Memo: A Conservative Response to Puerto Rico’s Debt Crisis

To:             Interested Parties
From:        Heritage Action
Date:         March 10, 2016
Subject:    A Conservative Response to Puerto Rico’s Debt Crisis

Some type of congressional action on Puerto Rico’s looming debt crisis is expected before the end of March.  Puerto Rico, a United States territory, owes creditors more than $70 billion and is seeking congressional approval to file Chapter 9 bankruptcy.

The Heritage Foundation has written extensively on the current situation in Puerto Rico and has laid out the path Congress should take as it addresses this issue.  While the situation in Puerto Rico is complicated, there are a few important things to know:

This is primarily a growth problem. Puerto Rico isn’t just facing an acute financial crisis; it is facing a chronic, long-term growth crisis. Puerto Rico is not merely in a temporary debt crisis, with sunny skies on the horizon if it can only get past this temporary hurdle — far from it. Under current policies, Puerto Rico simply cannot grow. In fact, if all of Puerto Rico’s debts and unfunded liabilities were wiped out tomorrow, without a transformation in governance and an economic turnaround, it would just be a matter of time before the island would be back facing fiscal trouble once again. No amount of bailouts, debt restructuring, or new bankruptcy proceedings will change this simple fact. Without growth, Puerto Rico’s problems will only continue to fester and get worse.

Congress can help. While most of Puerto Rico’s problems are of its own making, Congress has imposed policies on Puerto Rico that severely damage its ability to grow. Two policies worth noting…

Read the entire memo.

 

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Heritage Action Brief: No More Obama Judicial Confirmations

 

Background: President Obama has consistently shown a lack of regard for the separation of powers laid out in the United States Constitution. His executive overreaches have undermined not only our Constitution and the rule of law, but have also paved the way for progressive politics. Whether the issue is health care, immigration, or second amendment rights, President Obama uses his phone and his pen to enact progressive policies that the American people do not want.

For the most part, President Obama has gotten his way on a number of issues, shielded by liberal federal judges who he and Presidents before him appointed. Entering his eighth year in office, judicial appointments are at the very top of his priority list.

Reasserting Constitutional Prerogatives: Despite the President’s actions, in the last year, the Republican controlled Senate has already allowed the confirmation of 12 federal judges. Overall the President has successfully appointed 55 appeals court judges and 264 district court judges. To put this in perspective, President George W. Bush successfully appointed 62 appeals court judges and 261 district court judges. President Obama is on track to have more judicial nominees confirmed than President Bush.

The President’s damage to our constitution and the rule of law has gone far enough. Senate Republicans must use their constitutional power of confirming federal judges to reassert their constitutional prerogatives and rein in executive overreach.

Conservative Momentum Against Judicial Confirmations: At the end of 2015, Senate Republicans unanimously agreed to hold votes on five district and circuit court nominees in the new year. The first, Third Circuit nominee Luis Felipe Restrepo, was confirmed 82-6 on January 11th. In response, Heritage Action key voted the nomination of Wilhelmina Marie Wright to the Minnesota Supreme Court. This is the same liberal judge who accused President Ronald Reagan of racism and bigotry and took a dim view of property rights.

While the Senate confirmed her nomination on January 19th, 36 Republicans voted against her, demonstrating the growing momentum to stop future nominees. Even Senate Minority leader Harry Reid recognizes the progress. According to Reid, “Powerful right-wing groups announced they’re scoring votes on presidential nominations. In fact…Heritage Action said the Senate should only confirm nominees they deem – they deem, not the senators, but this right-wing cabal – that they deem worthwhile.”

36 “No” votes is a good start, but more work needs to be done. The Senate should no longer confirm any additional non-security nominees under this President in the months ahead.

Claim: Just because President Obama has engaged in executive overreach doesn’t mean Congress should engage in legislative overreach. Two wrongs don’t make a right.

Response: While the President has the power to nominate federal judges, the Constitution clearly gives power to the Senate alone to approve those nominations. In fact the Constitution calls on the President to adhere to the “advice and consent” of the Senate.

“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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”

Our system of government requires each branch to jealously guard its prerogatives, and President Obama routinely tramples over the legislature’s prerogatives. Senators should not stand by idly for the next 12 months. They must act to reassert their separate but equal role in our constitutional system.

Furthermore, there is a long history of the Senate ending consideration of nominees in the last few months before an election. The Thurmond Rule, for example, is an unwritten Senate rule that discourages the confirmation of lifetime judicial appointments during the last 6 months of an outgoing president. Senator Strom Thurmond used it to oppose President Lyndon Johnson’s and President Jimmy Carter’s nominations and Senator Patrick Leahy used it against President Bush during the last year of his presidency. Conservatives should act now by applying the Leahy-Thurmond Rule a few months earlier than is custom in order to restore the balance of powers and limit further executive overreach.

Claim: Senate Republicans have a duty to confirm federal judicial nominees, especially considering so many judicial seats are empty.

Response: While filling judicial seats are important, Senate Republicans have a duty to confirm not just any judicial nominee, but nominees who follow and obey the Constitution. White House chief of staff Denis McDonough admitted in January of 2016, “We’ll do audacious executive action over the course of the rest of the year, I’m confident of that.” The President’s track record has proven he cannot be trusted to obey, or nominate judges who obey, the Constitution.

While many judicial seats are empty, President Obama has filled hundreds of seats over the course of his presidency. In fact, President Obama already has more district court nominees confirmed than President Bush did at the end of his presidency. Every seat filled by an Obama appointee is a seat that can’t be filled by a Republican president.

Claim: Republican attempts to stifle judicial nominations are unprecedented in American history. Only 11 judges were confirmed in 2015, the lowest since 1960.

Response: President Obama’s judicial nominations must be taken in the larger context. President Obama has already successfully appointed 55 appeals court judges and 264 district court judges. President Bush before him successfully appointed 62 appeals court judges and 261 district court judges within his entire 8 years of office. President Obama is on track to have more nominees confirmed than his predecessor.

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Budget Resolution Claims and Responses

The House is currently discussing a potential path forward on an FY17 budget resolution.  As Heritage Action explained last month, there are four criteria necessary for conservatives to support a congressional budget resolution:

  1. Balance within the budget window without accounting gimmicks;
  2. Remove Obamacare tax revenue, as the law should repealed in 2017, and as last year’s reconciliation exercise proved the GOP remains committed to repealing the entire law, including all of its tax increases;
  3. Explicitly reaffirm the GOP’s commitment to bold entitlement reform, especially Medicare premium support; and
  4. Abide by the topline FY17 budget levels contained in last year’s Republican budget.

As things stand right now, there is an effort to convince conservatives to vote for an FY17 budget that calls for $1.070 trillion in discretionary spending, which is $30 billion above the levels set by the Budget Control Act of 2011.  The “unenforceable nature of budget resolution promises” should cause those conservatives to reject the type of deals currently being discussed.

Below are some commonly made claims and straightforward conservative responses:

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Fact Sheet: How to Protect Religious Freedom

Background: On June 26th, 2015, the Supreme Court ruled in Obergefell v. Hodges that laws defining marriage as the union between a husband and wife were unconstitutional and imposed a new definition of marriage on all fifty states.

In anticipation of the ruling, Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID) introduced the First Amendment Defense Act (FADA) on June 17th, 2015, to prevent the federal government from denying tax exemptions, grants, contracts, licenses, or certifications to individuals and organizations based on their belief that marriage is a union between a man and a woman. Since its introduction last June, the bill has picked up major support in the Senate and the House. The Senate bill now has 37 cosponsors along with nine members of the judiciary committee. Cosponsors on the House bill currently include 166 members making up the majority of House Republicans.

Imminent Risk to Religious Liberty.

During argument before the Supreme Court in Obergefell v. Hodges, Solicitor General Donald Verrilli was asked whether the administration could remove tax-exempt status for religious schools that believe marriage is the union of a husband and wife. Verrilli replied saying, “it’s certainly going to be an issue.”

Similar challenges to religious liberty have already surfaced across multiple levels of government. State legislatures, such as California in 2013, have made attempts to remove tax-exempt status from groups such as the Boy Scouts. In 2014, President Obama issued an executive order barring federal contractors from “discriminating” on the basis of sexual orientation, disadvantaging businesses and organizations with policies supporting traditional marriage. Faith-based adoption agencies in Massachusetts, Illinois, and Washington, D.C., have lost their licenses and contracts because they believe children deserve to be placed in homes with a married mom and dad. The liberal American Bar Association just announced that is investigating BYU Law School’s policies against same-sex marriage, thereby putting its accreditation and access to federal funds at risk.

In the wake of the Supreme Court’s decision, these challenges have only intensified. FADA’s protections are a positive step in heading off these and future threats to religious liberty.

Indiana Case Study.

In anticipating and in response to the Supreme Court’s marriage ruling, numerous states rushed to enact various Religious Freedom Restoration bills. In Indiana, Senate Bill 101 passed with overwhelming support, but immediately faced a national backlash from LGBT interest groups along with some members of the business community. Unfortunately, rather than defend the religious rights of the people of Indiana, Indiana legislators pushed through a statutory “fix” undermining Indiana’s new law. But even in Indiana, which became ground zero in the fight for religious liberty, lawmakers have regained their footing on the issue. Due to the efforts and influence of strong conservatives, further efforts to undermine religious liberty through sexual orientation and gender identity “bathroom bills” were defeated in the Indiana Senate this year. Congress should not be afraid of “another Indiana” because Indiana is now successfully defending religious liberty.

Congressional Responsibility in Preserving Religious Freedom.

At all levels, government has an obligation to ensure that Americans retain the right to speak and act in accordance with their religious beliefs. On the federal level, the body tasked with preserving those rights is Congress. Congress has an opportunity to take the lead in declaring that the redefinition of marriage cannot be allowed to erode religious liberty, and that religious liberty and the rights of conscience do not infringe upon anyone’s sexual freedoms.

As Heritage Scholar Ryan Anderson notes, the fight for conservatives after the Supreme Court’s decision is to protect the freedom of speech, association, and religion for those who continue to affirm that marriage is the union of a man and a woman. The First Amendment Defense Act it is a positive step in the right direction.

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No Hearings, No Votes on Supreme Court Vacancy

Background: On February 13, 2016, Supreme Court Justice Antonin Scalia passed away. With his passing, the nation lost one of its finest — a justice who fought to uphold the United States Constitution as our Founders intended. Shortly after his passing, President Obama announced his intention to replace Justice Scalia and demanded from the U.S. Senate a “timely vote” on his future nominee. While the President certainly has the constitutional power to nominate a replacement, even though it is his last year in office, the constitutional authority to confirm a judicial nominee resides solely with the Senate. Because of the President’s past efforts to undermine the separation of powers with executive overreach, the Senate should refuse to consider any Supreme Court nominee the President puts forth.

Senate Majority Leader Mitch McConnell and most Republican Senators are calling for any confirmation to occur only when a new president has taken office, after the American people have a voice on the direction of the Court. They should stand by this commitment to the end of the year and avoid any hearings or votes on President Obama’s expected nominee.

Executive Overreach: President Obama’s time in office has been marked by executive overreach and disregard for the separation of powers laid out in the Constitution. His efforts on Obamacare, amnesty, and Second Amendment rights are explicit examples of his dim view of the rule of law. Standing up to the President on Justice Scalia’s replacement represents the best opportunity Congress has left to rein in the President’s executive overreach.

Confirmation Process: The confirmation of a Supreme Court nominee is a lengthy process, and there are a number of steps that must be avoided to ensure the process does not move forward. The President will first submit his nominee to the Senate for consideration where it is usually referred to the Senate Judiciary Committee. Typically at this point the Committee holds hearings to vet the nominee and then votes amongst its members. The nominee is then often forwarded to the full Senate with a recommendation. In this case, the Senate Judiciary Committee should reject all of these steps and not consider the nominee at all. If the Committee were to forward the nomination (perhaps with a negative recommendation) to the full Senate over conservative objections, the nomination should be filibustered on the floor.

Historical Precedent: Over the course of our nation’s history, the Senate has denied 36 out of 160 nominees. 25 out of those 36 never made it past the Judiciary Committee to receive a vote on the Senate floor. It has been over 76 years since a Supreme Court Justice was nominated and confirmed during a presidential election year, and since 1900, the Supreme Court has functioned despite the absence of at least one justice 60 different times. In light of how President Obama has undermined our Constitution there is no need to deviate from this longstanding precedent.

Liberal Hypocrisy: President Obama and leaders of the Democratic Party have criticized Republicans for not agreeing to vote on a Supreme Court nominee. Ironically, former Senator Barack Obama and potential future Democratic Minority Leader Chuck Schumer have both attempted to block past Republican nominees to the Supreme Court. Senator Obama filibustered the nomination of Supreme Court Justice Samuel Alito in 2006. Senator Schumer argued against approving any George W. Bush nominee to the Supreme Court 19 months before the next President would be inaugurated.

In July 2007 Senator Schumer said, “Given the track record of this President and the obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances. They must prove by actions – not words – that they are in the mainstream, rather than the Senate proving that they are not.”

President Obama is in the last year of his presidency and with an election less than 9 months away, the Senate should wait to decide on a replacement for Justice Scalia until there is a new President.

Claim: The President has a constitutional duty to nominate a Supreme Court Justice in the wake of Justice Scalia’s death.

Response: While the power to nominate a Supreme Court Justice resides with the President, only the U.S. Senate has the constitutional authority to confirm. In fact, the Constitution calls on the President to adhere to the advice and consent of the Senate.

Article 2 section 2 of the U.S. Constitution states, “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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…”

The Heritage Foundation’s authoritative guide to the Constitution explains, “As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.”

Claim: Senate Republicans should not put politics above their constitutional duties to confirm a new Justice. The Supreme Court cannot function without all 9 of its Justices.

Response: There have been 60 Supreme Court justice vacancies since 1900. Of the 160 individuals who have been nominated to the Supreme Court throughout our nation’s history, 25 were not confirmed without receiving a vote. Despite these vacancies, the Supreme Court has been able to perform its duties every time. Waiting for a new President who will be decided by early November will allow the American people to have a critical voice in deciding who the next Supreme Court Justice will be.

Claim: The Senate should be reasonable and at least allow a vote on an Obama Supreme Court nominee.

Response: The debate over replacing Justice Scalia is centered on the nomination process not the merits of any potential nominee. A lame duck president should not fill a seat on the Supreme Court. This should be left up to the next president — Republican or Democrat — who the American people will decide in November. The Senate Judiciary Committee should not consider any nominee.

Claim: Won’t Senate Republicans be viewed as obstructionists?

Response: No. The public understands that a lame duck President should not get to set the direction of the Court with another lifetime appointment months before the election. That is why the Senate’s “advice and consent” role is so important.

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