Republican challenge to Pennsylvania map likely to fail

President Donald Trump wants Pennsylvania Republicans to fight the implementation of a court-drawn congressional map that threatens a half-dozen GOP-held seats this November, but most operatives and experts see little hope in a legal challenge to the new districts.

Republicans, both in Harrisburg and Washington, say they’re moving ahead with legal action to stop the new map. But, behind the scenes, Republican consultants are already urging their clients to get ready for these new districts in 2018.

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“I’m advising my clients to prepare for the worst-case scenario: that these are the maps this year,” said Mark Harris, a Republican consultant based in Pennsylvania.

The state Supreme Court, which released the new map on Monday, had ruled the previous district lines violated the state constitution as an improper Republican gerrymander. Because the issue is a matter of state law, legal experts say Republicans are unlikely to find judicial recourse in federal courts.

“The likelihood that [Republicans] will get a response from the [U.S.] Supreme Court is near zero,” said Justin Levitt, a law professor at Loyola Law School in Los Angeles.

That isn’t stopping Trump, who called on Republicans to take the case “all the way to the [U.S.] Supreme Court, if necessary,” in a tweet on Tuesday. “Your Original [map] was correct! Don’t let the Dems take elections away from you so that they can raise taxes & waste money!”

The NRCC echoed that strategy in a statement later Tuesday, promising that “state and federal GOP officials will sue in federal court as soon as tomorrow to prevent the new partisan map from taking effect.”

“The suit will highlight the state Supreme Court’s rushed decision that created chaos, confusion, and unnecessary expense in the 2018 election cycle,” Matt Gorman, the NRCC’s communications director, said in a statement.

For Republicans, it’s not clear yet what legal avenue they plan to proceed with first, or the relief for which they will ask. But if they return to the U.S. Supreme Court, experts said it’s unlikely the court will change its position from earlier this month when it rejected a request for a stay.

“The one thing they have going for them now is that the state Supreme Court has now acted, as opposed to threatening to act, but the big factor against that is [Justice] Alito already turned them down,” said Rick Hasan, a law professor at the University of California-Irvine. “They’re playing a weak hand.”

Democrats insist that “Republicans have no real option left,” said Marc Elias, a Democratic lawyer who’s worked on several redistricting cases. “It’s the same argument that the U.S. Supreme Court failed to entertain last time, and I don’t expect them to entertain it this time.”

“The map you see is the map we’re going to have [in 2018],” Elias added.

That map opens up opportunities for Democrats — who currently hold only five of the 18 House seats in the battleground state — particularly in the greater Philadelphia area.

The Pennsylvania case isn’t the only partisan gerrymandering case working its way through the federal courts. Similar suits in North Carolina, Texas and Wisconsin are also currently pending before the U.S. Supreme Court, and the court did intervene in North Carolina, setting aside a ruling that threw out that state’s congressional map. But unlike the Pennsylvania case, the other cases involve questions of federal, not state, law.

Pennsylvania’s state Supreme Court ruled last month that Republicans allegedly gerrymandered districts to their partisan advantage, a violation of the state’s constitution. Democratic Gov. Tom Wolf and GOP legislative leaders failed to agree on a new congressional map, triggering the state Supreme Court to use its own map.

So far, Pennsylvania Republicans have argued that the state Supreme Court is infringing on the legislature’s power to draw congressional maps.

“Implementation of this map would create a constitutional crisis where the Pennsylvania Supreme Court is usurping the authority of the Legislative and Executive branches,” state Senate President Pro Tempore Joe Scarnati and state House Speaker Mike Turzai said in a joint statement released Monday. “This map illustrates that the definition of fair is simply code for a desire to elect more Democrats.”

But legal experts said the U.S. Supreme Court has broadly interpreted the definition of a legislature in the Elections Clause of the U.S. Constitution, including a 2015 case in Arizona, which allowed an independent commission to draw the lines, instead of the state legislature.

Since 2011, in addition to Pennsylvania, 11 other states are using congressional district lines drawn in total or in part by a state or federal court.

Scott Gessler, the former Republican secretary of state in Colorado, acknowledged that the GOP’s effort in Pennsylvania is an “uphill battle.”

“It’s always hard to get [the U.S. Supreme Court] to grant a stay, and they’ve already declined to grant to stay under a different posture, so that weighs against this one,” Gessler said, adding that the Supreme Court’s first rejection gives “an insight into their reasoning.”

Meanwhile, the “game of middle-school musical chairs” has already kicked off throughout the states, as candidates scramble to figure out where they will be running and what voters they should be talking to, said Christopher Nicholas, a Republican consultant in the state.

“Not only are there people running for office marooned in districts they weren’t running in, but people who weren’t running, are now waking up and saying, ‘What about me?’” Nicholas said.

Like Harris, Nicholas said he’s fielded calls from clients, advising them to “run dual, side-by-side campaigns until the U.S. Supreme Court says whatever they’re going to say.”

Dan Meuser — a Republican who’s running to replace Rep. Lou Barletta, who is running for Senate — exemplified that tension with a post on Facebook on Monday.

“We will note, the court-drawn 9th Congressional District overlaps many areas in the 11th District where we have been campaigning hard for the past five months,” Meuser wrote. “At this time, we are going to continue to campaign in what was the original 11th Congressional District and will comment further once all legal challenges are resolved and district lines become definitive.”


Trump scrambles to respond to school massacre

After almost a week of relative silence on guns after the deadly Florida school shooting, President Trump moved to take action on gun violence Tuesday — without antagonizing his pro-gun base.

It wasn’t by accident that both of the president’s moves — authorizing a crackdown on “bump stocks” and signaling support for a stronger background check system — are backed by the NRA. But they would allow Trump, who spent much of the last weekend at Mar-a-Lago watching cable news coverage of the aftermath of the shooting, to say he’s taking action.

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It will be a high-wire act for the president in the best-case scenario: Pacifying gun-control advocates without stirring up his core supporters. Even if he manages to pull it off — gun-control advocates will never be satisfied with the background checks bill the White House is getting behind — he’ll have to contend with Republicans in Congress who want to loosen gun control laws, not strengthen them.

“We were all horrified by the tragedy in [Florida],” said Rep. Richard Hudson (R-N.C.), who authored a House-passed bill pairing narrow background checks provisions with so-called “concealed-carry reciprosity” legislation. The bill, a top priority of the NRA, would allow gun owners with concealed-carry permits in their home states to carry their guns into states without them.

“We must also protect the rights of law-abiding gun owners,” Hudson said, adding he hopes the Senate will pass the bill.

Pro-gun conservatives outside Congress are beating the same drum. Over the weekend, radio host Rush Limbaugh said on “Fox News Sunday” that “the solution is we need concealed carry in these schools.” NRA TV host Grant Stinchfield, in a video after the Florida shooting, argued that “we need more good guys with guns around because seconds count in these situations.”

As gun-control protests ramp up and Republicans dig in, where Trump will ultimately come down is an open question. His spokeswoman, Sarah Huckabee Sanders, said Tuesday that he is open to a range of options, including an assault weapons ban and a higher age limit for purchasing AR-15s.

The White House came under attack late last week and over the weekend for what critics described as a slow-footed response to the massacre at a Florida high school that left 17 people dead. The president was silent on the day of the attack and, in remarks on the shooting the following day, expressed sympathy for the victims and pride on behalf of the first responders, but failed to mention the role that guns had played in the gruesome incident.

Watching news coverage in the ensuing days, Trump was affected by images of impassioned high-school students, many of them with tears in their eyes, calling on federal lawmakers to take action, according to one White House aide. Yet even in times of tragedy, Trump has always been a base-conscious politician — somebody who looks to shore up his most fervent supporters rather than to reach bipartisan compromise.

One White House source told POLITICO that he and fellow administration officials were taken aback by the bump stock announcement. They’d received no heads up, the person said, and wondered privately if Trump simply wanted to blunt accusations that he wasn’t acting decisively.

Politically, Trump himself has been all over the map on gun control, endorsing an assault weapons ban in 2000 and winning the NRA’s highest rating during the 2016 presidential campaign. His son, Don Jr., an avid hunger, has urged him to “stay strong” and stick to his pro-gun views, according to the Daily Beast.

But the White House on Tuesday gave Attorney General Jeff Sessions a green light to crack down on “bump stocks,” tools that turn semi-automatic weapons into automatic killing machines, and which helped the Las Vegas shooter take down almost 60 people. Congress had talked about taking action against bump stocks but failed to in the three-and-a-half months since the attack.

Behind the scenes, top White House officials have been gauging whether House conservatives could support background check legislation that does not include their prized “concealed-carry” provision. They’ve also been reaching out to pro-gun groups to see what could earn their support.

But even if Congress dropped the concealed-carry proposal, the background check measure is incremental at most. It would not have stopped Nikolas Cruz from purchasing the semi-automatic weapon he used to kill 17 students and teachers. And most Democrats say it doesn’t go nearly far enough.

“It’s a good bill and we should pass it into law, but if this is all the White House is willing to do to address gun violence, it’s wholly insufficient,” said Sen. Chris Murphy, the chief sponsor of the background check provision being considered by the White House.

Democrats and gun-control groups are already gearing up to fight any Trump attempt to try to take credit for responding to the Florida shooting by embracing piecemeal, GOP-friendly moves.

John Feinblatt, president of the gun-control group Everytown for Gun Safety, said the White House’s reference to possible revisions to the background-check legislation could be “code” for insisting on the poison-pill concealed-carry provision in exchange.

“If Congress fails to act, I think the public is ready to throw them out,” Feinblatt said in an interview, slamming the possible pairing of the background-check bill and concealed carry as “outrageous.”

Elana Schor contributed to this report.


How Trump Could End Up Diminishing His Own Power

In the coming weeks, President Donald Trump is going to find himself making a decision he’s bound to hate: Does he want to comply with Robert Mueller, or risk diminishing his own power?

Here’s why this choice is inevitable. In the wake of his 8-count indictment against 13 Russian nations and 3 Russian entities for election interference, Special Counsel Robert Mueller’s interest in interviewing Trump will take on a renewed importance. So far, all signs have pointed to Trump’s refusing the interview request, which would almost certainly force Mueller to issue a grand jury subpoena to compel the president to talk. If this comes to pass, and the president refuses to comply with such a subpoena, the country will be in unchartered constitutional territory, and the courts will need to intervene. But history shows that when courts intervene because a president is trying to shield his own conduct, the deck is stacked against him. If Trump isn’t careful, he will end up shrinking his own authority—and diminishing the presidency for years to come.

When it comes to the separation of powers, the Constitution makes it looks pretty simple: Congress makes the laws, the president enforces them and the judiciary adjudicates them. In reality, though, the lines between the branches are a little blurrier than they seem on paper. Writing in 1952, Supreme Court Justice Robert Jackson noted that presidential power sometimes lies in a “zone of twilight” where the precise boundaries of Article II, which defines the president’s role, are unclear. In general, it’s in the interest of presidents to leave some of their authority in the grey area. This is because having a court decide where presidential power begins and ends leaves it set in stone, and applies to anyone who occupies the office in the future. In practice, presidents have typically tended to think of themselves not just as stewards for their party, but also of the presidency itself—preserving the full scope of its constitutional power for their successors is part of their job.

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For this reason, when questions arise about whether the president can or can’t do something, it’s better, from the presidential perspective, not to have the issue go to court. Sometimes this will be by getting Congress on board to authorize and fortify executive powers—think of the Authorization for the Use of Military Force, or the recently renewed Section 702 of FISA that permits the executive to conduct electronic surveillance on foreign targets. Other times, it might just be reluctant compliance, as when President Ronald Reagan handed over his personal diaries to Iran-Contra Independent Counsel Lawrence Walsh, or when President Bill Clinton agreed to give testimony to the grand jury in Independent Counsel Kenneth Starr’s Whitewater/Lewinsky investigation.

Of course, courts can and do intervene when presidents attempt to extend their authority too far or refuse to negotiate on the parameters. The Supreme Court reigned in President Harry Truman when he tried to use his war powers to take over domestic steel mills during the Korean War, and brushed back President George W. Bush when he established military tribunals to try suspected terrorists at Guantanamo Bay. The nature of our constitutional system presumes that the executive branch will try to overreach, and having the judiciary impose limits on the presidency is appropriate and necessary in these instances. When these cases are about contested policies, limits on presidential power can strengthen our constitutional democracy overall by promoting the robust expression of checks and balances, encouraging collaboration with Congress, or reaffirming individual rights.

However, when judicial limits on the president’s power arise over a dispute concerning his own alleged bad conduct, they weaken the presidency for the wrong reasons. In such situations, the president isn’t defending some larger goal in the national interest. Rather, he’s simply using it as a shield to avoid being held accountable for his personal behavior or criminal acts. The most famous example is President Richard Nixon, who claimed executive privilege to avoid providing incriminating information to Watergate Special Prosecutor Leon Jaworski. The resulting Supreme Court case, U.S. v. Nixon, gave the presidency a blow by ruling that claims of executive privilege didn’t insulate him from having to turn over records that might have evidentiary value in a criminal proceeding. Similarly, Clinton’s attempt to use the same tactic to keep his aides from testifying before Starr’s grand jury failed, with a court deciding that “personal matters” did not fall within the scope of the privilege.

These were the worst kind of cases to test the limits of presidential power because they weren’t about the role of the presidency, but the individual occupying the office. This makes a difference. When presidents decide to litigate an issue to protect their policy decisions, they are more likely to act judiciously, and with an eye toward compromise, because they can see the larger implications for the legacy of their office. But when presidents are just trying to keep their own bad or illegal conduct from public view—or keep themselves out of jail—they end up placing the power of the presidency at risk unnecessarily, with no real benefits to the other branches, individual rights or the country generally if they lose. They offer courts a way to extend these decision to other contexts in the future, tying the president’s hands in ways we might not want.

And though these battles can reaffirm the important principle that no one, not even the president, is above the law, they can still be damaging to democracy. Criminal investigations pit the president against law enforcement, making the public believe their loyalty belongs with one or the other. Even worse, they incentivize the president to accuse the investigations against him of being illegitimate, or an abuse of power. This kind of behavior is a typical self-preservation strategy for a criminal target—Trump, like Nixon, has attacked the prosecutors and FBI agents investigating him as being politically biased. When this rhetoric comes straight from the chief executive of the United States against his own branch of government, it is especially destructive to democratic institutions and the faith people have in their legitimacy.

Electing someone to the presidency with bad moral character isn’t just a 4-year embarrassment. It’s also a constitutional risk, since there’s a good chance these individuals will have little regard for how their actions impact the legacy of the office they hold—especially if they find themselves in the crosshairs of an investigation, like Trump does now. The irony, of course, is that Trump’s impending showdown with Mueller is on shaky legal ground precisely because of the precedent set by some of his predecessors. Still, the presidency, and the country, would be better off if these questions never had to be decided in the first place.

Asha Rangappa is a senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former special agent in the Counterintelligence Division of the FBI.


Trump IRS seeks millions in Obamacare fines even though law is ‘dead’

Hundreds of companies face prospective fines for violating Obamacare’s employer mandate by the same Trump administration that has done virtually everything in its power to abolish the federal health care law.

The Internal Revenue Service notices recently began arriving in corporate mailboxes, in some cases demanding millions of dollars in fines — an awkward development as the White House touts its business-friendly tax package. The notices will likely spur another legal fight over the health law — this time featuring the administration defending a statute that President Donald Trump has repeatedly declared dead.

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“Litigation is in the works,” said Alden Bianchi, an attorney who represents several businesses facing potential penalties for failing to provide adequate insurance coverage to workers. “There is a challenge out there and it’s brewing and the players are serious.”

The enforcement actions cover potential violations in 2015, the first year the mandate was supposed to be applied, after the Obama administration suspended fines in 2014. The Obama administration never tried to collect fines for 2015 before it left office in early 2017. Thanks in part to the time lag in tax filings, the first penalty notices just started to roll out in November, enforcing an unpopular requirement heading into the midterm election. Trump’s IRS has similarly enforced the health law’s requirement that most individuals carry insurance.

The covered firms argue the process is critically flawed, in large part because they never received legally required warnings from Obamacare exchanges at that time. As a result, companies say the government didn’t follow the law and they shouldn’t face the fines.

The IRS didn’t respond to questions from POLITICO about the penalties. The administration hasn’t disclosed precisely how many companies face potential fines, which can amount to several thousand dollars per employee, depending on circumstances. Several sources have told POLITICO they estimate the number of companies is in the hundreds or perhaps the low thousands.

A White House spokesperson referred POLITICO to the IRS.

The initial assessments are not binding. Employers have an opportunity to appeal the decision and present evidence that the IRS erred.

A potential lawsuit would likely center around what the businesses see as a fundamental problem in the enforcement of the mandate, according to sources familiar with those discussions. Employers with more than 100 full-time employees that are subject to the coverage requirement get fined when one or more of their workers goes to an Obamacare exchange and qualifies for a tax credit to help them buy insurance. Beginning in 2016, the criteria changed and more employers with more than 50 full-time employees faced the fine.

Under the law, when an employee gets a subsidy, the health insurance exchange is supposed to trigger a notification to the employer, effectively putting the business on notice that it’s likely to face a fine, and to give it an opportunity to cover the employee. But business sources say the federal exchange and some state-run exchanges never sent out those notices — and still aren’t.

“This is a 2015 problem, but guess what? This is also a 2017 problem because no notifications have gone out for 2017,” said Chris Condeluci, an attorney who is working with some companies facing potential fines.

Employers also complain the forms they’re supposed to fill out telling the IRS whether they offer coverage have confusing language, leading some businesses to mistakenly state they don’t provide it when they do.

“You can’t ignore an IRS assessment,” said Edward Lenz, senior counsel for the American Staffing Association, which represents temporary employment agencies. “You do that at your peril.”

So far, many employers are staying mum, in the hopes of negotiating the penalties away or that the IRS chooses not to enforce them. But if they go public over a huge Obamacare fine so soon after Republicans passed their business-friendly tax bill, congressional Republicans would be hard pressed not to come up with a solution.

Rep. Mike Kelly (R-Pa.) is sponsoring legislation that would retroactively eliminate the penalties. Kelly says that some Democrats quietly support the idea. Indeed, soon after the administration in 2013 unilaterally delayed enforcement of the mandate for one year, until 2015, 35 Democrats joined House Republicans to pass a bill doing the same thing.

“They knew it was a mistake too but it was too late – they couldn’t change it,” Kelly told POLITICO.

House Ways and Means Chairman Kevin Brady (R-Texas) said there is “very strong interest” in delaying or repealing the mandate, including retroactively.

But such a move would cut off revenue from the fines, potentially forcing supporters to come up with alternatives. The Congressional Budget Office pegs the revenues at $146 billion over a decade.

“I’d like to see us make progress there because there are a couple issues,” Brady said. “One is the cost of the mandate going forward, but also I think the effort to look back two to three years [to repeal retroactively].”

For now, covered employers are left in legal limbo.

In December, an AtWork Group temporary-staffing franchise was hit with a $3.8 million assessment for violating the mandate. The Knoxville, Tenn.-based firm was stunned: Most of its employees aren’t full-time workers, and it found a low-cost plan for 2015 that HHS determined was sufficient to meet the law’s requirements.

“It would kill them,” said Jason Leverant, AtWork Group’s chief operating officer. “That’s a huge sum of money.”

AtWork’s franchisee has appealed the IRS’ initial determination, and hopes that the issue will disappear once the facts are clarified.

“There’s no way it should stick,” Leverant said.

Aaron Lorenzo contributed to this report.