![All 100 Senators gathered last year for this photo. They have done little since. Have they become irrelevant? [Credit: senate.gov]](https://i0.wp.com/www.dougsbriefcase.com/blog/wp-content/uploads/2014/01/credit-senate.jpg)
All 100 Senators gathered last year for this photo. Under Harry Reid’s leadership, they have done little since. Have they become irrelevant? [Credit: senate.gov]
The lawsuit illustrates how Congress has become a subservient branch of the federal government. Subject to the whim of the Executive Branch, one of its Members must now appeal to the Judicial Branch for relief. Actually legislating seems out of the question.
Ron Johnson (R‑WI) filed his lawsuit in a federal court in Wisconsin, far from the Senate chamber in Washington. One might ask why Johnson, if he thought that the Administration was acting unlawfully, did not raise the issue on the Senate floor, prompting a debate and vote. The reason: Harry Reid (D‑NV) won’t permit it.
Reid has served as Senate Majority Leader for more than seven years. His reign reached its zenith beginning in July 2009, when his party obtained its 60th Senate seat. Its decline began in January 2010 when Republican Scott Brown was elected to fill out the remainder of the late Senator Edward Kennedy’s term. Reid’s crowning achievement during that 7‑month period was the enactment of Obamacare, a poorly-drafted law whose errors and contradictions have required the constant attention of the Administration and the courts.
After Brown’s election reduced his majority to a mere 59–41, Reid began to sour on legislating and indeed on the Senate rules themselves. Those rules distinguish the Senate from most of the world’s parliamentary bodies, requiring the sorts of things that most voters say they want – negotiation, compromise, and cooperation between the two parties. It is difficult for the majority party simply to impose its will. Each Senator has the right to offer amendments and to insist on continued debate. It takes 60 votes to curtail those rights, which generally induces the majority party to make concessions in order to advance its legislative agenda.
Reid hasn’t the stomach for compromise and has shown little patience with the rules that encourage them. He recently resorted to a dubious method to change those rules. That change allows nominees to be confirmed by a simple majority vote, forbidding the minority to filibuster. Shortly after the rules change, Reid employed this new power to confirm a nominee who at the time was under investigation by the Department of Homeland Security’s Inspector General. It is reportedly the first time in history that the Senate has confirmed a nominee under such a cloud. No need to wait for those investigations to conclude. All that was required under the newly minted rule was for Reid to rally his partisans to confirm the nominee.
Reid has so far decided not to eliminate the right of Senators to filibuster legislation. He also has decided that the Senate, for all intents and purposes, should largely stop legislating.
Take unemployment insurance. As I wrote last week, Reid made extending “emergency” unemployment benefits the Senate’s first priority in 2014. Republicans agreed to begin debate on the legislation (a proposition that required 60 votes), with the understanding that they would be given the opportunity to amend it and perhaps work toward a bipartisan compromise. They should have known better. Reid at first denied them the right to offer amendments, then relented, but with a catch: under the agreement he proffered, all of their amendments would require 60 votes to pass, while his bill could be passed by simple majority.
The proposal was extraordinary for its audacity. Reid’s party controls 55 seats to the Republicans’ 45. He should therefore have the votes to defeat every partisan Republican amendment by a simple majority. The only reason for insisting that Republicans get 60 votes is that their amendments had Democratic support, meaning that they could pass with bipartisan majorities. That put the Majority Leader himself in the minority. So the Leader assumed the role of obstructionist-in-chief, insisting that amendments he opposed — but feared he couldn’t defeat — win a super-majority. Meanwhile, his legislation could pass by simple majority. Republicans understandably rejected his offer and the bill extending unemployment benefits fell. Reid considers it to his political advantage that it left an estimated 1.3 million people whose benefits recently expired out in the cold. The man whose obstructive tactics contributes to their distress blames it on “Republican obstructionism.”
Reid’s unwillingness to undertake compromises necessary for the Senate to legislate has diminished the stature of Congress and increasingly put it at the mercy of judges and bureaucrats. Congress’s loss has been their gain.
One result has been that the White House feels free to disregard the legislative text of Obamacare. They enforce the letter of the law when it suits their political interests; they defy it when it does not. In its rush to pass the law in December 2009, for example, the law stipulated that subsidies for health insurance coverage are only available to individuals who enroll in coverage “through an Exchange established by the State” (26 USC 36B(b)(2)(A), emphasis added). The presumption was that every state would establish an exchange. The reality was that only 16 states did. The rest have federally-established exchanges, meaning that the law as written permits subsidized coverage only in 16 states.
That is the language that Harry Reid jammed through the Senate in December 2009, dispensing numerous political favors to secure the votes of all 60 Democratic Senators. That is the language the House adopted the following March and that the President signed into law. So subsidies are available in the 16 states and the District of Columbia with exchanges “established by the state,” but not in the 34 states whose exchanges were established by HHS, right?
That is the law. But the Administration does not feel itself bound by the law, even one that the President regards as his leading accomplishment. So it published a rule proclaiming that subsidies would be available “regardless of whether the Exchange is established and operated by a State … or by HHS” (45 CFR 155.20).
In defending the rule, the IRS noted that while the law said that subsidies were only available through state exchanges, Congress actually meant for the subsidies to be available through federal exchanges as well. So IRS, in effect, rewrote the law to implement what it thought Congress must have meant.
A federal judge last week sided with the IRS. Federal District Court Judge Paul L. Friedman’s opinion acknowledges that the law as written does not permit subsidized coverage in the 34 states that have chosen not to establish exchanges. “On its face,” Friedman writes, “the plain language of 26 U.S.C. § 36B(b)-©, viewed in isolation, appears to support plaintiffs’ interpretation. The federal government, after all, is not a ‘State’” [p.26 of Friedman ruling].
But why should the IRS, or a judge for that matter, feel constrained by the “plain language” that Congress wrote? He declared that it is “clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges” (p. 37) and sustained the IRS regulation.
Translation: Congress, bless their pointed little heads, intended to make subsidies available for coverage purchased through federal exchanges, even though the law they wrote forbids it. So the IRS has the constitutional power to rewrite the law for them. Like indulgent parents who knew that their child meant well, the IRS and the courts have relieved Congress of its constitutional role as the only branch of government authorized to write legislation. The judge based his ruling on a consideration of what Congress might have written if it were competent to write legislation. When Congress has trouble saying what it means, bureaucrats and judges will say it for them by rewriting laws — something that only Congress has constitutional warrant to do.
A similar screw-up by Congress occasioned the lawsuit that Senator Johnson filed in a Wisconsin court. Before Obamacare came along, Members of Congress and their aides participated in the Federal Employees Health Benefits plan (FEHB). Under that program, the government pays, on average, 72 percent of the cost of their health insurance premiums. The Obamacare statute banished Congressional employees from the FEHB, requiring them to obtain coverage through the exchanges (section 1312(d)(3)(D)).
In the process, they inadvertently also disqualified themselves from the FEHB employer subsidies. It need not have happened that way. The Senate Finance Committee version of the bill explicitly authorized them to keep their subsidies (Johnson brief, p. 9). But before the bill came to the Senate floor, Harry Reid’s staff rewrote it to exclude the subsidies (p. 10). An amendment was filed to restore the subsidies during the full Senate debate in December 2009 (pp. 10–11). But Harry Reid doesn’t like amendments. He did not allow the Senate to consider it. The same thing happened again the following March during final consideration of a companion bill: an amendment was filed to restore the subsidies and Reid did not permit the Senate to debate or vote on it (p. 11). The result was that the President signed into law a bill that stripped Congressional employees of their government subsidies.
Not to worry. The Office of Personnel Management (OPM) knows that Congress meant to keep their subsidies, so it wrote a rule allowing them to do so (pp. 11ff). Which prompted Johnson’s suit.
Whether he prevails is beside the point. The important point is that a United States Senator is forced to argue before a judge that the executive branch should apply the law as Congress wrote it, not as Members and staffers wish they had. The Constitution empowers Congress – not the courts or the White House – to set its own salary and benefits, to provide itself staff, office space, office equipment, restaurants and cafeterias, police and maintenance crews, small trains that shuttle to and from the House and Senate chambers, and virtually every other comfort and convenience related to its official duties. If Congress wants subsidized health coverage, it can amend the law to repair its error.
But considering a bill that did that would be embarrassing to Harry Reid and some of his colleagues. They want their benefits, but lack the courage to amend the law to provide them. So instead, Congress sits quietly, like a student outside the principal’s office, hoping that its betters in the other branches of government fix their legislative blunder.
Congress once was regarded as the equal of the President and the Supreme Court. Today it seems more a colony subject to the courts and the bureaucracy. Its decline owes in some measure to Harry Reid’s crusty refusal to take politically difficult votes.
Congress has been losing it’s relevance for many years but, to me, they finally succumbed with the so called “Super Committee”.
If Skeeter follows through with his “pen” as he’s threatened, it just might be the final nail.
Mind you, I can’t wait to hear libs howl when (if) a conservative gets the role!
Of course, I might too! 😉
Very good point. Congress was in decline before Harry Reid arrived and that is a point that I should have made more explicitly. His stubborn small-mindedness has accelerated that decline, but it didn’t initiate it.