Good News While Congress Stays in Gridlock

The Obama administration made two monumental decisions this week.

Contractors building a pipeline attacked protesters with mace and dogs as they blocked construction on federal land and asked the company to suspend nearby work, and a federal judge refused to block the $3.7 billion pipeline crossing four states. Two hundred Native American tribes were joined by activists and celebrities to oppose the pipeline. The U.S. Departments of Justice, Army, and Interior stopped the pipeline, however, and said that “this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects

With their tribal land a half-mile from the proposed pipeline, the Standing Rock Sioux declared that the pipeline would desecrate sacred burial and prayer sites as well as leak oil into their water source of the Missouri and Cannon Ball rivers. The government will not authorize construction at Lake Oahe and asked the contractors to stop work on other land. The proposed 1,100-mile pipeline was to take crude oil from North Dakota, Montana, and Canada to the U.S. Gulf.

The company driving the pipeline, Energy Transfer Partner, originally promised that all the oil would stay in the United States and lessen the nation’s independence on foreign fossil fuel, but they have withdrawn this guarantee after their successful lobbying to remove the 40-year ban on crude oil exports. The company’s filing with the SEC notes that “export projects” will “balance this market [with general oversupply] by 2018.” It also lists the pipeline as a “leader in the export of hydrocarbons.” In a presentation, Energy Transfer Partners stated that it is “exceptionally well positioned to capitalize on U.S. energy exports.”

The second welcome federal decision last week is a proposed rule from the Department of Health and Human Services that would eliminate Title X funding to states cutting Planned Parenthood funding. PP uses about $70 million to serve over 1.1 million patients with incomes under $23,500 with contraceptives and screenings for cancer and STDs. Although none of the Title X funding can be used for abortions, 11 states have blocked PP funds. Congressional Republicans are also so intent on defunding PP that they won’t provide funding to protect people in the U.S. from the Zika virus.

PP is also attacking the Zika virus through the distribution of Zika prevention kits and education where the virus is shown to be spreading. Yet some high-risk states for the virus—Florida, Louisiana, and Texas—have blocked PP funds. In Florida alone, 84 pregnant women are currently infected with Zika. The most recent research shows that most of these women will give birth to infants with birth defects. About 84 pregnant women in Florida are currently infected with Zika, officials have said.

The 30-day public comment on this rule ends on October 7, 2016. Women who need the services of Planned Parenthood will appreciate all the support they can get. This is the link to the give a comment.  http://www.regulations.gov/document?D=HHS_FRDOC_0001-0645

Good things may happen in threes. This week, the House finally passed the Sexual Assault Survivors’ Bill of Rights after the Senate passed its version last May. The bill mandates that victims be informed of rape kits’ results and legal status as well as preventing victims from being charged for the processing the kits. The law applies only to federal cases, but it’s a start.

Otherwise, Congress has spent its first four days after a long session doing almost nothing. They did pass a bill allowing the families of 9/11 victims to sue Saudi Arabia in U.S. courts, but it could lead to retaliation against U.S. citizens by other countries. At this time, victims can sue a country designated as a state sponsor of terrorism; this bill would allow citizens to sue countries without that designation. Although 15 of the 19 perpetrators of 9/11 tragedy came from Saudi Arabia, there is no proof that Saudi Arabia instigated the attack.

The problem about the bill comes from the concept of “sovereign immunity,” giving foreign governments immunity from prosecution in U.S. courts, according to the 1976 Foreign Sovereign Immunities Act (FISA).  As “state sponsors of terror,” Syria, Iran, and Sudan are the only exempt countries from FISA. Congress claims that the bill just passed would make only an exemption for this one lawsuit against Saudi Arabia, but legal experts have said that it would expand exemptions to any countries that commit the same terrorism defined in the legislation.

The bill may lead to other countries passing similar sovereign immunity exceptions, putting the U.S. at risk of being sued by their citizens. For example, Iraq could pass a law permitting its citizens the right to sue the U.S. government for damages during the Iraq War. If the U.S. lost its case in Iraqi courts, then the Iraqi government could seize U.S. assets in their country to pay the victims. Saudi Arabia has threatened that it would pull its assets out of the U.S. if the bill became law. The end result of this law might be to increase chaos in foreign policy process and undermines the ability of the president to craft a careful, cohesive foreign policy for all people in the nation.

The president has another nine days to make a decision on the bill.

As low as the bar has been put for Donald Trump, it’s even lower for Congress. Its only goal during September before they leave for another two months is “don’t close the government.” Even a stopgap funding bill has become difficult. The far-right Freedom Caucus wants one that goes into next year so that newly elected legislators can decide the budget. The others want one to end in December because they fear that next year will have fewer Republicans.

The first problem attacked on the first day of this session was the standoff in funds for combating the Zika virus. Republicans refuse to support the funding without eradicating all funds for Planned Parenthood. The Senate added more blackmail with demanding that environmental regulations on pesticides be loosened before granting Zika-related funds. The government has been taking anti-Zika funds from other areas, but all the funding is gone by the end of September.

A 52-46 procedural vote kept the Senate from moving forward to end debate on a conference report with the House about Zika funding, the third time that the proposal has failed because of targets against Planned Parenthood. The bill was attached to spending on military construction and veterans affairs, giving McConnell a chance to announce that Democrats opposed veterans. Minority Leader Harry Reid (D-NV) said:

“Republicans were more interested in attacking Planned Parenthood and flying the confederate flag. Can’t make that stuff up — that’s really the truth — than protecting women and babies from this awful virus.”

The White House asked for $1.9 billion, but the Senate offered only $350 million in new money and moved the rest of the proposed $1.1 billion from other health accounts, including the fund for fighting the Ebola virus.

While Congress dithered, “the number of Zika cases in the U.S. more than doubled to 2,700, and people infected with the virus turned up in every state,” an LA Times editorial. “A total of 17 babies have been born with Zika-related birth defects, and about 1,600 pregnant women are known to have been exposed. And those are just the cases we know about; some 80 percent of those infected with the disease have mild or no symptoms.”

Another “big” issue in the House is an argument about impeaching IRS Commissioner John Koskinen for something done before he got the job. House Speaker Paul Ryan (R-WI) has caved into the Freedom Caucus’ demand to put the issue up for a vote despite claims from GOP leaders and House Judiciary Chairman Bob Goodlatte (R-VA) that Koskin is guilty of incompetence, not a crime. Only once—in 1876—has the House voted to impeach a Cabinet member and never to an executive branch official below the Cabinet rank. Any action from the House would require a two-thirds majority from the Senate for conviction, an unlikely possibility.  Opposed to the impeachment is a group of 123 tax-law professionals, the American College of Tax Counsel, and a group of former IRS commissioners.

As Democrats pointed out, the House is pursuing what they see as “baseless attacks” while ignoring “urgent issues”—“Zika virus, the Flint water crisis, the opioid crisis, and gun violence.” Ryan has his own priorities: his next one is probably to “punish” the Democrats who held a 25-hour sit-in because he wouldn’t bring any gun legislation to the floor. The man in control of whether any bill ever reaches a vote in Congress said about the sit-in, “That’s not the way that a democracy works.”

A year ago, the Freedom Caucus got rid of House Speaker John Boehner (R-OH); now they have their sights set on Paul Ryan when he comes up for speaker again in January. The 40-member group is even considering a departure from the 180-member House Republican Study Committee if the conservative group won’t let the far-right members of the House take over. A three-way split in the House could greatly benefit Democrats even if they don’t achieve a majority.

At least Congress will be gone in another three weeks. The question is whether the government will stay open after September 30.

Fix the Supreme Court’s Constitution

Conservative justices serving on the Supreme Court try to make people believe that every ruling that they make follows the U.S. Constitution literally—just as fundamentalist Christian leaders swear that every word out of their mouths came from their bible. Both conservative elements are wrong, however, and retired Justice John Paul Stevens has written a book suggesting how the constitution can be brought back into its original text. Six Amendments: How and Why We Should Change the Constitution presents these recommendations with an explanation of the problem and the history to the issues.

Following is a summary of these amendments, thanks to a posting on Daily Kos.

The “Anti-Commandeering” Rule: A 1997 5-4 ruling bans Congress from ordering state officials to carry out federal duties because two county sheriffs didn’t want to carry out Brady Act-mandated background checks for firearm sales. Now people prone to violence, such as the Virginia Tech mass shooter in 2007, can easily get guns. The ruling also affects other federal laws such as emergency responses to national catastrophes and acts of terror.

Suggested amendment adding the four words in boldface to the Constitution’s Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges and other public officials in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Political Gerrymandering: The practice of gerrymandering, loading districts with people registered in one political party, makes politicians more radical and elections less competitive, according to Stevens. A 1986 Supreme Court ruling eliminated most challenges to state legislatures controlling elections of U.S. House members: “[A] finding of unconstitutionality must [show] continued frustration of the will of a majority of the voters or effective denial to a minority of the voters of a fair chance to influence the political process.” Stevens believes that public power should not be allowed to enhance “the political strength of the majority party.”

Suggested amendment: “Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.”

Campaign Finance: Congress passed a law 108 years ago that banned all corporate contributions to political candidates; this federal law was followed by many states passing total bans of corporate activity to influence public policy. The laws were slowly reversed, culminating in the 2010 Supreme Court disaster that gave corporations the unlimited right to finance campaign speech. Feeling that they had not gone far enough, the same five justices struck down any limit on total donations a person could make to candidates four years later, giving rich persons the right to spend millions in a single election. Three “sulky Supremes”—Justices Alito, Scalia, and Thomas—annually boycott President Obama’s State of the Union speech because he disagrees with their ruling. Thanks to the Supreme Court, the two Koch brothers plan to spend almost $1 billion in the 2016 election—more than the GOP—to control the results. Stevens purports that the problem can be solved by an amendment stating that corporations are not persons and money is not speech.

Suggested amendment: “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

Sovereign Immunity: Citizens of one state are banned from suing another state in federal court, according to the 11^th Amendment. This legal doctrine of “sovereign immunity” originated in 1400 when the king didn’t want to be sued without his consent. It shields the “sovereign,” any of the individual states, from court action by putting it above the law. Stevens disagrees and gives the argument against this amendment from Chief Justice Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” Chief Justice William Rehnquist began a spate of rulings that extended sovereign immunity and weakened state compliance with national law. For example, Illinois avoided paying damages for non-compliance with a federal law for aiding aged, blind and disabled persons in 1974, and 15 years later the Rehnquist Court used this unwritten state sovereignty rule to keep Congress from authorizing the suing of a state of violating the Fair Labor Standards Act. In this case, Maine successfully refused to pay probation workers overtime. According to Stevens, state-owned institutions such as hospitals or police forces should not have a defense to federal claims that private institutions lack.

Suggested amendment: “Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.”

The Death Penalty: Arguments for the death penalty such as deterrence of crime are invalid, and DNA technology shows that many convicted murders, some already put to death, are innocent of the crime. Supreme Court rulings, including upholding a judge’s jury instruction to choose death when the evidence for and against it is balanced, made the death penalty more likely.

Suggested amendment adding the five words in boldface to the 8^th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Gun Control: No amendment has been more debated in the past few years than the 2^nd Amendment. For over two hundred years, federal judges ruled two limitations of this amendment: it applies only for military purposes; and while it limits the power of the federal government, it does not limit the power of state or local governments to regulate ownership or use of firearms. Twice, however, the Roberts Court ruled against governments trying to control gun violence. One was creating a new constitutional right for a resident in Washington, D.C. to keep a handgun in the home, and the other extended this newly-created constitutional right to states.

Suggested amendment returning the 2^nd Amendment to its original meaning and the power of regulating firearms to state and local governments with the five words in boldface: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia, shall not be infringed.” 

In an interview with NPR, Stevens said:

“I think in time that what I have to say about each of these six issues will be accepted as being consistent with what the framers really intended in the first place. I think in time, reason will prevail.”

We can only hope. 

Referenced Supreme Court Cases:

• Printz v. United States: 1997. 5-4 ruling. Bans Congress from ordering state officials to carry out federal duties. Holding: Scalia, Rehnquist, O’Connor, Kennedy, Thomas; Dissenting: Stevens, Souter, Ginsburg, Bryer.
• Davis v. Bandemer: 1986. 7-2 ruling. Adopts a lofty and cloudy standard for unconstitutional gerrymandering. Holding: White, Brennan, Marshall, Blackmun, Burger, O’Connor, Rehnquist; Dissenting: Powell, Stevens.
• Citizens United v. FEC: 2010. 5-4 ruling. Gives corporations the unlimited right to finance campaign speech. Holding: Kennedy, Roberts, Alito, Scalia, Thomas; Dissenting: Stevens, Ginsburg, Breyer, Sotomayor.
• McCutcheon v. FEC: 2014. 5-4 ruling. Gives individuals the right to spend millions in a single election. Holding: Roberts, Scalia, Kennedy, Alito, Thomas; Dissenting: Breyer, Ginsburg, Sotomayor, Kagan.
• Edelman v. Jordan: 1974. 5-4 ruling. Lets Illinois avoid paying damages for past non-compliance with a federal law for aiding aged, blind and disabled persons. Holding: Rehnquist, Burger, Stewart, White, Powell; Dissenting: Douglas, Brennan, Marshall, Blackmun.
• Alden v. Maine: 1999. 5-4 ruling. Cites an unwritten state sovereignty rule imagined to be in the “plan of the [Constitutional] Convention” and forbids Congress to authorize suing a state for violations of Fair Labor Standards Act. Holding: Kennedy, Rehnquist, O’Connor, Scalia, Thomas; Dissenting: Souter, Stevens, Ginsburg, Breyer.
• Baze v. Rees: 2008. 7-2 ruling. Holds that Kentucky’s three-drug death penalty system is not “cruel and unusual.” Holding: Roberts, Kennedy, Alito, Breyer, Thomas, Scalia, Stevens; Dissenting: Ginsburg, Souter.
• Kansas v. Marsh: 2006. 5-4 ruling. Allows a judge’s jury instruction to choose the death penalty when aggravating and mitigating evidence were equal in weight. Holding: Thomas, Roberts, Scalia, Kennedy, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.
• United States v. Miller: 1939. 8-0 ruling. Holds that Congress can ban possession of a sawed-off shotgun because that weapon has no reasonable relation to “a well regulated Militia.” Holding: McReynolds wrote unanimous opinion; Not Involved: William O. Douglas.
• District of Columbia v. Heller: 2008. 5-4 ruling. Overturns a Washington, D.C., law and creates a new Constitutional right for a civilian in D.C. to keep an enabled handgun at home for self-defense. Holding: Scalia, Roberts, Kennedy, Thomas, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.
• McDonald v. Chicago: 2010. 5-4 ruling. Overturns a Chicago handgun ban and extends the Court’s newly-created Constitutional right for a civilian to keep a handgun to the states. Holding: Alito, Roberts, Scalia, Kennedy, Thomas; Dissenting: Breyer, Ginsburg, Sotomayor, Stevens.