Excessive Suspensions Raise Conservative Concerns

Avoiding Accountability

This week the House of Representatives is expected to pass a large number of bills (49) under the suspension of the rules, a procedural mechanism that allows Leadership to fly through the consideration of legislation, potentially even passing the bills by voice vote (which avoids accountability to their constituents). If a bill considered under suspension of the rules ends up receiving a recorded vote, it requires a 2/3 majority to pass, as opposed to the typical simple majority. Because of the higher threshold for passage, Republican House Leadership must secure Democrat votes for these bills. Legislation considered under suspension should not make any substantial policy changes or incur significant costs to the taxpayers. Unfortunately, many of the bills on the suspension calendar regularly violate these principles, and this week is no exception; in fact, it is worse than most.

Through A Terrible Process

The process of underlying the bills being considered this week falls short of at least four main reasons:

  1. Considering almost 50 bills under the suspension of the rules avoids accountability and is an irresponsible way to govern. Most Members of Congress and their staff do not have time read each one of these bills, and even if they did, if the bills pass by a voice vote (which is often the case), constituents have no record of how their Representative voted on most of these bills.
  2. The Republican controlled Congress should be focused on more pressing matters, such as fighting for a conservative spending bill that avoids a lame duck session of Congress. Spending two days passing legislation that is meaningless at best, and liberal at worst, with Democrat support is an example of misplaced priorities.
  3. Many of the bills were scheduled for a vote before they had a Congressional Budget Office score available. While some of the scores may be made available later, Members of Congress and their staff will not have adequate time to fully grasp how much the legislation would cost and whether or not it would add to the debt or deficit. Furthermore, this violates the Majority Leader’s Floor Protocols.
  4. On the schedule are a number of Democrat bills from members who actively participated in the “sit in” that violated House Rules. This means that Democrats are being rewarded who broke House rules regarding decorum and behavior of Members of Congress.

Results In Bad Policy

Of the 49 bills on suspension, conservatives should be particularly opposed to two:

  1. H.R. 670, the Special Needs Trust Fairness Act, offered by Rep. Glenn Thompson (R-PA). The bill expands Medicaid, uses budgetary gimmicks, and provides $24 million for a slush fund at HHS. Along with creating a new $11 million Medicaid program to help women in post-pregnancy to quit smoking (even though it only has an expected 10% success rate), it appropriates an additional $24 million over two years (2020-2021) into the Medicaid Improvement Fund (a slush fund) and uses a budget gimmick (temporarily ending Medicaid payments for hair growth drugs like Rogaine) to offset the expansion of special needs trusts to non-elderly individuals with disabilities. Medicaid needs reform, not a piecemeal expansion of eligibility or benefits. The bill’s approach only undermines an already vulnerable program.
  2. H.R. 5859, the Community Counterterrorism Preparedness Act, offered by Rep. Michael McCaul (R-TX). This bill creates another new (and duplicative) federal grant program for counterterrorism training in major metropolitan areas and also authorizes $195 million for its implementation. This is despite the fact that earlier this year the Department of Homeland Security announced Fiscal Year (FY) 2016 Notices of Funding Opportunity for ten DHS preparedness grant programs totaling more than $1.6 billion. Furthermore, this bill brings back echoes of the failed Countering Violent Extremism policy promoted by the Obama Administration, DHS, and the Homeland Security Committee. Like other bad CVE bills Heritage Action has opposed, H.R. 5859 contains no effective prohibition against funding groups like CAIR, and other unindicted co-conspirators from the Holy Land Trial, or other potential Muslim Brotherhood front groups, or from receiving the grants and participating in the “community outreach.”

A Republican Congress should not be legislating through an expedited process that obscures transparency and grows government with little to no accountability. House Republicans should ensure that all 49 of these bills receive a recorded vote, evaluate each bill on their merits, and especially ensure that these two bills receive recorded votes and then vote against them.

Read More

Forcing American Daughters into the Selective Service

Background: In January 2013, then-Secretary of Defense Leon Panetta directed the military services to review policies with the goal of integrating women into all combat roles by January 2016. On December 3, 2015, Secretary of Defense Ashton Carter confirmed the decision without exception, and directed that all gender-based requirements for military service be removed by January 3, 2016. This order came despite military evaluations that raised concerns on this issue.

The decision to allow women to serve in all combat units has sparked a debate on whether women should be required to register for the Selective Service, making them eligible for conscription if Congress reinstates the draft for future military needs.

Forcing women to register for the draft a premature conclusion: Leading up to the decision to open all combat positions to women, evaluations raised questions about the effectiveness of mixed gender units in ground combat tasks. According to an extensive 9-month Marine Corps’ Gender Integration Task Force study, which evaluated mixed gender units in 134 combat training activities, all-male units outperformed mixed units in 69 percent of the tasks while mixed units outperformed male units in just 2 tasks.

Additional evidence from the Marine Corps evaluation showed that women had an injury rate twice that of men when performing combat-related tasks. The increased risk of injury could threaten their personal safety as well as the safety of their fellow soldiers in combat situations.

Supporting equality does not require forcing women to register for the draft: Conservatives believe women and men have equal natural rights, and equality means that law should treat things that are the same in the same ways. But when it comes to combat-related tasks, there are differences between men and women that are relevant to accomplishing the military mission.

According to former Marine Corps servicewoman and current Sentinel Jude Eden, “Combat is not an equal opportunity for women because they don’t have an equal opportunity to survive.” If women’s increased risk of injury makes them more vulnerable when engaging the enemy, why would Congress ever want to require women to be registered for the Selective Service, and ultimately the draft?

Women can and do contribute significantly to the overall mission of the military. But military personnel policy, particularly when it comes to combat, should be determined based on military objectives and preparedness, not President Obama’s social agenda.

Conclusion: Congress should prohibit the drafting of our daughters into military services through the Selective Service. The Conference Committee is set to resolve the differences between the Senate’s National Defense Authorization Act (NDAA) for fiscal year 2017 (S. 2943), which currently includes a provision forcing women ages 18-26 to sign up for the Selective Service, and the House’s NDAA (H.R. 4909), which does not. Congress should strip out the provision forcing women into the draft by adopting the House’s bill in Conference Committee.

Read More

President Obama’s Unilateral Transgender Policy for School Bathrooms

Background: On Friday May 13, 2016, President Obama’s Department of Justice (DOJ) and Department of Education (ED) issued a letter of joint guidance on transgender bathroom access for America’s school system. Using Title IX of the Education Amendments of 1972, the Obama administration is reinterpreting discrimination against “sex” to include “gender identity.” The new guideline directs any educational institution which receives federal funds to allow transgender students to use bathrooms and locker rooms that correspond to their gender identity, rather than their birth certificate.

Unlawfully Rewriting Law: Biological sex and gender identity mean two very different things. When Congress passed the Education Amendments back in 1972, the purpose was to protect women and girls from discrimination based on sex and ensure equal opportunity in education programs. The Obama administration has no right to unlawfully rewrite federal law in order to advance its own liberal social agenda in the wake of transgender bathroom disputes, must notably in North Carolina.

Violating Federalism: All across the country, state and local governments are working with parents, teachers, and school districts to determine how best to accommodate the privacy and safety of transgender students along with those students who feel uncomfortable going to the bathroom and changing with the opposite sex. For example, many schools have created new single-occupancy bathrooms and changing facilities for transgender students. The Obama administration’s decision to unilaterally impose a one-size-fits all policy for every school in the country undermines the ability of state and local governments to enact and enforce policy that’s best for their communities.

Bad Policy: Sex-specific bathrooms and locker rooms were created for a legitimate reason. Allowing boys who identify as girls to have unfettered access to girls’ bathrooms, locker rooms, shower facilities, and dorm rooms violates the privacy and safety of women. Sex-specific bathrooms serve a valid purpose of protecting the privacy and safety of girls and women, especially those who have been sexually abused.

Frequently Asked Questions:

How will President Obama enforce the guidance?
The joint guidance issued by the DOJ and ED does not have the force of law, though activist courts may interpret it as such, leaving schools under immense pressure to comply. President Obama is attempting to bully state governments into compliance by threatening to strip schools of federal funding. Until the guidelines are upheld by the courts, schools should refuse to comply with President Obama’s overreach.

What schools are affected by the guidance?
If the courts uphold the President’s guidelines, all schools, including colleges, universities, trade schools – public, private, and charter – that receive federal funding will have to comply or lose their federal funds. This could have significant negative repercussions on the school choice movement as well.

How does the federal government define “gender identity?”
According to the Obama administration’s guidelines, “Gender identity refers to an
individual’s internal sense of gender.” Furthermore, a “school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.” Essentially, a student is transgender if and when they say they are.

Can schools provide separate bathrooms and locker rooms for transgender students?
No. The Obama administration explicitly rejects compromises including single-occupancy facilities. According to the guidelines, “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

Do these guidelines apply to housing policy as well?
Yes. Separate accommodations for transgender students are not permitted. This applies to campus housing and hotels for off-campus trips as well, “A school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations.”

What can be done to reverse the DOJ/ED guidance on transgender bathrooms?
Congress can actively push back against President Obama’s overreach by passing legislation clarifying that for the purpose of all federal law, “sex” does not mean “gender identity” or passing legislation that “sex” does not mean “gender identity” for the purpose of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1968. Congress can also defund the guidance by attaching a defund rider to an appropriations bill(s) that stops the DOJ/ED from using federal funds to enforce the guidance.

Read More

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.

Read More

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.

Read More