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Monthly Archives: October 2021
Senate Bill 8 and the Supreme Court
This week, the Supreme Court will take up issues related to Texas’s new abortion law — Senate Bill 8. There are several key things to know about this case.
First, this case has been expedited. The Supreme Court turned down the request for a stay and granted review on the “merits” on October 22. The Supreme Court ordered the parties to file the written arguments on the merits by October 27. The Supreme Court will be hearing argument on November 1, just ten days after granting review. By contrast, the “normal” schedule set forth in the rules (which is typically condensed somewhat for cases in which review is granted between October and January) establishes a minimum of 115 days between the grant of review and argument. This expedited hearing, probably represents a compromise between the Justices that wanted to reinstate the trial court’s stay of the law and those that wanted to take this case in the ordinary course of Supreme Court review.
Second, the Supreme Court permitted the parties to bypass the Court of Appeals. While the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) has issued rulings on the stay entered by the trial court, it has not yet ruled on the merits of the case. The Rules of the Supreme Court permit parties to ask to bypass the appellate court (a petition for certiorari before judgment), but the Supreme Court rarely grants that request. Again, this decision probably represents a compromise between those that wanted to grant the stay (which would have been in effect until the Fifth Circuit decided the case) and those that wanted things to proceed in the ordinary course of review. It may also reflect the view that the Supreme Court has of the Fifth Circuit. There are several circuits known for their tendencies in litigation. There are three or four perceived to be ultra liberal with the Supreme Court needing to frequently correct them. The Fifth Circuit has the same reputation for being ultra conservative and has been frequently reversed on abortion cases. Given this reputation, the Supreme Court may have decided that there was no need to see what the Fifth Circuit would write.
Posted in Judicial
Tagged Abortion, Anti-Discrimination laws, civil rights, Gun Control, gun rights, qui tam, Senate Bill 8, Texas
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Minimum Corporate Taxes
One of the ideas floating in diplomatic circles and in Congress is the concept of minimum corporate income taxes. To understand what is being discussed, it is important to understand some basics of corporate law and income tax law as it applies to businesses.
Corporations come in all shapes and sizes. They range from small charities to your local independent grocery store to big multi-nationals. What they all share in common derives from the basic concept of the corporate structure — that the corporation is an independent legal person. This basic concept allows people to become “owners” of the corporation — either shareholders who make money from the profits in a for-profit organization or as members who merely support and have a vote in electing the governing body in not-for-profit organizations. The key thing for both is that, unless you participate in the management and do something that makes you personally liable, a person suing the corporation for corporate acts can only recover from the assets of the corporation and may not collect any judgment from the owners of the corporation. This differs from a partnership (an unincorporated business with multiple owners) in which a claimant can go after the personal property of all of the partners or a sole proprietorship (an unincorporated business with only one owner) in which a claimant can go after the personal property of the sole owner.
One key thing about corporations is that they can have a single owner or multiple owners. Thus, it is possible to have a parent company which is the sole owner of separate “subsidiaries.” Putting it in a little more benign situation, think of a regional grocery company. The regional company is the parent company. But each of the grocery stores is its own corporation wholly owned by the regional company. That way, if problems occur at one store, it does not bring down the entire chain of stores.
Elections Have Consequences — Biden Agenda Edition
It is a phrase that we repeatedly hear — typically by the majority as a justification for the unjustifiable, but elections do have consequences. But it’s not just who wins, but how they win. In many parliamentary countries, there is another common phrase a “working majority.” And the basic concept is that it is rarely enough to win by one or two seats. When you have a one or two seat majority, it only takes one or two members deciding to walk to cost the government the majority. And that’s in a parliamentary system where members risk forcing a new election if they defect from the government to the minority. In the United States, there is no threat of an immediate new election hanging over members’ heads to encourage the majority to stick together. As a result, the margin required for a working majority is somewhat larger in the U.S.
And that’s the problem that the current Democratic majority is facing. Currently, the Democrats have a 220-212 majority in the House (which will go up to 222-213 in January when all of the vacancies are filled). That means a mere four (now or five in January) defections means that nothing can pass. In the Senate, the Democrats do not have an actual majority. Even including the two independents who normally vote with the Democrats, the Senate is a 50-50 tie. Given the Senate filibuster rules, a 50-50 Senate can only pass reconciliation bills or confirm nominees, and even that requires all fifty members of the caucus to stick together at which point the Vice-President can break a tie.
The current mess on reconciliation and election reform is the result of the lack of a working majority. Needing every vote in the Senate requires getting the agreement of every Senator. Thus, each Senator can insist on concessions from the rest of the party. (It is a little harder in the House, but a group of five or more members have the same leverage). And to be clear, the leverage is not equal. When you need every vote, the ones who want to do less have a negotiating advantage over those who want to do more. The reality is that something is almost always better than nothing. So the “moderates” can tell the “progressives” that we are willing to vote for some increased funding for child care and clean energy and expanding Medicare but not for as much increased funding as you want, and the progressives have the option of accepting some funding for needed programs or not getting those programs at all. The only real limit to the moderates leverage is that, when it comes to needing to cut funding, progressive can counter by trying to trade off programs that they want for programs that the moderates want that progressives do not see as particularly useful. But that is very limited leverage. Thus, at the end of the day, the current numbers give a lot of additional power to Senator Joe Manchin of West Virginia and Senator Krysten Sinema of (suppoesedly) Arizona. (The supposedly is that Senator Manchin’s positions flow from the politics of West Virginia and it is unlikely that Democrats could elect a more progressive Senator from West Virginia. Senator Sinema’s positions on the other hand do not flow from Arizona’s politics as her fellow Senator from Arizona, Mark Kelly, who actually has to run in 2022, is not blocking current proposals.)
Posted in Elections, House of Representatives, Joe Biden, Senate
Tagged filibuster, Joe Biden, Joe Manchin, Krysten Sinema, Mark Kelly
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The German Election Result and What It Says About Europe
Last Sunday, Germany held elections for the lower house of its parliament. Given the mixed-member system that Germany uses, German elections are not immediately conclusive. The results merely set the terms for the negotiations that will follow over the shape of the government. But the election results do reflect the changes in Europe over the last 50 years.
The short version of the results is that the Social Democratic Party (the junior partner in the current government) made significant gains at the expense of the Christian Democratic/Social Union (the senior partner in the current government) and is now the largest party in parliament (206 seats vs. 196 seats). The Green Party made significant gains to move from sixth place to third place (now at 118 seats). The Free Democrats gained some seats but due to the big gains by the Greens stayed in fourth place (now at 92 seats). The Alternative for Germany fell from third place to fifth place dropping eleven seats (now at 83 seats). Finally, the Left lost about half of its seats to drop from fifth place to sixth place (now at 39 seats). While the numbers have shifted, the essential facts of political life remain the same. The only potential two-party majority is a grand union between the “Union” and the Social Democrats and a three-party coalition that features only one of the two largest party would require both the Greens and the Free Democrats (as the Left and the Alternative for the reasons noted below are not preferred options).
Hopping into the wayback machine, however, todays results would be unrecognizable to the German voter who voted in the 1980 election. Back in 1980, West Germany was primarily three parties — the Union, the Social Democrats, and the Free Democrats. At that time, the Free Democrats were essentially the balance in the center between the Union and the Social Democrats. The Free Democrats had the power to decide who would form the government and used that power to keep either of the other two parties from shifting to far from center. Over the 1980s, prior to unification, the Green Party formed and rivaled the Free Democrats for third party status.
Posted in Elections, National Security
Tagged authoritarianism, democracy, Foreign Policy, Germany, human rights, nationalism
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