Wall Street Journal columnist Peggy Noonan attempted to join other right-wing media in attacking a New Republic article on Republican nullification efforts, but failed to address the article's main points in her rebuttal.
Noonan skips over the substance of the article to instead misrepresent the controversy around photo voter IDs and ignores the fact that rejections of federal authority through an appeal to "states' rights" are now commonplace in the Republican Party. This increase in attempts at nullification extend from unconstitutional state laws to filibusters of President Obama's nominees.
The article Noonan criticizes, "Why The GOP Is And Will Continue To Be The Party Of White People" by Sam Tanenhaus, argues that the Republican Party has built itself on the myth that states can lawfully resist federal laws with which they disagree. Rather than engage the theory - a concept that originated with John Calhoun's resistance to anti-slavery efforts - Noonan dismisses the argument because she never hears this 19th-century originator of nullification mentioned by name in conservative circles.
Instead, Noonan completely mischaracterizes the recent Republican push for government-issued photo voter ID, which is one of Tanenhaus' examples of the GOP's embrace of nullification. Contrary to Noonan's description, which explains that “vote rigging is part of our history” and “vote fraud happens,” these laws are redundant and unnecessary layers of additional identification for a problem of in-person voter impersonation that is virtually non-existent.
There are many other examples of Republican nullification efforts, particularly the relentless filibustering of the president's nominees, which Noonan never addresses in her defense of the party.
For example, right-wing media have taken particular satisfaction in the radically conservative D.C. Circuit Court of Appeals' unprecedented decision declaring the president's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau unconstitutional. Now that the president has re-nominated these picks, Republicans are once again declaring their opposition to these nominees and using the appellate opinion - written by GOP appointees - as additional leverage.
But the NLRB, which now only has one member, cannot function without at least three. The CFPB cannot function without a director. With these positions unfilled, these agencies are essentially immobilized. And this is the point, as reported by USA Today in 2011:
When Senate Republicans filibustered President Obama's nominee to a key consumer watchdog post this month, it was the first time in history the Senate blocked an appointment in an effort to effectively shut down an agency.
It likely won't be the last. Already, Senate Republicans are threatening to hold up Obama's nominees to a number of posts overseeing elections, labor law and health care -- and in each case, they aim to kill the agency outright.
[...]
[O]ne scholar calls it a new and disturbing trend.
“If your view is that an agency shouldn't exist, and so you're going to use your one vote against a nominee, that's fine. But using the filibuster to raise the bar to 60 (votes), not because they're awful people, but because you're trying to delegitimize an agency, that's very far over the line,” says Norm Ornstein of the conservative-leaning American Enterprise Institute.
New Republic's Jonathan Cohn has called out this filibustering of presidential nominees for what it is: the “new” nullification, where a policy agenda resoundingly chosen twice in a presidential election is nevertheless smothered by the Republican minority. As Cohn reports:
[B]y most measures, the problem has gotten worse in the last few years, particularly with Obama in office. And this sort of brazen refusal to confirm appointees on ideological grounds really does seem like a turning point.
Just to be sure, I consulted Thomas Mann, the political scholar at Brookings known for his encyclopedic knowledge of congressional history. Here's what he said:
“In the case of the Consumer Protection Board, Senate Republicans have said they would not confirm anyone who does not agree to restructure the leadership of the agency from a single person to a multi-member body. They insist that a legitimately passed law be changed before allowing it to function with a director - a modern-day form of nullification. Same with the director of the Center for Medicare and Medicaid Services. There is nothing normal or routine about this. The Senate policing of non-cabinet appointments is sometimes more aggressive but the current practice goes well beyond that, more like pre-Civil War days than 20th century practice.”
Noonan ignores these examples of GOP nullification. That she did this on the day that Caitlin Halligan was once again filibustered to the court that will decide the fate of President Obama's legislative accomplishments is doubly peculiar.
The Republican Party has continued to refuse Halligan an up-or-down vote for the D.C. Circuit Court of Appeals, which invalidated the president's recess appointments. Because this court handles the bulk of challenges to administrative implementation of federal law, keeping it free of the president's nominees ensures the court will support right-wing challenges to his legislation. And this obstruction is having its intended effect.
As Haley Sweetland Edwards recently explained in The Washington Monthly, the D.C. Circuit's assault on financial reform has been highly successful at undermining the Dodd-Frank Wall Street Reform and Consumer Protection Act. Using as an example Business Roundtable v. SEC - a decision that gutted a rule that would have curbed corporate abuses by ensuring shareholders have access to crucial governance decisions - Edwards describes the Republican Party's vested interest in continuing to filibuster Halligan:
In a now-infamous case, Business Roundtable vs. SEC, a three-judge panel decided in favor of two of the financial industry's biggest backers and overturned the SEC's so-called “proxy access” rule. The rule would have made it easier for shareholders to elect their own candidates to corporate boards, allowing investors to put the brakes on out-of-control CEO pay. In the past decade, it has attempted to establish a proxy access rule on three separate occasions, but each time it was cowed into submission by industry lobbyists claiming that the rule would destroy corporate growth. In 2011, emboldened by the language of Dodd-Frank, which explicitly authorizes the SEC to establish a proxy access rule, the agency tried once again.
Almost immediately after the final rule was published, the Business Roundtable and the U.S. Chamber of Commerce sued the SEC on the grounds that the agency's cost-benefit analysis was inadequate. The judges agreed, marking the first time that the court had overturned a rule explicitly authorized by Dodd-Frank. But that's not the part that sent shockwaves through the regulatory apparatus. The D.C. Circuit has overturned dozens of regulations over the years, including six SEC rules in the previous seven years, for lots of reasons, including inadequate cost-benefit analyses.
What sent the shockwaves was that this case didn't seem to have anything to do with cost-benefit analysis at all. In the vitriolic decision, the panel of judges, all of whom were appointed by Republican presidents, lamented that due to “unutterably mindless” reasoning, the SEC had “failed once again” in its cost-benefit analysis. But the court never cited how exactly the agency's twenty-three-page economic impact report could have done better. It simply appeared to disagree with the agency's policy choice--and that, apparently, was grounds enough to overturn the rule.
From legislation to presidential nominees, the playbook of nullification is being openly used by the Republican Party for all to see - even if Noonan can't.