Growing Constitutional Crisis

"A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers — and accountability — within our government," write liberal academic law professor Jonathan Turley (George Washington Law) and conservative U.S. Senator Ron Johnson (R-Wisc) in a Washington Post op-ed.

This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency. Indeed, it is enough to bring the two of us — a liberal academic and a conservative U.S. senator — together in shared concern over the future of our 225-year-old constitutional system of self­governance. [snip]

In our view, the gridlock in Washington is not simply the result of toxic divisions. The dysfunctional politics we are experiencing may in part be the result of a deeper corrosion — a dangerous instability that is growing within our Madisonian system.

That dangerous instability concerns:

1. The growing shift of authority to federal agencies — "what is essentially a fourth branch of government" — that has "dramatically reduced [Congress's] ability to actively monitor, let alone influence, agency actions."
2. The refusal of courts to review constitutional disputes because of an overly constricted view of the standing of lawmakers to sue and other procedural barriers.
3. The rising share of federal spending that is not under [Congress's] control.

Boehner Considering House Lawsuit Against Obama

Speaker of the House John A. Boehner, R-Ohio, is considering a lawsuit on behalf of the U.S. House of Representatives against President Obama, "challenging the executive actions that have become the keystone of the administration," reported RollCall last week.

Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room. [snip]

Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.

Rivkin said in an interview that in addition to proving institutional injury, the House would have to prove that as an institution, it has authorized the lawsuit. A vote by the Bipartisan Legal Advisory Group would do so.

The suit would also have to prove that no other private plaintiff has standing to challenge the particular suspension of executive action and that there are no other opportunities for meaningful political remedies by Congress, for instance by repeal of the underlying law.

“Professor Foley and I feel that if those four conditions are met, the lawsuit would have an excellent chance to succeed. This is particularly the case because President Obama’s numerous suspensions of the law are inflicting damage on the horizontal separations of powers and undermine individual liberty,” Rivkin said.

Rivkin and Foley have argued in op-eds that most of Obama’s executive orders have been benevolent — that is, they have exempted classes of citizens from the law, for instance through deferred action for childhood arrivals. Therefore, no individual has standing to sue because the actions have helped people. Congress as an institution, however, can sue because the actions flout the laws it has have passed.

They have argued that short of impeachment, there is no other check to the president’s issuance of executive actions.

In Stopping a Lawless President, George Will argues a lawsuit remedy is preferable to an impeachment proceeding:

Advocates of extreme judicial quietism to punish the supine people leave the people's representative no recourse short of the extreme and disproportionate "self help" of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.

Study: All Employment Growth Since 2000 Went to Immigrants

"Government data show that since 2000 all of the net gain in the number of working-age (16 to 65) people holding a job has gone to immigrants (legal and illegal)," report Center for Immigration Studies scholars Steven A Camarota and Karen Zeigler in a new study.

Among their findings:

• The total number of working-age (16 to 65) immigrants (legal and illegal) holding a job increased 5.7 million from the first quarter of 2000 to the first quarter of 2014, while declining 127,000 for natives. 
• In the first quarter of 2000, there were 114.8 million working-age natives holding a job; in the first quarter of 2014 it was 114.7 million. 
• Because the native-born population grew significantly, but the number working actually fell, there were 17 million more working-age natives not working in the first quarter of 2014 than in 2000.
• Immigrants have made gains across the labor market, including lower-skilled jobs such as maintenance, construction, and food service; middle-skilled jobs like office support and health care support; and higher-skilled jobs, including management, computers, and health care practitioners.
• The supply of potential workers is enormous: 8.7 million native college graduates are not working, as are 17 million with some college, and 25.3 million with no more than a high school education.

The authors drew these conclusions with regard to the Senate's 'Gang of Eight' bills and current immigration debate:

With 58 million working-age natives not working, the Schumer-Rubio bill (S.744) and similar House measures that would substantially increase the number of foreign workers allowed in the country seem out of touch with the realities of the U.S. labor market.

Three conclusions can be drawn from this analysis:

First, the long-term decline in the employment for natives across age and education levels is a clear indication that there is no general labor shortage, which is a primary justification for the large increases in immigration (skilled and unskilled) in the Schumer-Rubio bill and similar House proposals.

Second, the decline in work among the native-born over the last 14 years of high immigration is consistent with research showing that immigration reduces employment for natives.

Third, the trends since 2000 challenge the argument that immigration on balance increases job opportunities for natives. Over 17 million immigrants arrived in the country in the last 14 years, yet native employment has deteriorated significantly.

Payne: Millennials New 'Sins'

"If you speak to the average 20-something or Millennial about the concept of sin," writes Daniel Payne @ thefederalist.com, "you may be treated to a kind of quasi-Unitarian dismissal of the concept, a sort of uncomfortable rejection of the notion of ecclesiastical proscription in any sense: 'I’m very spiritual,' you’ll hear a lot, 'but not religious'."

Yet the Millennials, having sloughed off the religious notions of their parents and grandparents—at least one-third of Generation Yers are more or less without religion—have taken it upon themselves to adopt a new set of mandates and dictates to guide their lives.

Call them the “new sins,” a number of commandments by which one might stay on the narrow way. The old interdictions now cast aside, a new series of injunctions must be obeyed: and like most religions and denominations, adherence to these commandments is held sacrosanct, any deviation from them fairly blasphemous.

Read The New Sins of 'Nonjudgmental' Millennials for Payne's take on Millennials'

• climate change dogma;
• the church of gay sex; and
• the priestly class of Washington DC.

Professors Silent on Obamacare

In an impromptu focus group we recently did with college students, one student said:  

In the beginning a lot of people on campus were talking about it [the Affordable Care Act]. Then it became a joke, and it just seemed to die away. It’s not a hot topic anymore.

A recent IBD editorial, Professors Suddenly Don't Like Obamacare Either, may explain why the campus has gone silent about Obamacare:

After years of singing the praises of universal health care, college professors are now shocked at how badly it has turned out — for them.

Adjunct professors are steamed at the way their employers are interpreting the Affordable Care Act's employer mandate, which forces them to cover full-time but not part-time workers. Typical of liberals, they blame their employers instead of the job-killing law they supported.

Starting Jan. 1, ObamaCare makes employers offer all full-time workers health insurance or pay a fine. In response, hundreds of colleges have simply cut instructors' course loads to dodge coverage. Others are thinking about laying off untenured faculty by the thousands.  [snip]

The American Association of University Professors says it's "dismayed" by the ObamaCare-tied cutbacks, calling them "reprehensible." A Stark State College adjunct professor facing cuts at his Ohio institution whines that it should cover part-time workers, too. "It goes against the spirit of the law," says the English prof.

Complained another adjunct: "The university canceled one of my courses. The reason was to avoid having to give me any benefits due to the Affordable Care Act."

Welcome to the real world.

Microsoft: Future Bleak with Unlawful Data Collection

"Microsoft's top lawyer continued his months-long public campaign to pressure the United States government to reform the secret data collection practices revealed in documents leaked by former NSA contractor Edward Snowden in 2013," reports CNET.

Speaking Tuesday morning at the Brookings Institution in Washington, DC, the company's general counsel, Brad Smith, called on Congress and the White House to stop what he described as "the unfettered collection of bulk data" by the government and argued for the reform of the secret FISA court.

"I want law enforcement to do its job in an effective way pursuant to the rule of law," he said. "If we can't get to that world, then law enforcement is going to have a bleak future anyway." ...

"By the end of this decade there will be 50 billon devices connected to the Internet of Things around the world," Smith said. "This issue is going to become more important, not less."

In his Brookings appearance, Smith said the technology industry was "fundamentally united" in opposition to the government policies that Snowden's disclosures revealed about the extent of the National Security Agency's cyberspying operations. Beyond the obvious questions about privacy and civil liberties, he also suggested there was a business urgency to fixing the problem sooner rather than later.

"We are in a business that relies on people's trust," he said. "We're offering a world where you should feel comfortable about storing (your information) in the cloud...You need to have confidence that this information is still yours."

Where might all this be heading? One idea Smith broached was a dashboard where people can see what data exists about them, how it's getting used, as well as "some way for people technologically to have control." It's unclear whether Microsoft is already working on such a product...

Even Bigger ObamaCare Lawsuit in the Pipeline

"The D.C. Circuit is due to rule any day now, quite possibly today, on Halbig v. Sebelius," writes Michael Cannon, adding that "Newsweek calls Halbig 'the case that could topple Obamacare'."

For a little background. The Patient Protection and Affordable Care Act offers refundable “premium-assistance tax credits” to qualified taxpayers who purchase health insurance “through an Exchange established by the State.” The PPACA contains no language authorizing tax credits through the 34 Exchanges established by the federal government in states that declined to establish one themselves, nor does it authorize the Internal Revenue Service to treat those federally established Exchanges as if they had been “established by the State.” Offering benefits only in compliant states was proposed by numerous Republicans and Democrats in 2009, for obvious reasons: Congress cannot force states to implement federal programs, but it can create incentives for states to act, such as by offering health-insurance subsidies to residents of compliant states.

Halbig is one of four cases challenging the IRS’s decision to rewrite the statute and offer tax credits in the 34 states with federal Exchanges. The plaintiffs are individuals and employers who are injured by the IRS’s overreach because, due to the PPACA’s many inter-locking pieces, issuing those illegal tax credits subjects them to illegal penalties.

Cannon adds links to "some materials for those who want to hit the ground running" when the ruling comes down.