Archive | Congress

The Constitutionality of the ObamaCare “Fix”

President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.”

It is true that the Chief Executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year – simply to head off actual legislation not to his liking. Congress is working on legislation quite similar to the president’s fix, but with differences he considers objectionable. This further demonstrates the primarily legislative nature of the fix.

Indeed, the fix goes far beyond “non-enforcement” because it requires insurers to certain new action to enjoy the delay. This is thus not simply a delay, but a new law.

The “fix” amounts to new legislation – but enacted without Congress. The President has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail. And of course, this is not the first such extra-statutory suspension of key ObamaCare provisions.

UPDATE: Here is the text of the administration’s letter describing the fix. [...]

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“Terrorism,” “Hostage-Taking,” and the Government Shutdown

Some Obama administration supporters claim that Republicans who refuse to pass a bill funding the federal government are acting like “terrorists” or “hostage takers.” To some extent, this is just your typical exaggerated political rhetoric, similar to that of Republicans who absurdly claim that Obama is a “socialist,” for example. But it also presents a fundamentally misleading understanding of the situation.

Terrorists and hostage-takers are evil because they threaten lives and property that do not belong to them. “Your money or your life” is a terroristic threat, because the person making the threat has no right to dispose of either your money or your life. But there isn’t any terrorism or hostage-taking if you say you won’t give me any of your money unless I do something you want me to do.

In the case of the government shutdown, the GOP-controlled House of Representatives has no constitutional or other obligation to pass a funding bill that includes funding for Obamacare or any other particular government program. Part of the reason why the Constitution gives Congress the power of the purse is so they can decide which government programs are worthy of funding, and which are not. It is also worth noting that the Republicans are not the only side in this dispute who are willing to shut down the government if they don’t get what they want on health care policy. President Obama and the Democratic-controlled Senate could just as easily avoid a shutdown by accepting the House bill. In its latest version, it doesn’t even defund Obamacare completely, but merely delays implementation by a year and repeals the medical device tax, which is currently part of the law. This is not to say that Obama and the Senate Democrats are acting as “terrorists” or “hostage-takers” either. The Senate [...]

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Thinking about Gridlock on the Eve of a (Potential) Government Shutdown

As the government-shutdown political theater continues to unfold, I naturally find myself wondering whether to blame the House for passing a spending bill that the Senate and President don’t like, or the Senate for passing a bill that the House doesn’t prefer either. This leads me to thinking about The Phenomenology of Gridlock, a recent essay by Josh Chafetz.

Here’s Chafetz (with footnotes omitted):

Gridlock is not a phenomenon. It is the absence of phenomena. Observers assert that gridlock exists in Congress when laws are not passed, nominees are not confirmed, treaties are not ratified, and so on. Gridlock, that is, is the name we give to the perpetuation of the status quo ante when we believe that perpetuation to be unwarranted.

This recognition of gridlock’s basic nature comes with an important corollary: The antithesis of gridlock is not no-gridlock. Rather, the opposite of gridlock is the enactment of some specific policy or policies, the confirmation of some specific nominee or nominees, and so on. There may be widespread outrage about “gridlock,” but unless there is sufficient consensus about what should be done, the status quo will — and should — endure.

This point is often overlooked because political observers have a (perhaps natural) tendency to assume that there is widespread support for their preferred positions, engaging in what psychologists call “false consensus bias.”

And then …

Where there is widespread public disagreement or uncertainty as to a particular course of action, we should not expect to see that action coming out of Congress. At any given time, there will be certain issues on which public consensus is emerging — I think we can probably put gay rights into this category — and others on which we remain deeply divided — for example, issues surrounding government spending and the

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Congress’ Options on the Syria AUMF in Light of the Russian Offer to Transfer Assad’s Chemical Weapons to International Control

The Russian government and the Assad regime recently offered to transfer Syria’s chemical weapons to “international” control, in exchange for the US and its allies foregoing a military strike on Assad’s forces. Obviously, the offer raises many issues, including whether Russia’s and Assad’s assurances can be trusted and effectively verified. In this post, I only want to consider the implications for the authorization for the use of military force currently under consideration by Congress.

As I see it, Congress now has four options. First, it can simply pass something like the AUMF that was recently adopted by the Senate Foreign Relations Committee, regardless of the Russian offer. If President Obama decides to accept the offer, he doesn’t have to actually use the authority that Congress grants him. This would essentially leave the final decision up to the president.

The second option is to definitively vote down the present AUMF draft, and refuse to pass any other one. For those, like myself, who were skeptical of the desirability of launching an intervention even before the Russian offer, this might be an attractive choice. If an intervention was undesirable even before the Russian offer, it is even less desirable now. If the Russian proposal turns out to be a fraud, we would be no worse off than if we chose not to intervene in the absence of that proposal. If it really does lead Assad to give up some or all of his chemical weapons, that’s icing on the cake.

Third, Congress could issue a conditional AUMF, which would allow the president to use force only if the Russian offer turns out to be inadequate in some way. Obviously, the devil here would be in the details. Congress would have to decide what qualifies as an adequate offer in terms [...]

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Will Obama Order Military Intervention in Syria Even if Congress Refuses to Authorize it?

Although President Obama has asked Congress to authorize the use of military force against Syria, he and other administration officials continue to insist that he has the power to order a strike even if Congress refuses his request. In my view, anything more than an extremely limited operation requires congressional authorization under the Constitution. But President Obama, unlike Senator Obama, clearly doesn’t agree. In 2011, he ordered a military intervention in Libya without even trying to secure congressional support. This raises the question of whether Obama might choose to order an attack even in the face of a hostile congressional vote. At least at the moment, a majority of the House of Representatives seems to be leaning against authorizing intervention. So the issue may turn out to have more than theoretical significance.

Despite the administration’s dubious stance on the constitutional issue, I actually think Obama would probably back down if he can’t get Congress to approve a strike. Launching an attack in the face of explicit congressional opposition would be a very risky move, especially since numerous polls show that public opinion opposes an attack on Syria. If anything goes wrong, Obama would get a huge amount of blame, possibly wrecking his presidency for the remainder of his second term. By contrast, backing down in the face of congressional rejection carries much less political risk, for reasons Jack Balkin has outlined. President Obama is not the sort of politician that often takes major political risks. And I doubt this will be one of those times. One can argue that, as a second-term president, he is likely to be less risk-averse, because he does not face reelection. But even second-term presidents still worry about their historical reputation and the impact of their actions on their parties’ prospects. For [...]

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Senate Foreign Relations Committee Passes Syria AUMF

By a 10-7 vote, the Senate Foreign Relations Committee passed an authorization for the use of military force in Syria today. The AUMF adopted by the committee appears to be similar to the draft I discussed in this post (though I have not yet seen the final text). However, the nonbinding Statement of Policy section of the the AUMF includes two amendments co-sponsored by Sen. John McCain. The key part of the second amendment reads as follows:

(a) It is the policy of the United States to change the momentum on the battlefield in Syria so as to create favorable conditions for a negotiated settlement that ends the conflict and leads to a democratic government in Syria.

(b) A comprehensive U.S. strategy in Syria should aim, as part of a coordinated international effort, to degrade the capabilities of the Assad regime to use weapons of mass destruction while upgrading the lethal and non-lethal military capabilities of vetted elements of Syrian opposition forces, including the Free Syrian Army.”

This amendment was inserted because McCain previously stated he wouldn’t vote for an AUMF if it was only narrowly focused on the need to deter future chemical weapons use. But since it is only part of the nonbinding policy section, it doesn’t actually increase the legal authority granted to the president, a point emphasized by McCain’s co-sponsor, Democratic Sen. Chris Coons. It’s also worth noting that the amendment is somewhat vague. If you take seriously concerns about the radical Islamist nature of many of the Syrian rebels, “chang[ing] the momentum on the battlefield” in a way that helps the rebels could actually undermine rather than further the goal of establishing “a democratic government in Syria.” The reference to strengthening “vetted elements” of the rebel forces in Section b is probably [...]

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Thoughts on the Senate Foreign Relations Committee’s Narrow Version of the Syria AUMF

The Senate Foreign Relations Committee has drawn up its own version of a resolution authorizing the use of military force in Syria, which imposes significantly tighter constraints on the president than the administration version. Here is the key language [SEE IMPORTANT UPDATES BELOW]:


(a) AUTHORIZATION-The President is authorized, subject to subsection (b), to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.

(b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS NECESSARY- Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that—

(1) the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction by Syria;

(2) the Syrian government has conducted one or more significant chemical weapons attacks;

(3) the use of military force is necessary to respond to the use of chemical weapons by the Syrian government;

(4) it is in the core national security interest of the United States to use such military force;

(5) the United States has a military plan to achieve the specific goals of responding to the use of weapons of mass destruction

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Additional Thoughts on the Draft Authorization for the Use of Military Force in Syria

Here are a few additional thoughts on the Obama administration’s draft authorization for the use of military force in Syria, beyond those I put forward in my last post.

First, as Jack Goldsmith and others have pointed out, the constraints on presidential power created by the resolution’s limitations on the range of objectives the president can pursue is partially undermined by the fact that the draft allows him to use force whenever “he determines to be necessary and appropriate” in order to achieve those goals. One can argue that the president can potentially use the resolution to justify the use of force against anyone anywhere in the world so long as he says doing so is “necessary and appropriate” for the purpose of combating the threat of Syrian WMDs. For example, he could argue that the resolution authorizes him to attack Russia or Iran on the grounds that their support of Assad has emboldened him and thereby made further use of chemical weapons more likely. At the same time, this is one of those cases where it may be wrong to read legalistic language too literally. In practice, it might be reasonable to read an implicit good faith and proportionality restriction into this language. For example, if it looks like the president is using this authority in a way that is pretextual, the resolution would not authorize that. In addition, regardless of the details of the text, it would be politically difficult for the president to use the resolution to start a massive war after having gotten it passed by telling everyone that he envisions only a very limited resolution. That said, I do think this part of the language is overly broad. If Congress votes to authorize the use of force at all, it should probably delete this [...]

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Thoughts on the Text of the Obama Administration’s Proposed Authorization to Use Military Force in Syria

Co-blogger Dale Carpenter rightly poses the question of what an authorization to use military force in Syria would actually authorize. The Obama Administration has just released the text of its proposed congressional resolution, which might help answer that question. Here is the most important part:


(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to —

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or

(2) protect the United States and its allies and partners against the threat posed by such weapons.

This wording is narrow in one sense, but very broad in another. It is narrow in so far as the purpose is limited to dealing with chemical weapons and other WMDs, as opposed to pursuing broader objectives such as the overthrow of the Assad regime. It’s broad, however, in the sense that it allows the president to use force against a wide range of possible adversaries, not just Assad and his government. For example, it is certainly broad enough to allow Obama to target the Syrian rebels if he determines that they have chemical weapons or are likely to acquire them soon. The radical Islamist terrorists among the rebels surely qualify as “terrorist groups or other state or non-state actors” that the resolution would allow the president to target if it seems likely that Syrian WMDs [...]

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Obama Will Seek Congressional Approval for Military Intervention in Syria

President Obama announced today that he will seek congressional approval for US military action against Syria in retaliation for the Assad regime’s use of chemical weapons [BUT SEE IMPORTANT UPDATE BELOW]:

President Barack Obama said that the United States “should take military action against Syrian targets” in a Rose Garden address Saturday. However, he said he would seek congressional authorization when federal lawmakers return from recess.

The president appealed for congressional leaders to consider their responsibilities and values in debating U.S. military action in Syria over its alleged chemical weapons use.”Some things are more important than partisan differences or the politics of the moment,” he said. “Today I’m asking Congress to send a message to the world that we are united as one nation.”

In previous posts (e.g. – here and here), I have argued that congressional approval is constitutionally required for anything more than an extremely small attack. In addition, congressional authorization would strengthen the political support for any intervention, and thereby increase the chances of success. So I very much welcome Obama’s decision to seek congressional authorization. This wise decision stands in sharp contrast with the administration’s approach to the Libya intervention in 2011, where Obama violated both the Constitution and the 1973 War Powers Act by failing to secure congressional authorization.

If Obama fails to get congressional authorization, that might damage US credibility. Obama would then have to retreat from his threat that the use of chemical weapons by Assad crosses e a “red line” that would result in military retaliation. But, as Charles Krauthammer suggests, such a setback would be less harmful than a small-scale strike that fails to achieve any real benefit because it is not enough to deter Assad from future atrocities or accomplish any other worthwhile goal.

Republican senators John McCain [...]

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British Parliament Votes Against Military Intervention in Syria

British Prime Minister David Cameron recently lost a vote in the House of Commons that would have authorized British participation in a military strike on Syria:

British MPs have voted to reject possible military action against the Assad regime in Syria to deter the use of chemical weapons. A government motion was defeated by 285 to 272, a majority of 13 votes. Prime Minster David Cameron said it was clear Parliament does not want action and “the government will act accordingly”. It effectively rules out British involvement in any US-led strikes against the Assad regime.

Whatever one thinks of the result, Prime Minister David Cameron at least deserves credit for seeking parliamentary authorization rather than simply making a unilateral executive decision to attack. The British government seems to understand that it is a bad idea to enter a war without a broad political consensus behind the decision. His actions are in sharp contrast to the Obama administration’s unwillingness to seek congressional authorization for its war in Libya or for a possible US military intervention in Syria. This, despite the fact that the need for legislative authorization under Britain’s unwritten constitution is far less clear than it is under Article I of the US Constitution, which gives Congress the exclusive authority to declare war.

From a strictly pragmatic point of view, Britain’s unwillingness to take part in an attack increases the risks for the United States, should President Obama decide to go forward without the support of our closest and most militarily potent ally. The US surely has the firepower needed to launch a strike without the aid of British forces. But their absence increases the burden on the US military and diminishes the international political legitimacy of any US-led operation.

UPDATE: It is not entirely clear whether the British [...]

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Many Members of Congress Call on Obama to Seek Advance Authorization for Military Intervention in Syria

Over 100 members of Congress have signed a letter to the President stating that the Constitution requires him to seek congressional authorization for any military intervention in Syria:

More than 100 lawmakers, including 18 Democrats, have signed a letter that says President Obama would violate the Constitution by striking Syria without first getting authorization from Congress.

A total of 116 lawmakers had signed the letter as of 6 p.m. Wednesday, highlighting bipartisan interest and growing momentum in ensuring a role for Congress in any decision to use force in Syria.

“Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution,” states the letter, spearheaded by Rep. Scott Rigell (R-Va.).

Speaker of the House John Boehner previously sent the president a letter of his own referring to “the exclusive authority of Congressional authorization under Article I of the Constitution.”

Some of the above could be partisan posturing. Most of the signatories are Republicans, and much of the GOP has taken a broader view of presidential power in the past. For example, during the Libya conflict, Speaker Boehner took President Obama to task for violating the War Powers Act of 1973, even though he had previously called for the Act’s repeal and questioned its constitutionality. Neither party has been a model of consistency on these issues.

But the opportunism of some in the GOP does not change the constitutional duty of the President. It also does not change the practical reality that going to war without a broad political consensus reflected by congressional authorization increases the risk of failure.

Congressional opposition may not matter much politically if the president wins a quick victory with few or no [...]

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Should Senator Wyden Reveal Classified Information on the Senate Floor?

I’ve seen some chatter on the internet about the possibility of a member of Congress disclosing classified information. For example, the Hill discusses this Rolling Stone interview in which Senator Ron Wyden said that he considered (and apparently rejected) disclosing classified information about NSA activities on the floor of the Senate.

How would this work? Bruce Ackerman suggests that members of Congress ought to simply read classified information into the public record (“The moment of truth is now”). But Congressional procedure maven Michael Stern argues that this is a little hasty:

Both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask [the Senate Select Committee on Intelligence] to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.”

If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This

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Congressional Inquiry of IRS Targeting of Israel Groups

Congress’s inquiry into IRS abuses has now expanded beyond the hounding of domestic-policy conservative groups to Israel related ones. In a letter today the Chairman and minority leader of the Ways and Means Committee demand information on whether the agency “undertook special reviews of organizations whose missions involve Israel” and whose activities “contradict or are inconsistent with the Administration’s policies.” Will this be within the scope of the Justice Department investigation?

Again, if the IRS did so, it was only doing what the New York Times (and Peace Now and J Street) told it to.

The Acting Commissioner appears for a hearing on Friday (after the Jewish holiday of Shavuot). [...]

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Why maximal enforcement of federal gun laws is not always a good idea

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce…among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes [...]

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