Wake Up To Politics - December 17, 2021

by Gabe Fleisher

Good morning! It’s Friday, December 17, 2021. Election Day 2022 is 326 days away. Election Day 2024 is 1,054 days away.

As I mentioned yesterday, I’ve now taken my last exam of the semester and I’m about to head home for winter break. I’m also going to be taking a few weeks off from Wake Up To Politics, to recharge before next semester and before diving into the big political year that will be 2022.

As you’ll read about below, Democrats are not expected to make any more progress on their legislative agenda until the new year — meaning the Senate is about to leave town (which the House has already done), so there shouldn’t be too much news through the holidays (knock on wood) and I feel safe taking a little break.

This has been an exciting year for Wake Up To Politics. It was this newsletter’s 10th anniversary year, and the year that the newsletter staff grew for the first time as our great team of policy contributors signed on. I’m really proud of all the work they did, as well as a lot of the analysis pieces and on-the-ground reporting I’ve worked on; together, I feel we’ve broadened and deepened the quality of coverage in WUTP and risen to the challenge of covering this unique political moment.  

I hope you have enjoyed reading the newsletter this year as much as we’ve enjoyed putting it together. There’s a lot more in store for 2022, so stay tuned. In the meantime, I hope you have a happy holidays and a happy new year — and I will see you back in your inboxes in January. Thanks so much for reading and for being a part of the WUTP community.

Democrats end the year with a whimper

Democrats are about to wrap up the legislative year of 2021 — their first year in over a decade with control over the House, Senate, and White House, a formidable trifecta.

According to CNN, Politico, and other news outlets, though, Democratic lawmakers are looking back at the year with dismay, worried they don’t have much to show for their time in the majorities, as Republicans threaten to wrest away the trifecta in the midterm elections next year.

To be clear, Democrats have notched some significant accomplishments in the past year. They passed the American Rescue Plan, a $1.9 trillion stimulus package. They also ushered through the bipartisan infrastructure package, a $1.2 trillion update to America’s roads and bridges that was one of President Biden’s top priorities.

Plus, Democrats have quietly confirmed 70 Biden-nominated federal judges in the past year; as Reuters notes, that exceeds the 57 nominees that former President Donald Trump had gotten confirmed at this point in his tenure.

But that list is missing two big priorities that the party had been hoping to add this week. Democratic leaders had repeatedly promised to hold a Senate vote on the Build Back Better Act, the $1.75 trillion social spending package, by Christmas — a target they now seem all but certain to miss.

When it became clear that Build Back Better would continue to stall, Democrats briefly attempted a pivot to voting rights, discussing Senate rules changes to weaken the filibuster and push the Freedom to Vote Act and the John R. Lewis Voting Rights Advancement Act.

Like Build Back Better, those two voting rights bills have passed in the House but have languished in the Senate, a reminder of how difficult it can be to muscles bills through a fragile 50-50 majority.

Now Senate Democrats are expected to head home for the holidays empty-handed. Build Back Better has stalled amid negotiations with centrist Sen. Joe Manchin (D-WV), who has sought to pull down the price tag of the package and eliminate provisions such as a ban on drilling off the Atlantic and Pacific Coasts.

A source briefed on the latest conversations between Biden and Manchin — who spoke on the phone twice this week — told Politico that the talks “have been going very poorly” and that the two men remain “far apart.”

The voting rights deliberations have sputtered too: some moderate Democrats have announced support for softening the filibuster this week — including Sens. Maggie Hassan (D-NH), John Hickenlooper (D-CO), and Mark Warner (D-VA) — but all 50 Democrats would be required for such a rules change, a threshold the party has yet to reach.

After a flurry of meetings (and a Zoom call with Biden and other senators on Thursday), Manchin yet to give his blessing to creating a filibuster carve-out for voting rights. Sen. Kyrsten Sinema (D-AZ), meanwhile, remains flatly opposed.

Biden threw in the towel on Thursday and effectively acknowledged that Build Back Better — his signature domestic priority — would have to wait until 2022. “My team and I are having ongoing discussions with Senator Manchin; that work will continue next week,” Biden said in a statement.

“We will advance this work together over the days and weeks ahead,” he continued. “Leader Schumer and I are determined to see the bill successfully on the floor as early as possible.”

Washington largely took that statement as a sign that a vote won’t be held until the new year; the Senate is not expected to wait around over the holidays while the Biden-Manchin talks drag on.

Democrats had been hoping to use one of the package’s most popular components, the Child Tax Credit, as a forcing mechanism for action by year’s end. The CTC was expanded in the American Rescue Plan to take the form of $300 monthly payments to most American families. But that expansion was only set to last a year — meaning the last payments went out on December 15.

Democratic leaders had planned to use that expiration as leverage to push Build Back Better, which would extend the CTC expansion for another year. But it turns out the provision is one of Manchin’s main beefs with the spending package: he says if the CTC is going to be included in the bill, it should be extended for 10 years, to ensure the tax credit is fully paid-for if lawmakers extend it again at the end of 2022.

But that would mean the CTC expansion alone would cost $1.4 trillion over 10 years. And Manchin also refuses to support a package that costs more than $1.75 trillion over 10 years. So his plan would require a major re-working of the package, taking out most of the other provisions that make up the bill, including new funding for health care, education, climate change, and other party priorities.

Then, another setback came on Thursday. The Senate parliamentarian announced that a provision to provide temporary protections for certain undocumented immigrants could not be included in the package under Senate rules.

Schumer and a group of Senate Democrats quickly released a statement expressing that they “strongly disagree” with the parliamentarian’s ruling and promising to “pursue every means to achieve a path to citizenship in the build.”

But that was the Democrats’ third attempt to draft immigration language that would pass muster with the parliamentarian. At this point, the only recourse left is likely voting to overrule her.

But that strategy faces the same fundamental obstacle as Democrats’ two other year-end promises, passing the underlying spending package and the voting rights bills: They just don’t have the votes.

What else you should know

→ January 6. “The House committee investigating the Jan. 6 attack at the Capitol issued a subpoena on Thursday for Phil Waldron, a retired Army colonel with a background in information warfare who had circulated a detailed and extreme plan to overturn the 2020 election.” New York Times

→ Abortion. “The Food and Drug Administration said Thursday that it will permanently allow patients to receive abortion pills by mail, expanding access to abortion as the Supreme Court wrestles with the future of Roe v. Wade.” NBC News

→ Covid. “The Centers for Disease Control and Prevention recommended adults take a Covid-19 vaccine from Pfizer Inc. or Moderna Inc. over Johnson & Johnson’s after agency officials reported the rate of a rare but serious blood-clotting condition was higher than previously detected.” Wall Street Journal

→ China. “The Senate on Thursday passed by unanimous consent a bill aimed at countering China over its genocide against the Uyghur Muslim population in Xinjiang and confirmed President Biden’s ambassador to Beijing, in addition to two other nominees.” The Hill

→ An interesting read. “In Trump country, a willingness to set aside politics as Biden visits” Washington Post

Ask Gabe

Your questions, answered.

Q: “It appears we have a patchwork of laws now across the country on vaccine mandates. If I understand correctly, a U.S. District Court judge imposed a nationwide ruling banning vaccine mandates but a U.S. Circuit Court of Appeals lifted that ban for 14 states, but the ban is still in place elsewhere.”

“Leaving aside the details of the specific mandate, please explain how a single federal district judge can have nationwide authority and how this power relates to the appeals court jurisdiction. I thought only the Supreme Court could impose nationwide rulings?” — Brent B.

A: This is a great question — let’s start by unpacking the case Brent brought up, to use it as a real-world example to help understand the broader legal dynamics at play.

Back in November, the Biden administration announced a new emergency regulation that imposed a vaccine mandate on all employees at health care facilities that participate in Medicare and Medicaid. The mandate immediately faced a swarm of legal challenges, and before its scheduled implementation date on December 6, two U.S. district court judges — one in Louisiana and one in Missouri — sided with the challengers and issued rulings temporarily blocking the mandate from going into effect.

How were those two district court judges able to issue orders that applied across the country, not just in their specific jurisdictions? By handing down something called a “nationwide injunction,” a ruling by a single district court judge that stops the government from taking a specific action and that the judge declares to be effective for the entire country.

According to the Texas Law Review, district judges have been taking it upon themselves to issue nationwide injunctions since the 1960s — but the practice has become a lot more common in the past few years, including with high-profile issues like immigration. Jeff Sessions, then serving as Attorney General under Donald Trump, famously said in 2017 that he was “amazed” that a “judge sitting on an island in the Pacific” (meaning a district judge based in Hawaii) could issue a nationwide injunction that applied cross-country.

As the Congressional Research Service has noted, there are no laws on the book that explicitly allow district judges to issue nationwide injunctions — but there’s also no law that says they can’t. It’s something of a legal gray area, and pretty much everyone just goes along with the nationwide injunctions until a higher court has had a chance to rule. (Some Supreme Court justices, such as Clarence Thomas and Neil Gorsuch, have called for the practice to be put to an end, but so far no court has ever declared it unconstitutional.)

It’s important to consider, however, that nationwide injunctions are almost always temporary, only applying while challenges to the government action in question are pending litigation. Also, federal appeals court judges can intervene by overruling district court judges in their jurisdictions — which is exactly what happened in the case Brent mentioned.

Both the 5th Circuit (overseeing the Louisiana district judge) and the 8th Circuit (overseeing the Missouri district judge) struck down the nationwide injunctions put in place by their inferiors. However, the two circuit courts did issue their own temporary pauses to the health care worker vaccine mandate, but each one said the injunctions were only applicable in the states that had sued in the specific challenges at hand.

That means this quirk of the American legal system has left the country in an odd place vis-à-vis the health worker vaccine mandate: the requirement is now blocked in the 26 states that have sued, but theoretically in effect in the other 24. The Biden administration formally requested on Thursday that the Supreme Court step in and make a final decision on whether the mandate can be implemented.

Daybook

All times Eastern.

→ President Joe Biden will travel to South Carolina today to attend the fall commencement ceremony for South Carolina State University in Orangeburg. Biden will depart the White House at 6:50 a.m., arrive in Orangeburg at 9:25 a.m., and deliver his commencement address at 10 a.m.

The ceremony will feature a high-profile graduate: House Majority Whip Jim Clyburn (D-SC). According to the Washington Post, Clyburn completed his credits to graduate at South Carolina State in December 1961 — but because the school did not then hold a fall commencement ceremony, he was never able to walk across a stage and receive his diploma in-person.

Today, he finally will — and his diploma will be handed to him by Biden, who Clyburn arguably propelled to the Democratic presidential nomination in 2020 with his crucial endorsement before the South Carolina primary.

After the ceremony, Biden will leave for his home in Wilmington, Delaware, where he will spend the weekend. He will depart Orangeburg at 12:55 p.m. and arrive in Wilmington at 3:25 p.m.

→ White House Press Secretary Jen Psaki will hold a press gaggle aboard Air Force One during the flight to South Carolina.

→ U.S. public health officials will hold a press briefing at 11 a.m. on the Covid-19 response. Participants will include Dr. Anthony Fauci, the president’s chief medical adviser; Dr. Rochelle Walensky, the CDC director; and Jeff Zients, the White House COVID-19 response coordinator

→ The Senate will convene at 9:30 a.m. and hold a cloture vote at 10 a.m. to advance the nomination of Atul Gawande to be Assistant Administrator of the U.S. Agency for International Development (USAID), overseeing the Bureau of Global Health.

Other, as-yet-announced votes are expected later in the day.

→ The House is on recess until January 10.

→ The Supreme Court is not scheduled to meet until January 7.