Tracking the latest developments in the fight for a fair America
By Emily Rooke-Ley
AFJ Outreach Intern
Just over two weeks ago on the morning on Jan. 15, the House Judiciary Committee held a hearing and mark-up on the latest piece of legislation that aims to deny women access to abortion. Just before the hearing, legislators concerned with women’s access to comprehensive health care held a press conference outside of the committee room. Rep. Louise Slaughter, D-N.Y., co-chair of the House Pro-Choice Caucus said: “Women are sick and tired of these constant attacks on our constitutionally-protected right to choose, while priorities like equal pay, fair wages and paid family leave go unaddressed.”
The so-called “No Taxpayer Funding for Abortion Act,” (HR 7) sponsored by Rep. Chris Smith, R-N.J., would eliminate all federal funding for abortion services. The Hyde Amendment, first enacted in 1977 and reenacted as a rider every year, has already done just that by prohibiting federal Medicaid funding for abortion. Rep. John Conyers, D-Mich., insisted during Wednesday’s hearing that the bill be called what it really is: a government intrusion that will effectively eliminate health insurance plans that provide abortion coverage.
According to Planned Parenthood Federation of America, HR 7 will ban abortion coverage in private insurance plans (37 million women of reproductive age are covered by private plans), raise taxes on families choosing private insurance plans that include abortion coverage, and raise taxes on small businesses if they offer their employees insurance plans that include abortion coverage. It will do so with only the limited exceptions for some cases of rape, incest, and life of the mother.
The earliest version of what is now HR 7 allowed exceptions only for “forcible” rape. Another version required the IRS to audit rape victims who claimed a medical expense deduction for abortion to ensure that she was not committing fraud. Although the final version of the bill dropped such language, its provisions on abortion have not been changed and the bill would, in fact, go further than Hyde ever did.
Congresswomen and pro-choice activists crowded the hallway holding signs reading “Where are the women?” This refers to the absence of women in the drafting, debate, and mark-up of the bill. HR7 was drafted by Congressman Chris Smith, R-N.J., the initial House subcommittee was comprised of 12 men, and the full committee includes 35 men and only five women.
Many of those attending the press conference and bill mark-up represented organizations in partnership with the All Above All pro-choice coalition, which includes Alliance for Justice. The coalition strongly opposes this legislation, which severely limits access to women’s constitutionally-protected right to safe and legal abortion. The full video of the hearing and mark-up is available here.
Fewer than two weeks after the committee hearing and on the eve of President Obama’s State of the Union address, the House voted to pass HR 7. Despite some changes in language—such as the removal of the “rape audit” portion—the bill would still be detrimental to women and families if signed into law. Fortunately, it has little chance of passing in the Senate, and President Obama has already said he plans to veto the bill if necessary.
The Pro-Choice Caucus convened Wednesday morning for a press conference with House Minority Leader Nancy Pelosi, expressing their members’ disappointment in the House passage of HR 7. As we reflect on the 41 years that have passed since Roe v. Wade, we must recognize that it is more important now than ever before to be vigilant, to speak out, and to stand up against the relentless attacks on women’s reproductive rights.
By Mark Schneider, General Counsel for the International Association of Machinists and Aerospace Workers
•For more analysis of this case – and excerpts from the oral arguments, check out our AFJ Audio Analysis page for this case.
Earlier this week, the U.S. Supreme Court heard argument in Harris v. Quinn, a challenge to an Illinois law permitting public employee home health care workers to be represented for purposes of collective bargaining by a single union, which has the right to collect compulsory fees from all of the workers it is required to represent. In the state’s view, this unionized home health care system is a more cost-effective alternative than institutionalized care, and by allowing a union to represent the home-based workers based on a majority-rule vote, the state gains by developing a more stable, well-trained, and engaged workforce. The workers, too, have gained much through this system, notably a substantial increase in wages. And, the union got to grow its membership, and prove that it could be a responsible partner in improving the lives of the workers it represents and their communities.
Burkean conservatives ought to take comfort in government cooperating with a private association of workers to further the public interest. The government often works best when it works with groups and associations to advance the public interest. Rather than police and assess attorney misconduct through a bureaucracy in Washington, for example, it has proven beneficial to work with the various state and local bar associations and let attorneys govern themselves. For a half century, we have allowed private groups like agricultural cooperatives, lawyer bar associations, and unions to participate in government regulatory programs where the association requires its members to join and pay their fair share of the cost of the program, and the association must represent all in the group fairly.
Libertarian conservatives, however, aren’t particularly comfortable with the idea of even the government assessing compulsory taxes. They sure as hell don’t approve of private associations doing something similar. And, when that association is a trade union… Read more
By William Yeomans,
Fellow in Law and Government at American University
Washington College of Law
Most observers came away from the argument in NLRB v. Noel Canning last week convinced that presidential power would suffer a blow in President Obama’s battle with Senate Republicans over recess appointments. They are almost certainly correct. But the case suggests three broader points. First, Republican obstruction in the Senate knows no limits. By resisting even the least controversial nominees and using obstruction of nominees with the intent to interfere with the basic functioning of government, Republicans forced the President to act. Second, the specific confrontation that led to the case could have been—and should have been—avoided by stronger leadership from the Senate majority and the White House. And, finally, the country is increasingly handicapped by a slavish reverence for the ambiguous words of the Founding Fathers. As a result, the Supreme Court is poised to wade into the middle of a political dispute between the political branches and to reject 200 years of history—during which a functional and practical understanding of the recess appointment power prevailed.
The case arose from the recess appointments of three members of the National Labor Relations Board (NLRB) on January 6, 2012. The appointments were the culmination of a long stalemate over NLRB appointments that threatened to leave the NLRB without a three-member quorum to conduct business. The disabling of the NLRB had long been a dream of Republicans, who couldn’t abide the forum that allowed enforcement of the rights of workers, but could never muster the votes to shut it down. To thwart the President’s ability to make recess appointments, the Republican House refused to assent to the adjournment of the Senate in December 2011. Because the Constitution does not allow adjournments longer than three days without the assent of the other House, the Senate was forced to hold pro forma sessions every three days through the recess. Before doing so, it adopted a resolution stating that it would conduct no business. The President was fully justified in concluding that the Senate was unavailable to process nominations and, therefore, for all relevant purposes, was in recess.
President Obama made the appointments to keep the NLRB functioning. Notably, President Obama has made far fewer recess appointments than his predecessors. President Clinton made 139 and President George W. Bush made 171, but by January 2012 Obama had made only 32.
Recess-appointed NLRB members subsequently voted against Noel Canning, which sought to deny a pay raise in a contract negotiated with its employees. Noel Canning appealed to the D.C. Circuit, where three conservative Republican appointees ruled in its favor, issuing a stunning decision rejecting longstanding historical practice and the consistent interpretation of the recess appointment clause of the Constitution. The court held that the clause permits the president to fill vacancies only during the recess between sessions of Congress and not during the frequent intra-session recesses. It also held that he could fill only vacancies that arose during the recess. Both interpretations flew in the face of longstanding interpretation of the clause by presidents dating back to the 19th century, as well as modern opinions of the Department of Justice’s Office of Legal Counsel.
The language of the recess appointments clause was first called ambiguous by Thomas Jefferson. It states: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate . . . .” The text could be read as the D.C. Circuit read it or it could be read to mean that the President has power during the recess of the Senate (whenever the Senate is in recess) to fill up all vacancies that may happen (regardless of when they happen). The latter reading has formed the basis for hundreds of recess appointments over the past 200 years.
It is true that the original purpose of the constitutional provision was to allow the President to keep the government staffed during the long recesses common when legislators traveled by live horsepower. They generally convened, stayed in session until their business was done and left. There were no intra-session recesses and it was difficult to reconvene. By contrast, today Congress stays in session nearly year round, but leaves for frequent recesses and can return from any part of the country within hours. The President no longer needs to wait long periods before Congress is able to consider his nominees. On the other hand, in a country of over 300 million people that depends heavily on a functioning federal government, it is more important than ever for the government to be staffed.
As polarization and Senate obstruction have increased, the recess appointment power has morphed from a tool to overcome long distances and Senate absence into a tool for Presidents to overcome partisan obstruction. It has become a practical remedy for dysfunction. The jostling between the President and the Senate over the limits of the power presents a classic political dispute that the political branches are fully capable of working out without textual reinterpretation through court intervention.
Unfortunately, the Court cannot duck the issue now because scores of NLRB decisions may be at stake. The case could have been avoided, however, if Senate Democrats had moved sooner to institute rules reform that would have prevented Republicans from filibustering the NLRB appointments. Both Senate Majority Leader Harry Reid and the President were far too slow in recognizing the full depth and harm of Republican obstruction. Because the 60-vote threshold finally has been eliminated for executive branch nominees, the outcome of this case has little immediate consequence. So long as Democrats control the Senate and the majority rules, the President will have little need to make recess appointments.
The recess appointment power was created as a practical remedy to keep the federal government functioning when the Senate couldn’t act. That remains its function today, even though the reason the Senate can’t act has changed. The Court should reject the formalism of the D.C. Circuit and honor the President’s appointments. To do otherwise will exhibit a harmful reverence for the actions of men who over 200 years ago wrote an ambiguous provision addressing a world that no longer exists.
In his speech today, President Obama addressed one of the key problems with the Foreign Intelligence Surveillance Court (“FISA Court”) highlighted in AFJ’s report Justice in the Surveillance State: The lack of a true adversarial process. But it’s not clear what he intends to do about it.
As we noted in the report, as things stand now, the judges hear only the government’s side of the story. This may help explain why, between 2002 and 2012, the court approved more than 99.93 percent of government requests. (Before 2002, it approved 100 percent.)
The President’s surveillance “Review Group” recommended creating a public advocate who would challenge government requests to the FISA Court. The advocate also could appeal adverse decisions. Right now, since only the government appears before the FISA Court, only the government can appeal if it loses. Because the government almost never loses, the court designated to hear appeals has not met in four years.
The FISA Court Reform Act has been introduced in Congress to create such an advocate.
The President addressed the issue, saying:
I am calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.
But what does that mean? Does this mean there will be a lawyer vigorously challenging the government in every case? Or is it more like an advisory board that will speak on the general issues raised by “significant cases?” We don’t know.
What we do know is that the FISA Court Reform Act would end the ambiguity and deal effectively with this problem.
The president did not address at all another key concern: Currently all judges on the FISA Court are appointed by the Chief Justice of the United States without the advice and consent of Congress. As we noted in our report, judges are chosen from among those currently serving on the federal bench. Chief Justice John Roberts has used this power to name almost exclusively judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.
The need for a diverse FISA Court is even more pressing now that it will have more to do. President Obama plans to require intelligence agencies to get approval from the FISA Court before they can examine the vast amounts of telephone data collected by the National Security Agency – except in what he calls “a true emergency.” As we noted in a previous post to this blog, another piece of legislation, the FISA Judge Selection Reform Act, would increase the number of FISA Court judges from 11 to 13, and spread the authority to select judges among the chief judges for our federal courts of appeals.
The President acknowledged the concerns of AFJ and others, saying:
There are … those who would like to see different changes to the FISA court than the ones I have proposed. … I am open to working with Congress to ensure that we build a broad consensus for how to move forward, and am confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American.
We look forward to continuing dialogue on these issues.
By Michelle D. Schwartz, Director of Justice Programs
After a Supreme Court majority issued an opinion striking at the heart of the Voting Rights Act last summer, we called on Congress to act, notwithstanding the many people (perhaps including Chief Justice John Roberts, who authored that opinion) who doubted whether they would—or even could.
Today, a group of members of Congress took a critical first step toward silencing the doubters. Rep. Jim Sensenbrenner, R-Wis., Rep. John Conyers, D-Mich, and Sen. Patrick Leahy, D-Vt.,led the introduction of legislation to restore the Voting Rights Act. As has been the case with every other Voting Rights Act,, this is a bipartisan effort, with additional House cosponsors including Rep. John Lewis, D-Ga.,, Rep. Steve Chabot, R-Ohio, Rep. Spencer Bachus, R-Ala., Rep. Bobby Scott, D-Va. and Rep. Sheila Jackson Lee, D-Texas We applaud them all for coming together to protect our fundamental rights.
Introduction of this bill signals a recognition by people who don’t typically get along—senators and house members, Democrats and Republicans—that our democracy remains imperfect, that people are still denied the right to vote based on the color of their skin, and that voting is special because every single other right depends upon the right to vote. As AFJ President Nan Aron said following the Supreme Court’s decision in Shelby County v. Holder: “Attempts to suppress the vote were common during the 2012 presidential election, and they continue to this day.”
The Voting Rights Amendment Act of 2014 is not perfect. For example, the bill needs to do more to protect minority voters from the most common and widespread recent attempt to deny them the right to vote: restrictive, unnecessary voter ID laws. We
look forward to working with the cosponsors to strengthen the bill.