Legislators of the Year 2015
In our inaugural Legislator of the Year Award, the staff of Dome is pleased to recognize Rep. Elijah Cummings (D- MD) and Speaker Paul Ryan (R-WI).
Rep. Elijah Cummings really earned this award in April and May during and after the riots in his home town of Baltimore protesting the death of Freddie Gray. The Freddie Gray case was one of the true low points in a year filled with low points concerning race relations and the conduct of police officers around the country. Incident after incident made minority communities feel besieged in their own neighborhoods by an apparently aggressive, militarized and racist police force. For their part, the police have an extraordinarily difficult job and often feel unduly criticized when force is used in dangerous circumstances and when the officer legitimately feels threatened. This fissure in our society deepened and widened this year and is a complex social problem that will likely take years to fully understand and address.
Still, during one of the darkest moments of the spring, Rep. Cummings took a leadership role and provided not only a voice of reason, but rallied his community to act in a thoughtful and positive manner to seek justice and reform.
He called for peaceful protests that would lead to change while praising the restraint of the Baltimore Police. He pushed for a stop to the violence that tore at Baltimore and helped clear the streets during a mandatory curfew. He also lent an eloquent voice to a community seeking justice. At Mr. Gray’s funeral Rep Cummings spoke directly to Gray’s mother, “For me, I am in the twilight years, but I am telling you we will not rest, we will not rest until we address this and see that justice is done. … We will not fail you.” Rep. Cummings welcomed a Federal probe into the Baltimore Police, hoping the investigation would lead to improved relations between the police and the community, “The community needs the police and the police need the community to solve crime.”
When something like this happens, a community typically looks to and rallies around local leaders—pastors, city councilors and mayors. Congressmen, with big districts, focused on federal issues, and spending much of their time in Washington, are naturally not as close to a particular neighborhood or constituency. It is a great testament to Rep. Cummings that when Baltimore needed a reassuring—yet outspoken—presence, they turned to him.
Earlier this month the first prosecution of a police officer involved in the Gray Case ended in a mistrial. Even before the decision, Rep. Cummings again called for calm, “Our future as a more just community will depend more upon our own actions than it will upon the decision of Officer Porter’s jury.”
Mr. Gray’s death could have resulted in politicians scoring cheap political points by whipping up the crowd. Fortunately, Baltimore has been blessed with Rep. Cummings who at once is a stabilizing force for the community while also calling for much needed reform.
Rep. Cummings could have been a Legislator of the Year for service to his community, but he also played a crucial role as an opposition leader in the House. He continued to be a key voice on the House Committee on Oversight and Government Reform, playing the foil to Chair Jason Chaffetz (R-UT). More importantly, he agreed to serve as the Ranking Member on the House Select Committee on Benghazi. This never-ending inquiry seems to be nothing more than an attempt to hurt Hillary Clinton’s presidential campaign. The Committee reached its lowest point on October 22, 2015 when Chair Trey Gowdy (R-SC) kept Secretary Clinton on the witness stand for a ridiculous 11 hours. Rep. Cummings was outstanding throughout; pointing out the needless badgering of the witness by his fellow committee members and countering the political—and at times outrageous—lines of questioning.
Some of his constituents want Rep. Cummings to run for the Senate. The Senate’s gain would be the House’s loss—the House needs his leadership now more than ever.
This must have been a shocking autumn for the young representative from Wisconsin. Not that he ascended to a position of great power in Washington; the talented Rep. Ryan has always been headed in that direction. His intelligence, creativity and work ethic propelled him first to the chair of the Budget Committee and more recently to the Ways and Means Committee. In many ways he has been the true policy driver of the Republican Party in the Capitol during a time of thoughtless ideology and bumper sticker level political attacks. Speaker Ryan has already been the GOP’s vice presidential pick, and likely was headed to leading the ticket at some time in the future.
And then John Boehner stepped down as Speaker.
Mr. Boehner finally had enough of the backstabbing “Freedom Caucus” and his inability to get any sort of legislation—even essential spending and debt limit bills— through his own chamber without a major struggle because the bills were not ideologically pure enough for a semi-secret cabal of representatives. Then the “Freedom Caucus” refused to support Mr. Boehner’s logical successor Rep. Kevin McCarthy (R-CA). With the subsequent disarray, the caucus turned to a reluctant Rep. Ryan to take the gavel.
Speaker Ryan was right to be reluctant for a multitude of reasons:
First, he was never on the “leadership track,” training to be Majority Leader or Speaker. There is a reason people apprentice with leadership, and why the Austin-Boston Connection was so successful for so many decades. Leadership must deal with the Senate and the President and protect the House while making reasonable compromises. Leadership must skillfully interact with the press and craft a message that—again—protects and benefits the House membership. Leadership must devote considerable time to what David Hawkings calls “the member services dark arts.” Much of this will be new to Speaker Ryan, who has devoted his legislative career to committee work.
Second, the problems that took down Speaker Boehner will only grow. The “Freedom Caucus” is newly emboldened and will continue to hold a sword over the Speaker’s head. Outside groups will no doubt start calling him a RINO or Squish every time he makes a compromise. The Republican Caucus will continue to be a fractured and difficult to manage, especially in an election year. The new Speaker, therefore, will have all the challenges that made Speaker Boehner happily give up the gavel.
Finally, this was not part of his personal plan. Until this autumn, Speaker Ryan had an excellent chance to be a serious presidential contender in the not too distant future. Will he still have that chance after a stint as the Speaker? He will suffer many slings and arrows from both sides of the aisle. And history has not been kind—only James K. Polk successfully used the Speakership as a stepping stone to the Presidency, and only after being governor of Tennessee in between.
And yet Speaker Ryan put all of that aside and took the gavel. He put the House and the Congress above himself and his personal ambition. Congress desperately needs the stability he will bring, and therefore, Speaker Ryan is a very worthy Legislator of the Year.
Sad Display On Senate Floor
By: Special Correspondent Webster
On July 24, 2015, Senator Ted Cruz (R-Texas) brought Congress to a new low accusing Senate Majority Leader Mitch McConnell (R-Kentucky) of lying during a floor speech. Speaking about trade treaties and the reauthorization of the Export-Import Bank, a current Tea Party boogieman, Cruz publicly discussed several private conversations with the Majority Leader at a Republican Caucus and in McConnell’s Office.
It is widely believed that McConnell agreed to attach the Export-Import reauthorization to "must-pass" legislation in order to win support from Sen. Maria Cantwell (D-Wash.) for a trade package earlier this year. Cruz voted for the trade package because he “believes in free trade,” but was aghast that a compromise had been reached somewhere along the line that would allow the Export-Import Bank be reauthorized.
First, Cruz detailed a discussion that took place in a Republican Caucus. When Cruz asked
McConnell whether there was a deal in place for the Bank, “The majority leader was visibly angry with me that I would ask him such a question,” Cruz said. "The majority leader looked at me and said, “There is no deal, there is no deal, there is no deal.” Cruz went so far as to compare this denial to that of Peter the night before Christ was crucified.
Cruz reports that after lunch his staff said that McConnell was lying, but that he believed McConnell, “What I told my staff that afternoon, I said, well I don't know if that's the case or not. But I don't see how when the majority leader looks me in the eyes and makes an explicit promise... I don't see how I cannot take him at his word.”
Later, Cruz detailed a private conversation with McConnell in his office where the Majority Leader allegedly denied there was a deal on the Bank to move the Trade Bill forward.
In the end, there was such a deal, which Cruz declared to be a “corrupt deal,” and explicitly accused the Senate Majority Leader of lying to him, “Well, we now know that when the majority leader looks us in the eyes and makes an explicit commitment that he is willing to say things that he knows are false,” said Cruz. "That has consequences for how this body operates,” he continued. "If you or I cannot trust what the majority leader tells us, that will have consequences on other legislation, as well as on how this institution operates."
“Today is a sad day for this institution,” said Cruz at the beginning of his speech. So true—but not in the way Sen. Cruz intended.
First, give up the Jesus imagery—you are not the Son of Man. McConnell’s “betrayal” of Cruz here rises to the level of Peter denying Jesus to the crowd on Holy Thursday? Honestly?
Second, shame on Ted Cruz for what he did to his staff. Although I have never met them, I am willing to bet they are young, smart, and ambitious professionals who hope to have a long career either in government or working to influence the government from the private sector. Washington is, and always will be, a small town. It was his staff who first said the Majority Leader, one of the most powerful Republicans in the country, was lying? They persisted despite their Boss saying he believed Mitch McConnell? Cruz strongly implied that McConnell was lying in his speech, but the only time the word was explicitly used, it came from his staff? Ted Cruz is not long for Washington. He is not going to be the next President and he clearly does not want to be part of the US Senate, given his bomb throwing as opposed to crafting legislation and working to oversee the government. His staff, however, are just starting careers in Washington, and the Republican establishment is going to have long memories. The member-staff relationship is a sacred one—sometimes stronger than the member’s marriage. What is said in the office is sacrosanct. A staffer who reveals what is said (without authorization) to an outsider can, and should, be fired. The member owes the same duty to his staff.
Third, Cruz decided to make public conversations he had in a caucus—which is assumed to be confidential; as well as a private meeting with McConnell, which I am sure all parties knew was private, or Mitch would not have closed the door to his office. Airing dirty laundry on C-Span is petulant and coarse.
Fourth, Cruz is not the first, nor will he be the last, to use a Senate seat to run for the White House; still one does not have to denigrate the former to win the latter. Frankly, I am not sure why so many senators even want to be President. Those senators who have tried for the White House—but lost—have discovered that the Senate can be a true font of power and a “bully pulpit” that, over time, far outstrips the influence of a President. Thurmond, Humphrey, Goldwater, Kennedy, Dole, Hatch, McCain—they were (and in the case of the last two, still are) giants. Each of these men was probably a far better senator after their presidential ambitions were set aside. Incendiary comments like these demonstrate that Cruz has no interest in making the Republic a better place through a seat in the Senate. He is smart, Ivy educated, a great debater, and has been entrusted with a Senate seat by the people of Texas. Even if he has a change of heart after his soon-to-be-failed Presidential quest, the bridges to his fellow Republicans will be burned and bridges to the Democratic Senators will never be attempted. How sad.
Fifth, as the list above shows, this correspondent has no issue with strong points of view or personalities. In my time, I have been condemned for difficult positions. The Senate is enriched by strong points of view and challenging the other 99 members as legislation is crafted. In fact, Senate rules empower that minority of view and ensure that it will be heard and have a chance to influence every issue that comes through the chamber. Courageous stands on principle make the Senate a special place— but that is not what Cruz did here. With that immense power, comes a great measure of responsibility. Even in the US Senate, one person cannot stop the will of a supermajority of their colleagues. The Congress must respond to the issues of the day and do so in a reasonable amount of time. The peculiar rules of the Senate demand civility and decorum. Further, the Senate— and this is a difficult point for the Tea Party types to accept—requires compromise to accomplish the work of the nation. Was there a “corrupt deal” in place when McConnell made his assurances to Cruz? I don’t know. I do know that the Senate Majority Leader has to manage a lot of moving parts: his caucus, the Senate as a whole, the House, the Administration, his party, not to mention his constituents back home—all at the same time. Things change, and deals must be made to accomplish what the leader thinks is right. The caucus chose McConnell as their leader because they felt he could do what was right for the caucus, the Senate and the country. Circumstances change in Washington on a daily basis. When they do, that is not the same as lying. In addition, compromise is what grown-ups do in every facet of their lives— only children expect to get their way every time.
Finally, Cruz chose to use incendiary language on the Senate Floor. The Constitution’s Speech or Debate Clause guarantees Cruz free speech on the Senate floor, but just because he can say something does not mean he should. There are few things that can be said on the floor and on the record that legislators find abominable and foremost is that a colleague “lied.” Senate rules state that no senator “in debate shall, directly or indirectly, by any form of words impute to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.” Cruz’s statement is even worse than when an Irish legislator told another to “Fuck off.” It calls into question the Leader’s integrity—something he needs to run the Senate, and negotiate with the House and President.
Cruz made his speech and probably wanted to score a few cheap points against “the establishment” to fire up his Presidential campaign supporters. Sadly, his words diminish a great institution.
How Halbig v. Burwell Ruined Obamacare
The Affordable Care Act should have been a win. It is an important bill with a pressing human rights agenda: to make healthcare available to all despite economic status. It was a bill full of promise and hope. It could advance our country and our political landscape. It could free our healthcare system from the tyranny of insurance companies. It could display to the rest of the world that we are progressive human beings and not merely capitalists bent on increasing our economic superiority at the cost of our own citizens. It was Obama’s signature bill, and a rare realization of lofty campaign promises. Then came Halbig v. Burwell, and all that optimism pretty much went down the drain. Instead of fulfilling its constitutionally prescribed role as objective arbiter, the D.C. Circuit Court displayed a galling about of political acumen, jumping headfirst into the ideological warfare of the capital.
Under the Affordable Care Act (the "ACA"), the health care system in America was restructured and transformed. All Americans were, for the first time, promised health care coverage despite socio-economic status or other restrictions, such as pre-existing conditions. Insurance companies no longer had unbridled power to determine who had access to coverage and, therefore, who could receive affordable medical assistance. Instead, individual citizens could secure medical insurance through government-established insurance exchanges. By offering subsidized insurance to those beneath a certain economic threshold, these exchanges attempted to deliver on the ACA's promise to provide insurance to those who previously could not afford to purchase it.
Such subsidies are essential to the overall success of the ACA, as they form one of the three foundational pegs upon which the ACA was built. These three core aspects of the ACA are: (1) a requirement that insurance companies stop denying coverage to those with pre-existing conditions; (2) the individual mandate, which requires all Americans to receive health insurance through either a private company or a government exchange; and (3) subsidies to make insurance affordable to those who otherwise could not afford it. Without any one of these parts, the ACA would crumble. The system works like this: in order to insure that insurance companies give insurance to those with pre-existing conditions without charging them more than their healthy counterparts, those healthy individuals must be induced to purchase coverage through the individual mandate, and a subsidy must be granted to assist lower-income individuals upon whom the individual mandate could be a hardship. The ACA will, therefore, collapse upon itself if subsidies are not granted to low income individuals.
Of course, the ACA was destined to be politicized. The current DC climate is hyperbolically divided. The difficult reality is that there is no room on the Hill for idealist legislation. All that currently matters in Washington is the civil war between republicans and democrats. The real problem arose when republicans decided to strike against the ACA through the judicial system, thereby highlighting how much our supposedly objective system of justice truly acts as a political arm of the other, stronger branches of government. Halbig v. Burwell perfectly represents the depressing state of the modern court: big-name cases aren't decided on the strength of the issues but are predestined for a particular verdict based on the current political landscape and the personal beliefs of the judges hearing the case. Was anyone really surprised when a three-judge panel comprised of two conservatives and one liberal released a 2-1 decision practically crippling the ACA? How could they be?
To be fair, the legislative interpretation held forth by Judges Griffith and Randolph isn't entirely ridiculous. The plain text of the ACA does seem to draw a distinction between insurance exchanges established by the state and those created instead by the federal government, and the provision concerning subsidies could therefore only refer to those insurances established by the states themselves. My difficulty with this reading of the ACA lies with the very foundation of textualism (a pretty purely conservative form of statutory interpretation) and the ways in which it contradicts the responsibilities I feel courts have when examining a piece of legislation.
First, here are some things judges shouldn't do: interpret a statute based on their own political beliefs; cherry-pick whatever method of statutory interpretation that gives them the result they want; read a statute in a way that blatantly contradicts the legislature's purpose for passing it.
And some things judges should do: interpret a statute in a truly objective manner; consistently use one form of statutory interpretation, preferably not strict textualism; read a statute in the way that is most consistent with the legislative intent while also carefully considering whether the statute violates the Constitution (a side issue which deserves a blog post of its own: the absurd inanity of the doctrine of constitutional avoidance).
Looked at with these standards in mind, Halbig v. Burwell is almost a complete disaster. Through Halbig, the D.C. Circuit managed not only to condone but also embrace the idea that courts are political weapons. They aren't fooling anybody with their textualist jargon because textualism itself is little more than a smokescreen for the conservative agenda. If the judicial system operated as a truly objective body, Halbig would read as a very different opinion (indeed, it would read instead as the much preferable King v. Burwell, decided mere hours after Halbig). I reiterate: courts should serve as impartial bodies that ensure statutes are executed in accordance with legislative purpose without violating the Constitution. Halbig, therefore, is a slam-dunk for the government. The entirety of the ACA crumbles if federally established exchanges cannot grant subsidies. Congress knew this when it drafted the statute. The D.C. Circuit judges knew this when they heard the case. It is indisputable that finding against the government is effectively vetoing the ACA, and it is unacceptable for a court to possess this sort of power, particularly a court that feigns objectivity and political insulation.
My proposed solution is simple. Cases such as Halbig should be decided by examining the history around the statute as well as the purpose of the bill. There is a lot of commentary on the slippery nature of legislative history and the theoretical problems identifying legislative purpose, but all of this criticism misses the point. Even with its complications, purposivism is the best method of statutory interpretation because it leaves the political act of legislating with Congress and away from the judicial branch, which has no business making policy decisions masked as adjudicative ones. Particularly in Halbig, there can be no doubt as to the legislative purpose, so why are we allowing our judges to pretend otherwise and violate their duties and responsibilities with thinly veiled acts of partisanship? Why do we insist on having faith in our highest courts to objectively reach fair decisions when they continuously prove unable to separate their political minds from their professional responsibilities?
Thanks to Halbig v. Burwell and analogous cases, the ACA is no longer a piece of legislation aimed at solving a social problem. It is a victim of the war between conservatives and liberals, and a symbol of just how degraded and deranged our entire national political system has become. The courts, which have the unique power to elevate legal discussion in this country above mere ideological rabble, have abandoned us to the politicians. Worse still, our most powerful and trusted judges have shown themselves to be nothing but politicians themselves. Wrongfully decided decisions like Halbig are found in all levels of the federal judicial system, all the way up to the Supreme Court (you need only look at a Scalia opinion to see how easy it is to forward the conservative agenda through textualism). We need to stop kidding ourselves that the judicial branch is anything more than a useful tool of the legislative and executive branches, a tool they use to re-fight battles they already lost on the floor of Congress.
When the D.C. Circuit rehears Halbig en banc, it has an opportunity to remedy its earlier mistake and uphold the ACA. I hope it does. This isn't because I'm a liberal who supports the ideals behind the ACA but because I recognize the importance of letting our legislative body legislate without interference by the judicial branch. Judges promise to uphold the law, not to destroy it, and it's about time they lived up to their promise.
Alex Forney is from Myrtle Beach, South Carolina and graduated from Brown University with a major in English literature. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Alex will work for Ropes & Gray where he plans to focus on representing businesses in general commercial litigation.
Unsafe at Any Age: Protecting the Adult LGBT Community from Sexual Orientation Change Efforts
While the proliferation of same-sex marriage continues to captivate most Americans, another important LGBT legal battle warrants attention. In a decision of first impression this year, the Ninth Circuit upheld California’s first-in-the-nation ban on sexual orientation change efforts (SOCE) aimed at minors. Health professionals widely debunk these practices as ineffective and criticize them as exceedingly harmful to patients. The California ban considered by the Ninth Circuit in Pickup v. Brown prohibits licensed mental health professionals from engaging minors in “therapeutic” SOCE practices such as “gay conversion therapies” that seek to alter sexual orientation. New Jersey recently passed a similar law that a federal district judge later upheld against various challenges. As many as twelve other state legislatures have considered similar SOCE bans for minors since 2012 and momentum continues thanks in part to surging public acceptance of homosexuality. While current statutes and legislative proposals are a much-needed step in the right direction, banning only SOCE for minors fails to address overarching issues with SOCE practices. As state efforts to prohibit SOCE gain steam, legislatures should consider banning the troublesome practices outright for all individuals.
SOCE practitioners claim that their practices are effective, that homosexuality is a temporary and flexible condition, and that patients can successfully subdue or eliminate homosexual thoughts and tendencies if given proper support. Their “therapies” can take a variety of forms, ranging from voluntary verbal psychotherapy to coercive and abusive practices such as electric shock, nausea-inducing drugs, hormone therapy, and masturbatory reconditioning. While aversive physical “treatments” still persist in dark corners, psychoanalytic talk therapy is the most widespread SOCE practice today.
Numerous articles highlight the dangers that can result from SOCE practices. SOCE patients—both minors and adults—face significant risks: nervous breakdowns, suicide, self-mutilation, sexual dysfunction, and psychological traumas. The American Psychiatric Association—and virtually every other professional medical association—urges mental health professionals to actively reject the notion that homosexuality is a mental illness. Leading professionals even call SOCE practices “malpractice.”
California and New Jersey’s SOCE bans for minors are significant—albeit limited—efforts to stop these harmful practices. Upon signing California’s ban into law in 2012, Governor Jerry Brown stated that, “[t]his bill bans nonscientific ‘therapies’ that have driven young people to depression and suicide,” and that “[SOCE] practices have no basis in science or medicine, and they will now be relegated to the dustbin of quackery.” The law as passed enjoyed support from a broad coalition of psychological and psychiatric associations, medical providers, and gay rights advocates. Under the ban, California’s licensed mental health providers are prohibited from “engaging in sexual orientation change efforts with a patient under 18 years of age, regardless of the willingness of a patient, patient’s parent . . . or other person to authorize such efforts.” If licensed providers defy this prohibition, they are subject to censure by their particular licensing board and could temporarily or permanently lose their ability to practice.
After several SOCE practitioners and patients took California’s ban to federal court, the Ninth Circuit’s Brown decision disposed of several constitutional challenges aimed at enjoining the statue. Among them were claims that the statute was overbroad, infringed upon First Amendment speech and association rights, and defied parents’ “fundamental right to raise their children as they see fit.” California argued that its ban for minors related to a clear and compelling interest in protecting minors’ physical and psychological wellbeing from the harms of SOCE. The Ninth Circuit agreed with California. Dismissing the challenges, the court found California’s interest in protecting children was a permissible legislative goal and considered the SOCE ban to be a rational solution. Importantly, the court also maintained that California’s ban was a “regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech [or association].” The Court held, therefore, that state legislatures have broad authority to regulate deceptive and harmful medical practices.
While current SOCE legislation and court victories mark tremendous progress, it is unfortunate that current SOCE prohibitions fail to protect adults from serious harm and do not adequately address the fraudulent practices as a whole. States should seek to protect their entire LGBT population more stringently by enacting full prohibitions on gay conversion “quackery.” Comprehensive state SOCE prohibitions would send a strong public policy message to SOCE practitioners and the general public that SOCE “therapies” are illegitimate, dangerous, and unacceptable medical practices in the eyes of the State.
States have the constitutional authority to enact adult-inclusive SOCE bans, though they would need to allege different legislative interests in the event of a legal challenge. Yes, California’s arguments in favor of its ban primarily relied upon the protection of children, and the Supreme Court recognizes that states’ authority to control minors can be greater than their authority to control adults. However, the legislative findings behind California’s SOCE ban show that SOCE practices harm adults just as much as minors. California has a critically important interest in protecting the health and safety of its citizens from fraudulent and harmful schemes and can rely upon that interest to enact a constitutionally permissible, adult-inclusive SOCE ban.
As the Supreme Court has long noted, states have a strong interest in the health and safety of their citizens and may broadly regulate medical treatments in furtherance of this interest. State licensure of certain medical practice standards grants legitimacy to certain practices, giving patients and the public the impression that particular medical treatments are credible. While states seldom wholly prohibit particular treatments, the Supreme Court has noted that states may do so when a prohibition would further the State's safety and health interests. Accordingly, the overwhelming professional position that all SOCE practices are fraudulent, harmful, and deceptive business arrangements justifies broad state action. Since states have the authority to regulate the mental health profession and to eliminate fraudulent practices among licensed medical providers, state legislatures should enact holistic adult-inclusive SOCE bans instead of narrower bans like California’s that exclusively protect minors.
The legislative proposals enacted in California and New Jersey, as well as those pending in state legislatures across the country, serve as wonderful policy statements to LGBT youth and society generally. However, SOCE bans for minors fail to address the extent of the harm and fraud perpetrated by SOCE practitioners and do not adequately protect LGBT adults. Legislatures should make efforts to prohibit SOCE practices outright under their broad police powers, further protecting patients and giving increased legitimacy to the mental health profession.
J. Corbin Carter is from Edmond, Oklahoma and graduated from The University of Oklahoma with majors in political science and history. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2015. After graduation, Corbin will work for the New York City Law Department where he plans to focus on labor and employment litigation on behalf of the City.