![\"All](\"https:\/\/i0.wp.com\/www.dougsbriefcase.com\/blog\/wp-content\/uploads\/2014\/01\/credit-senate.jpg\")
<\/a>All 100 Sen\u00ada\u00adtors gath\u00adered last year for this pho\u00adto. Under Har\u00adry Rei\u00add\u2019s lead\u00ader\u00adship, they have done lit\u00adtle since. Have they become irrel\u00ade\u00advant? [Cred\u00adit: senate.gov]<\/p><\/div>Here is all you need to know about the decline of the Unit\u00aded States Con\u00adgress: a US<\/span> Sen\u00ada\u00adtor recent\u00adly asked a fed\u00ader\u00adal judge<\/a> to block the Oba\u00adma Admin\u00adis\u00adtra\u00adtion from unlaw\u00adful\u00adly sub\u00adsi\u00addiz\u00ading his own health insur\u00adance coverage.\n The law\u00adsuit illus\u00adtrates how Con\u00adgress has become a sub\u00adservient branch of the fed\u00ader\u00adal gov\u00adern\u00adment. Sub\u00adject to the whim of the Exec\u00adu\u00adtive Branch, one of its Mem\u00adbers must now appeal to the Judi\u00adcial Branch for relief. Actu\u00adal\u00adly leg\u00adis\u00adlat\u00ading seems out of the question.<\/p>\n Ron John\u00adson (R\u2011WI<\/span>) filed his law\u00adsuit in a fed\u00ader\u00adal court in Wis\u00adcon\u00adsin, far from the Sen\u00adate cham\u00adber in Wash\u00ading\u00adton. One might ask why John\u00adson, if he thought that the Admin\u00adis\u00adtra\u00adtion was act\u00ading unlaw\u00adful\u00adly, did not raise the issue on the Sen\u00adate floor, prompt\u00ading a debate and vote. The rea\u00adson: Har\u00adry Reid (D\u2011NV<\/span>) won\u2019t per\u00admit it.<\/p>\n Reid has served as Sen\u00adate Major\u00adi\u00adty Leader for more than sev\u00aden years. His reign reached its zenith begin\u00adning in July 2009, when his par\u00adty obtained its 60th<\/sup> Sen\u00adate seat<\/a>. Its decline began in Jan\u00adu\u00adary 2010 when Repub\u00adli\u00adcan Scott Brown was elect\u00aded to fill out the remain\u00adder of the late Sen\u00ada\u00adtor Edward Kennedy\u2019s term. Reid\u2019s crown\u00ading achieve\u00adment dur\u00ading that 7\u2011month peri\u00adod was the enact\u00adment of Oba\u00admacare, a poor\u00adly-draft\u00aded law whose errors and con\u00adtra\u00addic\u00adtions have required the con\u00adstant atten\u00adtion of the Admin\u00adis\u00adtra\u00adtion and the courts.<\/p>\n After Brown\u2019s elec\u00adtion reduced his major\u00adi\u00adty to a mere 59\u201341, Reid began to sour on leg\u00adis\u00adlat\u00ading and indeed on the Sen\u00adate rules them\u00adselves. Those rules dis\u00adtin\u00adguish the Sen\u00adate from most of the world\u2019s par\u00adlia\u00admen\u00adtary bod\u00adies, requir\u00ading the sorts of things that most vot\u00aders say they want \u2013 nego\u00adti\u00ada\u00adtion, com\u00adpro\u00admise, and coop\u00ader\u00ada\u00adtion between the two par\u00adties. It is dif\u00adfi\u00adcult for the major\u00adi\u00adty par\u00adty sim\u00adply to impose its will. Each Sen\u00ada\u00adtor has the right to offer amend\u00adments and to insist on con\u00adtin\u00adued debate. It takes 60 votes to cur\u00adtail those rights, which gen\u00ader\u00adal\u00adly induces the major\u00adi\u00adty par\u00adty to make con\u00adces\u00adsions in order to advance its leg\u00adisla\u00adtive agenda.<\/p>\n Reid hasn\u2019t the stom\u00adach for com\u00adpro\u00admise and has shown lit\u00adtle patience with the rules that encour\u00adage them. He recent\u00adly resort\u00aded to a dubi\u00adous method to change those rules<\/a>. That change allows nom\u00adi\u00adnees to be con\u00adfirmed by a sim\u00adple major\u00adi\u00adty vote, for\u00adbid\u00adding the minor\u00adi\u00adty to fil\u00adi\u00adbuster. Short\u00adly after the rules change, Reid employed this new pow\u00ader to con\u00adfirm a nom\u00adi\u00adnee who at the time was under inves\u00adti\u00adga\u00adtion by the Depart\u00adment of Home\u00adland Security\u2019s Inspec\u00adtor Gen\u00ader\u00adal<\/a>. It is report\u00aded\u00adly the first time in his\u00adto\u00adry that the Sen\u00adate has con\u00adfirmed a nom\u00adi\u00adnee under such a cloud. No need to wait for those inves\u00adti\u00adga\u00adtions to con\u00adclude. All that was required under the new\u00adly mint\u00aded rule was for Reid to ral\u00adly his par\u00adti\u00adsans to con\u00adfirm the nominee.<\/p>\n Reid has so far decid\u00aded not to elim\u00adi\u00adnate the right of Sen\u00ada\u00adtors to fil\u00adi\u00adbuster leg\u00adis\u00adla\u00adtion<\/a>. He also has decid\u00aded that the Sen\u00adate, for all intents and pur\u00adpos\u00ades, should large\u00adly stop legislating.<\/p>\n Take unem\u00adploy\u00adment insur\u00adance. As I wrote last week<\/a>,<\/span> Reid made extend\u00ading \u201cemer\u00adgency\u201d unem\u00adploy\u00adment ben\u00ade\u00adfits the Senate\u2019s first pri\u00ador\u00adi\u00adty in 2014. Repub\u00adli\u00adcans agreed to begin debate on the leg\u00adis\u00adla\u00adtion (a propo\u00adsi\u00adtion that required 60 votes), with the under\u00adstand\u00ading that they would be giv\u00aden the oppor\u00adtu\u00adni\u00adty to amend it and per\u00adhaps work toward a bipar\u00adti\u00adsan com\u00adpro\u00admise. They should have known bet\u00adter. Reid at first denied them the right to offer amend\u00adments, then relent\u00aded, but with a catch: under the agree\u00adment he prof\u00adfered, all of their amend\u00adments would require 60 votes to pass, while his bill could be passed by sim\u00adple majority.<\/p>\n The pro\u00adpos\u00adal was extra\u00ador\u00addi\u00adnary for its audac\u00adi\u00adty. Reid\u2019s par\u00adty con\u00adtrols 55 seats to the Repub\u00adli\u00adcans\u2019 45. He should there\u00adfore have the votes to defeat every par\u00adti\u00adsan Repub\u00adli\u00adcan amend\u00adment by a sim\u00adple major\u00adi\u00adty. The only rea\u00adson for insist\u00ading that Repub\u00adli\u00adcans get 60 votes is that their amend\u00adments had Demo\u00adc\u00adra\u00adt\u00adic sup\u00adport, mean\u00ading that they could pass with bipar\u00adti\u00adsan majori\u00adties. That put the Major\u00adi\u00adty Leader him\u00adself in the minor\u00adi\u00adty. So the Leader assumed the role of obstruc\u00adtion\u00adist-in-chief, insist\u00ading that amend\u00adments he opposed \u2014 but feared he couldn\u2019t defeat \u2014 win a super-major\u00adi\u00adty. Mean\u00adwhile, his leg\u00adis\u00adla\u00adtion could pass by sim\u00adple major\u00adi\u00adty. Repub\u00adli\u00adcans under\u00adstand\u00adably reject\u00aded his offer and the bill extend\u00ading unem\u00adploy\u00adment ben\u00ade\u00adfits fell. Reid con\u00adsid\u00aders it to his polit\u00adi\u00adcal advan\u00adtage that it left an esti\u00admat\u00aded 1.3 mil\u00adlion<\/a> peo\u00adple whose ben\u00ade\u00adfits recent\u00adly expired out in the cold. The man whose obstruc\u00adtive tac\u00adtics con\u00adtributes to their dis\u00adtress blames it on \u201cRepub\u00adli\u00adcan obstructionism.\u201d<\/p>\n Reid\u2019s unwill\u00ading\u00adness to under\u00adtake com\u00adpro\u00admis\u00ades nec\u00ades\u00adsary for the Sen\u00adate to leg\u00adis\u00adlate has dimin\u00adished the stature of Con\u00adgress and increas\u00ading\u00adly put it at the mer\u00adcy of judges and bureau\u00adcrats. Con\u00adgress\u2019s loss has been their gain.<\/p>\n One result has been that the White House feels free to dis\u00adre\u00adgard the leg\u00adisla\u00adtive text of Oba\u00admacare. They enforce the let\u00adter of the law when it suits their polit\u00adi\u00adcal inter\u00adests; they defy it when it does not. In its rush to pass the law in Decem\u00adber 2009, for exam\u00adple, the law stip\u00adu\u00adlat\u00aded that sub\u00adsi\u00addies for health insur\u00adance cov\u00ader\u00adage are only avail\u00adable to indi\u00advid\u00adu\u00adals who enroll in cov\u00ader\u00adage \u201cthrough an Exchange estab\u00adlished by the State<\/i><\/b>\u201d (26 USC<\/span> 36B<\/span>(b)(2)(A)<\/a>,<\/span> empha\u00adsis added<\/em>). The pre\u00adsump\u00adtion was that every state would estab\u00adlish an exchange. The real\u00adi\u00adty was that only 16 states did. The rest have fed\u00ader\u00adal\u00adly-estab\u00adlished exchanges, mean\u00ading that the law as writ\u00adten per\u00admits sub\u00adsi\u00addized cov\u00ader\u00adage only in 16 states.<\/p>\n That is the lan\u00adguage that Har\u00adry Reid jammed through the Sen\u00adate in Decem\u00adber 2009, dis\u00adpens\u00ading numer\u00adous polit\u00adi\u00adcal favors to secure the votes of all 60 Demo\u00adc\u00adra\u00adt\u00adic Sen\u00ada\u00adtors. That is the lan\u00adguage the House adopt\u00aded the fol\u00adlow\u00ading March and that the Pres\u00adi\u00addent signed into law. So sub\u00adsi\u00addies are avail\u00adable in the 16 states and the Dis\u00adtrict of Colum\u00adbia with exchanges \u201cestab\u00adlished by the state,\u201d but not in the 34 states whose exchanges were estab\u00adlished by HHS<\/span>, right?<\/p>\n That is the law. But the Admin\u00adis\u00adtra\u00adtion does not feel itself bound by the law, even one that the Pres\u00adi\u00addent regards as his lead\u00ading accom\u00adplish\u00adment. So it pub\u00adlished a rule pro\u00adclaim\u00ading that sub\u00adsi\u00addies would be avail\u00adable \u201cregard\u00adless of whether the Exchange is estab\u00adlished and oper\u00adat\u00aded by a State \u2026 or by HHS<\/span>\u201d (45 CFR<\/span> 155.20<\/a>).<\/p>\n In defend\u00ading the rule, the IRS<\/span> not\u00aded that while the law said<\/b> that sub\u00adsi\u00addies were only avail\u00adable through state exchanges, Con\u00adgress actu\u00adal\u00adly meant<\/b> for the sub\u00adsi\u00addies to be avail\u00adable through fed\u00ader\u00adal exchanges as well. So IRS<\/span>, in effect, rewrote the law to imple\u00adment what it thought Con\u00adgress must have meant.<\/p>\n A fed\u00ader\u00adal judge last week sided with the IRS<\/span>. Fed\u00ader\u00adal Dis\u00adtrict Court Judge Paul L. Friedman\u2019s opin\u00adion acknowl\u00adedges that the law as writ\u00adten does not per\u00admit sub\u00adsi\u00addized cov\u00ader\u00adage in the 34 states that have cho\u00adsen not to estab\u00adlish exchanges. \u201cOn its face,\u201d Fried\u00adman writes, \u201cthe plain lan\u00adguage of 26 U.S.C. \u00a7 36B<\/span>(b)-\u00a9, viewed in iso\u00adla\u00adtion, appears to sup\u00adport plain\u00adtiffs\u2019 inter\u00adpre\u00adta\u00adtion. The fed\u00ader\u00adal gov\u00adern\u00adment, after all, is not a \u2018State\u2019\u201d [p.26 of Fried\u00adman rul\u00ading<\/a>].<\/p>\n But why should the IRS<\/span>, or a judge for that mat\u00adter, feel con\u00adstrained by the \u201cplain lan\u00adguage\u201d that Con\u00adgress wrote? He declared that it is \u201cclear that Con\u00adgress intend\u00aded to make pre\u00admi\u00adum tax cred\u00adits avail\u00adable on both state-run and fed\u00ader\u00adal\u00adly-facil\u00adi\u00adtat\u00aded Exchanges\u201d (p. 37<\/a>) and sus\u00adtained the IRS<\/span> regulation.<\/p>\n Trans\u00adla\u00adtion: Con\u00adgress, bless their point\u00aded lit\u00adtle heads, intend\u00aded to make sub\u00adsi\u00addies avail\u00adable for cov\u00ader\u00adage pur\u00adchased through fed\u00ader\u00adal exchanges, even though the law they wrote for\u00adbids it. So the IRS<\/span> has the con\u00adsti\u00adtu\u00adtion\u00adal pow\u00ader to rewrite the law for them. Like indul\u00adgent par\u00adents who knew that their child meant well, the IRS<\/span> and the courts have relieved Con\u00adgress of its con\u00adsti\u00adtu\u00adtion\u00adal role as the only branch of gov\u00adern\u00adment autho\u00adrized to write leg\u00adis\u00adla\u00adtion. The judge based his rul\u00ading on a con\u00adsid\u00ader\u00ada\u00adtion of what Con\u00adgress might have writ\u00adten if it were com\u00adpe\u00adtent to write leg\u00adis\u00adla\u00adtion. When Con\u00adgress has trou\u00adble say\u00ading what it means, bureau\u00adcrats and judges will say it for them by rewrit\u00ading laws \u2014 some\u00adthing that only Con\u00adgress has con\u00adsti\u00adtu\u00adtion\u00adal war\u00adrant to do.<\/p>\n A sim\u00adi\u00adlar screw-up by Con\u00adgress occa\u00adsioned the law\u00adsuit that Sen\u00ada\u00adtor John\u00adson filed in a Wis\u00adcon\u00adsin court. Before Oba\u00admacare came along, Mem\u00adbers of Con\u00adgress and their aides par\u00adtic\u00adi\u00adpat\u00aded in the Fed\u00ader\u00adal Employ\u00adees Health Ben\u00ade\u00adfits plan (FEHB<\/span>). Under that pro\u00adgram, the gov\u00adern\u00adment pays, on aver\u00adage, 72 per\u00adcent<\/a> of the cost of their health insur\u00adance pre\u00admi\u00adums. The Oba\u00admacare statute ban\u00adished Con\u00adgres\u00adsion\u00adal employ\u00adees from the FEHB<\/span>, requir\u00ading them to obtain cov\u00ader\u00adage through the exchanges (sec\u00adtion 1312(d)(3)(D)<\/a>).<\/p>\n In the process, they inad\u00adver\u00adtent\u00adly also dis\u00adqual\u00adi\u00adfied them\u00adselves from the FEHB<\/span> employ\u00ader sub\u00adsi\u00addies<\/a>. It need not have hap\u00adpened that way. The Sen\u00adate Finance Com\u00admit\u00adtee ver\u00adsion of the bill explic\u00adit\u00adly autho\u00adrized them to keep their sub\u00adsi\u00addies (John\u00adson brief, p. 9<\/a>). But before the bill came to the Sen\u00adate floor, Har\u00adry Reid\u2019s staff rewrote it to exclude the sub\u00adsi\u00addies (p. 10). An amend\u00adment was filed to restore the sub\u00adsi\u00addies dur\u00ading the full Sen\u00adate debate in Decem\u00adber 2009 (pp. 10\u201311). But Har\u00adry Reid doesn\u2019t like amend\u00adments. He did not allow the Sen\u00adate to con\u00adsid\u00ader it. The same thing hap\u00adpened again the fol\u00adlow\u00ading March dur\u00ading final con\u00adsid\u00ader\u00ada\u00adtion of a com\u00adpan\u00adion bill: an amend\u00adment was filed to restore the sub\u00adsi\u00addies and Reid did not per\u00admit the Sen\u00adate to debate or vote on it (p. 11). The result was that the Pres\u00adi\u00addent signed into law a bill that stripped Con\u00adgres\u00adsion\u00adal employ\u00adees of their gov\u00adern\u00adment subsidies.<\/p>\n Not to wor\u00adry. The Office of Per\u00adson\u00adnel Man\u00adage\u00adment (OPM<\/span>) knows that Con\u00adgress meant to keep their sub\u00adsi\u00addies, so it wrote a rule allow\u00ading them to do so (pp. 11ff). Which prompt\u00aded Johnson\u2019s suit.<\/p>\n Whether he pre\u00advails is beside the point. The impor\u00adtant point is that a Unit\u00aded States Sen\u00ada\u00adtor is forced to argue before a judge that the exec\u00adu\u00adtive branch should apply the law as Con\u00adgress wrote it, not as Mem\u00adbers and staffers wish they had. The Con\u00adsti\u00adtu\u00adtion empow\u00aders Con\u00adgress \u2013 not the courts or the White House \u2013 to set its own salary and ben\u00ade\u00adfits, to pro\u00advide itself staff, office space, office equip\u00adment, restau\u00adrants and cafe\u00adte\u00adrias, police and main\u00adte\u00adnance crews, small trains that shut\u00adtle to and from the House and Sen\u00adate cham\u00adbers, and vir\u00adtu\u00adal\u00adly every oth\u00ader com\u00adfort and con\u00adve\u00adnience relat\u00aded to its offi\u00adcial duties. If Con\u00adgress wants sub\u00adsi\u00addized health cov\u00ader\u00adage, it can amend the law to repair its error.<\/p>\n But con\u00adsid\u00ader\u00ading a bill that did that would be embar\u00adrass\u00ading to Har\u00adry Reid and some of his col\u00adleagues. They want their ben\u00ade\u00adfits, but lack the courage to amend the law to pro\u00advide them. So instead, Con\u00adgress sits qui\u00adet\u00adly, like a stu\u00addent out\u00adside the principal\u2019s office, hop\u00ading that its bet\u00adters in the oth\u00ader branch\u00ades of gov\u00adern\u00adment fix their leg\u00adisla\u00adtive blunder.<\/p>\n Con\u00adgress once was regard\u00aded as the equal of the Pres\u00adi\u00addent and the Supreme Court. Today it seems more a colony sub\u00adject to the courts and the bureau\u00adcra\u00adcy. Its decline owes in some mea\u00adsure to Har\u00adry Reid\u2019s crusty refusal to take polit\u00adi\u00adcal\u00adly dif\u00adfi\u00adcult votes.<\/p>\n","protected":false},"excerpt":{"rendered":" Here is all you need to know about the decline of the Unit\u00aded States Con\u00adgress: a US<\/span> Sen\u00ada\u00adtor recent\u00adly asked a fed\u00ader\u00adal judge to block the Oba\u00adma Admin\u00adis\u00adtra\u00adtion from unlaw\u00adful\u00adly sub\u00adsi\u00addiz\u00ading his own health insur\u00adance cov\u00ader\u00adage. The law\u00adsuit illus\u00adtrates how \u2026 Con\u00adtin\u00adue read\u00ading