14 House Republicans Join Failed Veto Override Attempt

Yesterday the House of Representatives failed to override President Trump’s first veto. Last month, the president vetoed the resolution halting his use of a national emergency to reallocate funds from other programs to construction of the wall.

The House attempt had the support of a majority of congressmen but fell 38 votes short of the two-thirds majority required by the Constitution to override a veto. In all, 248 congressmen, including 14 Republicans, voted to override the veto. The move was opposed by 181 Republicans and no Democrats.

The Republicans who voted to rein in the president’s emergency declaration were Justin Amash (Mich.), Brian Fitzpatrick (Penn.), Mike Gallagher (Wisc.), Jaime Herrera Beutler (Calif.), William Hurd (Texas), David Johnson (S.D.), John Katko (N.Y.), Thomas Massie (W.V.), Cathy McMorris Rodgers (Wash.), Tom Rooney (Fla.), Jim Sensenbrenner (Wisc.), Elise Stefanik (N.Y.), Fred Upton (Mich.), and Greg Waldon (Ore.). Two other Republicans, Kay Granger (Texas) and Joe Wilson (S.C.), joined Democrat Jackie Speier (Calif.) in not voting on the bill.

The override attempt picked up six votes over the original House bill passed in February. Thirteen House Republicans supported that bill while 12 Senate Republicans voted against the national emergency.

The override attempt occurred on the same day that the Senate Republicans staged a show vote on Alexandra Ocasio Cortez’s proposed Green New Deal. In the upper chamber, Democrats refused to stand for the unpopular measure, which was defeated 57-0 with 43 Democrats voting “present.”

In a day of show votes, it is likely that the Republicans got the worst end of the deal. While Democrats eluded Mitch McConnell’s attempt to put them on record defending the Green New Deal, House Republicans walked into a trap set by Nancy Pelosi.

The override attempt was doomed to fail, but the short-term victory has put Republicans in a tight spot. Even though Republican voters solidly support Trump’s proposed wall, the nation at large is split on the issue. Polling from February found that about a third supported the wall while another third called it “totally unnecessary.” The remaining third supported border security but said that there were “better options” than the proposed wall. Despite, or perhaps because of, President Trump’s hard line on immigration, the number of Americans who want increased immigration has increased by nine points since 2016.

If support for the wall is closely divided, support for the national emergency is not. Polling has consistently shown that Americans oppose the use of the national emergency by double-digit margins with opposition to the wall reaching 60 percent or higher at times.

Morning Consult pointed out the difficulty for Republicans earlier this month. Seventy percent of Republican voters are more likely to back a congressman who supports the president on the national emergency, but 60 percent of other voters say that upholding the national emergency declaration makes them less likely to vote for a candidate. A large majority, 78 percent, said the issue will be a factor in their vote.

President Trump’s emergency declaration placed congressional Republicans into a damned-if-you-do and damned-if-you-don’t situation. Supporting the president looks good to primary voters, but could cause trouble in the general election. The 14 Republicans who crossed the aisle have the opposite situation. Both groups are in trouble with one group of voters or the other.

Unlike the Senate vote on the Green New Deal, the vote to uphold President Trump’s veto and protect his expansion of presidential power at congressional expense is likely to be remembered when voters go to the polls next year. Republican incumbents who protected the president may fare well in primaries, but their failure to hold the president accountable may cost the party dearly in November.

Originally published on The Resurgent

Senate To Block Trump’s National Emergency, Veto Expected

In a rare rebuke of President Trump, Senate Republicans are expected to join with Democrats today to pass a House resolution blocking the president’s emergency declaration and redirection of other funds toward construction of the wall. President Trump has said that he plans to veto the measure if it passes.

Republicans currently hold 53 seats in the Senate and at least five Republican senators are expected to vote against Trump on the resolution, which has already passed the House. Sen. Mike Lee (R-Utah), who originally said that Trump had the authority to declare an emergency, is the most recent Republican to line up against the president. On Wednesday, Lee told Reuters, “ For decades, Congress has been giving far too much legislative power to the executive branch. I will be voting to terminate the latest emergency declaration.”

Other Republicans voting against the measure include Rand Paul of Kentucky, Lisa Murkowski of Alaska, Susan Collins of Maine and Thom Tillis of North Carolina. Still others, such as Sens. Marco Rubio of Florida, Mitt Romney of Utah, Lamar Alexander of Tennessee, Johnny Isakson of Georgia,  Ron Johnson of Wisconsin, Ben Sasse Nebraska, and Jerry Moran of Kansas are among the Republicans who could join them.

In an ironic claim, President Trump has announced that he plans to use his constitutional veto power to block the resolution that rolls back his abuse of executive authority. In a Thursday morning tweet, the president said, “I am prepared to veto, if necessary. The Southern Border is a National Security and Humanitarian Nightmare, but it can be easily fixed!”

https://twitter.com/realDonaldTrump/status/1106144173458161664

Even though a number of Republicans are crossing the aisle to rein the president’s attempt to bypass Congress’s constitutional authority to appropriate funds, it does not appear that enough Republicans are willing to stand up to Mr. Trump to override a veto.

While President Trump can win the immediate battle with a veto, he is still likely to lose the larger battles of public opinion and getting the wall built. Most polling shows that although voters are split on the wall, they overwhelmingly oppose the use of a national emergency to fund it. A Politico/Morning Consult poll released yesterday found that 52 percent of voters oppose the national emergency, up one percent from a month ago. Ominously for Republicans, independents oppose the declaration by a two-to-one margin.

Even if his veto is upheld, the wall is unlikely to be built anytime soon. The emergency declaration is a transparent attempt to avoid compromising with congressional Democrats that almost certainly violates the letter of the law, as well as its spirit. Sixteen states, including several in the Southwest and along the border, have filed a lawsuit to block Trump’s redirection of federal funds. Courts are likely to block Trump’s executive move and halt construction of the wall for years until the legal questions can be resolved.

As with the government shutdown, President Trump has painted himself into a corner with no good options. The president is doubling down on an unpopular strategy in an attempt to force through a policy that is unpopular outside his own party and that is unlikely to be effective at solving the illegal immigration and smuggling problems on the southern border. The fact that the wall costs billions of dollars at a time when the federal deficit is skyrocketing is icing on the cake.

The president is putting other Republicans in a bad position as well. Congressional Republicans are being forced to go on record either for an unpopular policy or against a president that is popular with the Republican base. The first option will harm them in the next year’s general election while the second will hinder them in their primaries.

In the end, the principled choice for Republicans should be to stand up against the president and for the rule of law. After eight years of criticizing President Obama’s executive abuses and rampant spending, it will be very difficult for Trump Republicans to sign off on the president’s end-run around Congress and debt-fueled spending binge without looking like hypocrites in the eyes of voters around the country.

Originally published on The Resurgent

Congress is the key to stopping Hillary

A major argument for Donald Trump has been that “He’s not a great candidate or a conservative, but we need him to prevent Hillary from picking Supreme Court justices who will gut the Second Amendment.” Given the numerous questionable characters that Trump has chosen to work on his campaign, the idea that he knows how to “hire the best people” is dubious at best. Now, as the “Trump train” goes off the rails three weeks before the election, it is becoming apparent that conservatives need to find an alternative strategy to save the Court and block Hillary. The key to stopping the liberal agenda for the next four years is Congress, specifically the Senate. 

Let’s face it. Depending on Trump to appoint strict constructionists to the Supreme Court was always a long shot. The possibility that Trump might appoint good judges outweighs the certainty that Hillary won’t, Trump supporters argue. If one ignores all the other arguments against Trump, it might even be convincing. Yet as Trump goes rogue on the campaign trail, even that slim possibility seems to be vanishing as a Clinton victory grows more and more likely.

The only certain way to stop Hillary’s agenda before it starts is to make sure that the Republican majority in the Senate is preserved. Many Trump supporters will say that the Republicans in Congress didn’t do much to stop Obama for the past six years. They are wrong. The truth is that Republicans in Congress were very successful at stopping Obama’s legislative agenda.

After the Tea Party wave election of 2010, the Democrats did not pass any major legislation for the next six years. Obama’s landmark laws, the stimulus, the Affordable Care Act and the Dodd-Frank financial reform bill, were passed with Democrat majorities in both houses. Not a single Republican voted for Obamacare or the stimulus.

The Republicans in Congress were remarkably successful at stopping President Obama’s legislative agenda. Obama tried to push through gun control in the wake of the Newtown massacre. Republicans stopped him. They actually cut spending in terms of real dollars in consecutive years for the first time since the administration of Dwight Eisenhower. After the death of Antonin Scalia, Republicans in the Senate tabled President Obama’s nomination of Merrick Garland to fill the vacant seat on the Supreme Court. How much credit did Republicans get for these victories? Approximately zero.

Much of the confusion over the Republican Congress “surrendering” to Obama, as many claim, is the difference between stopping Obama and passing legislation to roll back what Obama has already done. Congress is set up so that it is easier to prevent a bill from becoming a law than to enact a new law. This is particularly true in the Senate.

In the Senate, the first hurdle that a bill must pass to become a law is a cloture vote. Cloture is a gentleman’s filibuster. Rather than speaking for hours on end as they did in the old days, today’s Congressmen can block a bill from coming to a vote by rallying 41 opponents to vote against cloture, or ending the filibuster. Therefore, the 46 Democrats in the Senate could effectively block any Republican bill from ever coming to a vote and that is precisely what they did.

The cloture rule is not part of the Constitution. Senators could decide to eliminate it in favor of a straight majority vote. The problem is that there is an even greater hurdle. If a bill passes both houses of Congress, it still faces a presidential veto. To override a veto requires 67 votes in the Senate. Logically, if a bill can’t pass a cloture vote, the veto can’t be overridden.

When the Republicans blocked Obama legislatively, he began issuing expansive Executive Orders and having regulatory agencies issue rulings with the force of law. Because these tactics bypassed Congress, Republicans could not block them. Stopping these abuses would require passing new laws, but the 54 Republicans could not pass new laws without Democratic support. That reality doesn’t change even with a government shutdown. The situation has effectively been a stalemate with neither side willing to compromise on most issues.

Because of the number of Republican Senate seats up for reelection in swing states this year, it was generally assumed that the Republican majority would be smaller for the next Congress. As recently as a few weeks ago, it looked like Republicans would retain control of the Senate, even if they lost some seats. Then came Trump’s implosion.

Not only have the Trump scandals hurt down ballot Republicans, but Trump and his supporters have attacked his fellow GOP candidates. At this point, it seems increasingly likely that the Democrats will win control of the Senate. Even the large Republican majority in the House may be threatened.

While retaining the House would allow Republicans to block legislation such as gun control measures from becoming law, losing the Senate would mean that Democrats could easily appoint extremist liberal judges to the courts with a simple majority vote. There is no filibuster for most judicial appointees thanks to Sen. Harry Reid’s (D-Nev.) use of the “nuclear option” in 2013. With a Democrat Congress and a Democrat president, the filibuster might be eliminated entirely.

On the other hand, retaining control of the Senate would allow Republicans to stop Hillary’s agenda right out of the gate. Appointments to the Supreme Court could theoretically be blocked until after the 2020 elections, if necessary. The Senate has already shown its willingness to stop bad treaties and liberal legislation in its tracks.

There should be no illusions, however, that Republicans can roll back eight years of Obama under Hillary. Even if they retain a majority, they will almost certainly be weaker, at least until the midterm elections. Historically, the opposition party gains seats in the midterms, but even then there is almost no chance of a 67 vote Republican majority.

While it would be preferable to have a Republican president to help pass conservative reforms, Donald Trump is no conservative and has shown little inclination to work with his party. If Trump becomes president and Republicans lose Congress, he could not be trusted to nominate constructionist judges or veto gun control bills. He cannot be trusted to support religious liberty. There is a high probability that he would act with liberal Democrats like Bernie Sanders to scuttle free trade agreements and military alliances.

With Trump falling to the 30 percent range in many polls and trailing in most swing states, there is little chance of a recovery. Republican funds would be better spent on tossup congressional races to preserve the Republican majority than in attempting to shore up a candidate who is biting the hand that feeds him.

If the choice is between an unreliable President Trump and a Republican Senate that has shown its mettle, I’ll throw in my lot with the congressional Republicans.

Originally published on The Resurgent

Winning Republican strategies for 2015

Since the recent failure of the Republican attempt to defund President Obama’s executive immigration amnesty, much has been written, most of if it unflattering, about the future of the Republican Party. Many on the Tea Party right doubt the “backbone” of the Republican leadership and question their commitment to opposing President Obama’s policies.

What these critics do not provide is an answer to how the Republicans can overcome the Democratic filibuster that derailed the attempt to defund the amnesty. The problem was not “lack of backbone” on the part of the Republican leadership. The problem was mathematics. The Republicans lacked the 60 votes required by Senate procedural rules to end a filibuster.

The Republicans have a majority in both houses of Congress, but the majority is only meaningful if conservatives understand that it is a limited majority. Voters vested control of the Senate and House of Representatives with the Republicans, but they did not issue them a carte blanche to impose a conservative agenda.

The Republican majority is limited in two important ways. First, Senate rules require 60 votes for cloture to end debate on a bill. The Republicans have only 54 votes so it is axiomatic that a cloture vote will require at least six Democrats. Second, the Republicans are limited by President Obama’s veto. Even if a bill passes both houses of Congress, the president can veto it. Congress can override a presidential veto, but this requires 67 votes in the Senate and 288 in the House. Democratic votes (13 in the Senate and 41 in the House) would be required. To avoid wasting two years of a majority, Republicans need to take these limitations to heart and adapt a strategy to defeat them.

The first step is in casting aside unworkable strategies of the past. Defunding is a dead idea that should not be considered in the future. As with any other legislation, the idea is unworkable without a bipartisan majority. If Republicans have the votes to defund something, it would be better to simply repeal it outright.

Shutting the government down as a consequence of the House’s “power of the purse” has also proved unsuccessful in the past. A government shutdown is useful only as leverage if Democrats want to keep the government open. With a president who relishes the idea of using a shutdown to pummel Republicans, the strategy of a shutdown is pointless masochism. Republican leaders have quite sensibly rejected this course.

A successful Republican strategy will require one thing above all: a bipartisan majority. No conservative legislation can become law without Democratic votes. Republicans must peel off at least six Democratic senators for cloture and 13 to override Obama’s veto. This is a mathematical and constitutional fact. The question is how to do so.

The answer is to learn from the Democrats themselves. The Democrats in Congress have been successful because they stay united and split the Republicans over divisive issues like immigration. Republicans should ask themselves what issues can be used to divide the Democrats.

One such issue is the medical device tax imposed by Obamacare. This very unpopular tax is imposed on the manufacturers of such items as prosthetic limbs and pacemakers. It threatens thousands of American jobs as well as hurting the sick and disabled. There is bipartisan support for a repeal of the medical device tax, if not for Obamacare in its entirety.

If Republicans bring a repeal of the medical device tax to vote in Congress, Democrats would be forced to choose between voting to tax the sick or deserting to the Republican side. If the vote passes, Obama must allow it or publicly defend a veto. In either case, a vote to sustain the tax would be fodder for campaign ads by Republican challengers.

A second method for creating a bipartisan majority is to sweeten the pot with a compromise. Bill Clinton famously said that the Constitution could be subtitled “let’s make a deal.” If Republicans want to pass their agenda, they must induce the Democrats to vote with them, rather than simply expecting them to bow down before superior numbers.

One area where such a concession could be made is on the minimum wage. The minimum wage is an issue where the public supports the Democratic position. Recent polling has found strong support for raising the minimum wage, even in red states. In the 2014 elections, voters in four states that sent Republicans to the Senate enacted increases to their state minimum wages.

Trading a modest increase in the federal minimum wage for Democratic votes on Republican bills is a compromise that would defuse a popular Democratic issue while, at the same time, helping to advance conservative policies. The Republicans should not give in to a sharp increase in the minimum wage to $10 or $15 per hour, but a modest increase to the $8 to $9 range could be phased in over time.
Numerous studies, including one that looks at unemployment during the Great Recession, have shown that raising the minimum wage hurts low-skilled workers, but the economic effects of a modest increase to the minimum wage would be negligible. Thirty states already have minimum wages that are higher than the federal minimum wage according to the National Conference on State Legislatures. At least 14 states have already enacted or scheduled minimum wages that are $9.00 per hour or higher. Further, a 2013 study of minimum wage earners by the Bureau of Labor Statistics found that only 4.3 percent of workers earn the minimum wage. An increase to the minimum wage would affect few workers in a small number of states.

Negative effects on the economy could be further minimized by incorporating a separate minimum wage for teenagers. The BLS study reports that only three percent of workers over age 25 earn the minimum wage, compared with 20 percent of teenagers. Instituting a lower minimum wage for teens would protect their ability to find entry-level, part-time jobs.

For Obama’s executive immigration amnesty, the contentious issue that led to the almost-shutdown of the Department of Homeland Security, there is the low-yield nuclear option. In the Wall St. Journal, Curt Levey, a constitutional attorney with the Committee for Justice, called on Republicans to block Mr. Obama’s judicial nominees until he reneges on his executive action.

Blocking Obama’s appointees has many advantages that defunding lacked. First, it is possible. The Democrats cannot block the Republicans from blocking confirmations. There is no cloture or veto of a blocked confirmation. This strategy negates the two weapons that the Democrats hold.

Second, blocking confirmations is a win-win for Republicans. The optimal outcome would be that Obama reverses his executive action, which would be tantamount to surrender. If he stands firm, however, his nominees will never be seated as judges. This means that there will be more judicial openings for the next president, hopefully a Republican, to fill.

Finally, the potential for blowback is small. With a government shutdown, Republicans always take a hit in public opinion and lose support. That’s why Democrats try to goad them into that course of action. Blocking nominees is much lower profile and would not be noticed by most Americans. There would be no closed offices or parks and no furloughed workers to show on television. Lawyers who cannot get appointed to cushy jobs in federal courts are not sympathetic figures.

Many critics of the Republicans ask, “What was the point of winning the election?” if the Republicans can’t enact their agenda. The election gave the Republicans an advantage; it did not give them the ability to dictate terms to the Democrats.

The Republicans can use their majority over the next two years to further the conservative agenda and roll back pieces of Obama’s legacy, but to do so they must adopt realistic strategies that play to their strengths and work around those of the Democrats. Winning Republican strategies divide the Democrats, not themselves.

 

Read the full article on Examiner.com

Why the Republicans couldn’t defund DHS

It’s not lack of principles, stupid!

The failure of the Republican majority in Congress to defund President Obama’s executive amnesty this week has once again engendered bitterness among some conservatives toward the party’s leadership. Accusations that John Boehner and Mitch McConnell caved to Obama’s pressure are widespread, but the true cause of the failure to can be found within Senate traditions and the Constitution itself. The Constitution may also provide the ultimate solution to Obama’s executive overreach.

Because the authors of the Constitution distrusted a strong central government, they made it difficult to enact new laws. Because the framers worried that the majority might tyrannize a minority, they gave the president veto power over laws passed by Congress and the courts the right to strike down laws judged to be unconstitutional. Democratic filibusters must also be considered by Republican leaders, but it is the presidential veto that holds the greatest threat to the Republican agenda.

Cloture, filibusters, and vetoes! Oh, my!

Under the Constitution, the House and Senate pass bills with a simple majority vote, but the Senate has traditionally allowed unlimited debate before a vote. The strategy of a filibuster, a prolonged speech to prevent a vote, has long been used by minority senators to prevent those in the majority from passing legislation. Filibusters no longer require longwinded speechmaking. Under current Senate rules, to end debate on a bill, senators must first vote for cloture. According to the Senate website, the cloture rule was intended to give senators a means to overcome filibusters and dates back to the Woodrow Wilson Administration. Originally, the rule required a two-thirds vote to end debate on bill, but this was changed to three-fifths, 60 votes, in 1975. A filibuster is now merely the inability of the majority party to get enough votes for cloture.

What the cloture rule means to conservatives now is that, since Republicans hold 54 Senate seats, they will need at least six Democratic votes to invoke cloture and bring bills to a vote. If the Democrats remain united, they can deny the Republicans the ability to bring their agenda to a Senate vote, in which case it can never become law. This was the case with the attempt to defund DHS.

Bills that are passed by both the House and Senate face another constitutional hurdle before becoming law. According to the Constitution, bills passed by Congress then go to the president where they can become law in one of two ways. First, the president can sign the bill and it immediately becomes law. Second, the president can do nothing and the bill will become law in 10 days as long as Congress remains in session.

The president can also reject, or veto, the bill. For a regular veto, the president sends the bill back to Congress with a message describing why the bill was vetoed, as in President Obama’s veto of the Keystone pipeline. More rare is the pocket veto. If Congress adjourns before the 10 days is up and the president fails to sign the bill, the bill never becomes law.

The drive to override

Congress can override a presidential veto. When the president returns the bill to Congress, the bill can still be passed without the president’s approval. Overriding a veto requires a two-thirds vote of the members present. A bill that is subject to a pocket veto simply dies and cannot be overridden. It must be debated and passed again by the next Congress.

In the current Congress, overriding a veto would be difficult in spite of the historic Republican majority. Assuming all congressmen were present, a two-thirds majority would require 67 Senate votes and 288 House votes. This means that 13 Democratic senators and 41 Democratic representatives would have to vote against the president even if all Republicans were united. The Congressional Research Service reports that between 1789 and 2004 only 106 of 1,484 regular vetoes were successfully overridden, a seven percent success rate.

Most of President Obama’s signature pieces of legislation were passed in his first two years when the Democrats held control of both houses of Congress, but Democrats in 2009 through 2010 also had an important advantage that today’s Republicans lack: a president who would sign their legislation into law. As Republicans try to roll back Obamacare and other Obama-era legislation, they have the opposite situation, a president who will viciously wield the veto pen to preserve his legacy. Barring a major break between the Democrats in Congress and President Obama, it is unlikely that any presidential vetoes will be overridden.

Flank attacks

Two strategies have been floated by Republicans to outflank the Democratic obstruction. Rep. Mo Brooks (R-Ala.) recently called on Republican leaders to invoke the “nuclear option” and totally eliminate the filibuster. In 2013, Senate Majority Leader Harry Reid (D-Nev.) changed the rules to eliminate the filibuster for the confirmation of presidential appointments. According to the Washington Post, the filibuster still stands for bills, but not for votes on presidential nominees.

Eliminating the filibuster would allow Republicans to pass the bill in the Senate, but the plan has two major flaws. First, the larger hurdle, President Obama’s veto, would remain so any successes would be short-lived. Second, the Republicans will one day need the filibuster themselves since it is unlikely that any Senate majority will ever be permanent.

A second strategy would be to use a budget reconciliation, the tool used by Harry Reid to pass Obamacare, to pass conservative legislation. As former New Hampshire senator Judd Gregg explained in the Wall St. Journal, a budget reconciliation requires only 51 votes but the circumstances where it can be used are extremely limited. Additionally, the final budget bill would still be subject to a presidential veto.

The Keystone model for success

Sheer numbers and constitutional processes make it unlikely that a direct frontal assault against President Obama will work. A more likely strategy is for the Republicans in Congress to seek areas where they can find common ground with moderate Democrats as they did with the Keystone pipeline. Winning even a few Democratic votes would force Obama to either use his veto or allow the bill to become law, putting pressure squarely on the president.

While it is possible – or even likely – that President Obama will veto a bipartisan bill, doing so would change the dynamic in Washington. Since Republicans took control of the House in 2011, the Democrats have derided them as obstructionists who do nothing more than say “no.” When President Obama uses his veto power or Senate Democrats use the filibuster, it will be the president who is obstructing the will of the people.

The Republicans made a massive strategic blunder in the battle over DHS funding when House Republicans chose not to focus solely on President Obama’s illegal amnesty, a tactic that might have won some Democratic allies. Instead, the Wall St. Journal notes that the bill included several amendments to repeal Mr. Obama’s less controversial moves on immigration going all the way back to 2011. As a result, the Democrats were united and a few Republicans even voted against the bill.

The last line of defense

Further, as Karl Rove notes, the decision of a Texas federal court judge blocking Obama’s amnesty removed the need to defund the DHS in the first place. The courts have at least temporarily stopped Obama’s executive action where Congress could not. The possibility remains that the injunction will be made permanent and the president will suffer an embarrassing legal defeat.

Although the courts have been weakened by the appointment of judicial activists to the bench, including four to the Supreme Court, the judicial power to declare Obama’s actions unconstitutional is the best hope. The potential threat to Obama’s agenda may be why a Rasmussen poll recently found that 43 percent of Democrats feel that Obama should be able to ignore the courts.

While the election has not given Republicans a carte blanche to impose their policies and reverse Obama’s, it has given them a far stronger hand than they previously held. Republicans must decide whether to squander this advantage on a pointless and unwinnable fight or whether to build a bipartisan majority that can actually accomplish the work of the people.

Read the full article on Examiner.com