Tag: news

The Constitution’s Recess Appointments Clause,
adopted at a time when gathering scattered legislators in the
capital for a special session posed serious practical difficulties,
was intended to let the president fill vacancies when the Senate
was not available to provide its “advice and consent.” During the
last century, the clause evolved into a pretext for making
appointments the Senate refused to approve. Yesterday, during

oral argument in a Supreme Court case involving appontments to
the National Labor Relations Board (NLRB), several justices
questioned the constitutionality of this shift, indicating that the
Court is inclined to impose limits on the president’s ability to

dodge the “advice and consent” requirement.

Justice Elena Kagan suggested that the original rationale for
recess appointments is obsolete in an age when the Senate can be
reconvened as quickly as its members can fly back to
Washington:

Presidents of both parties essentially have used this clause as
a way to deal, not with congressional absence, but with
congressional intransigence, with a Congress that simply does not
want to approve appointments that the president thinks ought to be
approved….

This is not the horse-and-buggy era anymore….There’s no such
thing truly as congressional absence anymore. And that makes me
wonder whether we’re dealing here with what’s essentially an
historic relic, something whose original purpose has disappeared
and has assumed a new purpose that nobody ever intended it to
have.

Justice Samuel Alito took up the same theme, telling Solicitor
General Donald Verrilli:

You are making a very, very aggressive argument in favor of
executive power now, and it has nothing whatsoever to do with
whether the Senate is in session or not. You’re just saying when
the Senate acts, in your view, irresponsibly and refuses to confirm
nominations, then the president must be able to fill those
positions.

Verrilli agreed, saying, “I think the recess power may now act
as a safety valve given that intransigence.” The problem with that
position, as Chief Justice John Roberts pointed out, is that the
Senate has “an absolute right not to confirm nominees that the
president submits.” Justice Stephen Breyer also seemed troubled by
the idea that the Recess Appointments Clause is a remedy for
congressional “intransigence,” saying, “I can’t find anything that
says the purpose of this clause has anything at all to do with
political fights between Congress and the President….Where is it
in the history of this clause, in its origination, that it has as a
purpose to allow the President to try to overcome political
disagreement?”

Miguel Estrada, arguing on behalf of Senate Minority Leader
Mitch McConnell (R-Ky.), argued that such use of recess
appointments is illegitimate, since “there is no power in the
Constitution to use the Recess Appointments Clause to overcome the
opposition of the Senate to the president’s nominees.” Noel
Francisco, the lawyer for the company challenging the NLRB
appointments, warned that “the government’s position…would
eviscerate [the requirement of Senate approval], creating a
unilateral appointment power available for every vacancy at
virtually any time, with advice and consent to be used only when
convenient to the president.”

That is not much of an overstatement. The Constitution says “the
President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.” The Obama
administration maintains that “the recess” can occur not just
between sessions of Congress but during any break when the Senate
is not conducting business, that the president can unilaterally
determine when such a break has occurred, and that the vacancy need
not arise during the break.

Regarding that last point, Verrilli argued that a vacancy can be
said to “happen” during a recess if it continues then, even though
it arose while the Senate was in session. Justice Antonin Scalia
questioned that reading:

Death is an enduring state. But if someone dies in 1941, you
don’t say he died in 1945. He’s still dead.

Justice Anthony Kennedy noted that the
original version of the Constitution, which gave state
legislators the power to pick senators, included a provision
similar to the Recess Appointments Clause: “If Vacancies happen by
Resignation, or otherwise, during the Recess of the Legislature of
any State, the Executive thereof may make temporary Appointments
until the next Meeting of the Legislature, which shall then fill
such Vacancies.” That provision was understood to let governors
fill vacancies only if they arose between legislative sessions—a
fact that “favors your position,” he told Francisco.

Justice Clarence Thomas, as usual, did not speak during the oral
argument. But given his originalist inclinations, it seems safe to
assume he is not receptive to the idea that the Recess Appointments
Clause can legitimately serve “a new purpose that nobody ever
intended it to have,” as Kagan put it. Given the skepticism
expressed by Roberts, Scalia, Alito, and Kennedy, that’s at least
five votes against the administration. Kagan and Breyer also seemed
troubled by some of the government’s arguments and might end up
joining an opinion that rejects at least part of Obama’s position.
The idea that the Senate does not get to decide when it’s in recess
seems especially vulnerable.

Although in this case it’s a Democratic president using recess
appointments as a way to avoid an inconvenient constitutional
requirement, that sort of abuse has a bipartisan pedigree, as Kagan
noted. In fact, Republicans (especially George W. Bush) have used
this particular evasive maneuver
more often than Democrats. “We have different political parties
taking absolutely opposite sides,” Breyer observed, “depending on
the political party of the President.” This case is therefore an
excellent opportunity for the justices to show that they are
committed to upholding the Constitution without regard to partisan
politics.

The Constitution’s Recess Appointments Clause,
adopted at a time when gathering scattered legislators in the
capital for a special session posed serious practical difficulties,
was intended to let the president fill vacancies when the Senate
was not available to provide its “advice and consent.” During the
last century, the clause evolved into a pretext for making
appointments the Senate refused to approve. Yesterday, during

oral argument in a Supreme Court case involving appontments to
the National Labor Relations Board (NLRB), several justices
questioned the constitutionality of this shift, indicating that the
Court is inclined to impose limits on the president’s ability to

dodge the “advice and consent” requirement.

Justice Elena Kagan suggested that the original rationale for
recess appointments is obsolete in an age when the Senate can be
reconvened as quickly as its members can fly back to
Washington:

Presidents of both parties essentially have used this clause as
a way to deal, not with congressional absence, but with
congressional intransigence, with a Congress that simply does not
want to approve appointments that the president thinks ought to be
approved….

This is not the horse-and-buggy era anymore….There’s no such
thing truly as congressional absence anymore. And that makes me
wonder whether we’re dealing here with what’s essentially an
historic relic, something whose original purpose has disappeared
and has assumed a new purpose that nobody ever intended it to
have.

Justice Samuel Alito took up the same theme, telling Solicitor
General Donald Verrilli:

You are making a very, very aggressive argument in favor of
executive power now, and it has nothing whatsoever to do with
whether the Senate is in session or not. You’re just saying when
the Senate acts, in your view, irresponsibly and refuses to confirm
nominations, then the president must be able to fill those
positions.

Verrilli agreed, saying, “I think the recess power may now act
as a safety valve given that intransigence.” The problem with that
position, as Chief Justice John Roberts pointed out, is that the
Senate has “an absolute right not to confirm nominees that the
president submits.” Justice Stephen Breyer also seemed troubled by
the idea that the Recess Appointments Clause is a remedy for
congressional “intransigence,” saying, “I can’t find anything that
says the purpose of this clause has anything at all to do with
political fights between Congress and the President….Where is it
in the history of this clause, in its origination, that it has as a
purpose to allow the President to try to overcome political
disagreement?”

Miguel Estrada, arguing on behalf of Senate Minority Leader
Mitch McConnell (R-Ky.), argued that such use of recess
appointments is illegitimate, since “there is no power in the
Constitution to use the Recess Appointments Clause to overcome the
opposition of the Senate to the president’s nominees.” Noel
Francisco, the lawyer for the company challenging the NLRB
appointments, warned that “the government’s position…would
eviscerate [the requirement of Senate approval], creating a
unilateral appointment power available for every vacancy at
virtually any time, with advice and consent to be used only when
convenient to the president.”

That is not much of an overstatement. The Constitution says “the
President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.” The Obama
administration maintains that “the recess” can occur not just
between sessions of Congress but during any break when the Senate
is not conducting business, that the president can unilaterally
determine when such a break has occurred, and that the vacancy need
not arise during the break.

Regarding that last point, Verrilli argued that a vacancy can be
said to “happen” during a recess if it continues then, even though
it arose while the Senate was in session. Justice Antonin Scalia
questioned that reading:

Death is an enduring state. But if someone dies in 1941, you
don’t say he died in 1945. He’s still dead.

Justice Anthony Kennedy noted that the
original version of the Constitution, which gave state
legislators the power to pick senators, included a provision
similar to the Recess Appointments Clause: “If Vacancies happen by
Resignation, or otherwise, during the Recess of the Legislature of
any State, the Executive thereof may make temporary Appointments
until the next Meeting of the Legislature, which shall then fill
such Vacancies.” That provision was understood to let governors
fill vacancies only if they arose between legislative sessions—a
fact that “favors your position,” he told Francisco.

Justice Clarence Thomas, as usual, did not speak during the oral
argument. But given his originalist inclinations, it seems safe to
assume he is not receptive to the idea that the Recess Appointments
Clause can legitimately serve “a new purpose that nobody ever
intended it to have,” as Kagan put it. Given the skepticism
expressed by Roberts, Scalia, Alito, and Kennedy, that’s at least
five votes against the administration. Kagan and Breyer also seemed
troubled by some of the government’s arguments and might end up
joining an opinion that rejects at least part of Obama’s position.
The idea that the Senate does not get to decide when it’s in recess
seems especially vulnerable.

Although in this case it’s a Democratic president using recess
appointments as a way to avoid an inconvenient constitutional
requirement, that sort of abuse has a bipartisan pedigree, as Kagan
noted. In fact, Republicans (especially George W. Bush) have used
this particular evasive maneuver
more often than Democrats. “We have different political parties
taking absolutely opposite sides,” Breyer observed, “depending on
the political party of the President.” This case is therefore an
excellent opportunity for the justices to show that they are
committed to upholding the Constitution without regard to partisan
politics.

Recording artist
Beyoncé Knowles-Carter is making waves with an essay she wrote
titled “Gender Equality Is a Myth!” The core piece of data upon
which she builds her argument is itself a myth, and she relies on
coercive language to advance her agenda.

Knowles-Carter penned the piece for the
Shriver Report, which covers women’s issues. She writes,
“Today, women make up half of the U.S. workforce, but the average
working woman earns only 77 percent of what the average working man
makes.” She proceeds by telling the reader what he or she “has to”
do to change this.

It is true that women account for almost half
the workforce. The Bureau of Labor Statistics, with the caveat that its
“comparisons of earnings… are on a broad level and do not control
for many factors that may be significant in explaining earnings
differences,” also confirms that women make less money. However,
the assertion of a gender wage gap, which is restated not only
throughout the Shriver Report but also as a White House talking point, is
rooted in basic misunderstandings of the information.

The differences in earnings stem not from discriminatory
employers paying women less for equal work (which has been a
federal
crime for over 50 years), but from a slew of individual
choices. Preferred fields of collegiate study and subsequent
occupational opportunities, fewer working hours, and taking time
off to raise children are among the variables that lead to
differences in income. Economist Steven Horwitz of St. Lawrence
University points
out that “studies that control for these factors have shown
that if you take a man and a woman with the same experience, same
education, same job, and compare their salaries, what you find is
that women make about 98 percent of what men do.” 

Time has
highlighted that in some areas, women’s earnings actually
outpace men’s.

The
Washington Post Fact Checker, the
American Enterprise Institute, economist
Diana Furchtgott-Roth,
Carrie Lukas of the Independent Women’s Forum, and many others
have also
addressed various aspects of the gender wage gap myth.

Knowles-Carter does express positive ideas about “teach[ing] our
girls that they can reach as high as humanly possible,” which would
be to their benefit, economically or otherwise.

But, since the differences she criticizes are not rooted in any
injustice, only personal preference, Knowles-Carter detracts from
her own argument when she resorts to telling people that they “have
to” change their behavior. This runs contrary to the empowering
sentiment that women (and men) are free to make their own
professional choices and deterime how to gauge their
achievements.

The Obama administration released another
round of data on Obamacare insurance sign-ups yesterday. The report
covered plans selected in both federal and state-run exchanges
through December 28. Some of the information in
the report had already been released, such as the total number
of sign ups. The report did, however, contain the first official
federal government data about the age breakdowns of those who have
signed up for plans so far. Yet even with the new information, the
report also left a lot of important questions unresolved.

Here are seven takeaways and unanswered questions from the
latest sign-up data.

1. The percentage of young people who have signed up so
far is below the administration’s target. As was expected
based on preliminary statements by insurers and some state-level
data, the percentage of young people who have signed up for private
plans in the exchanges so far is low. Administration officials have
indicated in the past that they need about 40 percent of private
plan enrollees to be between the ages of 18 and 34. Premiums paid
by that relatively health age group are needed to balance out the
costs of older, and more expensive to insure,
beneficiaries. 

But across the federal and state exchanges, just 24 percent of
enrollees so far are between the ages of 18 and 34. That’s well
below the target, and out of proportion to the overall age makeup
of the uninsured, about 40 percent of which are young adults. The
administration notes that enrollment amongst the young was up in
December, and says they expect that most young and healthy
enrollees will sign up in March, at the end of this year’s open
enrollment period. But the lower than expected enrollment amongst
the young so far isn’t a good sign, and suggests that insurers may
take a hit on plans offered in the exchanges this year. 

2. Every market is different, and some are worse off
than others. Overall, the young made up about 24 percent
of enrollees in private coverage through the exchanges. But the
percentages varied by state. In Ohio, for example, just 19 percent
of enrollees were between the ages of 18-34, while in New York, 27
percent of sign-ups were in that age group. There were also big
differences in sign up numbers. Texas, the state with the second
highest population, has recorded just 118,532 sign-ups so far,
while North Carolina has 107,778. What this suggests is that going
forward, there will be big state-by-state differences in the health
of Obamacare’s insurance markets. The exchange plans may prove
sustainable in some places, but crash and burn in others.

3. Private plan sign ups so far are widely
subsidized. Nearly 8 in 10 sign ups so far have been for
subsidized coverage, with 78 percent of plans in state-based
exchanges qualifying for financial help and 80 percent of federal
sign-ups qualifying.

4. More women are signing up for coverage than
men. About 54 percent of sign ups across both state and
federal exchanges so far are from women. Since medical insurance
tends to be more expensive for women, and the law prohibits price
discrimination based on gender, this also suggests that the
sign-ups through the end of last year were weighted toward those
with higher medical bills.

5. We still don’t know how many people have actually
paid for private coverage. All of these figures are for
people who have signed up for coverage. Some of them have paid
their first month’s premium, but some of them have not. Insurance
companies have extended payment deadlines for coverage beginning in
2014 to at least January 10, and in some cases beyond that, which
suggests that many have still yet to pay. But at some point, the
extensions will have to stop, and we’ll find out how many of those
who signed up for coverage actually paid a premium and ended up
fully enrolled.

6. We still don’t know how many Medicaid enrollees are
new and how many are simply renewing existing coverage. At
the beginning of a press call yesterday, Health and Human Services
Secretary Kathleen Sebelius touted the 3.9 million people the
federal government says enrolled in Medicaid between October and
December of last year. But some number of those people,
perhaps the large majority of them, aren’t getting coverage
because of Obamacare’s Medicaid expansion. Instead, they are
renewing existing Medicaid coverage. Federal officials say they
don’t have a breakdown of how many of those 3.9 million Medicaid
enrollees are new, and how many are just extending coverage they
already had.

7. We still don’t know how many people signing up for
private insurance were previously uninsured. Even if you
ignore payment issues and count all 2.2 million private plan
sign-ups as being enrolled, we still don’t know how many of those
people were previously covered, and how many already had some form
of health insurance. Given that Obamacare was chiefly sold as a
vehicle for expanding health coverage, that’s a pretty important
figure. Without it, we really have no idea how many previously
uninsured people have gained coverage under the law, and how many
have simply shifted to different coverage under the
exchanges.