Legislating Our Way To A New Progressive Era

Do not despair in the darkness of the moment, keep the faith and go vote! Democrats are on the cusp of an historic victory that can usher in a new progressive era in American history. Morning in America is coming (heh, heh).

A couple of good op-eds on this point for your perusal.

First, Jennifer Rubin from the Washington Post, How to outfox an activist, right-wing Supreme Court:

Affordable Care Act

Leaving aside the prospect that Republican-appointed justices would try to “steal” the election for Trump, Congress will retain the power to protect Democratic policy preferences on several hot-button issues. And it can do so without adding seats to the Supreme Court or curtailing its jurisdiction.

Take, for example, the Affordable Care Act. The ACA is before the Supreme Court only because Congress reduced the law’s individual mandate penalty to zero in 2017. Conservatives dubiously argue that because there is no enforceable individual mandate (dubbed a tax by Chief Justice John G. Roberts Jr.’s majority opinion in NFIB v. Sebelius), the entire law is invalid. Even if the court strikes down the ACA in its entirety, Congress could reinstate the mandate with a $1 tax and thereby rescue the law and all its provisions, including its protections for preexisting conditions and the measure allowing children to remain on their parents’ insurance until age 26.

Presumably, conservatives on the court could shop around for another case to reverse NFIB. If such a case were to arise, Roberts would be expected to join the three liberal justices, and it would likely come down to Justice Neil M. Gorsuch to decide to reverse NFIB. If he does, the ACA may fall. But until then, Congress can go a long way to preserve the law.

That’s one way to go. I would hope that Democrats go bigger and bolder: reenact the Affordable Care Act and this time include the public option that Democrats passed on in the original legislation, include a provision for the government to negotiate prescription drug prices (repealing the prohibition in Medicare Part D), lower Medicare eligibility to age 55, include an expanded Medicaid program mandate (giving the finger to Justice Roberts’ opinion), and include a declaration of the Congress that health care is a fundamental (human) constitutional right which is protected under the U.S. Constitution.

Since Congress declared it is a fundamental (human) constitutional right, Congress should then add a statutory provision stripping Article III federal courts of jurisdiction:

[T]he Framers also granted Congress the power to regulate the federal courts in numerous ways. For instance, Article III authorizes Congress to determine what classes of “cases” and “controversies” inferior courts have jurisdiction to review. Additionally, Article III’s Exceptions Clause grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases. Congress has gone so far as to eliminate a court’s jurisdiction to review a particular case in the midst of litigation.

[T]he Constitution empowers a democratically elected branch—Congress—to decide what classes of cases the federal courts may review, as well as to enact legislation that courts may need to interpret.

Just to cover all the bases, include a severability clause in case an aggressive court ignores this exception to Article III jurisdiction. Severability provides that one provision is severable from all other provisions, so that the entire legislation is not susceptible to a flaw in one provision.

Same-Sex Marriage and LGBTQ Rights

Then there is gay marriage, which the Supreme Court by a 5-4 majority ruled is protected by the 14th Amendment in Obergefell v. Hodges. It is not clear whether the Supreme Court, after hundreds of thousands of Americans took advantage of the decision to get married, would sweep it away or invalidate current marriages. However, if it took that step, constitutional scholar Laurence Tribe opines, “In my view, Congress would have power to pass a Defense of All Marriage Act mandating recognition of other states’ marriages” under Article IV of the Constitution. Senate Republicans might seek to block such a measure, but Democrats could break through their opposition by getting rid of the filibuster.

It is important to note that the U.S. Supreme Court has never taken away a civil right once it has been recognized by the Court. It would be unprecedented right-wing extremism to the Nth degree for the Court to reverse Obergefell v. Hodges (same-sex marriage), or Bostock v. Clayton County, (Title VII sexual orientation or gender identity in the workplace).

To the soon-to-be six Catholic justices on the Court: “Who made you the Pope?” Pope Francis just endorsed civil union laws for same-sex couples. So are you going to defy your Pope for your own anti-gay Republican bigotry?

Congress can codify Bostock v. Clayton County by enacting the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees.

Roe v. Wade (Women’s Reproductive Choice)

Finally, abortion is where we will see just how determined Barrett and her conservative cohorts are to pursue their social agenda. Roe v. Wade was decided in 1973; Planned Parenthood v. Casey, which [replaced the strict scrutiny standard of review in Roe v. Wade with] the undue burden test, was decided in 1992. If Barrett is as much of an activist, pro-life judge as she seems, she could well invalidate these decades-old precedents. Roberts (who now cites precedent in defense of abortion rights) would likely join the three liberal justices, once again putting Gorsuch in the position of breaking a 4-4 tie. Let’s assume he goes along with Barrett.

Congress could, once again, pass a law concretizing abortion rights in federal law. Ironically, the court has already seemed to accept the notion that Congress has the power to regulate abortion for the entire country in the antiabortion rights decision in Gonzales v. Carhart, when the court upheld Congress’s “partial birth” abortion law.

But it is far from clear that an activist Supreme Court wouldn’t strike down a federal abortion rights law. As Tribe points out, “The main precedent that defenders of such a law would invoke, Gonzales v. Raich (2005), upheld an Act of Congress criminalizing the production and use of homegrown marijuana even in states permitting its medicinal use under closely regulated circumstances. The Raich majority relied on the Interstate Commerce Power even though the law at issue didn’t regulate interstate commerce as such.” Many conservatives think Raich was wrongly decided, so that might not pass muster with this court.

Former counsel to the House impeachment managers Norman Eisen observes, “Litigants could be expected to argue for example that these types of statutes [overriding court decisions] do not sufficiently relate to commerce among the states, and so are not a constitutionally allowable use of Congressional authority under the Commerce Clause.” He argues, “All options should be on the table to respond to the GOP’s abuses relating to the federal courts.”

Alternatively, Congress might try to solidify abortion access in Medicaid and the ACA (subject to all the “conscience” clause exceptions that the court has imposed), in essence using the spending clause to preserve abortion rights. Here, too, the outcome is not certain.

And repeal the Hyde Amendment while Congress is at it.

Preserving abortion rights in this way, Tribe points out, is “not a foregone conclusion. … If Congress lacks power under the Commerce Clause or some other affirmative source of regulatory authority to lift an otherwise constitutional state prohibition on a given activity, it’s at least arguable that Congress cannot override that prohibition by the expedient of subsidizing the activity in question and thereby giving the activity its blessing.”

There is another possibility to consider. 38 states have now ratified the Equal Rights Amendment, though there is currently a lawsuit over the deadline in the preamble of the amendment – not in the substantive text – to compel the U.S. archivist who is responsible by law for actually adding language into the Constitution, to adopt the amendment.

Article V does not authorize Congress to impose time limits on ratification of a constitutional amendment. Some ERA proponents have argued that Congress is in control of the amendment process, and bills currently in the House and Senate seek to do just that—to state Congress’s position that, despite the debate over the time limit, the amendment is still valid and should be added to the Constitution. See, the Constitution Center.

This would make women a “protected class” under the Constitution for the first time, separate and apart from any 14th Amendment “equal protection” status championed by Ruth Bader Ginsburg. As a result, the strict scrutiny standard of review in Roe v. Wade could be restored, jettisoning the highly subjective and often abused undue burden test in Planned Parenthood v. Casey. This would go a long way to curtailing states attempting to interfere with women’s reproductive choice.

The second op-ed comes from Rahm Emanuel, who once famously said:

Emanuel, Nov. 19, 2008: You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things that you think you could not do before. I think America as a whole in 1973 and 1974, and not just my view but obviously the administration’s, missed the opportunity to deal with the energy crisis that was before us. For a long time our entire energy policy came down to cheap oil. This is an opportunity, what used to be long-term problems, be they in the health care area, energy area, education area, fiscal area, tax area, regulatory reform area, things that we have postponed for too long, that were long-term, are now immediate and must be dealt with. This crisis provides the opportunity, for us, as I would say, the opportunity to do things that you could not do before. The good news, I suppose, if you want to see a silver lining, is the problems are big enough that they lend themselves to ideas from both parties for the solution.

Rahm Emanuel writes at the Washington Post, The answer isn’t court-packing. It’s legislating.

Democrats are so distraught over Senate Majority Leader Mitch McConnell’s (R-Ky.) maneuverings to cement a conservative majority on the Supreme Court that they are overlooking the enormous political opportunity right in front of them. A wave election the year ahead of national redistricting — remember 2010? — can redefine the nation’s political landscape for a decade. If Joe Biden leads the party to a landslide in two weeks, Democrats have a chance to establish a new governing Democratic majority.

For decades, Republicans deployed “God, guns and gays” to cleave suburban moderates from urban liberals, but all three issues have lost their punch. The gun lobby is in retreat, same-sex marriage is the law of the land, and the imaginary “War on Christmas” is the least of anyone’s problems — and so a muscular new coalition is forming. The Supreme Court long served as a last line of defense against GOP lawmakers determined to eviscerate the right to choose, the right to vote, equal protection under the law, and environmental and workplace protections. But rather than just continue to play defense in the courts, Democrats should soon have the votes also to go on offense in the legislative arena.

By ramming through Judge Amy Coney Barrett’s nomination just weeks before the election, the GOP might have finally won the Supreme Court. But checks and balances are a two-way street, and the power Democrats are likely to wield beginning next year might reverberate until 2030. They should be careful not to squander it.

Virginia, long a bellwether, suggests a new playbook. The voters who put Democrats in control of the statehouse last year quickly saw the results: Richmond embraced gun-safety legislation, ratified the Equal Rights Amendment, adopted broad protections for LGBTQ people, established new worker and civil rights, and passed voting rights legislation. Much of that progress is beyond the reach of a reactionary judiciary. In the same way a Democratic Congress and President Barack Obama overturned the Supreme Court’s retrograde ruling in Ledbetter v. Goodyear Tire & Rubber Co. with a new law on gender pay equity, progressives can fight back against the court with a results-oriented, court-proof agenda.

It’s already happening. State legislatures are writing the protections provided in Roe v. Wade into law. Absent movement from Washington, states have embraced tough renewable-energy standards — and a Democrat-controlled Congress could advance a national approach to climate change. Legislators can make sure school districts benefit from equal funding. And if you thought that Democrats’ vows to maintain coverage for those with preexisting conditions played a role in their huge midterm victories in 2018, imagine the effect at the polls if the Trump court rips insurance away from families hit by covid-19 — and a Democratic Congress speedily steps in to restore it.

Despite Chief Justice John G. Roberts Jr.’s assertion that the high court just calls “balls and strikes,” the conservative majority’s evisceration of a Voting Rights Act reauthorization that had passed the Senate, 98-0, proves that justices are, in fact, legislating from the bench. So as they hand down a stream of unpopular decisions, Democrats will have multiple opportunities to campaign for legislative checks that will solidify and grow their new metropolitan majority of urban and suburban voters.

One of the first acts of the new Congress should be enacting the John Lewis Voting Rights Advancement Act, restoring the Voting Rights Act of 1965. And as I’ve suggested above, Congress should declare the right to vote is a fundamental constitutional right, and add a statutory provision stripping Article III federal courts of jurisdiction.

With health care, climate change and tax reform all on their to-do list, Democrats shouldn’t waste political capital attempting a political maneuver — court-packing — that not even Franklin Roosevelt could pull off at the height of the New Deal. Rather than expand the court, Democrats should expand the playing field. With the filibuster curtailed, they will be equipped to establish a new national voting rights regime that addresses not only the legacy of bigotry in the South but also conservative efforts to disenfranchise people of color across the country.

They will have an opportunity also to expand the district and appellate courts, where much of the key case law gets made, as Sen. Christopher A. Coons (D-Del.) has proposed. And they can move to bring a new level of transparency to our politics, exposing how dark money not only influences the legislative branch but also funds junkets and exotic retreats for judges and justices as well.

UPDATE: Biden says if elected he will form bipartisan commission to recommend changes to Supreme Court:

Democratic presidential nominee Joe Biden said that if he is elected, he will form a bipartisan commission to recommend changes to the Supreme Court.

“If elected what I will do is I’ll put together a national commission of — bipartisan commission of — scholars, constitutional scholars, Democrats, Republicans, liberal, conservative, and I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it’s getting out of whack, the way in which it’s being handled,” Biden said in a one-minute released clip from his “60 Minutes” interview with Norah O’Donnell.

“And it’s not about court packing. There’s a number of other things that constitutional scholars have debated and I’ve looked to see what recommendations that commission might make,” he added.

The wave election of 2010 that empowered Republicans for a decade has now played itself out. The majority of Americans aren’t going to march across a bridge back to 1955. If conservative judges try to push LGBTQ people back in the closet, women back in the alley, immigrants back on boats, voters back to facing poll taxes and other barriers, and workers back into sweatshops, the consequences at the polls will be devastating for the Republicans for years to come. A preview is only a couple of weeks away.

Progressives are right to be infuriated by the way conservatives have shattered norms to seize the court. But we shouldn’t let that anger blind us to the path to a new governing majority.

Put your anger into action. Vote every one of these Republicans out of office in a blue tsunami, and create a Democratic majority that can usher in a new progressive era. You hold the power in your vote.