The Weekly Watchman: Congress, courts, and looming questions

Drew White · July 10, 2018  
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The House outlook

The House of Representatives returns from its Independence Day recess today with first votes postponed until later this evening. As discussed last week, House leadership is coming off an embarrassing defeat of the “compromise” amnesty immigration bill from two weeks ago and will likely be setting up the July work period with less controversial legislation to lead into the August recess.

The primary focus this week will be the Intelligence Reauthorization Act, likely coming this Thursday. The bill will authorize the appropriation of funding for various intelligence and counterintelligence agencies throughout the U.S. government for the next two years. Expect a closed-door debate and a rote floor exercise prior to easy passage. One of the more interesting aspects of the Intelligence Reauthorization Act is the funding levels for each agency, which, of course, are largely classified.

The House is also expected to continue pushing through a slew of suspension bills without any structured rule for amendment debate. This has been common practice for the House of Representatives for years, even though the process often leads members to voice vote legislation instead of going on the record. Some conservatives have questioned the entire idea of suspending the rules of the House in order to pass legislation without debate or recorded votes. Most Americans are entirely unaware that most legislation is passed this way in the House — often with widespread bipartisan approval, despite media portrayals to the contrary.

Of particular political interest in the House this week is a highly anticipated joint hearing of the Judiciary Committee and Oversight and Government Reform Committee dealing with oversight of the FBI and Department of Justice during the 2016 election. The special guest for the hearing will be none other than the FBI’s counterintelligence deputy assistant director, Peter Strzok.

Conservative Review has provided extensive commentary on the politicization of the FBI and Strzok’s clear animus toward President Trump. The hearing begins at 10:00 a.m. ET on Thursday. Expect lots of fireworks and no small amount of theatrics for the cameras.

Floor focus

The House is expected to take up a bill on Friday by Rep. Virginia Foxx, R-N.C., that would provide some much-needed reforms to the Congressional Budget Act as well as require federal agencies in the administrative state to report potential benefit-cost analyses of new regulations on state, local, and tribal governments as well as the private sector.

Unfunded Mandates Information and Transparency Act of 2017

Sponsor: Rep. Virginia Foxx, R-N.C.

Committee of Jurisdiction: Committee on Oversight and Government Reform

What does the bill do? The bill does several things:

  • It amends the Congressional Budget Act to ensure analysis of legislation includes regulations put into place by independent federal regulatory agencies.
  • It also amends the Unfunded Mandates Reform Act to require each agency to assess the benefits and costs of their regulations on state, local, and tribal governments as well as the private sector, while ensuring that agencies also consult with the private sector prior to promulgating a new rule.
  • Finally, the bill would require agencies to propose regulatory alternatives to rules expected to cost over $100 million.

This sounds pretty good. Are there any drawbacks? One of the agencies that doesn’t have to have the impact of its regulations included is the Consumer Financial Protection Bureau — an unconstitutional and rogue agency born from the Dodd-Frank Act that has imposed onerous new rules on financial institutions and lenders, negatively impacting the lives of millions of Americans. The CFPB has minimal oversight from Congress since it’s funded almost entirely by the transfer of earnings within the Federal Reserve system. The CFPB should be abolished outright and without hesitation. And any good government reform legislation should enhance Congress’ ability to scrutinize the agency, not exempt it from oversight.

Should conservatives be concerned? Not really, no. The bill makes a lot of positive strides in improving how the CBO scores legislation, forcing regulatory agencies to show their homework before issuing rules, and providing for private sector input to be included prior to the issuance of any regulation. All in all, there’s a lot to like. And it would only make life more difficult on unaccountable bureaucrats who love to create federal rules that micromanage the everyday activities of the American people.

Does the bill grow government? No. In fact, the bill takes some important steps toward broader regulatory reform that, when taken in conjunction with this Congress’ success in using the Congressional Review Act to roll back Obama-era rules, makes this a very worthwhile use of floor time for the GOP-controlled Congress.

Conservative contrast: While the bill would be stronger if it didn’t exempt the CFPB from its reporting requirements, it’s a long-overdue step by Congress to reassert its Article I authority over executive branch agencies that have run amok in the rulemaking process. Conservatives in the Senate — the few there are — should agitate for leadership to slate floor time for its consideration this summer, assuming it passes the House.

Bottom line: House leadership has apparently learned from the “compromise” amnesty bill fiasco and has moved on to legislation likely to garner broader GOP support. The inclusion of Rep. Foxx’s legislation on the floor schedule is a sign that the GOP is looking to unify its conference at the beginning of a long July slog. For conservatives, this is only a temporary respite from the seemingly incessant task of stopping both parties from growing government and infringing on our liberties. Temporary or not, we’ll still happily take the breather.

The Senate outlook

The Senate returned yesterday to begin deliberation on several nominees put forward by the president. As mentioned last week, the slow pace of confirmations by this Senate is abysmal. Over 40 percent of the president’s nominees are still awaiting confirmation.

While the White House and Republicans rightfully point to intransigent obstruction from Senate Democrats, GOP leadership has not exhausted its options to accelerate the pace. When the Senate is only averaging two and a half days of work per week, that’s just as much the fault of GOP leadership for providing Democrats with the ability to burn floor time as it is the fault of Democrats who are wisely (from their perspective) gumming up the works.

McConnell has already stated that portions of the August recess have been canceled due to the slow pace of confirming nominees. This threat will likely be idle, as it’s expected that Democrats will play nicer on the “lesser” nominees now that the president has named his Supreme Court nominee.

And let’s be honest: Democrats are going to want to ensure that they’re able to get back home in August to campaign, especially when so many red-state Democrats are up for election and vulnerable. Given the lack of vision by GOP leadership, it’s highly unlikely that McConnell will stand firm and keep the Senate in for most of August, despite the many political benefits of doing so.

The nomination of Brett Kavanaugh to the Supreme Court

As soon as Anthony Kennedy announced his retirement at the end of the Supreme Court’s June session, the political battle lines for the remainder of 2018 were drawn. It’s understandable why so many people care so deeply about the makeup of the Supreme Court, but this is not the way things should be.

Our God-given freedoms should not hinge on the decisions of nine unelected judges issuing decrees from their columned pantheon in our nation’s capital. Conservatives in both the House and Senate must adopt judicial reform as a central plank of our movement if liberty is to be secured for our children and grandchildren.

This means Congress should move to strip courts of jurisdiction over issues like marriage, life, and immigration. This means impeaching judges who routinely flout the Constitution. This means Congress should adopt a broad posture of federalism on policy issues (health care, education, housing, etc.) and restoring the idea that states should be the highest authority on most policy matters, not Washington D.C. Ultimately, it means Congress should adopt a more Madisonian view of the three branches of government and aggressively challenging the entire notion of judicial supremacy.

Daniel Horowitz has written and spoken passionately on this for years. Congress should heed this call and begin the difficult but necessary effort to use the tools provided by our Founders to finally bring activist courts to heel.

The nomination of Brett Kavanaugh is likely an overall positive development, but it’s far from a home run. There are red flags. His track record on religious liberty issues is spotty, not stellar. He rejected a challenge to the NSA’s bulk data collection program and wrote that it was entirely consistent with the Fourth Amendment, despite widespread conservative opposition to the program led by both Sens. Ted Cruz and Mike Lee. And he arguably provided the legal rationale for Chief Justice John Roberts’ catastrophic judicial gymnastics that found Obamacare to be constitutional.

My personal preference was Senator Mike Lee, R-Utah. He would have been a slam-dunk pick to faithfully interpret the Constitution as written and adhere to the original intent of our Founders. Judge Amy Coney Barrett also would have been a solid pick in a similar mold.

Conservatives have been burned far too many times by Republican presidents on Supreme Court nominees. Unfortunately, President Trump’s pick is simply not a sure thing. This nomination is unlikely to provide full assurance to conservatives seeking to undo the decades of damage inflicted on our republic by activist progressive judges.

Nevertheless, the upcoming Senate battle will be protracted and brutal. Outside spending will set records as the statist Left goes all in to paint Brett Kavanaugh as a “radical” in the mold of Clarence Thomas (if only), when the likelihood is that he’s likely much more in the mold of retiring Justice Anthony Kennedy or Chief Justice John Roberts.

Bottom line: Unfortunately for conservatives, there appears to be precious little to look forward to in the Senate for the remainder of the summer, if not the year. Of great importance will be the upcoming confirmation hearings for Brett Kavanaugh, if only to learn more about him and how he views the Constitution and the role of the courts.

Separate from the battle over the Supreme Court, the Senate’s recent overwhelming passage of an $867 billion food stamp and farm welfare bill and its rubber-stamping of budget-busting appropriations measures means the “world’s most deliberative body” is continuing to do its part to send our national debt soaring past $22 trillion, without much in the way of actual debate, of course.

Liberty outlook

Summary: With the House advancing a good bill on regulatory reform and oversight of federal agencies and most of the suspension calendar being less offensive than in past weeks, things are heading in a better direction to start July. The nomination of Brett Kavanaugh to serve as the next Supreme Court justice is a mediocre pick. Many conservatives will undoubtedly have lingering questions that must be answered satisfactorily if full support from the base is to be mustered. Kavanaugh’s record on a number of key issues is simply far too spotty to assure a base that has been burned too many times by Republicans.

For now, this week’s liberty outlook is: Code yellow. There are no imminent legislative measures to oppose on either floor calendar, but it’s important to be proactive in pressuring representatives and senators to oppose looming big-spending measures that ultimately deteriorate our freedoms and further cement the next generation into debt and servitude.

Besides, it’s always a good idea to put in a call and remind them of the positions we expect them to take in order to secure liberty. It keeps them on their toes and builds some much-needed character for the summer interns.


The Weekly Watchman

Welcome to the Weekly Watchman, a regular series at Conservative Review where we highlight and analyze legislation pending on the House and Senate floors so that you know exactly what your representatives are voting on — and the impact those votes will have on your freedom.

The truth is that every single vote cast in Congress either advances liberty or diminishes it. And in all the noise on social media and 24/7 cable news chaos, it can be difficult to keep track of what is really happening on Capitol Hill and what it means for you and your family.

Patrick Henry once stated, “The liberties of a people never were, nor ever will be, secure when the transactions of their rulers may be concealed from them.”


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Author: Drew White

Drew White spent three years at Heritage Action for America as a legislative strategist covering domestic policy issues. He then served as Sen. Ted Cruz’s domestic policy adviser for two years, working on issues including Obamacare repeal, educational freedom, elimination of federal agencies and departments, and defunding Planned Parenthood. Most recently, he served as senior federal policy analyst at the Texas Public Policy Foundation. He currently resides in Austin, Texas, with his wife and golden retriever, happily clinging to his guns and religion.