Sunday, December 26, 2010

The Very Active 111th Congress, The Highly Questionable Constitutionality of the Defense of Marriage Act

The End of 2 Whirlwind Years
It's become a more or less accepted truth in liberal circles that the 111th Congress underachieved. They failed to get immigration reform done. The health care bill that ultimately passed contained no public option. Cap and trade didn't happen. Those are 3 big expectations of liberals that remain unmet.

To Conservatives, the 111th Congress was a haven socialism, passing a massive increase in government spending through the stimulus package and a huge government takeover of Health Care.

Of course, in the end, the actions of the 111th Congress were neither socialist (the government didn't take over health care, the stimulus was one third tax cuts and all the spending end next year) or inactive (big pieces of legislation passed, more on that later.)

Like it or not, President Obama owns the 111th Congress. It more or less mirrored the first 2 years of his Presidency and in large measure reflected his legislative and executive priorities.

According to , 322 bills became law during the 111th Congress, 321 of them under Obama's watch (1, an act relating to executive compensation was signed by President George W. Bush prior to Obama assuming office - this is possible as Congress convenes on January 5th and the Presidential inauguration doesn't take place until over 2 weeks later.) Of course, many of the bills were inconsequential and non-controversial, such as the ever-present fun of naming post offices and government buildings. But, below is a brief review of the very meaningful legislation that became law over the past two years:

Lilly Ledbetter Fair Pay Act - a major change in equal employment law that removed a restrictive statute of limitations on civil claims involving unequal pay. The act was named for Lilly Ledbetter, a woman who discovered after 20 years of work that she had been consistently underpaid versus her male peers but was ineligible to seek redress under the prior statute.

SCHIP Expansion - this bill expanded children's health insurance to 4 million additional children in poverty and was paid for with an increased in the federal cigarette tax from 34 cents to 101 cents per pack.

American Recovery and Reinvestment Act - the famous economic stimulus bill contained $787 billion in stimulus funds, approximately one third through tax cuts and two thirds through spending which was more or less equally divided between infrastructure projects and temporary entitlement expansions.

CARD Act - a bill that regulates consumer financial arrangements, requiring disclosure of fees by credit card issues, limiting the use of so-called "teaser" rates and minimizing the penalties that can be made for an infrequent late payment.

Smoking Prevention and Tobacco Control Act - gave the FDA authority to regulate cigarettes and their contents, including prohibiting the use of "light" in cigarette labeling, forbidding flavored cigarettes, further restricting marketing efforts by tobacco makers and expanded and more explicit warning labels on packs.

HIRE Act - a much smaller stimulus bill than the ARRA, it provided modest tax incentives for businesses to hire unemployed persons.

Patient Protection and Affordable Care Act / Health Care Reconciliation Act - a series of 2 bills (so divided because of legislative sausage making to enable passage of the controversial legislation) that requires everyone to have health insurance or pay a penalty by 2014, sets up insurance exchanges, removes tax benefits for high benefit employer provided plans, prohibits exclusion from coverage based on pre-existing conditions and levies a variety of smaller taxes, including one on sun tan parlors.

Note: Contained in the reconciliation measure was an unrelated provision that essentially federalized the handling of student loans.

Prevent All Cigarette Trafficking Act - outlawed shipment of cigarettes via the US Postal Service, effectively cutting off a source of business for Indian Casinos, that had made a business out of shipping cigarettes from low-tax locations on reservations to locations in high tax states.

Wall Street Reform and Consumer Protection Act - made major changes to the regulation of financial institutions, including heightened disclosure and transparency requirements in the derivatives market, increased requirements for equity against futures bets, increased oversight to look for systematic risk and a new office of consumer protection.

Don't Ask Don't Tell Repeal - will allow gay Americans to openly serve in the military without any disciplinary consequences.

Tax Cut Extension Act - extended Bush-era tax rates through 2012 and implements a modified estate tax, that is higher than the zero rate in 2010, but significantly lower than the rates most of the past decade.

Two budgets (Fiscal 2009, which was overdue when the President took office and Fiscal 2010) plus funding a portion of Fiscal 2011 (until March 2011)

Senate Only Approval (by law/constitution)

A full slate of cabinet and sub-cabinet level appointments. Of course, this includes all the top level cabinet officers, but encompasses hundreds of other deputies and other Senate "advise and consent" sub-cabinet level positions.

Approval of 2 Supreme Court nominees, including Sonia Sotomayor, the first hispanic justice on the Supreme Court and third woman and Elena Kagan, the fourth woman on the supreme court (and rumored to be the first lesbian on the court, although arguably not the first LGBT member as previous member David Souter, who Sotomayor replaced, was widely rumored to be gay.) Additionally, the nomination of hundreds of lower-level judges were also approved.

START Treaty - a strategic nuclear arms reduction treaty with Russia which will reduce the number of strategic warheads in both countries from 2,200 to 1,500 over 10 years.

Taken in total, the 111th was among the most significant in US history in terms of shaping the future of the country. So, in total, I would say the conservatives are more right than liberals in terms of the amount of activity. Whether they are right on the merits of that activity is a matter of opinion.

There were some major holes in pressing national problems that were not addressed in the 111th congress. Three major issues stand out:

(1) Deficit Reduction Plan
The blue-ribbon commission headed by centrist Democrat Erskine Bowles and libertarian Republican Alan Simpson finally returned its set of recommendation after the election, but Congress has yet to take any sort of meaningful action to reduce the long-term, structural deficit the country faces, an issue that threatens to consume the economy over the next 10 years if not dealt with. Republicans have vowed this will be a top priority in the new House in 2011 and rightfully so. Let's hope the actions are more than window-dressing.

(2) Immigration Law
Illegal immigration continues, largely unabated. It has slowed from its peak in the mid-2000s, due in large part to the declining economy and reduced opportunities for employment, but there are still millions of illegal and undocumented workers across the United States, but obviously concentrated very heavily in the Southwestern states of California, Texas, Arizona and New Mexico. The 111th Congress basically took no action to remedy either the ongoing influx of undocumented workers or to deal with the legal status of those who are already here. Even the very modest DREAM Act, which sought to deal with the legal status of people brought here by their parents illegally as children failed to garner enough support to break a Senate filibuster. The GOP majority in the House has vowed to focus on enforcement first (i.e. stopping the flow) before addressing the legal status of those already there. This isn't the approach that I would advocate (comprehensive reform is clearly needed in my opinion), but any improvement in the situation would be better than nothing. I also think that focusing on border security is mid-guided and expensive; a far better and more cost-effective method of reducing illegal immigration would be to step up penalties and enforcement for hiring illegals, thus decreasing the incentive to come in the first place.

(3) Environmental Legislation
The last major piece of environmental legislation passed in this country was the Clean Air Act of 1991, signed by President George Herbert Walker Bush (yes, three Presidents ago) that instituted a cap and trade system on sulfur emissions and severely restricted the ability to build new coal-fired power plants without significant emissions recapture. Republicans in the House will have absolutely zero taste for going after the sweeping cap and trade plan that the House passed in the 111th but the Senate failed to act on (and it's highly unlikely such a bill could get through the Senate either, honestly.) There may be some common ground on issues such as reducing dependence on foreign oil...I continue to advocate for a revenue-neutral increase in the gasoline tax, a Republican idea that Democrats should embrace, but I haven't heard much discussion on such a bill being taken up next year.

So, there you have it, 2 meaty years in American political history where a lot happened. It would certainly surprise me if as much legislation happens in the 112th Congress, which will be far more politically divided. But, you never know.

Taking Aim at the Defense of Marriage Act
With Don't Ask Don't Tell soon to be a thing of the past, the obvious next frontier in the LGBT fight for equal rights will center around the issue of gay marriage. Let's first summarize where things stand legally.

At the state level,
5 states plus the District of Columbia have Gay Marriage - Massachusetts, Vermont, New Hampshire, Connecticut and Iowa
5 states have "Strong Civil Unions", civil unions that are essentially equal to marriage in all ways except the name - New Jersey, California, Washington, Oregon and Nevada
5 states have weaker civil unions, civil unions that afford only some of the legal protections of marriage - Hawaii, Maine, Maryland, Wisconsin, Colorado
35 states essentially have no legal protections whatsoever for gay couples

The fight for legality of gay marriage has largely occurred at the state level, with one major exception, the Defense of Marriage Act which was signed into law by President Bill Clinton in 1996. This law allows states to not recognize gay marriages performed in other states.

The law is a departure from how marriage has been handled in every other case. States have historically honored all other state's marriages. This includes variations in the law, including the legal age for marriage and laws concerning blood relatives marrying. For instance, if one state requires an age of 17 to marry, but another requires only age 16, the state requiring 17, by law must recognize a marriage performed at age 16 in the other state. Similarly, if one state prohibits first cousins from getting married, but another state allows it, the state with the prohibition must legally recognize a marriage between first cousins performed in the other state.

There is a fairly simple constitutional rationale for this legal recognition process. If two people are married in one state, but not married in another, it creates all sorts of thorny legal issues around division of property and legal rights. For instance, if a couple gets married in one state and vacations in another, it would be a legal mess if property division and medical decision rights did not transfer. This basic precedent was abandoned with DOMA.

I strongly question DOMA's constitutionality. This is not a liberal expansive interpretation of the constitution, it is a quite literal one. Here is the text I cite, from Section 1 of Article 4 of the constitution:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

The full faith and credit clause is very clear...public acts and judicial proceedings that occur in one state must be recognized in other states. Gay marriage is EXACTLY the sort of situation that this clause was designed for. It is both a public act (a legal, public contract, sanctioned by the state government) and, in almost all cases a judicial proceeding (marriages in most states must be performed by a recognized agent of the state...hence the phrase "by the power vested in my by the State of xxx, I pronounce you husband and wife") Whether this case makes it to the Supreme Court or not remains to be seen, but I certainly would like to see conservatives, who have long argued for "strict constructionism", reading the constitution for exactly what it says, explain how the DOMA doesn't clearly overstep the authority provided in the constitution.

Repealing DOMA would be a game-changer for gay marriage, because, in effect, were DOMA repealed, gay marriage would be legal across the US. While only 5 states would still perform the marriages, any gay couple could then go to those 5 states and have their marriage legally recognized across the US.

Vice-President Joe Biden stated in an interview over the weekend that he viewed gay marriage as "inevitable". President Obama, at his last press conference after the lame duck Congress, said his views on gay marriage were "constantly evolving". Both have supported strong civil unions but opposed gay marriage in the past, but have opposed the Defense of Marriage Act. They are both late to the game, but public support from them for gay marriage would be a big boon. And the Supreme Court doing the right thing legally would be an even bigger boon.

A Supreme Court reversal of the DOMA would not doubt prompt an effort to amend the constitution in a way to prohibit federal recognition of gay marriage. That is fine and is a debate worth having. It is also a debate that I suspect that opponents of gay marriage would lose.

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