Daily Archives: 20 December 2021

“Coy,” Is It?

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The Biden-Harris administration, in its argument for the government’s appeal in the 8th Circuit of a trial court’s rulings in Religious Sisters of Mercy v Azar and Catholic Benefits Association v Azar, steadfastly refused to say whether, in fact, these entities would be subject to government suit were those entities, in fact, to refuse to provide and cover so-called “gender transition” procedures. The case and the government’s “enforcement” vagaries center on

how the Department of Health and Human Services (HHS) and US Equal Employment Opportunity Commission (EEOC) interpret Section 1557 of the Affordable Care Act, which prohibits discrimination by gender identity, and Title VII of the Civil Rights Act in relation to RFRA [Religious Freedom Restoration Act].

Just the News mildly referred to that as the government being coy.

The government’s attorney, Assistant US Attorney Ashley Chung, then went so far as to tacitly threaten the judges:

She warned the judges not to “open the floodgates to premature litigation” based on “uncertainty” over how agencies might respond to new legal interpretations or court rulings.

This is a cynical argument by Chung. The judges won’t be opening floodgates for “premature” litigation. HHS and EEOC already have opened those floodgates with their carefully thought out decision to be “uncertain” in their “interpretation” of Obamacare, Title VII, and associated regulations and to be vague on their enforcement procedures for those.

Ego and Job Avoidance

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The Senate has before it some 50 nominees for various ambassadorships that still need floor confirmation votes. Senator Ted Cruz (R, TX) is holding them up by refusing to give unanimous consent to their confirmation unless and until he gets a floor vote on sanctioning constructors of the Russian Nordstream 2 pipeline. In response, Majority Chuck Schumer (D, NY) is…threatening.

Democrats are working to clear as much of the backlog as possible by consent. If we cannot make much progress, we may need to stay and hold votes on nominees this weekend and next week until we do[.]

That would really eat into Senators’ Christmas break. Oh, the angry sacrifice.

At 30 hours of debate per confirmation vote, though, those 50 nominations would require more than just a couple of weeks’ intrusion into playtime. Those 1,500 hours accumulate to a bit over two months to get all of them voted on, even were the Senate in session 24/7 for those two months.

Unanimous consent occasionally is an administrative convenience for getting minor matters done—post office and park namings, for instance—however, it’s far too often a mechanism for ducking being on the record on substantive issues. Nominee confirmation votes on controversial nominees, for instance.

Cruz is entirely correct to not give his unanimous consent, especially given his terms.

All Schumer has to do is allow a vote—a vote, mind you, not a guarantee of passage—on a Nordstream 2 sanction. The Progressive-Democrat Senators and the Progressive-Democrat Vice President would promptly vote down the sanction, and the nomination consents could proceed. Of course, this would put the Progressive-Democrat Senators on the record as opposing sanctioning Putin’s pet project, and that might not play well in Arizona, or Georgia, or Nevada, or….

Apart from any of that, this is just Schumer exercising his ego in trying to face down a Republican Senator.

It’s not all bad, though. If Schumer backs up his threat, at least the Senators would remain in session doing their jobs, which includes voting, explicitly on the record, on substantive matters so their constituents have material with which to evaluate them in the coming election.