From Politico: I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There. How money is ruining America’s courts.

For our upcoming look at state judiciaries and the issues associated with electing judges.

- Click here for the article.

I felt trapped. I had made it to the top of my profession. I was the chief justice of Alabama, the first woman to head the state Supreme Court. It was, for a lawyer like myself, the pinnacle of achievement. And I’d earned it the hard way. To get to the justice’s chambers, I had won the nation’s most expensive judicial race that year. But at what cost?

I had needed $2.6 million to win—and that money had to come from somewhere. My opponent had raised even more, nearly $5 million in all. It’s terribly awkward and uncomfortable for a judge to have to ask for campaign money. But how are you going to win without it? My biggest concern is how shameful all of this looks to the public.
Two days after my election in 2006, I was with my daughter, Caitlin, on a school field trip when my cellphone rang. A reporter from a national legal publication was calling. Would she ask, I thought, about my election as Alabama’s first female chief justice? Or my plans for reform after holding court in some 40 of Alabama’s 67 counties over 25 years?

“Judge Cobb,” she asked, “how does it feel to be the victor of the most expensive judicial race in the United States this year? And how can you assure the people of Alabama that the contributions you sought are not going to impact how you rule? And how can you convince the people of Alabama not to believe that their courts are for sale?”

I was mortified. And while I was proud of the work I did for the next 4 1/2 years, I never quite got over the feeling of being trapped inside a system whose very structure left me feeling disgusted.

From the Atlantic: Rick Perry, American Caudillo The former Texas governor turned a constitutionally weak office into a source of tremendous informal power.

A recent article walks through how Perry was able to assert power in an office designed to limit it. Its a good addition to 2306's look at the Texas Executive.

The author argues that Perry adopted a governing style that mirrored how strongmen in Mexico ruled.

- Click here for it.

Some samples:

Rick Perry represents a model of politician not yet quite known in American politics. He is less a cowboy governor than what would be termed in Mexican politics a caudillo, a strongman. It is no coincidence, then, that the criminal case against him in Austin represents a collision between his vast but informal power and the rules of the road in American governance. And there is more to this case than meets the eye.

. . . Only the constitution imposed on Texas after the Civil War, in 1869, briefly created a strong executive. Backed by federal power, he could appoint judges, mayors, and aldermen. He could order a new state police force into action across county lines. When Reconstruction ended, a new constitution was drafted in 1876 and, in a backlash against Reconstruction, it purposefully hobbled the chief executive again, giving him few formal powers other than being named “chief executive.” Governors could serve only brief, two-year terms. The legislature would be limited to 20-week sessions every other year. Power was diffused among other officials, most importantly the lieutenant governor who presided over the Senate. And so it was for well over a century.
Strong governors would sometimes arise, but it was through dint of personality, the creation of informal alliances, and the bending of the occasional law.

. . . In his first legislative session, in 2001, Perry made a point of demonstrating who would be the boss of Congress Avenue. He vetoed 82 bills in all, most of them on Father's Day in June—the episode was known as the Father's Day Massacre—after the legislature had left town, effectively undoing its handiwork. The constitution may have created a weak governorship on paper but Perry, like Bush and a few others before, would govern strongly.

Over the ensuing years, he became the longest-serving governor in Texas history. By about 2007, he had tipped the balanceof power with the legislature and decisively held the upper hand. By 2009, his longevity in office gave him a legion of loyalist appointees in government, totaling over 3,300 people. The list included powerful university trustees, members of the cabinet, the bureaucracy, state commissions, judges, and fully two-thirds of the Texas Supreme Court. Like any good caudillo, he appointed hiscaciques—or bosses—throughout the territory he governed.

And like any adept caudillo, he returned favors to his patrones. Wealthy contributors brought their private agendas to public institutions.

Governor's strike force reports on problems at the Texas HHS

The report criticizes a number of issues related to how the agency has been run recently.

- Strike Force Report.
- 8 key passages from the 21CT ‘strike force’ report.
- Health Commission Should Not Consolidate, Report Says.
- A Look Back at the Health Commission-21CT Contract.
- Popular state purchasing program lacks oversight, competition.

For today's 2306

- Lobbyist-Politicians Targeted in Ethics Bill.
- ‘It’ll be a bloody day on the House floor’ in Texas budget debate.
- El Paso lawmaker says DPS not measuring its border performance.
- Barry Smitherman Lands Job at Law Firm.
- Senate Passes A-F Grading System for Schools.
- Texas House to debate hundreds of budget amendments.

rrrrrrrfra

Regarding "Employment Division v Smith"

We caught up on this case in 2306 Monday because this lead to the passage of the national Religious Freedom Restoration Act (RFRA), which was whittled down by the Supreme Court in Bourne v. Flores, which then led to the passage of similar laws on the state level - including the one in Indiana which led to this week's written assignment for 2306.

I hope that was - somehow - at least slightly clear.

The Oyez page on Smith - click here for it - contains a summary of the case and the majority decision, which we spent a little time discussing.

Here are the relevant parts:

Facts of the Case

Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.

Question

Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Conclusion

Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

Decision: 6 votes for Employment Division, 3 vote(s) against

About Israel's Electoral System

We talked a bit about this last week in 2305 as a way to prep for an upcoming talk about the winner take all election system used in the U.S. Very few democracies use this system (which we will see soon leads to the development of a two party system - with each party being composed of multiple factions).

Israel uses proportional representation, which leads to the establishment of multiple parties.

Here's how the process is described in Israel Elections 101:

Israel has a parliamentary system based on nation-wide proportional representation. This means that voters elect nationally-registered political factions—not local candidates.

Each faction receives representation in the 120-seat Knesset (parliament) proportional to how many votes it gets. Factions must meet a threshold of at least 3.25 percent of the vote to qualify for seats in the Knesset. Factions may determine their own list of candidates, including by internal election or appointment.

Knesset elections must be held once every four years, though many coalitions do not survive a full term. In moments of political instability or stalemate, a majority of the Knesset may vote to dissolve the body and call early elections to be held 90-150 days later.

Israeli voter turnout is traditionally very high—between 60 and 80 percent.

After an election, Israel’s president consults with faction leaders and selects the Knesset member most likely to form a viable coalition government of 61 or more seats. This member is often, but not required to be, the leader of the faction that has won the most seats. The selected member then has 42 days to negotiate with other factions and form a coalition, which is presented to the Knesset for a vote of confidence. If they succeed, that member becomes the next prime minister.

For more click on these:

- Israeli elections: Decision time (or not).
- In Israel, There Are Different Ways to Count to 61.
-Wikipedia: Israeli legislative election, 2015.

From Quartz: 58 countries with better voter turnout than the United States

Here they are:


Uruguay (96.1% in 2009)
Ecuador (90.8% in 2009)
Uzbekistan (89.8% in 2007)
Rwanda (89.2% in 2010)
Angola (87.5% in 1992)
Turkmenistan (87.0% in 2012)
Peru (86.2% in 2011)
Bolivia (85.6% in 2009)
Tunisia (85.2% in 2009)
Equatorial Guinea (83.0% in 2009)
Belarus (81.7% in 2010)
Tajikistan (80.8% in 2006)
Venezuela (78.9% in 2012)
Cyprus (78.8% in 2008)
Argentina (77.4% in 2011)
Brazil (77.3% in 2010)
Armenia (77.2% in 2008)
East Timor (76.3% in 2012)
Iran (75.5% in 2009)
Philippines (75.1% in 2004)
Indonesia (74.8% in 2004)
Taiwan (74.3% in 2012)
Malawi (73.9% in 2009)
Gambia (73.5% in 2011)
Kazakhstan (72.7% in 2011)
Congo-Brazzaville (72.6% in 2009)
El Salvador (72.4% in 2009)
Nicaragua (71.8% in 2011)
Sao Tome and Principe (71.3% in 2011)
France (71.2% in 2012)
Sri Lanka (70.9% in 2010)
Dominican Republic (70.2% in 2012)
Ghana (69.8% in 2008)
Maldives (69.3% in 2008)
Panama (69.0% in 2009)
Iceland (68.9% in 2012)
Benin (68.4% in 2011)
Ukraine (67.9% in 2010)
Namibia (67.6% in 2009)
Palau (67.6% in 2008)
Finland (67.5% in 2012)
Azerbaijan (66.9% in 2008)
Algeria (65.9% in 2009)
Croatia (65.2% in 2010)
Mexico (64.6% in 2012)
Republic of Korea (64.2% in 2007)
Montenegro (63.5% in 2008)
Russia (63.4% in 2012)
Costa Rica (62.3% in 2010)
Sierra Leone (62.0% in 2007)
Guatemala (61.4% in 2011)
Togo (61.3% in 2010)
Slovenia (61.3% in 2007)
Romania (59.2% in 2009)
Chile (59.1% in 2010)
Bosnia and Herzegovina (58.8% in 2010)
Burundi (58.7% in 2010)
Chad (57.9% in 2011)

Should voting be compulsory?

President Obama made heads scratch recently when he speculated that perhaps voting should be mandatory - it already is in some countries, including Belgium and Australia. Voter turnout in the U.S. is at or near the bottom of all democracies.

2305's written assignment this week will be whether this is a good idea, and what the impact of the law might be.

Some - hopefully helpful - links:


- A case for compulsory voting.
- President Obama floats mandatory voting.
- Obama: Maybe it's time for mandatory voting.
- Views: Mandatory voting idea based on flawed assumption.
- Obama suggests making it mandatory to vote. That would change very little.
- Even more on the potential impact of mandatory voting.
- Wikipedia: Compulsory Voting.
- IDEA: Compulsory Voting.

In the States: Religious Freedom vs GLBT Civil Rights

One of the big news items this week regards Indiana's passage of a "religious freedom restoration act" and the backlash against it. Such laws raise the standard that a law has to clear in order to burden a person's exercise of religious belief - but its application has been a bit loose recently and it has been used to justify discrimination against people based on sexual orientation.

Makes for a good topic for a written assignment. Here are a few posts for 2306 students to consider as they think about it:

- Wikipedia: Religious Freedom Restoration Act.
- Wikipedia: State Religious Freedom Restoration Acts.
- Indiana's religious freedom law: What you need to know.
- Indiana governor proud of state’s ‘religious freedom’ law, which has been criticized as anti-gay.
- What is the Religious Freedom Act?
- NCSL: 2015 State Religious Freedom Restoration Legislation.
- DEVELOPMENT OF STATE RFRA STATUTES.

The National Conference of State Legislatures highlights three bills making their ways through the Texas Legislature:

HJR 55 - Proposes a constitutional amendment relating to the free exercise of religion; provides that the state, a county, municipality, political subdivision or agency may not burden a person's free exercise of religion unless necessary to further a compelling governmental interest and is the least restrictive means; provides that a homeowners' association may not burden a person's free exercise of religion unless necessary to further a compelling quasi-governmental interest of the homeowners' association.

HJR 125 - Proposes a constitutional amendment relating to a person's free exercise of religion.

SJR 10 - Proposes a constitutional amendment relating to a person's free exercise of religion. 

A Summary View of the Rights of British America

Yesterday's "this day in history" featured Thomas Jefferson's election to the Continental Congress.

The story points out that Jefferson has made a name for himself by writing and publishing a paper entitled A Summary View of the Rights of British America. He was 33.

Click here to read through the document. It contains themes that would emerge in the Declaration of Independence the next year, but it's much more polite. A key argument was that the citizens on British America (the propertied white males) were unjustly being denied equal status with those in Britain.

The Sunset Advisory Commission

This might help bridge the gap between the legislative and executive branches in Texas. As we've discussed in 2306 earlier this semester, the legislature established the Sunset Advisory Commission in 1977 to review each state level executive agency an determine whether it is to be kept as is, modified, merged with another agency or abolished. Each agency is set to expire unless it is reauthorized by the commission.

This is the basic question it asks about each agency:

“Does the agency and its functions continue to be needed and if so, what improvements need to be made?”

Here's background on the commission:

- Click here for the Texas Sunset Advisory Commission.
- FAQ's.
- Texas Sunset Act.
- Agency History.
- Government Code: Title 3, Subtitle C, Chapter 325.
- This is the list of all agencies subject to review.

These are the agencies under review this session, the links take you to the reports for each:

- Administrative Hearings Tax Division, State Office of
- Administrative Hearings, State Office of
- Aging and Disability Services, Department of
- Assistive and Rehabilitative Services, Department of
- Children With Special Needs, Interagency Task Force for
- Developmental Disabilities, Texas Council for
- Education Agency, Texas ( Limited Scope Review )
- Facilities Commission, Texas ( Re-review )
- Family and Protective Services, Department of
- Health and Human Services Commission
- Health Care Information Council, Texas ( Special Purpose Review )
- Health Services Authority, Texas
- Health Services, Department of State
- People with Disabilities, Governor’s Committee on
- Purchasing from People with Disabilities, Texas Council on
- Self-Directed Semi-Independent Agencies, Entry Criteria for ( Special Review )
- Soil and Water Conservation Board, State ( Limited Scope Review )
- University Interscholastic League
- Workforce Commission, Texas
- Workforce Investment Council, Texas

It's currently looking at two of the largest, The Texas Education Agency and the Heath and Human Services Commission.

From Charlie Cook: REPUBLICAN BRACKETOLOGY Which GOP candidates will survive the first few rounds and advance to the Final Four?

Cook is one of the better electoral analysts around (in my opinion).

- Click here for his Wikipedia Page.
- And here for the Cook Political Report.

In this analysis he breaks the Republican Party into four distinct factions and uses it to analyze the upcoming race for the Republican nomination. He calls them brackets sine the NCAA tournament is going on. Here they are:

- the Establishment bracket
- the Secular/Conventional Conservative bracket
- the Tea Party/Populist Conservative bracket
- the Social, Cultural, and Evangelical Conservative bracket

Earlier this semester I posted a graphic - click here to get it - that described the factions as a five ring circus. The rings are:

- Moderate
- Establishment
- Christian Conservative
- Libertarian
- Tea Party

Obviously there is disagreement about what the precise nature of these factions are. I'll post something similar about factions in the Democratic Party when I find it. I mentioned in class that when we discuss parties in a winner take all system, we need to understand the competition that exists between the faction. Each fights to have one of their own emerge as the party's nominee.

Here's a bit from Cook's article (note that he does not discount Cruz's competitiveness):

Scott Walker still has a solid lead in the Secular/Conventional Conservative bracket. (This bracket would also include Texas Gov. Rick Perry, former U.N. Ambassador John Bolton, Ohio Gov. John Kasich, and Indiana Gov. Mike Pence, if they run.)

In the Social, Cultural, and Evangelical bracket, the contestants are Arkansas Gov. Mike Huckabee, former Sen. Rick Santorum of Pennsylvania, and Louisiana Gov. Bobby Jindal. The important thing to understand about this bracket is that it's generally a dead end. . . .

Maybe the biggest recent development has been in the Tea Party/Populist bracket. Rand Paul was the early leader here, but Ted Cruz's impressive performance in his announcement speech at Liberty University elevates him to running even with Paul. Cruz's stock was probably undervalued early on, as few seemed to appreciate his impressive intellect and communications skills. (He wasn't a championship debater in college for nothing.) . . .

The Establishment bracket consists of Florida Gov. Jeb Bush, New Jersey Gov. Chris Christie, Sen. Marco Rubio of Florida, and former Hewlett Packard CEO Carly Fiorina. (Sen. Lindsey Graham and former New York Gov. George Pataki will be in this bracket, too—if they manage to put together viable campaigns.) Bush remains the unquestioned leader, but if the conventional wisdom is wrong anywhere (and I admit to being very conventional most of the time), it might be in underestimating Rubio's potential.

Random items related to the Texas Legislature

All from the Texas Tribune:

- Long Legislative Road for Voucher Bills Begins.

A preview of the looming battle over school vouchers played out Thursday as a state Senate panel considered two proposals to provide state financial support to parents who want to send their children to private schools.

Debate focused on how to ensure taxpayer funds are well spent at participating private schools as lawmakers traded questions over whether such plans would improve education in the state.

- District Attorneys' Report: Misconduct Exceedingly Rare.

In a report issued Monday morning, an association representing Texas prosecutors disputed what they say are illegitimate claims of rampant prosecutorial misconduct without accountability.

“It’s just not true,” said Rob Kepple, executive director of the Texas District and County Attorneys Association.

The association spent months reviewing 91 Texas cases in which the Northern California Innocence Project in a Marchreport identified prosecutor error or misconduct. The TDCAA said it discovered only six instances “in which a prosecutor arguably engaged in deliberately dishonest or fraudulent conduct that produced unjust results.”

Kepple said the Innocence Project report was “replete with errors” and called it “really kind of embarrassing from a scholarly aspect.”

Cookie Ridolfi, founder of the Northern California Innocence Project, who researched the Texas misconduct data, said she stood by the organization’s findings.

- Ethics Bills Draw Ire of Conservative Activists' Lawyers.

Lawyers for some of the state's most influential conservative groups voiced bitter opposition late Wednesday to several proposals to reform Texas' campaign finance laws, arguing the bills would only make a broken system worse and trample First Amendment rights.

Anticipating the backlash, state Rep. Sarah Davis nodded to the tough crowd after presenting her House Bill 22, which would overhaul the Texas Ethics Commission, particularly to beef up its enforcement authority.

"I love agreed-to bills, but I have a feeling there is absolutely no change that comes before this committee that contains the words 'Texas Ethics Commission' that Empower Texans would not just immediately oppose," the West University Place Republican said, referring to the conservative group that has come under scrutiny by state campaign finance regulators. "But I'm happy to work with them."

The late-night meeting of the House State Affairs Committee offered the latest snapshot of the intense, organized scrutiny some lawmakers face as they put a renewed focus on ethics reform. Gov. Greg Abbott elevated the issue last month by naming it one of five emergency items, and some of the ideas before the panel Wednesday were similar to what he has called for.

- Senate Passes Patrick's Tax Cut Package.

The Texas Senate on Wednesday approved Lt. Gov. Dan Patrick’s multibillion-dollar tax relief package to cut property and business margins taxes, tossing the ball into the House's court.

"Rather than spend excess revenue, the Senate has voted to return $4.6 billion to Texas homeowners and businesses over the next two years," Patrick said in a statement.

The biggest piece of that package, Senate Bill 1, authored by Senate Finance Chairwoman Jane Nelson, R-Flower Mound, passed the Senate 26 to 5. The bill devotes about $2.4 billion to increase homestead exemptions from school property taxes.

- Senate's Property Tax Cut May Stall in House.

While the Texas Senate easily approved a $2.4 billion plan to provide property tax relief to homeowners Wednesday, the measure may lose momentum when it reaches the House, where leaders appear more interested in cutting the sales tax.

“We’re going to present our plan here soon, and you’ll see what we’ll be driving for,” House Ways and Means Committee Chairman Dennis Bonnen, R-Angleton, said. “I think it’s fair to say at this time that we’re focusing on taxes that will have a more meaningful impact on growing the Texas economy, and property tax cuts are not part of the plan.”
Bonnen said he will publicly present his full proposal for tax cuts early next week.

Earlier this month, he filed three tax cut bills, two similar to Senate proposals to cut the margins tax paid by businesses, and a third that would cut the state sales tax.

Facebook CIA Project: The Onion News Network

The Supreme Court refuses to hear a challenge to Wisconsin's Voter ID Law

The case is Frank v. Walker.

- Click here for ScotusBlog's info on the case.

- Commentary from Election Law Blog.

H.CON.RES.27

That's the official title of the House's version of the 2016 U.S. Budget.

- Click here for the page on it in Thomas.

- Click here for analyses by the Congressional Budget Office.

From the Hill: New House conservative caucus divided in budget vote

More about the divisions among House Republicans we discussed earlier this week.

- Click here for the article.

Members of the new conservative House Freedom Caucus held a lengthy conference call Friday about whether they would stick together to support or oppose GOP leaders’ new budget strategy.

Caucus Chairman Jim Jordan (R-Ohio), who led the call, backed the new approach, which included billions more for defense. But others on the line were frustrated the plan didn’t offset any of the extra spending, according to sources on the call.

By the time the phone call ended about 40 minutes later, there still was no consensus.
The vigorous debate foreshadowed Wednesday’s vote, where Freedom Caucus members splintered over supporting a backup GOP budget crafted after defense hawks balked at the lower spending levels in the original proposal.

Twenty-six Republicans eventually voted against the leadership-backed spending plan, including six of the nine Freedom Caucus co-founders: Reps. Justin Amash (Mich.), Scott Garrett (N.J.), Tim Huelskamp (Kan.), Raúl Labrador (Idaho), Mick Mulvaney (S.C.) and David Schweikert (Ariz.).

All of those co-founders but Garrett voted against final passage of the budget.

From Vox: One sentence that perfectly explains how out of control money in American politics is

Although I cancelled the section on money in politics - its not ready for prime time - we'll review the impact of money on the political and governing system soon.

This article in Vox tries top summarize the current state of financing elections - especially in the wake of court decisions which have allowed for almost unlimited spending:

If you wanted a single sentence to sum up the state of our modern campaign finance system, it would be hard to do better than this one from the Washington Post's Matea Gold and Tom Hamburger:

One longtime bundler recently fielded a call from a dispirited executive on his yacht, who complained, "We just don't count anymore."

This is what we've come to: the rich businessman on his yacht feels out of the loop, because campaigns only care about billionaires.

Click here for the article: In 2016 campaign, the lament of the not quite rich enough.

Billionaires pack the biggest punch in elections right now, meaning that people that once mattered - the merely rich - don't anymore. Potential candidates for the presidency are focusing attention on the the needs of ultra rich. It makes it easier for them to get the cash necessary to make a viable run for the White House.

By the way, in case you wonder what a "bundler" is - here's a description:

Bundling describes the activity of fundraisers who pool a large number of campaign contributions from political action committees (PACs) and individuals. Bundlers, who are often corporate CEOs, lobbyists, hedge fund managers or independently wealthy people, are able to funnel far more money to campaigns than they could personally give under campaign finance laws.

Billionaires don't need to bundle.

Here's more on the well heeled donors who are attempting to control the 2016 race.

- The Kochs put a price on 2016: $889 million.
- Billionaires Alter 2016 Playing Field.

Who will manage the Alamo?

- Land Office Parts Ways With Alamo Managers.

- Alamo Shakeup Turns to Search for New Managers.

- Daughters of the Republic of Texas Sue Land Office.

Ted Cruz's Strategy

From the New Republic:

The national media appears convinced he will never get anywhere close to the 2016 GOP nomination, but fortunately for Cruz, his plan doesn’t involve catering to the pundit class, fixated as they tend to be on daily polling figures and related ephemera.

The tactical wisdom of launching a campaign at Liberty, the powerhouse Evangelical outpost in Lynchburg, Virginia, could be seen as dubious insofar as it risks balkanizing Cruz into a Christian exclusivist box, closing him off from other constituencies in a Republican primary contest. And it’s true that Liberty is fairly removed from the cultural mainstream: Here, rumors of alcohol consumption are conveyed in hushed tones, gleaned from a friend of a friend. (One student, a junior, told me he’d heard of drinking-related incidents only once or twice, and was flabbergasted by tales of intoxicated debauchery from elsewhere.) The melodies of Christian rock anthems stream throughout campus even in the early morning hours via speakers attached to lamp posts. Cruz was clearly appealing to a very specific element here.

But another way to see the venue selection is that Cruz wants to nail down the conservative Christian contingent early in the process—preempting Mike Huckabee, Rick Santorum, and others—and then proceed to court national security hawks and Club for Growth types. Cruz seems to be betting that he can assemble an historic GOP primary coalition; religious conservatives customarily fracture and allow the “establishment” to get its way. But the “establishment” could also find itself fractured this time around, as Jeb Bush, Chris Christie, and Scott Walker jockey amongst themselves. Evangelicals, while not a monolith by any stretch, tend to be attuned to cultural signaling. And the historic nature of Cruz’s announcement, the first of its kind at Liberty, won’t soon be forgotten. So they will serve as his natural base, and from there he can make forays into other constituencies, consolidating just enough of a bloc to undermine the “establishment.” That’s the Cruz logic, anyway.

What is a natural born citizen?

Senator Cruz's announcement coincides with our look at Article 2.

Only natural born citizens can be president, but what does that term mean?

- FactCheck: Ted Cruz's Presidential Eligibility.
- CBS News: Good Question: How Is ‘Natural Born Citizen’ Defined?
- Wikipedia: Natural-born-citizen clause.

From the Texas Tribune: $209.8 Billion Budget Plan Headed to House Floor

An update on the budgeting process in the Texas Legislature:

The House Appropriations Committee on Tuesday endorsed a $209.8 billion budget that would spend $7.7 billion more than the current two-year budget and would leave $8.4 billion on the table, along with billions more in the state’s savings account.

The committee voted 24-0 to move House Bill 1 forward after more than a month of hearings. The budget will be debated and voted on by the full 150-member House next Tuesday, March 31, according to House Appropriations Chairman John Otto, R-Dayton.

“This is a good budget, but it is not yet complete,” Otto said. “Over the next two months, we will continue to work on this budget, first on the floor and then in cooperation with the Senate in conference.”

As the Appropriations Committee voted out its main budget bills Tuesday morning, the Senate Finance Committee was working next door on its own version of the budget, Senate Bill 2. That committee is expected to put the finishing touches on the bill later this week.

HB 1 includes $104.6 billion in general revenue spending, the closely watched portion of the budget that lawmakers have the most control over. That’s up $9.4 billion, or nearly 10 percent from the current budget, which spends $95.2 billion in general revenue.

The House also approved supplemental funds to make up for deficiencies in the last budget.

House budget writers intend to add $433 million to the current two-year budget with a supplemental bill laid out Thursday, though a plan to repurpose millions in leftover funds from various health care programs drew sharp questions from Democrats.

Since the Texas Legislature meets every two years, lawmakers usually have to pass a supplemental budget bill to pay for unexpected costs and IOUs for the current budget. The Legislature is now crafting the 2016-17 budget, and the supplemental budget bill would augment the 2014-15 budget lawmakers approved two years ago.

At Thursday's House Appropriations Committee hearing, Chairman John Otto, R-Dayton, and members of the Legislative Budget Board explained details of House Bill 2 for the first time. The supplemental budget bill includes $254.7 million in general revenue, the portion of the budget lawmakers have the most control over, and $177 million in federal funds. Otto is the bill's author.

Government Speech v. Private Speech

From what I can tell, that is the critical issue in the license plate decision involving the TMVB.

Is a message on the license plate government speech or private speech? We will try to determine the difference between the two in class.

- Wikipedia: Government Speech.
- Viewpoint Neutrality and Government Speech.

From the National Journal: How Ted Cruz Will Pull the GOP Presidential Primary Right - The Texan spent the last months before his presidential campaign showing off his knack for articulating the most conservative position on numerous issues.

Click here for the article.

Though Cruz is not considered a favorite to win the GOP nomination, he will undoubtedly play a huge role in the 2016 campaign by catering to conservative voters, who tend to dominate primaries, with his knack for articulating the most conservative position on key issues.

Just in the past couple of months, the fiery Cruz has shown off that knack in visits to Iowa and New Hampshire, on cable news, and on the Senate floor. Cruz made his name in the Senate as one of the GOP's staunchest critics of the Affordable Care Act—even driving a strategy that led to 2013's government shutdown—but Cruz is deeply conservative on any number of issues and he's not afraid to say so. That could have a big impact on the rest of the field: In the 2012 presidential race, conservative candidates similar to Cruz often pulled the GOP primary field along with them.

How Cruz affects the 2016 primary will come down to how the other candidates react to him—whether by moving to the right themselves on some issues or by using Cruz as a contrast to try to distinguish themselves as more moderate. Either way, Cruz has spent his last months before officially becoming a presidential candidate highlighting his ability to get on the most conservative side of an issue.

From 538: Listen To Our Totally Subjective Presidential Odds For March 2015

Some stats types lay down odds for each party's race to the nomination.

- Click here for the article.

Oral Arguments in Walker v. Texas Division, Sons of Confederate Veterans

As we mentioned in class yesterday, the U.S. Supreme Court heard arguments yesterday about whether the Texas Department of Motor Vehicles Board violated the constitutional rights of the Texas Division of the Sons of Texas Veterans by not allowing them to have a specialty license plate with the confederate battle flag on it.

Here are links to stories regarding the arguments

- ScotusBlog coverage,
- NPR.
- Education Week’s School Law blog.
- The Wall Street Journal.
- Constitutional Law Prof Blog.

Click here for the transcript of the argument.

On this day in history: Parliament passes the Quartering Act

From the History Channel:

On this day in 1765, Parliament passes the Quartering Act, outlining the locations and conditions in which British soldiers are to find room and board in the American colonies.

The Quartering Act of 1765 required the colonies to house British soldiers in barracks provided by the colonies. If the barracks were too small to house all the soldiers, then localities were to accommodate the soldiers in local inns, livery stables, ale houses, victualling houses, and the houses of sellers of wine. Should there still be soldiers without accommodation after all such publick houses were filled, the colonies were then required to take, hire and make fit for the reception of his Majesty’s forces, such and so many uninhabited houses, outhouses, barns, or other buildings as shall be necessary.

As the language of the act makes clear, the popular image of Redcoats tossing colonists from their bedchambers in order to move in themselves was not the intent of the law; neither was it the practice. However, the New York colonial assembly disliked being commanded to provide quarter for British troops–they preferred to be asked and then to give their consent, if they were going to have soldiers in their midst at all. Thus, they refused to comply with the law, and in 1767, Parliament passed the New York Restraining Act. The Restraining Act prohibited the royal governor of New York from signing any further legislation until the assembly complied with the Quartering Act.

In New York, the governor managed to convince Parliament that the assembly had complied. In Massachusetts, where barracks already existed on an island from which soldiers had no hope of keeping the peace in a city riled by the Townshend Revenue Acts, British officers followed the Quartering Act’s injunction to quarter their soldiers in public places, not in private homes. Within these constraints, their only option was to pitch tents on Boston Common. The soldiers, living cheek by jowl with riled Patriots, were soon involved in street brawls and then the Boston Massacre of 1770, during which not only five rock-throwing colonial rioters were killed but any residual trust between Bostonians and the resident Redcoats. That breach would never be healed in the New England port city, and the British soldiers stayed in Boston until George Washington drove them out with the Continental Army in 1776.

And as we know in 2305, this becomes the basis for not only one of the grievances in the Declaration of Independence, but the 3rd Amendment.

For more info:

- Wikipedia: Quartering Acts.
- New York Restraining Act.
- Wikipedia: Restraining Acts 1775.

House Bill 540 would empower the Texas Attorney General to limit local ballot initiatives

This follows a major trend in the current legislative session:

From the Texas Observer:

A bill that would give Attorney General Ken Paxton’s office sweeping power to allow or disallow local initiatives and referenda had its first hearing in the House Committee on State Affairs today. The bill is among several in the Legislature squashing local control—and while it got a cautious reception from the committee, it’s supported by some of the state’s most influential business interests.

In recent years, referenda and ballot initiatives have grown in importance as ways for Texans to enact change and hold local governments accountable. The most notable recent example is a ban on hydraulic fracturing in Denton, which passed a fairly conservative electorate by a wide margin. The Denton ban was the subject of much of today’s debate.

House Bill 540, sponsored by Phil King (R-Weatherford), would require any referendum or ballot initiative in one of Texas’ home-rule charter cities to be reviewed by the attorney general’s office. The attorney general would rule on whether the proposed ballot initiative or referendum would violate “the Texas or federal constitution, a state statute, or a rule adopted as authorized by state statute,” or if it would constitute a “government taking of private property.”

That may sound clear-cut, but it’s not. The normal method for deciding whether a law is constitutional involves months or years of careful scrutiny by the courts. Instead, King would give that power to bureaucrats in the AG’s office. If an initiative is detrimental to a powerful and GOP-allied interest group, would the AG’s office really let it slide?

In laying out the bill, King told the committee that Texas was a republic, run by the Legislature, and not a democracy, run by the people. “Democracy is two wolves and a lamb voting on what to have for lunch,” he said, misattributing the quote—which might have originated with a 1990 Los Angeles Times op-ed—to Benjamin Franklin. In places like Denton, powerful and monied outside environmental groups had agitated for change, he said, and the rule of law had to be imposed—by Ken Paxton.

Ted Cruz is first to announce presidential race

Just a few links to get going. I'll add to this brief list over the next few days.

- Ted Cruz Becomes First Major Candidate to Announce Presidential Bid for 2016.
- Can Ted Cruz win? 11 things to know about 2016’s first candidate.
- Cruz: I'm a natural born American.

Singapore

It's tiny.

Smaller in are size than greater Houston and about the same population.




- Click here for more info:

- Wikipedia.
- CIA Fact Book.

R.I.P. Lee Kuan Yew

The 91 year old ruler of Singapore was regarded as being responsible for transforming it from a poor corrupt country into an economic powerhouse, but he did so by restricting speech and jailing political opponents.

He was an autocrat - the pros and cons of which we cover in the early lectures in 2305 - which may have allowed him to direct the nation in the direction he choose, but apparently now raises concerns about what comes next. A nation based on one person's personality does not necessarily have the institutional structure that allows for ongoing stability.

For background:

- Wikipedia: Lee Kuan Yew.
- Lee Kuan Yew, Founding Father and First Premier of Singapore, Dies at 91.
- A Conversation with Lee Kuan Yew.
- Lee Kuan Yew Created The World's Least-Hated Authoritarian State.
- Singapore tries to imagine a future without its founder, Lee Kuan Yew.

General Reports from the Texas Legislature

For a quick look at what the legislature has done so far.

Walker v. Texas Division, Sons of Confederate Veterans, Inc.

Oral arguments are scheduled Monday in the Supreme Court about whether Texas must create specialty license plates with the confederate flag if they are requested to do so.

- From the Christian Science Monitor: 

The United States Supreme Court on Monday is set to hear a dispute over whether Texas has the authority to bar the issuance of a specialty license plate featuring the Confederate battle flag.

The controversy arose in 2009 after the group Sons of Confederate Veterans asked the Texas Motor Vehicles Board to approve a specialty license plate that prominently displayed the Confederate flag.

In the century and a half since the Civil War, the Confederate battle flag has come to represent a symbol of Southern heritage for some. But for many others, including African-Americans, the flag is viewed as a symbol of fear, intimidation, and oppression.

Cognizant of this reaction, the Motor Vehicles Board voted to reject the license plate.
The Sons of Confederate Veterans filed a lawsuit, charging that the Texas board – which has approved messages conveyed by 350 other specialty license plates – had engaged in unconstitutional viewpoint discrimination in violation of the First Amendment’s free speech clause.

- From ScotusBlog:

If a state is forbidden by the Constitution to dictate the message that private citizens must put on their license plates, is it also forbidden to veto a message that citizens would prefer? That has been a lingering First Amendment question for nearly four decades, but the Supreme Court now seems prepared to answer it. The answer depends, simply, on whether the voice of the license plate is that of the government, or of the motorist.

In the famous decision in 1977 in Wooley v. Maynard, the Supreme Court treated license plate messages as a form of private speech on private property, but did not rule exactly that. Presuming it to be private speech, the Court said motorists could not be compelled to carry New Hampshire’s preferred message, the state motto, “Live Free or Die.” That mandate was challenged by a driver of the Jehovah’s Witness faith.

Six years ago, the Court made clear, in the case of Pleasant Grove City v. Summum, that if the government is acting as the speaker in a public display (there, a monument in a public park in Utah), it has the right to pick a message it prefers and exclude others.

Catching up with the 84th Session of the Texas Legislature

From the Fort Worth Star Telegram: ‘The Kumbaya is over’ in the Texas Legislature.

Rep. Jonathan Stickland is watching the calendar. The 84th legislative session is half over, and just 10 weeks remain to consider more than 8,000 bills addressing issues ranging from gun rights to the state budget. 

It’s a time when some lawmakers preach the need to work together. But now, Stickland said, is the time for the gloves to come off and for lawmakers to get down to business.

“The Kumbaya is over,” said Stickland, R-Bedford, who recently made headlines over a fight with House leadership over posting a sign on his Capitol office door. “We’ve been down here passing resolutions and telling each other how great we are and how great everyone else is. Now we have to start dealing with legislation.

“We are about to disagree a lot and fight it out publicly,” he said. “Things are getting testy, and they are going to get testier.” Lawmakers have 140 days in the regular session to complete the state’s business. The only bill that must be passed before June 1 is the state’s two-year budget.  

From the San Antonio Express-News: Energy slump strikes Texas Capitol - Truce arising as oil price falls.

Under the dome of the Texas Capitol, the stage was set for a confrontation.
To one side would stand captains of the state’s most powerful industry, who at the height of a five-year oil and gas boom employed more than 400,000 workers and contributed $15.6 billion last year to the tax base. To the other would stand opponents of expansive drilling, which has wrecked roads, fouled the air, intruded on urban neighborhoods and riddled the land with waste water wells of a type linked to earthquakes.

But at the last minute, an uneasy truce descended. Just as lawmakers were preparing for their biennial legislative session, charged with addressing a range of problems related to drilling practices, oil prices fell from $100 a barrel to the $50 range.
Industry activity, to put it mildly, slowed. So did much legislative momentum to address the consequences of the great oil rush.

Halfway through the session, the House Energy Resources Committee is getting to work. Of the 18 bills it has been assigned, three concern the relatively cosmetic issue of a name change for the Texas Railroad Commission, which regulates the petroleum industry.
Most of the other proposals are fairly modest and arcane, with the exception of a potentially momentous measure to ban municipal regulation of drilling.

“It looks to me like the Legislature’s pretty confused; they don’t know what to do with themselves,” said Michael Webber, deputy director of the Energy Institute at the University of Texas at Austin. “There’s a little bit of deer-in-the-headlights going on now, because the rhetoric on the campaign trail was so thick about how we’re going to be rich forever.”

From the Austin American-Statesman: Big business lobby groups to Texas Senate: We don’t like your tax cuts.

Big business lobby groups sent a letter Friday to Lt. Gov. Dan Patrick and the Texas Senate Friday criticizing the more than $4.6 billion tax cut package the upper chamber could vote on as early as next week.

Those groups, including the Texas Association of Business and the Texas Oil and Gas Association, have complained that the proposal favors smaller businesses and does not include reductions to business property taxes, which they contend is more burdensome than the state’s business franchise tax.

In the letter, seven of those groups also told senators they should consider tax cuts only after spending enough money on “congested roads, educational challenges, obsolete infrastructure, high debt and underfunded pensions.”

“If, after paying our state bills, there is money left over for tax relief, that relief should be fair to those who pay the most taxes in the first place—both individuals and businesses,” the letter says. “That portion of tax relief to business should encourage growth and investment, enhancing our ability to expand our production and payrolls.”

The proposal on the table does not do that, according to the letter, which says the “package of tax bills up for consideration in the Texas Senate falls short of these principles and creates new inequities in our tax system.”

From the Texas Tribune: Sid Miller Clashes With Legislature Over Budget.

Newly minted Agriculture Commissioner Sid Miller has been generating more than newspaper headlines since he began calling on the Texas Legislature to dramatically boost his agency’s budget.

He’s also getting blowback at the Capitol.

He was asked to move his car off of Capitol grounds after parking where he wasn't supposed to — and now officials say he's even been denied access to the secured driveway circling the building. And a couple of weeks ago, while pressing his former colleagues to support his request for a bigger agency budget, Miller was asked to leave the center floor of the House chamber — the area inside the brass rails that is generally reserved for current members.

State Rep. Charlie Geren, chairman of the House Administration Committee, which handles the chamber’s internal affairs, said it's nothing personal. Miller "wasn't kicked out of anywhere"; he was simply told to follow the House rules. But the episodes highlight a rapidly deteriorating relationship between the cowboy hat-wearing commissioner and the Legislature that once counted Miller as one of its own. Miller has been loudly complaining about the impact deep 2011 budget cuts had on the Agriculture Department and its ability to protect consumers.

From the Houston Chronicle: Lawmakers may partly close tax loophole draining local government coffers.

State lawmakers are looking to partly close a tax loophole that has allowed big companies to drain tens of millions of dollars from local government coffers in recent years, but any reforms that pass may still not end the legal battles that have been driving down appraisals on industrial and commercial properties.

Several reform bills were filed this year as counties began putting pressure on legislators to do something about an increasing number of lawsuits by major companies trying to take advantage of the loophole, which allows property owners to avoid the traditional fair-market system of appraisals.

School districts have been among those hardest hit. Valero Energy Corp. used the loophole to force the Texas City school district to refund about $5 million, while two other lawsuits by the company compelled the Port Arthur school district to pay $32 million in refunds and other charges. The company has new lawsuits pending that could mean even more tax refunds from the two school districts.

The loophole is also costing the state an estimated $70 million to $80 million a year in six counties, according to a January report by the nonpartisan Legislative Budget Board that called for sweeping reforms. The state must pay its share of tax revenue lost by school districts.

From the Texas Tribune: In Legislature, Toll Roads Facing Strong Opposition.

While Texas lawmakers appear intent this year on pumping billions of extra dollars into building and maintaining highways, another shift in the state’s approach to transportation is gaining traction. Anti-toll sentiment at the Capitol is at its highest level in at least a decade.

Lawmakers have filed more than a dozen bills this session aimed at either tapping the brakes on new toll road projects or undoing the state’s current tolling system entirely.
"In light of the Legislature's commitment to fully fund transportation, it is a breach of trust with taxpayers to demand that they pay the double tax of tolls and transportation taxes,” said state Rep. Matt Shaheen, R-Plano.

This week will draw a bright spotlight to the issue. On Monday, Shaheen and several other Republican lawmakers plan to attend a rally in honor of “Toll Free Texas Day” organized by the anti-toll groups Texans for Toll-free Highways and Texans Uniting for Reform and Freedom. Lt. Gov. Dan Patrick also hopes to attend the rally, schedule permitting, according to a spokesman. The event will be followed by separate House committee hearings on Tuesday and Thursday in which anti-toll bills will be heard.

The pushback against toll roads and toll lanes has been simmering for years, and can largely be traced back to former Gov. Rick Perry’s 2002 proposal of the Trans-Texas Corridor, a massive 4,000-mile network of privately operated toll roads, railroad tracks and utility lines. Public opposition to the plan eventually prompted the Legislature to declare it dead after first approving it. Yet toll projects continued to flourish around the state. Texas now has more than 500 miles of tolled highways, most of it developed over the last decade.

Over the summer, the Texas Republican Party removed a provision from its platform backing “the legitimate construction of toll roads in Texas” and replaced it with language opposing some aspects of toll projects in Texas, particularly the use of public money to subsidize private entities.

eom ad more here: http://www.star-telegram.com/news/politics-government/article15610256.html#storylink

From the Hill: Dems want to empower Boehner

House Democrats hope to take advantage of divisions within the Republican Conference.

- Click here for the article:

House Democrats fighting for leverage in the GOP Congress are hoping they can empower an unlikely ally: Speaker John Boehner (R-Ohio).

Democrats are outnumbered by more than 50 members – and have almost no power to bring bills to the floor.

But they see Boehner as a willing compromiser on must-pass legislation like funding the government and raising the debt ceiling – once the Speaker can convince his troops that the partisan route endorsed by his conservative wing has been denied.

By banding together in veto-sustaining majorities against conservative proposals demanded by Boehner’s right flank, Democrats hope to both sink those GOP measures and grease the skids for more moderate compromises.

“[The Republicans] have a majority party that's deeply divided,” Rep. Steny Hoyer (D-Md.), the Democratic whip, said Thursday from his office in the Capitol.

“And … what we've learned is if we stick together – and we have been sticking together, we've been very unified – that it can empower Speaker Boehner at some point in time to say, 'Look, I tried every which way I can think of to accomplish the objectives that our caucus wants to do. But if I can't accomplish those, I will not allow the government to shut down, the debt limit to be not extended, or other things that are harmful to the country,’” Hoyer said.

Each chamber of Congress introduces its version of the budget

A few weeks ago President Obama introduced his budget.

- Click here for a post related to this.

Last week Congress introduced its version. Since Republicans dominate each chamber, each version reflects their vision, but the Senate introduced a separate one than the House.

- Click here for the House version.
- Click here for the Senate version.

Here's commentary:

- Can Republicans govern? Budget 2016 could be biggest test.
- House GOP Wants to Give Pentagon a Boost.
- Obama's Budget Is Done. Now It's the GOP's Turn.
- House Republican Budget Overhauls Medicare and Repeals the Health Law.
- Budget debate puts GOP credibility on the line.
- Brawl over budget will frame 2016 presidential race.

From the Huffington Post: Here's A Dramatic Reminder Of Just How Partisan The Senate Has Become

This is a bit dated - originally posted 11/13/13 - but it walks through the recent trend towards polarization in the Senate. It shows how often Senators voted together from 1989 to 2013. Democrats in blue and Republicans in red.

- Click here for it.

The post had a video which walks through the voting patterns in each session. In order to cut to the chase. Here are three images that illustrate the trend.

The Freedom Caucus

In addition to the "doc fix," the post on Speaker Boehner below mentions the Freedom Caucus, which is a newly formed group consisting of the more conservative members of the Republican Conference. They're the ones who've become a thorn in the side of the Speaker.

The 2305 section on parties and committees in Congress mentions caucuses, and Congress has plenty - some more significant than others.

Here are a few links with additional info on caucuses, with special emphasis on the Freedom Caucus:

- Wikipedia: Congressional Caucuses.
- Wikipedia: Caucuses of the United States Congress.
- 114th Congress Congressional MemberOrganizations.
- House Caucus Rules Could Change for 114th Congress.
- Wikipedia: Freedom Caucus.
- House Freedom Caucus Looks to Be a Force — in Leadership and Lawmaking.
- 9 Republicans launch House Freedom Caucus.
- House Freedom Caucus hires first staffer.

For what its worth, there are no Texans in the Freedom Caucus.

The Freedom Caucus is not to be confused with either the Liberty Caucus or Tea Party Caucus.

The "Doc Fix"

The previous post concluded with a mention of the "doc fix."

You might wonder just what that is. The best I can define it, is that it is the yearly process designed to go around limits that were placed on the growth of spending on Medicare passed in the Balanced Budget Act of 1997. Since much of the increase in spending - at that point - was based on increased spending on health the act limited increases to the size of gross domestic product. This includes reimbursements to doctors and hospitals, both of which are strong interest groups and do not want to see reductions in those reimbursements.

The fancy name for this is the Medicare Sustainable Growth Rate.

- Click here for the Wikipedia on the subject.

The Medicare Sustainable Growth Rate (SGR) is a method currently used by theCenters for Medicare and Medicaid Services (CMS) in the United States to control spending by Medicare on physician services. Enacted by the Balanced Budget Act of 1997 to amend Section 1848(f) of the Social Security Act, the SGR replaced theMedicare Volume Performance Standard (MVPS), which was the previous method that CMS used in an attempt to control costs. Generally, this is a method to ensure that the yearly increase in the expense per Medicare beneficiary does not exceed the growth in GDP. Every year, the CMS sends a report to the Medicare Payment Advisory Commission, which advises the U.S. Congress on the previous year's total expenditures and the target expenditures. The report also includes a conversion factor that will change the payments for physician services for the next year in order to match the target SGR. If the expenditures for the previous year exceeded the target expenditures, then the conversion factor will decrease payments for the next year. If the expenditures were less than expected, the conversion factor would increase the payments to physicians for the next year. On March 1 of each year, the physician fee schedule is updated accordingly. The implementation of the physician fee schedule update to meet the target SGR can be suspended or adjusted by Congress, as has been done regularly in the past (a doc fix). Physician groups, including the American Medical Association and the American Osteopathic Association, lobby for a permanent reform to the SGR so that physician payment rates are not subject to annual cuts (a permanent doc fix).

Note that the updates have to be done in early March - which explains why its topical.

From Modern HealthCare

- House, Senate leaders unveil permanent 'doc fix' bills.

Congressional leaders Thursday announced a bipartisan, bicameral deal to permanently repeal Medicare's loathed sustainable growth-rate formula for paying doctors. Bills containing terms of the deal were introduced in both chambers of Congress.

Unclear for now, though, is the fate of the Children's Health Insurance Programand the exact details of how it will be financed.
The legislation, if enacted, would end one of Washington's longest-running fiscal battles and bring welcome stability to payments for doctors who treat Medicare patients. Congress has passed 17 consecutive short-term fixes dating back more than a decade. A vote is anticipated next week. Doctors would face a 21.2% cut in payments on April 1 if no legislative fix is enacted.

“As a doctor, I know firsthand just how destructive the SGR formula has been to America's seniors and their providers,” said. Rep. Michael Burgess (R-Texas), the chief sponsor of the House legislation, in a statement. “Finally, after unparalleled progress in recent years, both sides of the aisle have begun to understand that the long-term solvency of our Medicare system depends on taking this fight head-on together.”

The “doc fix” deal was negotiated by House Speaker John Boehner and Minority Leader Nancy Pelosi in recent weeks behind closed doors. But key committee members have signed on. Sponsors of the legislation included Rep. Paul Ryan (R-Wis.), chair of the House Ways and Means Committee and Sen. Orrin Hatch (R-Utah), chair of the Senate Finance Committee.

Catching up with Speaker Boehner

We'll breath a little life into the position of speaker when we get back to class next week.

- Click here for past stories about the position. These are worth a quick review.

And a few current items  regarding Mr. Boehner's leadership. Boehner has been speaker since 2011, and was minority leader from 2007 until then. This despite the fact that he is not well liked - despised might be the right word - by the hard right faction within the Republican Conference. They've attempted occasionally to remove him from office, but none of their proposed replacements have gathered enough support to make the effort successful.

The Constitution says nothing about the role of the Speaker, but it was assumed it would be the presiding officer of the House. With the rise of political parties it became instead the leader of the majority party and instead of managing the entire house, it would try to manage rival interests within the party.

- John Boehner is going to be House speaker in the 114th Congress. Boy was I wrong. A Washington Post writer tries to figure out how Boehner was reelected - rather comfortable as speaker. 

- Republicans: We've Got No Plans to Oust Boehner. Conservatives were angered that Boehner removed language in the bill to fund the Department of Homeland Security cancelling out Obama's executive order on immigration, but saw little point in moving against him. 

- Battle Between House GOP Factions Prompts Budget Vote Delay. The anti-Boehner faction with the conference is making it difficult for deficit and defense hawks within the party to agree on a budget.

- Boehner's New Strategy: Enlist Democrats First, Not Last. This wont make the conservatives in the conference happy. Boehner can easily get moderate legislation passed if he tailors it to get votes from Democrats. He seem to be making that a first option in this legislation on the "doc fix."

Here's an article from 2010 which outlines Boehner's contentious relationship with Republicans affiliated with the Tea Party.

- House Rule: Will John Boehner control the Tea Party Congress?
 

On this day in history . . .

FDR gives his first fireside chat.

Terrorism Risk Insurance Program Reauthorization Act of 2015

Terrorism Risk Insurance Program Reauthorization Act of 2015.

For today in 2306

Let's look at these:

- Texas Legislative Council.
- Legislative Reference Library of Texas

Who gets to implement state pollution laws? The cities or the state?

Each responds to different political pressures so they do not necessarily approach their jobs the same way:

From the Texas Tribune:

In the 1950s, decades before LeRoy Melcher became a well-known real estate tycoon and philanthropist, he opened his first shopping center on San Felipe Road in the River Oaks neighborhood.

It was a modest 12,000 square feet, with a convenience store at one end, and at the other, a shoe repair shop. Tucked in between was a dry cleaner.
Sixty years later, it sits in one of Houston’s most expensive neighborhoods and has become the epicenter of a contentious debate over the enforcement of the state’s environmental laws.

On one side is Harris County, which blames the Melcher family and its tenant, River Oaks Cleaners, for a toxic plume of chemicals detected beneath the property. The plaintiffs are seeking penalties of between $50 and $25,000 per day going back nearly two decades – up to roughly $173 million.

On the other side are Melcher’s heirs, who have refused to settle for anything more than $1. LeRoy Melcher, who died in 1999, and his wife donated millions to charities and the University of Houston, which has three buildings on campus bearing their names.

The legal battle has become a flashpoint for some Republican lawmakers and business leaders in Texas, who think local governments shouldn’t be leading the charge to prosecute the Melchers — or anyone else — over violations of state law. In such cases — including this one — the state must join the case as a plaintiff.

And from Houston Public Media:

Darryl Tate is following his nose down a dead end street in a mostly industrial area in northwest Houston.

“I know the winds are out of the north today,” Tate said.

What’s blowing in the wind is important because Tate investigates environmental complaints for Houston’s Bureau of Pollution Control and Prevention. He came here to see what stinks.

“This is the facility here, we are on the backside. They recycle grease from restaurant grease," the investigator said. "It smells...hard to describe...old, rank grease.”

Tate said the company has been trying to mitigate the odors by using misters to dilute it and by burning hickory wood to mask it.

He likes his job because he never knows where it will take him.

“We go from petrochemical plants down to a neighbor painting a fence,” Tate said.

People file complaints; the city then investigates and then can cite violators under state and local pollution regulations.

“We follow state guidelines,” Tate said.

But big chemical plants and oil refineries are now taking issue with the work of Houston’s pollution police. In a case scheduled to be heard later this year before the Texas Supreme Court, a group of big energy companies will argue that the City of Houston is breaking Texas law.

The big companies - which include ExxonMobil and Conoco Phillips - say only the state can legally enforce Texas environmental laws. Lawyers for the industry did not make themselves available for an interview. But in briefs filed with the court, they argue that Houston is going rogue, enforcing state pollution laws because: “Houston disagrees with the TCEQ’s enforcement actions. 

United States v. Curtiss-Wright Export Corp.

This is the Supreme Court case which declared that the executive branch has supremacy over foreign affairs.

- Click here for the Wikipedia entry.

note that it is the Supreme Court which clarifies the meaning of the U.S. Constitution.

The majority decision was written by George Sutherland, one of the conservative Four Horsemen who consistently ruled against the constitutionality of the New Deal.

The Logan Act

Critics of yesterdays' actions by the senators wonder whether they may have violated the Logan Act.

I have no idea, but this gives us a change - in 2305 - to look at a major early piece of legislation as we begin to look at the constitutional design of the legislative branch.

- Wikipedia: Logan Act.

Does the U.S. Constitution grant dominance in foreign policy to the executive or legislative branch?

Great checking and balancing going on:

Yesterday's letter from Republican Senators to the Iranian leadership makes this a pertinent question. It allows us a further look at the separated powers. The textbook story is that Congress shares influence over domestic policy with the executive branch, but defers to it when it comes to foreign affairs.

- Click here for the letter.

Its a very brief letter that intends to inform the "Leaders of the Islamic Republic of Iran" of the constitutional basis of both treaty making and terms lengths. The first point they make is that if Congress does not ratify a president's agreement it is a "mere executive agreement." The second is that die to term limits President Obama will only be in office through January 2017 while many of the senators plan to be in office for decades. This weakens the status of whatever agreement should be struck between the president and the Iranian government.

Not surprisingly the White House objected.

For background on the dispute, click here: The Nuclear Talks With Iran, Explained.

Before we go much further, here is the actual language in the Constitution - not the omission of the word "ratify."

Article 2, Section 2, Clause 2: He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur

- Click here for background from the Founder's Constitution.
- Click here for annotations from Findlaw.

But what do the experts say?

These are links to recent commentary form the writers at Lawfare - a site that specializes on national security.

- The Error in the Senators’ Letter to the Leaders of Iran.

The author - Jack Goldsmith - points out a nuance I hate to say I was not aware of, one that comes from the Senate's own website:

The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification.

It then mentions a story I try to relate in class when discussing Washington's decision to use his department chairs - what is now known as the "cabinet" - as his chief advisers rather than the Senate:

The Senate of the First Congress set the precedent for how it would handle treaty consideration. When President George Washington visited the Senate Chamber in August 1789 to seek advice and consent on a pending treaty, he became frustrated when the senators referred the treaty to committee for further discussion. Another 130 years would pass before another president of the United States personally delivered a treaty to the Senate. On July 10, 1919, President Woodrow Wilson asked for a quick consent to the Treaty of Versailles.

Goldsmith recommends a a report from the Congressional Research Service for further detail.

- Click here for the report.

And highlights the following:

“It is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.” Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane. Senate consent is a necessary but not sufficient condition of treaty ratification for the United States. As the CRS Report notes: “When a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”

So the president ratifies treaties, the Senate advises and consents to them.

More from Lawfare:

- More on the Senate’s Role in the Impending Iran Deal.
- The Iran Letter and the Logan Act