one way or another,” he said, “but I’m certainly not going to be telling you.”

Originally published on The Resurgent

Wednesday, April 5, 2017

GOP finds no agreement on Obamacare

A meeting of Republicans with Vice President Mike Pence that went into the wee hours resulted in no agreement between Republican factions on the next attempt at reforming the Affordable Care Act. Even though Republicans represent a majority in both houses of Congress, disagreement on some aspects of the reform legislation resulted in House Speaker Paul Ryan (R-Wisc.) withdrawing the American Health Care Act from consideration last month.

Last night’s meeting included leaders of several of the various Republican factions. Rep. Mark Meadows (R-N.C.) of the Freedom Caucus, Republican Study Committee Chairman Mark Walker (R-N.C.), and moderate Tuesday Group co-chairman Tom MacArthur (R-N.J.), House Energy and Commerce Committee Chairman Greg Walden (R-Ore.) and Ways and Means Committee Chairman Kevin Brady (R-Texas) were also in attendance at the meeting.

“We're basically working on the concepts where the differences have been. We found a lot of common ground,” said Rep. Jeff Duncan (R-S.C.) in The Hill. “You find common ground, you set that aside, and then you start working on some of the differences.”

The first Republican attempt at health care reform had several problems that eventually drove many conservatives to oppose the bill. The AHCA kept two popular Obamacare provisions that require insurance companies to cover pre-existing conditions and keep children on their parents’ policies up to age 26. The bill also continued to subsidize health insurance premiums although it restructured the subsidies as refundable tax credits. The bill also would have left Obamacare’s Medicaid expansion in place through 2020.

“Even though we have a high-risk pool that deals with this, I think there's probably a lot more concern over the guaranteed issue [of insurance for people with pre-existing conditions] portion of that and what that may mean,” said Rep. Meadows.

Rep. Walker said that there was “great consensus” among Republicans on high-risk pools for people with pre-existing conditions, but did not provide detail.

Under the high-risk pool concept, the states would set up an alternative insurance plan for people with pre-existing conditions who would otherwise be uninsurable. High-risk pools typically cost more for the policy holder, but some of the cost is subsidized by taxes on other insurance premiums. High-risk pools for people who are uninsurable have been utilized by states for years.

Several Republicans said that the meetings will continue Wednesday as the caucus tries to find a consensus that can pass the House. New legislation will also ultimately have to meet the requirements of moderates in the Senate where four Republicans have promised to oppose any bill that guts the Medicaid expansion. 

Originally published on The Resurgent

Federal court extends civil rights protections to gays

In an unprecedented ruling, the full 7th Circuit Court of Appeals in Chicago has ruled that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from discrimination. Sexual orientation is not mentioned in the text of the Civil Rights Act and the law has never been interpreted to include sexual orientation.

The Associated Press notes that the 8-3 ruling is unusual for several reasons. The court is considered to be somewhat conservative even though it is in Chicago. Five of the eight judges were appointed by Republican presidents who typically value a literal interpretation of the law as opposed to Democrats who tend to stray from the written text.

The case centers on Kimberly Hively, a former teacher at Ivy Tech Community College in South Bend, Indiana. Hively says that after an administrator saw her kissing her girlfriend in 2009, the school refused to promote her, harassed her and eventually fired her four years later.

The case hinged on the meaning of the word “sex” in the Civil Rights Act, which bans workplace discrimination based on race, religion, national origin, and sex. Hively’s lawyer argued that discrimination due to sexual orientation is illegal under the law’s prohibition of sexual discrimination. This interpretation is based on the Supreme Court ruling in Price Waterhouse v. Hopkins (1989) which held that gender stereotyping was a banned form of sex discrimination. Congress has repeatedly failed to add sexual orientation to the list of protected classes under the law.

Judge Diane Wood, a Clinton appointee, said in the majority opinion, “Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII's prohibition against sex discrimination ....”

“I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman,” wrote Judge Richard Posner in his opinion that concurred with the majority ruling. Posner was appointed by President Ronald Reagan.

“Who will be hurt if gays and lesbians have a little more job protection?” Judge Posner reportedly asked during arguments on the case per New York Magazine. “So, what’s the big deal?” he continued when the attorney did not give an answer, “Are we bound by what people thought in 1964?”

“(Lawmakers in the 1960s) shouldn't be blamed for that failure of foresight,” Posner wrote in his opinion. “We understand the words of Title VII differently not because we're smarter than the statute's framers and ratifiers but because we live in a different era, a different culture.”

“We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions,” Judge Diane Sykes, who was considered by President Trump for the Supreme Court, wrote in her dissent. “It's understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we're not authorized to amend Title VII by interpretation.”

Ivy Tech said in a statement that its policies already prohibit discrimination on the basis of sexual orientation and denies that it discriminated against Lively at all. The factual question of whether discrimination occurred was separate from whether the discrimination was illegal under the Civil Rights Act.

The 7th Circuit ruling contradicts a ruling by a three-judge panel in Atlanta three weeks ago. Because of the controversial interpretation of the law and the fact that different courts are issuing opposite rulings, the case is likely to come before the Supreme Court. 

Originally published on The Resurgent

Will Democrats Shut Down the Government?

Another year, another looming government shutdown.

This year it is Democrats who are threatening to shut down the government to block funding for President Trump’s border wall. Fresh from their victory in blocking reform of the Affordable Care Act, Democrats say that they will filibuster the annual appropriations bill if it includes money for construction of the wall. The bill must pass before April 28 to avoid a shutdown.

“I thought we were going to get a check from Mexico,” Senator Patrick Leahy (D-Vt.) said in Politico. He added that the wall will “accomplish nothing. That’s $30 billion that can’t go into cancer research, diabetes research and veterans care.”

In recent memory, it has been Republicans who have threatened to shut the government down. The most recent example in 2013 followed several shutdowns during the Clinton Administration. While Democrats have been guilty of fomenting shutdowns, we must look all the way back to 1990 for the last example of a Democratic Congress shutting down the government under a Republican president.

While government shutdowns are not uncommon, they also are not popular with voters. Virtually every poll that asks about a government shutdown shows the voting public overwhelmingly opposed to and angry at the prospect. While shutdowns can be popular among the partisan base, most voters want the parties to work together for the good of the country.

When the Republicans shut down the government for 16 days in 2013, they not only failed to achieve their goal of defunding Obamacare, they also saw the party’s approval rating fall to a historic low. A year later, Obamacare’s skyrocketing increases in health insurance premiums and chronic problems with registration on exchange websites saved Republicans from an electoral drubbing. They weren’t so lucky in 1996 when Republican-led shutdowns arguably cost Bob Dole the presidency and ushered in a second term for Bill Clinton.

If Democrats haven’t learned from past shutdowns, Republican leaders apparently have. “We're not going to have a government shutdown,” Speaker Paul Ryan (R-Wisc.) said on CBS last month. “The president doesn't want to have a government shutdown.”

Ryan suggested that the battle over appropriations for the wall could be delayed until next year since plans for the wall have not been finalized. “The big chunk of money for the wall, really, fiscal year’s appropriations because they literally can’t start construction even this quickly,” he said.

Senate Majority Leader Mitch McConnell (R-Ky.) agreed, saying on Fox News that he was “very confident” that a shutdown could be avoided and argued that the Democrats had the most to lose from a potential shutdown. “I would advise President Trump: ‘Don't worry about them sticking that label on you. Congress owns the government shutdown brand,’” McConnell said. “There's no incentive, frankly, for either side to go to the brink.”

Republicans say they intend to keep controversial items out of the appropriations bill. Funding for the wall will be delayed and a measure defunding Planned Parenthood is likely to be inserted into the budget reconciliation, which cannot be filibustered. This may mean that Democrats are left with no hot button issues to demonize in the appropriations bill.

Nevertheless, Democrats in the past have shown a propensity for overreach. Overconfidence after the health care battle and an irrational emotional response to the mere existence of the Trump Administration could lead Democrats into a shutdown battle over nothing.

With President Trump’s approval rating at 35 percent in a recent Quinnipiac poll, Democrats would run the risk of blowback from a shutdown. The strategy might make the president more popular at their own expense. A maxim attributed to Napoleon is, “Never interfere with an enemy while he’s in the process of destroying himself.” Democrats would be smart to follow the French emperor’s advice. 

Originally published on The Resurgent

Tuesday, April 4, 2017

It's up to Democrats to save the filibuster

The Democrats cannot prevent Neil Gorsuch from taking his place on the Supreme Court, but how they decide to handle their opposition to his nomination will make or break the Senate’s filibuster tradition. If the filibuster, which has endured in the Senate for more than a century, is eliminated, it will be nobody’s fault, but their own.

The filibuster dates back to at least the 1840s. The early tradition of the Senate was to allow unlimited debate on legislation. In 1917, Senate rules were changed to allow for a cloture vote, in which a two-thirds majority of senators could stop a filibuster. The requirement was later lowered further to the current 60 votes.

The history of the filibuster of judicial nominees is more recent. According to the Washington Post, the filibuster of qualified judicial nominees began when Democrats held up George W. Bush’s nomination of Miguel Estrada to the Court of Appeals in 2003. After seven failed cloture votes, Estrada withdrew his name from consideration and a new Democrat tactic was born.

In 2005, a bipartisan group of Senators called the “Gang of Fourteen,” many of whom are no longer in office, compromised to allow a vote on several of President Bush’s nominees and averted a threat by Majority Leader Bill Frist (R-Tenn.) to end the filibuster for nominees. Senator John McCain (R-Ariz.) told CNN that the group agreed that filibusters of nominees would only be used in “extraordinary circumstances” and would “try to do everything in our power to prevent filibusters in the future.”

When Republicans used the tactic under President Obama in 2013, Majority Leader Harry Reid (D-Nev.) changed Senate rules to eliminate the filibuster of most presidential nominees, but left it intact for Supreme Court nominees. “The American people believe the Senate is broken, and I believe the American people are right,” Reid told the Washington Post at the time, “It’s time to get the Senate working again.”

At the same time, Reid also changed Senate rules to require only a simple majority vote to amend Senate rules rather than the traditional two-thirds vote required for major rule changes. Reid’s precedent makes it much easier to Republicans to change the Senate rules today.

Fast forward to 2017 and Democrats are threatening to filibuster another well qualified nominee. The Democrats do not have enough votes to defeat the Gorsuch nomination, but they do have enough votes to block the Senate from voting on him under current filibuster rules.

A Democrat filibuster would be an exercise in futility that would change the Senate forever.

Appearing on Fox News, Majority Leader Mitch McConnell (R-Ky.) said on Sunday, “We're going to confirm Judge Gorsuch this week.” Implicit in the remark is the promise that there will be a vote on the Gorsuch nomination, regardless of whether Democrats attempt a filibuster or not. McConnell will invoke the so-called “nuclear option” and change Senate rules, which require now only a simple majority vote to eliminate the filibuster for Supreme Court nominees.

For years, the policy of the United States has been one of “no first use” of nuclear weapons. Harry Reid’s decision to invoke the nuclear option in 2013 shows why. It becomes easier for other countries to use their own nuclear option when the situation warrants.

By eliminating the filibuster for most nominees, Harry Reid made it likely that the filibuster would be erased for the few exceptions that remained as well. There is little doubt among Republicans that, if the roles were reversed, the Democrats would eliminate the filibuster because they have already done so. McConnell and the Republicans feel that they have nothing to lose.

Some conservatives were even ready to trash the filibuster while Barack Obama was president in order to end the Democrat filibuster of Obamacare repeal legislation. At the time, this would have been pointless since President Obama would have vetoed the bill anyway.

If the filibuster is eliminated for judicial nominees, the next step in the escalation will be to eliminate it entirely. If this happens, the Senate will lose a valuable protection against a tyranny by the majority.

The Democrats can prevent this and save the filibuster simply by being reasonable. They should admit defeat and allow a vote on Judge Gorsuch’s appointment. They can vote “no” to appease their constituents and assuage their consciences.

In the end, a vote will be held and Judge Gorsuch will be confirmed. The only question is whether the filibuster will be a casualty of the confirmation fight. 

Originally published on The Resurgent

Saturday, April 1, 2017

Why President Trump Won't Be Impeached


Almost since the election, there have been calls to impeach Donald Trump. The chorus to impeach President Trump follows years of calls to impeach President Obama by conservatives. Barack Obama was not impeached and Donald Trump isn’t likely to be, even if it can be proven that he colluded with the Russians during the election.

The Constitution is very specific about the basis for impeachment. Article II Section 4 states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

People, both conservative and liberal, who want to impeach a president for policy differences or because they don’t like him are acting outside the bounds of the Constitution. Even a president who commits crimes that do not rise to the standard of “high crimes” may not to be subject to impeachment.

Article III of the Constitution helps to interpret the rules for impeachment. For example, “treason against the United States,” is defined in Section 3 as “only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Section 2 specifies “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” This implies, but does not require, that impeachment would be the result of an indictable offense.

Less clear is the meaning of the phrase, “high crimes and misdemeanors.” The Constitutional Rights Foundation notes that this phrase had been common in English law since 1386 and would have been familiar to the Framers, who adopted it with little discussion. At its core, the phrase implies abuse of office and unfitness to serve.

The CRF also points to the Federalist Papers for clarity on impeachment. In Federalist No. 65, Alexander Hamilton wrote that impeachable offenses are “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

In the case of President Trump’s alleged coordination with the Russians during the campaign, he would likely be safe from impeachment even with incontrovertible proof. In 1872, Schuyler Colfax, vice president to Ulysses Grant, was threatened with impeachment for corruption and bribery. The House Judiciary Committee ultimately decided that Colfax could not be impeached because the alleged bribe occurred before he was elected vice president. The committee believed that the matter should be handled by the courts instead of Congress. Colfax was never indicted or impeached.

Conversely, in 1973, the Office of Legal Counsel wrote that it was unacceptable for a jury of 12 individuals to overturn the will of the nation as expressed in an election. In a memo, the counsel argued that it “is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution.”

President Trump would have two defenses under these legal theories. First, the actions that might trigger an impeachment, from sexual harassment to Trump University to collusion with the Russians, occurred before he was elected president. Therefore, under the Colfax memorandum, they would not be impeachable offenses.

Second, these actions were also known to the voters during the election. People knew that Trump was a Putin aficionado, they knew about his history with women and they voted for him anyway. It would be problematic for the courts or Congress to overturn the election under those circumstances.

Nevertheless, the ongoing investigation into Russian meddling in the election has dangerous consequences. If it is proven that Vladimir Putin intervened in the election on Trump’s behalf and that Trump purposely acted in concert with the Russians, it would almost certainly trigger a constitutional crisis over how to handle the matter.

Ultimately, impeachment is a political institution as well as a legal one. The same thing that prevented President Obama’s impeachment may be what stymies attempts to impeach President Trump as well. President Obama may well have been saved by the fact that the Democrats had a majority in at least one house of Congress for most of his term.

Under the Constitution, the House of Representatives votes to impeach the president and the Senate holds a trial to decide whether to remove him from office. Two presidents, Andrew Johnson and Bill Clinton, have been impeached, but neither was removed from office. It is likely that the pattern would have continued if House Republicans had voted to impeach Obama.

From 2010 on, the Republicans held control of the House, but Democrats held the Senate until after the 2014 elections. It would have been pointless to impeach Obama if he could not be removed from office. After 2014, even if serious charges could have been brought against Obama, the result of removing him from office would have been placing Joe Biden into the presidency. As an incumbent, he would have had a large advantage in the 2016 elections and, given the weakness and unpopularity of both Hillary Clinton and Donald Trump, Biden may well have become president.

Democrats face the same problem today. As long as Republicans control Congress and remain reasonably unified, impeachment is a nonstarter. If Democrats do gain control of Congress and push through an impeachment, President Trump will be replaced by President Pence, who would probably be much more popular and effective. Trump’s impeachment may well prove to be a boon for the Republican Party instead of the Democrats.

The Democrats would also be taking a risk that Trump would be impeached but remain president. Bill Clinton’s popularity soared to record highs after his impeachment. The Clinton impeachment also served to unify Democrats and deepened partisan divisions in Washington. The impeachment of Andrew Johnson for a noncriminal offense also later came to be seen as politically motivated and a partisan error.

The big risk of impeachment for President Trump comes from his actions going forward. If he proves to be corrupt in office, he could turn enough Republicans against him to make impeachment a possibility. Likewise, the originalist interpretation of “high crimes and misdemeanors” could include incompetence and unfitness as a leader. If Trump, who has no experience in government, proves to be such a bad leader that the nation is endangered by his administration, a difficult standard to meet, even a Republican Congress may find itself looking for alternatives. 

Originally published on The Resurgent