The Republican Civil War — Alabama Edition

The next seven days is one of those weeks that happen from time to time when there are a lot of events competing for the attention of political wonks — the German elections, the “long conference” at the Supreme Court, perhaps a vote on the latest Republican effort to repeal Obamacare, perhaps even more news on the Russian involvement in the 2016 elections and the Trump campaign’s connections to those illegal acts.  The most significant event, however, might be the Republican runoff in the Alabama Senate special election.

Over the years, a recurring topic on this blog has been the internal divisions in the Republican party (and to a lesser degree the divisions in the Democratic party).  The run-off in Alabama pits a conservative “Establishment” candidate (interim Senator Luther Strange) against the Tea Party/Trumpist candidate (State Supreme Court Chief Justice Roy Moore).    It is not possible to describe all of the wacky things that Justice Moore has done over the year that violated his oath of office (some of which got him removed from office the first time).  A Senator Moore would actually make Ted Cruz and Rand Paul look normal.

While Trump — perhaps seeing a need to at least pretend to work with the Republicans in D.C. — is supporting Senator Strange, but Breitbart and other parts of the Trump machine are supporting Justice Moore.  Current polls are showing Justice Moore with a comfortable (but not necessarily safe given how difficult it is to predict turnout) lead. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part III (Remaining Cases)

In Part I and Part II, we looked at the cases that have already been scheduled for an argument.  This post will look at the cases for the remainder of the term.

As of this point in time, the Supreme Court has not yet announced the schedule of the cases that will be argued in December.  (The December argument session actually begins the Monday after Thanksgiving, November 27.)  There are six available dates for argument and ten cases available.  (To get to ten available cases, the Supreme Court granted review in the middle of August to replace one case that was dismissed.)  It is possible that some of the ten cases may end up in January, particularly if they do not accept many cases over the next several weeks for January.  (The briefing schedule typically requires at least three months between the Supreme Court granting review and the argument.  As such, the January argument docket will come from the cases already granted and the additional cases added between now and October 16.)

As with the previous posts, some of the cases available for argument in December are somewhat technical issues that will not get a lot of public attention. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part II (November Arguments)

In Part I of this year’s Supreme Court preview, we took a look at the ten cases set for argument during the first two weeks of October.  Currently, for it’s six-day November argument session (which actually begins on October 30), the Supreme Court has eight cases.

Unlike October in which seven cases have the potential to generate headlines or impact elections or major policy issues, November looks a lot less intense.  The first week is one of those technical weeks that matter mostly to the parties and the attorneys who practice in an area — two cases dealing with the procedure for federal habeas practice (the review of state court decisions by the federal courts), one case deals with bankruptcy issues, and one case deals with the tolling of state law claims while a related federal claim is pending.  The second week starts with another two technical cases — another bankruptcy issue and a case on the disclosure requirements for companies that have publicly traded stocks and bonds (focusing mostly on when an incomplete disclosure is misleading).

The last two cases — set for November 7 and November 8 — respectively are the big political cases of the November argument session.  The first case (Patchak) involves what appears to be a growing trend — Congress passing laws to deal with pending cases.   In this case, after federal courts had found that plaintiff’s had raised colorable claims (i.e. ones that, if true, would entitle him to relief), Congress passed a law directing that the courts to dismiss the case.  While Congress does have some authority to change the laws governing certain types of claims or the procedural rules that apply to claims, the rules are a little bit less clear when Congress tries to direct the judgment in a specific case.  Adding to the complicating factors, the case involves the U.S. government taking land into trust for a tribe.  While the merits of whether the land properly belongs to the tribe is technically not the issue at this stage of the case, that may play some role in the analysis. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part I (October arguments)

It’s mid-September which means that the Supreme Court will soon be returning to Washington for this year’s term.  The Supreme Court, for the most part, controls what cases it will schedule for full briefing and oral argument.  For this fall, the Supreme Court has a total of twenty-eight cases (actually a little more, but several cases have been consolidated) available for argument over seventeen argument days.  They have posted the schedule of cases for October and November with the remaining cases likely to be scheduled for December (although some may be heard in January).  It is unclear if the low number of cases is the product of the time that it took to fill the vacancy on the Supreme Court or is the continuation of the long-term trend under the last three Chief Justices to gradually reduce the number of cases heard.    However, the numbers tend to support the “reducing the docket” theory.  While the January “holdover” cases are slightly low (only three), the number of cases on which the Supreme Court granted review in February and March are close to average.  The real “below average” months are the months after Justice Gorsuch took the bench.

This part will look at the cases currently scheduled for argument in the  “October” session beginning on October 2.  As in past years, I will be focusing mostly on the “political” case, those dealing with elections or with heated public policy issues.  These cases aren’t the entirety of the Supreme Court docket.  A lot of the Supreme Court docket deals with resolving conflicts over the interpretation of interpretation of federal statutes or handling criminal justice issues.  These cases do not get a lot of media attention, but they do matter to the persons impacted by them.

Of the ten cases on the October docket, three deal with immigration issues.  Two of the cases (Dimaya) and (Jennings) are rearguments from last year.  The belief is that these cases were probably 4-4 splits, but that might not be the case for Jennings. Continue Reading...

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German Elections 2017

In a little over two weeks (September 24), Germany will hold parliamentary elections.  As with most parliamentary system, the leader of Germany is determined by which party (or coalition of parties) wins the majority of seats in parliament.  As such, the results on September 24 will determine if Angela Merkel continues as Chancellor of Germany for another four years.

In electing members of its parliament (the Bundestag),Germany uses a variation on the mixed member system.  The basics of this system is that voters cast two ballots.  In one, they vote for the person who will represent their constituency in parliament.  On the second, they vote for the party.  Each lander (think state) has a certain number of constituencies.  On the high end is North Rhine-Westphalia (Bonn, Cologne, Dusseldorf) with sixty-four constituencies.  On the low end is Bremen with two constituencies.  In total, there are two hundred ninety-nine constituencies.

In theory, each lander has a number of “party list” seats equal to the number of constituencies in the lander (which would translate to a parliament of 598 seats), but there is a catch.  In calculating, the number of party list seats that each party wins in each lander, the formula uses the whole number of seats in the lander (constituency plus party list seats and allocates them using proportional representation (i.e. if a party won 10% of the vote, they are entitled to 10% of the seats) based on the vote for each party in that lander.  After calculating the number of seats that each party should receive from the lander, the formula then subtracts the number of constituency seats that each party has won.  If that leaves any party with a negative number (i.e. the party won more constituency seats than the number of seats that they would have won under proportional representation), the party gets to keep the extra seats (commonly called overhang seats), the other parties receive “compensation” seats to make the results proportional, and the lander ends up with additional seats in parliament.  ) Continue Reading...

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Budget 101

On Tuesday, Congress returns from their August “District Work Period” — a/k/a Summer Vacation.    Normally, September in Congress is about appropriations bills, but this year September is going to be even more hectic due to the U.S. nearing its debt ceiling and other budget issues.  To explain this year’s mess, a little budget 101.

Like the typical household budget, the government’s budget consists of revenue/income and expenditures/spending.  However, the government’s revenue consists mostly of taxes.  While a handful of taxes have sunset provisions (i.e. they expire at a certain point in time unless Congress passes a new law extending them), most taxes are permanent (i.e. it takes a new law to change the tax).  But how much revenue is raised by a given tax in a given year depends upon multiple circumstances (how many people with large estates die, how the economy is doing, how much of certain goods are imported).  So for budgeting purposes, revenue is always an estimate.

Similar, on the expenditure side, there are “mandatory” expenses (think the equivalent of mortgage and car payments) and “discretionary” expenditure (think groceries, you have to spend something but you can decide whether to go store brands or name brands depending upon how your finances are).   On the mandatory side, for the government are interest payments and what is commonly called entitlements.  Entitlements have gotten a bad name from conservative spinmeisters, but the term is a legal term reflecting that, if somebody meets the legal criteria for a particular program, they have a legally enforceable right to receive the payments from that program whether that program is Social Security, unemployment compensation, or Medicaid.  The discretionary side on the hand is most federal agencies.  Representing about 25-33% of total spending, Congress has to annually appropriate the money for these agencies (ranging from the military to the national endowment for the arts). Continue Reading...

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Voter Fraud and the Missouri Senate Race

Earlier this month, the law on voting where you reside appears to have caught an unlikely person in an election law violation — Missouri’s Attorney General — and presumptive Republican Senate candidate — Josh Hawley.  To understand what happened, a little local background is in order.

The main campus of the University of Missouri is in Columbia — thirty miles away from the state capitol in Jefferson City.  Before becoming Attorney General, Hawley was a law professor at the University of Missouri.  Aside from his full time job, like some law professors, Hawley offered his assistance on cases that he thought deserved his assistance.  One of those cases involved aiding the religious owners of Hobby Lobby in their effort to deny birth control coverage to their female employees.  This case gave Hawley connections to ultra-conservative donors in Washington, and also was a selling point as he went around Missouri speaking to local Republicans in rural counties.   These two advantages allowed him to pull an upset last year in the Republican primary over the “establishment” conservative candidate in the Republican primary, and the Trump landslide helped him win the general election.

After the election is where the fun begins.  First, among the changes that flowed from the 2016 election, the new Republican governor appointed the state representative who represented part of Columbia and the surrounding area to an administration positions.  Before becoming Attorney General,  Hawley and his family lived in this district.   The Governor set the special election to fill this seat for this August (one of the available election dates under state law). Continue Reading...

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Trump’s War

Earlier this week, we heard President Trump speak on the War in Afghanistan.  Unfortunately, this speech which was supposed to lay out his vision of the path forward was like many Trump speeches — mostly vague rhetoric without details.  And the handful of specific details were divorced from reality.

As we have come to expect from Trump, when faced with a  difficult issue, he has to blame his predecessors for not solving it.  While it is easy to blame the G.W. Bush Administration for botching the original intervention, Trump, of course, focused his wrath on President Obama.  One can debate whether the “tough love” of giving the Afghanistan government a deadline for getting its act together is better or worse than saying that we will transition out when the Afghanistan government gets its act together.  And despite Trump’s claim that we will not engage in “nation building,” it is difficult to see how we get the right “conditions” in Afghanistan without doing some form of nation building.

However, the first real problem in the speech was Trump’s refusal — in the name of not giving any information to the enemy — to say what our plans are in Afghanistan.  In particular, his refusal to define our goals in Afghanistan.  Saying that we will only withdraw once certain conditions are met is fine.  However, you need to define what those conditions are.  Of course, by not defining those conditions, Trump leaves the door open to the old Soviet approach of declaring victory at some point in the future even though we have actually failed to meet our goals — whatever they actually are. Continue Reading...

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The Path Forward

Looking at the Republican debacle over Health Care, I was constantly reminded of two things.

First, I keep on thinking of a classic Saturday Night Live skit from their third season portraying Richard Nixon as a vampire-like figure who keeps coming back.  Like Nixon in that skit, just when we think that the Republican efforts at gutting health care are done, they find a way to resurrect the bill.  Since the Senate never actually voted on the final bill (which was put back on the calendar after the substitute amendment failed), it could be brought back to the floor at any time.

Second, I am reminded of Representative Pelosi’s comments while the Affordable Care Act was pending that we would not know what was in the bill until it finally passed.  While Republicans made a lot of hay out of this comment, she was expressing the reality of the legislative process.  Until the vote on the final version of the bill, it is possible that legislators will add new provisions and delete others.  Normally, however, under ordinary process, there is a core of the bill that stays relatively the same.  With this bill, the Republicans have treated the bill as a placeholder.  The message in the House and the Senate has been just pass this bill whatever its flaws and we can decide on the real terms of the bill later.  The concept that the conference committee would write an entire bill from scratch as opposed to merely reconciling the disagreements between the two houses is mindboggling. Continue Reading...

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Healthcare: What’s Next?

As you’ve certainly heard, the Senate tax-cut-for-the-wealthy-at-the-expense-of-the-sick has met it’s death. Yes, Mitch will hold a “Repeal Only” bill next week, but that’s not going anywhere either. You may wonder why that vote is being held, and the answer is rather simple: Donald Trump is intellectually impaired. The White House has put a lot of pressure on Mitch to hold said vote because first, while #NotMyCheeto cannot name all 52 GOP senators, he holds out some hope that he can corral people to vote for it, and second, because he views the vote along the lines of a “loyalty” vote. He wants that opportunity to take names on who is “fir ‘im, and agin ‘im”. Also, Mitch would rather be a loser than a quitter.

So what’s left? Basically the option that cost John Boehner the speakership: bipartisanship. The other option would be for #NotMyCheeto to cease the insurance company payments, and dismantle the individual mandate via Executive Order, which would throw 32 million people off the roles of Exchange-based insurance as well as Medicaid as soon as the insurance companies could get new rate levels through the state insurance commissioners. While Trumpkin couldn’t care less, since his criminal family isn’t affected, and there’s no impact on Russians, the House and Senate DO care because the full house and a third of the Senate is up for re-election next year, and voters never forget who took something from them.

At the White House yesterday, Trumpkin said: “We’re not going to own it. I’m not going to own it. I can tell you the Republicans are not going to own it. We’ll let Obamacare fail, and then the Democrats are going to come to us.” Idiot. Continue Reading...

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