The Value of Keeping the Filibuster
Rep. Julio Gonzalez, M.D., J.D.
"Gridlock is the greatest protection to our personal liberties." Justice Clarence Thomas while addressing Stetson Law students.
With Congress's hyperpartisan posture and the small margins afforded in passing legislation through the Senate, interest has grown in doing away with the filibuster rule.
Because Senate rules require a greater than 60% vote to forcibly end a filibuster, a supermajority requirement is essentially invoked in order to pass a substantive bill out of the Senate. The difficulty in surmounting this hurdle has many lamenting the filibuster rule and wondering whether it's time to do away with the supermajority provision so that bills may be passed by a simple majority.
My answer to this suggestion is quite simple. No.
One of the great priorities of the Framers in designing the Constitution was the concept of separation of powers and the decentralization of authority. These are the principles that gave rise to the enumerated powers of the federal government and the creation of three co-equal branches of government. Even within the legislative branch, the plan was to maximize the tension between the chambers so as to elevate the hurdle to be cleared to successfully get a bill to the President's desk.
According to the Framers, the House of Representatives was designed to be the chamber of the people, reactive to its whims, and directly elected by the constituencies of the various districts. Towards that end, every member of the House of Representatives was subject to reelection every two years so that if Congress were to proceed in a direction contrary to the will of the people, the people themselves could forcibly and quickly effect a change in the direction of Congress.
The Senate was decidedly different as it was supposed to be the more seasoned, more stable chamber. For one, only one third of the Senate was to change hands each election cycle, that way, while the House could be subject to dramatic, biennial membership changes, the Senate could only change one third of its members at a time.
Second, the Senate was equal in representation of each state. This meant that while the number of members in the House of Representatives varied according to each state's population, the representation from amongst the various states was equally weighted. It also meant that each Senator was responsible for a much larger constituency, which would have a tempering effect on the Senator's views. While it is easy to take a hard right or hard left position when one represents a small geographic location with similar views, taking on a population as large as that of a state checks the breadth of a senator's views as the state as a whole can never be as radical as its most ardent congressional seat.
But there was another distinction to the Senate, and one that is arguably more influential upon its actions. In the Constitution's original incarnation, the members of the Senate were elected by each state's legislature. This was instrumental to defining the actions and the policies approved by the Senate since, under this scheme, the Senate was truly answerable to the States. One can scarcely imagine a Senator voting for imposing a funding mandate upon a state if that senator knew that his state legislature would be negatively impacted by his vote.
That all changed with the passage of the Seventeenth Amendment to the Constitution. As a result of the Seventeenth Amendment, senators were elected by a direct vote from the people of each state. Instantly, the Senate became less responsive to the state legislature and became decidedly more like the House of Representatives. As a result, it became a lot easier for a bill originating in the House of Representatives, namely the budget bill, to get passed out of the Senate.
Enter the filibuster. In light of the decreasing tensions between the two legislative chambers resulting from the ratification of the Seventeenth Amendment to the Constitution, it has become much easier for the federal government to pass laws. Power has been centralized, not decentralized, as the Framers had intended. The filibuster with its 60% plus one supermajority requirement in breaking it, although not constitutionally prescribed, imparts a difference in the inner workings of the two chambers that serves to increase the tension between the two chambers and decentralize power away from the House of Representatives. In so doing, our liberties stand a higher level of protection.
So, in light of the trend toward centralization of power brought to us through the actions of the Progressive wing of our political spectrum, should we encourage the Senate to do away with the filibuster rule?
The answer, clearly, is no.
The Absurdity of Shutting Down the Federal Government
Rep. Julio Gonzalez, M.D., J.D.
In a move heralding their selfishness and disruptive stance on issues affecting all Americans, congressional Democrats opted to obstruct the passage of a budget, even a temporary one, in favor of shutting down the federal government. Ostensibly, the reason to disrupt the normal functions of government is to demand some guarantee for DACA recipients and to advocate improvements for America's CHIP program.
To be clear, DACA recipients are not immediately threatened in any way. Their present status is guaranteed by a Presidential Orders expiring, not next week, but in March. Additionally, their position is doubly protected, at least for now, by a legally unsubstantiated ruling delivered by an activist judge from San Francisco, such that, even if March were to roll around without a solution regarding the legal status of children of illegal immigrants, their position would still be protected by the injunctive relief obtained for them by plaintiffs like the State of California.
So, where is the imminent threat to DACA recipients demanding that government services be shut down for immigrants legally residing in the United States and, worse yet, for American citizens?
There is none.
As to the CHIP program, the Republican proposal includes a provision that would continue funding the program delivering care to millions of children for the next six years, yet the Democrats would have you believe that but for their aggressive stance on disrupting the federal government's function, the program would be severely threatened. Of course, this is a messaging lie being delivered by congressional Democrats to help support their untenable position
So where is the need to shut down the government in support our pediatric health care recipients?
Just like with DACA, there is none.
So, we are left with one undeniable truth as to the motivation for Democrats to aspire to shut down the government: politics.
In point of fact, about the only motivation for Democrats is to disrupt the series of recent Republican victories in the public forum. The leftist Democrats cannot stand that the Republicans' adherence to classical macroeconomic principles in governance has lead to a robust economic growth spurt of over 3% GPD growth in the last three quarters. They cannot tolerate that the tax package Former Speaker of the House Nancy Pelosi called "the worst bill in the history of Congress" has led to companies voluntarily raising level entry wages for its employees and the provision of bonuses based on the moneys they are saving from the massive decrease in the corporate tax rates brought to them thanks to the Republicans. They cannot stand that the unemployment rate has reached a 43-year low and that African Americans are seeing the lowest unemployment rate since 1972.
Congressional Democrats know their message is collapsing under the weight of the nation's economic reality. They can ill afford to allow the American people to continue to speak about these successes and how favorably they are being impacted by the predictable results of conservative fiscal policy. And most importantly, they cannot allow President Trump to bask in the glory of his newfound momentum at the one-year anniversary of his inauguration.
So what do congressional Democrats do?
They shut down the government hoping the conversation will shift to the Republicans' inability to govern and the recklessness of a party shutting down the government despite having control of all three branches of government.
Except there is no crisis, no disagreement, for the minority party to base such a fickle and evil act as shutting down our government, and the Republican could not possibly pass a budget bill through the Senate without the cooperation of the Democrats.
Despite the ill-founded wishes of congressional Democrats, the responsibility for this callus and grossly irresponsible act will fall squarely on them, and the longer they let this situation fester, the greater the level of their dysfunction will appear to be.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.
The Federalist Pages No. 38:
January 10, 2018
Feinstein Goes Rogue
A Judge Halts Trump's DACA Order
Mueller Wants To Talk To Trump
Rep. Julio Gonzalez, M.D., J.D.
In an unauthorized move, on January 9th, Senator Feinstein released, in its entirety, the transcript of the August 22, 2017, Senate Judiciary Committee interview of Fusion GPS director, Glenn Simpson. The interview was part of the Senate's investigation into potential acts of collusion between Russia and then candidate Donald Trump. It is from this interview that we get information regarding Christopher Steele's activities with Fusion and information regarding the meeting that took place between Donald Trump Jr. and Russian operatives.
Although the release of the entirety of the transcripts brings little extra information to light regarding Fusion's findings and the funding of Fusion activities, there are a few points that stand out.
First, it was Christopher Steele who suggested that Simpson go to the FBI with the information they had just obtained regarding potential cooperation between the Trump Campaign and foreign operatives. Recall that Steele was the former British intelligence officer hired by Fusion to look into potential ties between the Trump campaign and foreign operatives. It was Steele that produced the now mostly debunked Russian Dossier that was a) largely funded by the Democratic National Committee; and b) laced with false information provided by the Russians.
What a coincidence that Steele would be the one to first suggest that Fusion go to the FBI to suggest launching an investigation into the Trump Campaign!
All of this suggests one of two things. Either Steele is the absolute worst spy in the world and is lucky to be alive in light of his foolhardiness, or Steele is a willing conspirator with the Democrats and the Russians to frame Donald Trump. Interesting that the press is not evaluating Steele's motivations further.
Second, it appears the reason why Simpson felt comfortable approaching the FBI regarding Trump is because there was a corroborating source inside the Campaign. Who was this source? How reliable was he? And was it Steele himself who discovered this "source"?
The transcript does not shed much light on this topic because of Simpson's and his attorney's, Joshua Levy, interest in protecting their sources. After all, said Levy, someone had already been killed as a result of the release of the Dossier!
This last point is absolutely fascinating, but perhaps even more intriguing is the total lack of follow up by the Judiciary Committee's lawyers. There were no questions from the attorneys regarding who was killed, the circumstances by which he or she was killed, and for what reason.
In a moment of shear incompetence, the comment was just allowed to sit there, unaddressed.
And there is one more implication to the release of the transcript by Senator Feinstein: the damage to the credibility of the Senate Judiciary Committee. Recall that Simpson sat before the Committee voluntarily. Ostensibly, he did this as the result of a willingness to cooperate with the investigation. No subpoena was issued, but at the beginning of the inquiry, the lawyers told Simpson that the interview was confidential and that he was prohibited from discussing it with anyone outside of that room.
Admittedly, Simpson has called for the release of the transcript, so potentially, there was no angst on his part regarding the unauthorized actions of Senator Feinstein.
But consider this. What do you think this breach of confidentiality will do to the willingness of witnesses to cooperate with future investigations?
The answer, of course, is decidedly negative.
The DACA ruling
In another striking development on January 9, Judge William Alsup, a Clinton appointee from San Francisco, issued an injunctive order prohibiting President Trump from moving forward with the rescindment of President Obama's DACA order. Although it only applied to established DACA applicants and left untouched the ban on future applications, the order is offensive nevertheless, and demonstrates the terrible problem plaguing our country as a result of the actions of activist judges.
Essentially, the plaintiffs, which included the State of California, argued that President Trump has acted randomly and capriciously in removing the DACA order because, amongst other reasons, he did not give notice and did not allow of a period of public commentary prior to issuing his rescindment.
But here's the thing, neither did Obama. Obama himself issued his own DACA order singlehandedly, without due process, and outside any compliance with any statutory requirements. So, when President Trump acted to discontinue the DACA order, he was actually rescinding an illegal act, making Alsup's ruling even more egregious.
Additionally, the judge applied his order to the whole nation. This latter issue is particularly problematic as it is allowing the judiciary to paralyze policy decisions on a national scale even though the district of any particular judge does not encompass a large geographical area.
This latter problem is actually one that can be fixed by Congress. Congress has the authority to create and defined the powers of the lower courts. As evidenced by the results of this case, it is time for Congress to limit the scope of judicial orders to only the geographical extent of their district.
Mueller Wants to Speak to the President.
Recently, we have been getting indications that Special Counsel on Russian Collusion, Robert Mueller, wants to speak to the President of the United States in conjunction with his investigation. Of course, it comes as no surprise that Mueller would have questions for Donald Trump, but Donald Trump, as President of the United States doesn't have to comply. As a matter of fact, any counsel's inclination when representing the President ought to be to prevent such an interview from happening.
But apparently, President Trump wants to speak to Mueller in the hopes that such a conversation would finally result in the end of the Mueller's misguided investigation. After all this time investigating potential avenues of Russian collusion between the Trump campaign and any foreign operatives, Mueller has not yet found any significant evidence for it. The whole effort has been a disaster for the Democrats who could not stand to face the reality that their darling candidate, Hillary Clinton, had lost to Trump. So, they launched these phony charges of collusion in an attempt to have Trump removed from office; except that there was no collusion.
So we are now left with a situation where all this money and energy has been expended just to find that what Trump had been saying all along was true.
Perhaps even more intriguing are the topics that Mueller wishes to discuss with Trump. Mueller wants to talk to Trump about Flynn and Comey's firing, and not about Russian collusion.
What does this mean to Donald Trump? It means that the end of the investigation is likely coming to an end, and that, defeated, Mueller is finding no evidence of collusion.
Just like President Trump said.
Julio Gonzalez, M.D., J.D.
Dr. Gonzalez is an orthopedic surgeon and lawyer serving as State Representative for South Sarasota County in Florida. He is the author of The Federalist Pages