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2 Millionaire Senators Introduce Plan to Ensure Congress is Only for the Rich

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Let’s start this column off with a bold assertion. Paying lawmakers good salaries is one of our country’s most important progressive reforms because it means that they don’t have to be wealthy to serve. High congressional pay is a safeguard against corruption, not a sign of it.

Bear this assertion in mind as you consider this proposal.

Scott’s net worth was $232.6 million at the end of 2017 — not bad for a man who led a company that paid $1.7 billion in fines for widespread Medicare and Medicaid fraud. His co-sponsor, Sen. Mike Braun (R-IN), is worth between $35 million and $96 million, according to his campaign disclosure forms. So Scott and Braun can afford to forego their pensions — or their entire salary, if they choose.

Yet, if elected officials do not receive what Scott dismisses as “generous salaries and pensions,” that will discourage people who do not have Scott or Braun’s vast wealth from running for office. As future President John Adams once warned, if “you make it law that no man should hold an office who had not a private income sufficient for the subsistence and prospects of himself and family,” then “all offices would be monopolized by the rich, the poor and the middling ranks would be excluded, and an aristocratic despotism would immediately follow.”

The question of whether to pay lawmakers was hotly contested by the framers — as historian Gordon Wood writes, the ultimate decision to do so “was radical for the age.” Many prominent early Americans subscribed to what Wood labels the “classical republican” view, which saw public service as a burden that should be carried without remuneration.

“In a virtuous government,” Thomas Jefferson claimed, “public offices are, what they should be, burthens to those appointed to them, which it would be wrong to decline, though foreseen to bring with them intense labor, and great private loss.”

Jefferson, of course, was a wealthy slave owner.

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Pence issues a thinly veiled shutdown threat to Democrats

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

President Donald Trump did not mention the 35-day shutdown that he began last December in his State of the Union Address on Tuesday, preferring instead to wax poetic about unity and cooperation. The next morning, however, Vice President Mike Pence suggested Trump would welcome another shutdown unless Democrats give in to the White House’s demands.

In an appearance on CBS News Wednesday morning, Pence repeated White House talking points about criminal gangs and “narcotics” that are allegedly streaming across the border. In reality, undocumented immigrants are less than half as likely to commit a crime in the United States as native-born Americans. And, while illegal drugs do sometimes cross America’s southern border, Trump’s proposed solution — a border wall — would not address this problem.

As ThinkProgress previously reported, “cocaine seizures on U.S. borders . . . regularly measure in tons, making it impractical to have individual migrants ferry it across.” For this reason, “dealers prefer to smuggle drugs into the country via legal ports of entry, which allow them to bring in high-value substances that are more easily hidden.”

Nevertheless, Pence used his appearance on CBS to issue a thinly veiled threat to Democrats — give Trump what he wants, or federal workers and their families will pay the price.

Trump “has laid out a plan,” Pence said, which includes “a steel barrier,” “additional detection technology,” and more border guards. “All of that is exactly what the American people want us to do,” Pence falsely claimed, before delivering his threat.

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This is how to end government shutdowns forever

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Speaker Nancy Pelosi told reporters on Friday that she supports permanent legislation to ensure that government shutdowns never happen again. Broadly speaking, Pelosi wants legislation providing that “any appropriations bill that does not get agreed upon within a timely fashion by the date, you automatically go into a CR” — a “continuing resolution” that maintains current spending levels.

Basically, Pelosi would replace the current default rule — that government funding is zeroed out in the absence of a law appropriating money — with a new rule that government funding remains constant until it is explicitly changed by Congress. Done right, this proposal could eliminate the shutdown as a tactic rogue elected officials can use to extort concessions from the opposing party. Done poorly, however, such legislation could make matters worse.

There is, however, a clear way to ensure that shutdowns never happen again. Current law allows the Republican Party to take federal workers hostage whenever they want to enact policy that Democrats oppose. A new law could change this power dynamic, effectively forcing Republicans to choose between funding the government and imposing higher taxes on their wealthiest donors.

The problem of inflation

There’s a fairly simple reason why legislation that simply continues existing funding levels during a budget dispute is a bad idea.

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Neil Gorsuch pens a devastating takedown of his own most important opinion

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Supreme Court sided with a worker over a corporation in a case involving the Federal Arbitration Act on Tuesday. For those unfamiliar with the Court’s arbitration decisions, that happens about as often as a unicorn wins the Powerball lottery while simultaneously being struck by lightning.

And, as further evidence that Beelzebub awoke this morning to discover thick layer of snow on his lawn, the Supreme Court’s decision in New Prime v. Oliveira was written by Neil Gorsuch — the author of a decision holding that the Arbitration Act permits employers to engage in small-scale wage theft with impunity.

As Slate’s Mark Joseph Stern writesNew Prime “marks the triumph of the Gorsuch brief—a highly technical argument designed to nab the justice’s vote by fixating on the text of a statute and its meaning at the time of passage.” But it is also a hollow triumph. New Prime is an important case because it is one of a few rare examples where this Supreme Court read the Arbitration Act consistently with its explicit text, but it also dealt with a fairly minor issue that carves out a narrow exception to the Court’s decisions enabling wage theft.

In Epic Systems v. Lewisa much more significant wage theft decision that Gorsuch penned last year, Gorsuch blithely ignored the text of the Arbitration Act — while simultaneously holding that his atextual reading of the Arbitration Act trumps the explicit language of a law enacted to protect workers’ collective action.

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The completely sensible way that other nations ensure that their government doesn’t shut down

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The United States is a bizarre nation. Our government is shut down today because our entire system of government is poorly designed. And it is poorly designed in a way that many of our peer nations had the good sense not to emulate.

Our Constitution contains no safeguard — or, at least, no meaningful safeguard — against a rogue president who refuses to fund his own government in order to extort Congress into passing an unpopular policy into law. Sure, the Constitution allows supermajorities of both houses to override Donald Trump’s veto — as well as permitting a supermajority of the Senate to remove Trump from office altogether — but neither one of these things are happening.

In one of the worst predictions in our nation’s history, James Madison wrote that our “well constructed Union” would have a “tendency to break and control the violence of faction.” The framers were adamantly opposed to political parties — John Adams wrote that “there is nothing I dread So much, as a Division of the Republick into two great Parties.” They were of the belief that the system of government they’d built would thwart their rise. And they were hilariously, disastrously wrong.

And so the mechanisms the Founding Fathers devised to control a rogue president depend upon many members of that president’s own party turning against him. That’s a rare occurrence in any nation. And it ain’t happening in the United States in 2019.

The reason the government is shut down right now is because our system of government does nothing to incentivize Trump’s fellow Republicans to reopen it. And that’s fairly unusual among modern democracies.

Snap elections

As of this writing, Trump’s shutdown is the third-longest in the nation’s history. It’s likely to last much longer. Trump says he could keep it going for “months or even years.”

Compare that outcome to what happened in Canada when its government was unable to pass a budget in 2011.

In 2011, then-Prime Minister Stephen Harper’s Conservative Party controlled a plurality of Canada’s parliamentary seats but not a majority. Without such a majority, Harper’s proposed budget didn’t have enough votes to get through the legislature.

Canada did not shut down because of this impasse, however. In Canada, if parliament defeats a budget bill, that triggers an entirely new election (technically, the 2011 Canadian election was triggered by a no confidence vote, but a new election was widely viewed as inevitable). As it happened, Canadian Conservatives were well-positioned when this election happened, so they won an outright majority. That meant that they passed a budget and the nation moved on.

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Supreme Court considers whether drug companies can poison patients and get away with it

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Almost two decades ago, a professional guitarist named Diana Levine received an injection of a drug called Phenergan. It was supposed to relieve nausea from a migraine. Instead, it triggered irreversible gangrene.

Levine lost her right forearm and her livelihood. With just one hand, she could no longer play the guitar.

Levine’s lawsuit against the drug’s manufacture, Wyeth v. Levine, triggered a minor panic in the consumer rights community when it reached the Supreme Court a decade ago. The business-friendly Roberts Court seemed likely to absolve Wyeth of liability and leave Levine with nothing.

Instead, the Court broke 6-3 in Levine’s favor, with Justices Anthony Kennedy and Clarence Thomas crossing over to vote with the Court’s liberal bloc.

Ten years later, a similar case involving closely related legal questions is before the Supreme Court in Merck Sharp & Dohme Corp. v. Albrecht, which will be argued on Monday. But the Court itself looks very different. Justices John Paul Stevens, David Souter, and most significantly Kennedy, are all retired — and all of them were in the majority in Levine. Kennedy’s replacement is a hardline conservative likely to join the dissenters from Levine.

That means that the fate of thousands of Americans who face injuries similar to Levine is in jeopardy. And the question of whether the drug companies that injured this individuals will ever be held accountable could rest a man who is ordinarily the Court’s most conservative voice — Justice Thomas.

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Alito cut the legs out of the latest attack on Obamacare — and didn’t even know he did it

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Remember Burwell v. Hobby LobbyHobby Lobby is the single most significant court victory ever achieved by America’s religious right. Before Hobby Lobby, religious conservatives could not wield their faith to undercut the rights of other people. After Hobby Lobby conservative religious objections may be used to narrow the rights of third-parties.

Yet a passage in Justice Samuel Alito’s opinion for the Court in Hobby Lobby could — or at least, should — take on an entirely unexpected significance after Reed O’Connor, a partisan operative turned federal judge, struck down the entire Affordable Care Act on Friday in a case called Texas v. United States.

Judge O’Connor’s opinion is a jurisprudential trainwreck. It misreads the text of the law, draws distinctions that the Supreme Court explicitly rejected, and it feigns ignorance regarding the outcome of a year-long debate where congressional Republicans tried and failed to repeal Obamacare. O’Connor’s opinion is such an embarrassment to the judiciary that even Jonathan Adler, one of the architects of the last partisan lawsuit seeking to undermine Obamacare, called the opinion “strained and implausible.”

But you don’t have to take my or Adler’s word for it. You can also take Justice Alito’s.

O’Connor’s opinion, to the extent that it engages in anything that can be described as legal reasoning, rests largely on statements of fact that Congress wrote into the Affordable Care Act’s text when it enacted the law in 2010. Yet Hobby Lobbyrejected O’Connor’s use of such fact-finding statements. Indeed, the methodology O’Connor used in his opinion is so inconsistent with the methodology Alito used in Hobby Lobby that the two opinions cannot coexist.

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The key to saving us from Gorsuch and Kavanaugh lies in an obscure law signed by George H.W. Bush

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

If Democrats regain Congress and the White House, they will spend their time in power at war with an increasingly partisan Supreme Court. They can also learn a lot about how to fight such a Court from a law signed by Republican President George H.W. Bush.

As a U.S. Senate candidate in 1964, Bush took a deplorable position on civil rights, labeling the Civil Rights Act of 1964 — which banned employment discrimination and whites-only lunch counters, among other things — a “radical” piece of legislation that was “passed to protect 14 percent of the people.”

Bush soon abandoned these views. As a new congressman, Bush supported a ban on housing discrimination. And as president, Bush signed two significant civil rights laws — the Americans with Disabilities Act and the Civil Rights Act of 1991. While the first is better known, the second could offer a path forward to Democrats reeling from a stolen Supreme Court seat and the appointment of a man credibly accused of attempted rape to the same Court.

The Civil Rights Act of 1991 offered a swift corrective to the Supreme Court. In 1989, the Court handed down five decisions that “substantially eroded” the federal ban on employment discrimination. One of the major purposes of the law Bush signed was to override these decisions and replace them with rules more protective of civil rights (at the time, some members of the employer defense bar complained that the law reached “beyond a simple ‘restoration’ of prior laws” to enact a regime that was more protective of civil rights than the one that existed before 1989).

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George H.W. Bush’s single worst decision is also his most lasting legacy

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

A quarter century ago, America was approaching a consensus regarding how our Constitution should be read.

To be sure, contentious issues such as affirmative action and abortion remained, but these issues were relatively marginal compared to the nation-defining questions that dominated much of the twentieth century. No one outside of a small lunatic fringe still argued, in 1991, that the federal ban on whites-only lunch counters is unconstitutional. There was no serious risk that the Supreme Court would dismantle the Voting Rights Act. Or that the Court would strike down basic labor protections such as the minimum wage.

All of that changed after the late President George H.W. Bush placed Justice Clarence Thomas on the Supreme Court.

Justice Thomas may be the most underestimated person in American law. As I wrote last June, “no justice did more to shape a political movement’s sense of what it can achieve through litigation.” Thomas is quiet on the bench and has minimal influence on his colleagues, but he’s had a tremendous influence on the conservative legal movement.

His plans to dismantle the federal administrative state now dominate both the Federalist Society and the Trump administration. His opinions suggesting that much of the New Deal and the Great Society are unconstitutional taught a generation of conservative law students to dream of a world where every law they disagree with is struck down by the Supreme Court. At least six of Trump’s federal appellate nominees are former Thomas clerks.

As I wrote in June, “Thomas lost the war for the present, but he is the future of legal conservatism. And he may soon be America’s future.”

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Republican congressman sues to stop vote count, cites made-up provision of the Constitution

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Rep. Bruce Poliquin (R-ME), who is currently in a tight reelection fight against Democrat Jared Golden, filed a federal lawsuit Tuesday that would effectively toss out over twenty thousand ballots if he prevails.

There’s just one problem. His primary legal argument rests on a provision of the Constitution that does not actually exist.

In 2016, Maine’s voters approved a ballot initiative that institutes ranked choice voting in that state. Under this system, voters are asked to rank the candidates for a particular office in order, from their most preferred candidate to their least preferred candidate. If no one candidate wins a majority, ballots cast for the least popular candidate are then redistributed to second-choice candidates. And this redistribution continues until someone emerges with a majority.

According to Poliquin’s lawsuit, which is captioned Baber v. Dunlap, the incumbent Republican currently leads with 46.3 percent of the vote. Thus, under the system most states use to determine who wins elections, Poliquin would have won. Under ranked choice voting, however, votes cast for third-party candidates Tiffany Bond and William Hoar must be redistributed. It is possible that once that redistribution happens, Golden will emerge as the winner.

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Union Matters

The Call for a General Strike

Richard Cucarese

Richard Cucarese Rapid Response Coordinator, USW Local 4889

It’s been only a few weeks since Labor pushed back against the longest, most punishing government shutdown in recent history, but sadly, over the jubilant cheers of victory, the ominous drumbeats of Congress warring in the trenches could be heard again, leaving 800,00 AFGE members pondering if they’ll be furloughed once more.

President Trump’s decided that the ‘Wall to Nowhere’ will be the hill to die on in this inane battle of attrition, government workers livelihoods be damned.  Keeping this in mind, the ominous question should be how much longer will it be before Trump and the entitled imperialists of D.C. realpolitik turn their sights towards millions of American workers, over 40% of whom, according to CBS News data, are one missed paycheck away from poverty?

As we suffer under the grim reality of decades long wage stagnation, no calls for a realistic minimum wage increase to keep the One Percent’s vulture bankers from our doors, nor a social program of Medicare For All, easing the burden of burgeoning medical costs overrunning the populous meager discretionary incomes, the powers that be seem more than willing to shutter government again, leaving scores unemployed, airport safety and security in perilous shape and costing the taxpayers $3 billion to do so.

And while Congress apparently shows no guilt spending an inconceivable $1.45 trillion dollars for 2018/19, to voluntarily spill blood in every conceivable corner of the globe promoting crony capitalism, strong armed acquisition of natural resources and the continuation of imperialistic follies, the long suffering American worker is left sifting through the rubble, limping through countless miles of crumbling infrastructure, closed factories, failing schools, bankrupting college loan payments, mass shootings and scores of broken dreams, leading to shortened life expectancy, drug overdoses and suicides.

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Let's Talk About Wealth

Let's Talk About Wealth