Special Bulletin Short Takes: DHS Funding, Netanyahu, Ferguson, and King v. Burwell

Last week was a busy one in Wobegon by the Potomac, so we thought we would settle for brief comments on the potpourri of happenings.

DHS Funding

The Republicans’ perverse attempt to strike back at the President’s actions on immigration by a shutdown of the Department of Homeland Security ended, quite predictably, not with a bang but a whimper. As we had written in Blog No. 55 on December 20, in commenting on passage of the Omnibus Spending Bill:

Senators Cruz and Paul opposed the bill in protest of President Obama’s executive action on immigration. We too have objected to the President’s action, but have noted that as a practical matter there is likely little that Republicans can – or should attempt to – do about it. (The omnibus bill funded the Department of Homeland Security only through the end of February so as to present another opportunity at that time for budgetary mischief inspired by Obama’s immigration initiative.) We are hopeful that cooler heads will again prevail in February.

Well, cooler heads did prevail although it took just into March to bring the matter to a close. In the meantime, the hardliners in the House, (oozlums or ostriches, as we have dubbed them, or Cliff Jumpers, as The Wall Street Journal put it) again brought to mind the old joke in which Marie Antoinette says to Louis XVI “The peasants are revolting” and the King replies “Yes, aren’t they.”

Some observers viewed the DHS episode as further contributing to a Republican reputation for inability to govern and casting a gloomy shadow over our future prospects. For example, a Wednesday column by Kathleen Parker, a centrist conservative who writes in The Washington Post, was headlined “Another GOP meltdown bodes ill for 2016.” We take a somewhat more optimistic view. To begin with, the public is by now enured to such antics and probably paid little attention on the assumption that things would probably work out. Beyond that, Speaker Boehner did, in the end, show leadership in overcoming opposition within his caucus. The funding measure was passed by a margin of 257-167, and while only 75 Republicans voted for it, and 167 voted against, that is not an accurate measure of Republican sentiment in the House.

Since it was known that Democrats would uniformly support the bill (as they did) only a corporal’s guard of Republican votes would be necessary for passage and they were readily on hand. Thus, a vote against the bill was “free,” having no consequence on the floor but avoiding the risk of irritating conservatives in members’ home districts. More significant is the fact that when Boehner had advised the Republican caucus of his plan to bring a “clean” bill to a vote, he was given a standing ovation. Indeed, we are hopeful that his success in standing down the oozlums and ostriches on this occasion may reflect something of a spinal transplant that will stand him in good stead going forward.

The Netanyahu Speech

Prime Minister Netanyahu gave a powerful message, delivered it eloquently, and received a rousing reception. It is not clear, however, whether it will have any impact on events and, if it does, whether that impact will advance or impede the course that Netanyahu urged.

There are serious and legitimate reasons to question, and perhaps ultimately oppose, the proposed deal with Iran as it has been reported in the media. The Prime Minister made that case as others have before him and will renew in the coming weeks. For example David Brooks, no one’s idea of a war monger, had argued in the Times on February 27 that the negotiations appeared to rest on the dubious premise that the deal could be the first step in converting Iran into becoming a “normal state.” Brooks and many others also emphasized that the “negotiations” with Iran appeared to consist largely of an almost dizzying series of concessions by which we have retreated from the goal of ending Iran’s nuclear capacity to create nuclear weapons to a curious limbo of a “threshold” state under which Iran continues to operate thousands of centrifuges and could develop a military capability in as little as a year.

On the other hand, we are skeptical that a significantly better deal is available at this point. And we are equally skeptical of Netanyayu’s claim that, if Iran walks away from the negotiations, “they’ll be back, because they need the deal a lot more than you do.” Moreover, a belated attempt by the United States to raise the ante significantly at this late date, would be likely not only to be unsuccessful but would alienate the other parties to the overall negotiations (Russia, China, France, United Kingdom, Germany), and make the prospect of future negotiations even more doubtful. So the question may reduce to whether, if the proposed deal is a “bad deal,” is it therefore correct that, as some claim, no deal is preferable? Here we are skeptical that the development of Iran’s nuclear program would be greatly delayed by continued, or even stronger, sanctions. Indeed, if we are seen to cause a collapse of the negotiations, it might enable Iran’s hardliners to demand acceleration of the program. In any case, these are questions that need to be explored intensively over the next several weeks in as bipartisan a manner as possible.

Which brings us back to the Netanyahu speech and whether it helped or hurt the Prime Minister’s cause. Did it change any minds? Possibly. According to a CNN report:

Rep. Steve Israel, a member of the House Democratic leadership, called Netanyahu “very persuasive” and said he could not support the deal “as it’s been described up to now.”

“He changed minds,” Israel said. “The question is, how many minds did he change? But I thought he did a very effective job.”

On the other hand, the manner in which the speech was arranged had produced a partisan response and a boycott by 58 Democrats. The potential for more partisan rancor lies not far below the surface and it was further exposed when Majority Leader McConnell announced a plan to “fast track” legislation that is intended to assure Congressional control over the lifting of sanctions. Although Senator Menendez, the ranking Democrat on the Foreign Relations Committee had been a principal sponsor of the legislation, he was “outraged” by what he regarded as a maneuver to by-pass committee consideration, and he accused McConnell of playing politics.

Ferguson

On Wednesday, the Justice Department announced that it had found no basis on which to prosecute Darren Wilson, the officer who had fatally shot Michael Brown, for a violation of Brown’s civil rights. The conclusion of the Justice Department came as no surprise, but something of a relief. In Blog No. 53, “The Flames of Ferguson and the Grilling of the DA” on November 30, we had observed:

There remains, of course, the ongoing federal investigation as to whether or not Officer Wilson violated Michael Brown’s civil rights. Given the evidence presented to the Grand Jury, it is difficult to imagine how such a charge could be successfully maintained. One hopes that those in charge of the investigation, and the Attorney General, will feel no temptation to distort the criminal justice system in response to political pressures.

To its credit, the Justice Department not only came up with the right answer but supported its conclusion with a lengthy (86 pages), comprehensive and meticulously detailed review of the evidence. While the report addressed only the basis for a federal prosecution, it also appeared to demonstrate the correctness of the grand jury’s application of state law. As summarized by The New York Times, quoting key excerpts:

There is no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety,” the report said. At the same time, it concluded that the witnesses who claimed that Mr. Brown was surrendering were not credible.

Some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witnesses’ own prior statements with no explanation,” the report said.

Although some witnesses state that Brown held his hands up at shoulder level with his palms facing outward for a brief moment, these same witnesses describe Brown then dropping his hands and ‘charging’ at Wilson,” it added.

Those witness accounts stating that Brown never moved back toward Wilson could not be relied upon in a prosecution because their accounts cannot be reconciled with the DNA bloodstain evidence and other credible witness accounts.”

It might be hoped that the report would produce a measure of contrition on the part of those who fomented the disorder in Ferguson by accepting and disseminating accounts of the incident that were false, misleading and inflammatory. Breath, however, will not be held waiting for that to happen.

None of which is to deny that there were serious grievances on the part of the black community in Ferguson and that they were undoubtedly a major factor in contributing to the violent protests that followed Brown’s death. Such grievances are the subject of a separate report by the Justice Department, “Investigation of the Ferguson Police Department” that we will discuss in a subsequent blog.

King v. Burwell

On Wednesday, the Supreme Court heard argument in King v. Burwell which will decide whether, under the Affordable Care Act, subsidies are available to those who purchase insurance on federal exchanges that have been established in states that have declined to establish an exchange. We will not burden readers with an analysis of the legal issues. Summaries are readily available in the mainstream media and those seeking more sophisticated argument are respectfully referred to Scotusblog  where they will find learned analyses aplenty. Our own view, in summary, is that the plaintiffs, seeking to bar subsidies on federal exchanges, have a very strong argument, but one that is not necessarily dispositive.

In King, as in most cases that reach the Supreme Court, there are plausible legal arguments on both sides and the result may turn on philosophical (or, if you like, political) differences. The consensus among observers on the Court is that the usual dichotomy between liberal and conservative justices was apparent with the exception of Chief Justice Roberts and Justice Kennedy. The Chief Justice was not active in questioning the advocates. But it may be recalled that, on a previous occasion, he went through some remarkable judicial gymnastics to avoid holding the ACA unconstitutional. Would he be more willing to issue a potential death sentence here? Justice Kennedy asked questions involving whether the statute could be interpreted to place an unconstitutional measure of coercion on states. It was, however, unclear where that line of inquiry would lead Kennedy.

A ruling for the plaintiffs would do serious, possibly fatal damage to the ACA. Many Republicans deeply opposed to the ACA have expressed a hope for such a result, but we are not so sure. While we have been opposed to the ACA, disposing of it by way of a decision in King might have seriously adverse consequences for the country and the party. If the plaintiffs prevailed, there are any number of ways in which the Act might be fixed or replaced, but the prospect of getting any of them through our dysfunctional Congress is daunting. It would not be done quickly or easily, if at all. (Even if the Court’s mandate were delayed, as Justice Alito suggested might be done, Congress might well fail to act within the allotted time.) In the meantime, millions who are presently insured would be unable to afford insurance and would be forced back into the ranks of the uninsured. That would be a recipe for chaos and hardship and the blame for failing to provide a remedy would likely fall on the “governing party” in Congress. Thus, if Republicans listen to their heads and not their hearts, they should perhaps hope (albeit secretly) that Obamacare once again survives its encounter with the Supreme Court.

For Republicans, the only comic relief available during the week was the welcome to-do over Hillary Clinton’s use of personal emails during her tenure as Secretary of State. But we can’t count on something like that every week. Or can we?

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