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Politics Foreign Affairs Culture Fellows Program

Stop Playing Legislative Games

A single clause can ruin an entire bill and this is killing Congress’s work, says Rep. Harriet Hageman, the lawmaker who took out Liz Cheney.

Congressman,Harriet,Hageman,(r),Attends,House,Judiciary,Committee,Field,Hearing

There are all kinds of phrases and jargon that are particular to Congress and legislative procedure, so much so that sometimes it sounds like the folks on Capitol Hill are speaking a different language. When members of Congress talk in “legislative speak,” normal people tend to tune them out because, unlike D.C. careerists, they are not obsessed with the minutiae of the process.

But at least one term is pretty clear on its face: “poison pill.” As it relates to Congress, a poison pill is a detail contained in a bill that makes the entirety of the legislation unpalatable. Sometimes they are obvious, and sometimes they must be rooted out, but if we care about the direction of this country, we must always make the effort to find them.

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On February 4, 2024, the Senate released the “Emergency National Security Supplemental Appropriations Act, 2024,” the purpose of which was to provide $60 billion dollars to Ukraine, $14 billion to Israel, and ostensibly, $20 billion “for the border.” While Senators Schumer, Lankford and others would have you believe that it was a “border security bill,” it was nothing of the sort. It was instead a classic bait and switch, whereby the Democrats received a windfall of additional funding for the military-industrial complex, Ukraine pork, and the ability to expedite the processing of illegal immigrants. Actual “border security,” however, was non-existent.

While the advocates of this monstrosity tried to gaslight us into believing that it did not grant the requisite “get out of jail free cards” to tens of thousands of illegals each week, that is in fact what it did—even empowering President Biden to unilaterally “declare an emergency” and increase those astronomical (and indefensible) numbers exponentially whenever he chose.

In sum, the Emergency National Security Supplemental Appropriations Act provided no security for Americans at all—it instead ratified the catastrophic open border policies of the Biden/Mayorkas dance team.

This bill fortunately died before ever leaving the Senate chamber. Despite that win for the American people, it is still worth discussing the larger issue of poison pill clauses that are so often overlooked in legislation in both the House and the Senate.

This particular bill in fact included the poison pill to end all poison pills—the Senate bill all but guaranteed that no one who is opposed to unlimited illegal immigration, the destruction of our social safety net, the importation of the world’s poorest, the scourge of human trafficking, the flooding of our communities with illegal and deadly drugs, and the non-stop invasion of military-age men from malign countries around the world, would get a fair hearing to challenge it in court. How did the drafters in the Senate accomplish what would be nothing short of abolishing the First Amendment’s guarantee that we may “petition our government for redress”? By making sure that only the most liberal two courts in the Country would have jurisdiction to hear any such cases.

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Even though Texas, Arizona, New Mexico, and California are bearing the brunt of the Biden/Mayorkas border disaster, the courts in those states would never have any say as to how this new law would be interpreted, applied, or enforced. Even though Governors Abbott and DeSantis have been at the forefront of exposing and challenging Biden and Mayorkas’s refusal to comply with existing immigration law, this bill would prohibit them from filing a lawsuit in Texas or Florida in order to protect the citizens of their respective states. Even though our border communities have been overrun with illegals, forcing them to dedicate their limited human and financial resources towards taking care of them, this bill would prohibit them from seeking relief from judges who have a better understanding of the on-the-ground situation, instead forcing them to file their cases in Washington, D.C.

Now, why would the Democrats (and useful Senate Republicans) seek to so severely constrain a state, a community, or a citizen from pursuing legal redress in those courts that are closest to them? Why would a “border bill” include a provision designed to strip American states, cities, and citizens from seeking judicial relief in the forum, venue and jurisdiction that is the most convenient, the most knowledgeable, and with the most skin in the game on the issue at hand?

Very simply, the D.C. District Court and D.C. Circuit Court of Appeals are two of the most notoriously liberal courts in the entire United States of America. They consistently side with liberal Democrats on every radical policy that they seek to pursue, endorsing and legitimizing agency decisions and actions that could never make it through the legislative process. They have made an absolute mockery of “the rule of law” and equal protection in their handling of the J6 proceedings, the unlawful actions of Black Lives Matter, and the anarchy of Antifa. They have become so politicized when it comes to implementing the progressive agenda, that no one who seeks a fair trial, application of the law to the facts, or relief from government overreach would ever file a lawsuit in either the D.C. District Court or Court of Appeals. They have largely become simply an arm of the Democratic Party, especially in relation to any issue that involves matters of political import.

But that isn’t even the worst part. Because these courts would have “sole and original jurisdiction over any challenge arising from the Secretary’s authority to exercise the border emergency authority” to decide all matters related to the Senate bill, there would never be a “split in the circuits” allowing for review of the decisions they made. What does that mean? Under our judicial system, the United States Supreme Court takes only approximately 100–150 cases per year—less than 2% of all cases for which the litigants seek Supreme Court review. One of the most important determining factors controlling whether the Supreme Court will accept an appeal or “grant cert” is if there is a “split in the circuits,” meaning that two or more of the Circuit Courts of Appeals disagree on a defining question of law when deciding similar cases that have come before them. The Circuits, in other words, must disagree as to what the law is. 

In practical terms, we may have a circumstance whereby the Fifth, Eighth, Sixth, and Eleventh Circuits decide one way on a particular question of law, and the Second, Ninth, and Fourth Circuits may decide another way. Once the issue has percolated sufficiently, the Supreme Court may take up the question to pronounce how the law will be applied.

If, however, the D.C. District Court and the Circuit Court of Appeals are the only two courts that are allowed to decide any questions regarding the meaning, interpretation, application, or other aspect of the Senate Emergency National Security Supplemental Appropriations Act bill, there will never be a split in the circuits warranting Supreme Court intervention. This does not mean that the Supreme Court will never weigh in on these issues, but it makes it a lot more difficult to ensure that it does.

The use of “poison pills” isn’t limited to just the border bill. If we review another bill from the Senate—one that actually passed, which was dubiously called the “emergency spending package”—we see the same tactics leading to another legal concern. The bill contains what could be considered an “impeachment clause” should Donald Trump become President in January 2025.

It does so by including $1.6 billion for foreign military financing in Ukraine, and $13.7 billion for the Ukraine Security Assistance Initiative. These funds expire on September 30, 2025—eight months into the possible second term of President Trump. These are the same accounts President Trump was impeached for pausing in December 2019. If Democrats were to retake the House of Representatives, this would create an opportunity for yet another sham impeachment vote.

These examples are only two within the last thirty days and were inserted into bills that garnered extra scrutiny. They should be a wake up call to Republicans in the House and Senate: We must scour every single bill that comes our way to ensure that these jurisdictional tactics and adverse consequences related to legislation are blocked at every turn. Anything short of waging war on this radical effort to rewrite our laws on venue and jurisdiction is nothing short of legislative malpractice.

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