If you seek justice, don’t blame the U.S. Senate Parliamentarian

benfell

See updates through November 6, 2021, at end of post.

I have previously argued on numerous grounds that justice does not reduce to law.[1] This conflict arises again with U.S. Senate Parliamentarian’s ruling that a pathway to citizenship for unauthorized migrants cannot be included[2] in a $3.5 trillion reconciliation package whose prospects for passage anyway remain very much in doubt.[3]

There is little doubt the reconciliation package would do a great many people a great deal of good. Further, worries about the national debt and inflation are dubious at best[4] and draw their force from an intellectually discredited neoliberal ideology.[5] Justice, therefore, says this package should pass.

Similarly, justice says that borders exist significantly to deny human rights and privileges available on one side of a socially constructed boundary to people on the other side[6] and there simply cannot be an ethical justification for denying those people those rights and privileges. Indeed, under international human rights law, human rights are universal, available to all humans, regardless of where they live.[7] Justice says that at the very least those people should have a path to citizenship.

There are a number of obstacles, including so-called “centrist” Democrats like Joe Manchin and Kyrsten Sinema.[8] There is also the Senate Parliamentarian, whose job it is to pass judgment on whether proposals pass muster with arcane Senate rules.[9]

So a number of folks on the Left have taken up attacking the Senate Parliamentarian. They are blaming the referee. They are blaming the umpire.

They really have a problem with the rules, to which, like law, justice does not reduce. But they’re personalizing their attacks, targeting the Parliamentarian.

The filibuster is among those rules. It is a rule that enshrines minority rule, seemingly more to the advantage of Republicans than Democrats, and exists in significant part to protect systemic racism and even, at the time, slavery.[10]

Like law, rules are socially constructed. They apply because we, collectively, say they do. We would do well to place a somewhat greater emphasis on justice, including a thorough exploration of the causes, like social injustice, that result in undesirable behavior.[11] To say we do not do this is an understatement.[12]

But it’s much easier to blame an individual, in this case the Parliamentarian, than to revisit our foundational assumptions about law, about rules, indeed about our economic system. My friends on the Left ought to know better.

Update, November 5, 2021: For a long time, it has been clear that Joe Manchin and Kyrstin Sinema are the chief obstacles to the reconciliation package that is supposed to accompany the bipartisan infrastructure framework to passage. What hadn’t been quite so clear was what exactly they were objecting to.[13]

This actually wasn’t quite the mystery it was made out to be and gradually, it emerged that Manchin and Sinema mostly objected to the overall cost of the reconciliation package.[14] But what if Manchin is using a different standard to evaluate the bipartisan framework he supports from the one he is using to evaluate the reconciliation package? It turns out he’s doing just that.[15]

Which is to say, Manchin and, I’m pretty sure, Sinema don’t actually object to what they call “fiscal irresponsibility.” They’re just desperate to oppose a social safety net bill on whatever pretext—money usually works—they can come up with.

Update, November 6, 2021: The bipartisan infrastructure framework has now passed the House of Representatives and goes to Joe Biden’s desk for signature.[16] It is not being held to the same standard as the “Build Back Better” reconciliation package,[17] which Joe Manchin and Kyrstin Sinema have promised to support only if it does not add to the budget deficit.[18] I’m pretty sure that Manchin and Sinema are lying,[19] which is to say that so-called “progressives” in the House have gotten rolled yet again.

  1. [1]David Benfell, “Juries and injustice: The fools call me in again,” Not Housebroken, April 28, 2015, https://disunitedstates.org/2015/04/27/juries-and-injustice-the-fools-call-me-in-again/↩
  2. [2]Jennifer Haberkorn, “Senate parliamentarian won’t allow citizenship pathway for immigrants in Democrats’ spending bill,” Los Angeles Times, September 19, 2021, https://www.latimes.com/politics/story/2021-09-19/parliamentarian-decision-on-pathway-to-citizenship↩
  3. [3]Jonathan Chait, “The Bipartisan Infrastructure Deal Is Probably Doomed, Alas,” New York, June 25, 2021, https://nymag.com/intelligencer/2021/06/is-the-bipartisan-infrastructure-deal-going-to-pass-biden-republicans-democrats.html; Jonathan Chait, “Joe Manchin Has Put Biden’s Presidency in Mortal Danger,” New York, September 2, 2021, https://nymag.com/intelligencer/2021/09/joe-manchin-pause-biden-presidency-failed-danger-congress-democrats.html; Jonathan Chait, “Kyrsten Sinema Threatens to Kill Her Own Infrastructure Bill,” New York, September 20, 2021, https://nymag.com/intelligencer/2021/09/kyrsten-sinema-threatens-infrastructure-bill-biden-build-back-better.html; Mike DeBonis, “Schumer, a leader more liked than feared, faces test of whether he can deliver the ‘big and bold’ agenda he’s promised,” Washington Post, July 29, 2021, https://www.washingtonpost.com/politics/infrastructure-schumer-senate/2021/07/29/8575551e-efaf-11eb-81d2-ffae0f931b8f_story.html; Mike DeBonis, “Joe Manchin gets all the attention. But Kyrsten Sinema could be an even bigger obstacle for Democrats’ spending plans,” Washington Post, September 15, 2021, https://www.washingtonpost.com/politics/sinema-reconciliation-manchin/2021/09/15/8c583f96-162d-11ec-9589-31ac3173c2e5_story.html; Andrew Duehren, “CBO Estimates Infrastructure Bill Would Add $256 Billion to Deficits,” Wall Street Journal, August 5, 2021, https://www.wsj.com/articles/cbo-estimates-infrastructure-bill-would-add-256-billion-to-deficits-11628196739; Lee Fang, “Mystery Group Promoting Infrastructure Privatization Boosted By Toll Road Lobbyists,” Intercept, July 23, 2021, https://theintercept.com/2021/07/23/infrastructure-privatization-toll-roads/; Sarah Ferris and Heather Caygle, “House Dem moderates lay out battle lines as Pelosi stands firm,” Politico, August 11, 2021, https://www.politico.com/news/2021/08/11/house-democrats-moderates-infrastructure-spending-503917; Clare Foran and Ali Zaslav, “Senate Democrats approve $3.5 trillion budget resolution in key step toward passing major economic package without GOP votes,” CNN, August 11, 2021, https://www.cnn.com/2021/08/11/politics/senate-approves-budget-resolution/index.html; Oriana Gonzalez, “Sanders insists Dems’ spending package remain at $3.5 trillion,” Axios, September 8, 2021, https://www.axios.com/sanders-manchin-spending-package-35-trillion-536a9c7f-6dd1-450a-8d65-c6dd986cc86e.html; Eric Levitz, “5 Reasons Biden Got His Bipartisan Infrastructure Deal,” New York, July 30, 2021, https://nymag.com/intelligencer/2021/07/5-reasons-biden-got-his-bipartisan-infrastructure-deal.html; German Lopez, “What’s in the new infrastructure bill — and why it’s a big deal,” Vox, July 29, 2021, https://www.vox.com/22598883/infrastructure-deal-bipartisan-bill-biden-manchin; Ryan Lizza et al., “A warning sign for Democrats on climate policy,” Politico, August 11, 2021, https://www.politico.com/newsletters/playbook/2021/08/11/a-warning-sign-for-democrats-on-climate-policy-493936; Hans Nichols, “Manchin backs as little as $1 trillion of Biden’s $3.5 trillion plan,” Axios, September 8, 2021, https://www.axios.com/scoop-manchin-backs-as-little-as-1-trillion-of-bidens-35-trillion-plan-91d079e0-84a7-4f8f-94d4-212827a61339.html; Rick Perlstein, “When America Had a Moral Panic Over Inflation,” New York, September 2, 2021, https://nymag.com/intelligencer/2021/09/the-1970s-when-america-had-a-moral-panic-over-inflation.html; Kristina Peterson and Lindsay Wise, “Democrats’ $3.5 Trillion Budget Framework Exposes Party Tensions,” Wall Street Journal, August 11, 2021, https://www.wsj.com/articles/democrats-3-5-trillion-budget-framework-exposes-party-tensions-11628704569; Tony Romm, “Sens. Manchin and Sanders square off as Democrats clash over $3.5 trillion economic package,” Washington Post, September 12, 2021, https://www.washingtonpost.com/us-policy/2021/09/12/manchin-sanders-reconciliation/; Alex Shephard, “Chuck Schumer Is Done Waiting on Republicans,” New Republic, July 21, 2021, https://newrepublic.com/article/163014/chuck-schumer-done-waiting-republicans; Alex Shephard, “Biden Gets His Bipartisan Victory. Now the Hard Part,” New Republic, August 10, 2021, https://newrepublic.com/article/163228/senate-passes-infrastructure-bill-reconciliation-next; Paul Waldman, “Kyrsten Sinema needs to show us what she believes in,” Washington Post, September 20, 2021, https://www.washingtonpost.com/opinions/2021/09/20/kyrsten-sinema-needs-show-us-what-she-believes/; Sarah D. Wire and Meena Venkataramanan, “House OKs resolution allowing $3.5-trillion social spending bill to advance,” Los Angeles Times, August 24, 2021, https://www.latimes.com/politics/story/2021-08-24/house-senate-infrastructure-bill-moderates↩
  4. [4]Stephanie Kelton, The Deficit Myth (New York: PublicAffairs, 2021); Rick Perlstein, “When America Had a Moral Panic Over Inflation,” New York, September 2, 2021, https://nymag.com/intelligencer/2021/09/the-1970s-when-america-had-a-moral-panic-over-inflation.html↩
  5. [5]Mark Blyth, Austerity: The History of a Dangerous Idea (Oxford, UK: Oxford University, 2013); David Fickling, “The Gig Economy Compromised Our Immune System,” Yahoo!, July 25, 2020, https://finance.yahoo.com/news/gig-economy-compromised-immune-system-000048670.html; Amir Fleischmann, “The Myth of the Fiscal Conservative,” Jacobin, March 5, 2017, https://jacobinmag.com/2017/03/fiscal-conservative-social-services-austerity-save-money; Jason Hickel, “Progress and its discontents,” New Internationalist, August 7, 2019, https://newint.org/features/2019/07/01/long-read-progress-and-its-discontents; Daniel Stedman Jones, Masters of the Universe: Hayek, Friedman, and the Birth of Neoliberal Politics (Princeton, NJ: Princeton University, 2012); Stephanie Kelton, The Deficit Myth (New York: Public Affairs, 2021); Robert Kuttner, “Austerity never works: Deficit hawks are amoral — and wrong,” Salon, May 5, 2013, http://www.salon.com/2013/05/05/austerity_never_works_deficit_hawks_are_amoral_and_wrong/; Dennis Loo, Globalization and the Demolition of Society (Glendale, CA: Larkmead, 2011); Thomas Piketty, Jeffrey Sachs, Heiner Flassbeck, Dani Rodrik and Simon Wren-Lewis, “Austerity Has Failed: An Open Letter From Thomas Piketty to Angela Merkel,” Nation, July 6, 2015, http://www.thenation.com/article/austerity-has-failed-an-open-letter-from-thomas-piketty-to-angela-merkel/; John Quiggin, “Austerity Has Been Tested, and It Failed,” Chronicle of Higher Education, May 20, 2013, http://chronicle.com/article/Austerity-Has-Been-Tested-and/139255/; David Stuckler and Sanjay Basu, “How Austerity Kills,” New York Times, May 12, 2013, http://www.nytimes.com/2013/05/13/opinion/how-austerity-kills.html; David Stuckler and Sanjay Basu, “Paul Krugman’s right: Austerity kills,” Salon, May 19, 2013, http://www.salon.com/2013/05/19/paul_krugmans_right_austerity_kills/↩
  6. [6]David Benfell, “Things I shouldn’t have to say about borders,” Not Housebroken, December 26, 2018, https://disunitedstates.org/2018/12/26/things-i-shouldnt-have-to-say-about-borders/↩
  7. [7]Office of the High Commissioner for Human Rights, “What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx↩
  8. [8]Jonathan Chait, “Joe Manchin Has Put Biden’s Presidency in Mortal Danger,” New York, September 2, 2021, https://nymag.com/intelligencer/2021/09/joe-manchin-pause-biden-presidency-failed-danger-congress-democrats.html; Jonathan Chait, “Kyrsten Sinema Threatens to Kill Her Own Infrastructure Bill,” New York, September 20, 2021, https://nymag.com/intelligencer/2021/09/kyrsten-sinema-threatens-infrastructure-bill-biden-build-back-better.html; Mike DeBonis, “Joe Manchin gets all the attention. But Kyrsten Sinema could be an even bigger obstacle for Democrats’ spending plans,” Washington Post, September 15, 2021, https://www.washingtonpost.com/politics/sinema-reconciliation-manchin/2021/09/15/8c583f96-162d-11ec-9589-31ac3173c2e5_story.html; Oriana Gonzalez, “Sanders insists Dems’ spending package remain at $3.5 trillion,” Axios, September 8, 2021, https://www.axios.com/sanders-manchin-spending-package-35-trillion-536a9c7f-6dd1-450a-8d65-c6dd986cc86e.html; Hans Nichols, “Manchin backs as little as $1 trillion of Biden’s $3.5 trillion plan,” Axios, September 8, 2021, https://www.axios.com/scoop-manchin-backs-as-little-as-1-trillion-of-bidens-35-trillion-plan-91d079e0-84a7-4f8f-94d4-212827a61339.html; Tony Romm, “Sens. Manchin and Sanders square off as Democrats clash over $3.5 trillion economic package,” Washington Post, September 12, 2021, https://www.washingtonpost.com/us-policy/2021/09/12/manchin-sanders-reconciliation/; Paul Waldman, “Kyrsten Sinema needs to show us what she believes in,” Washington Post, September 20, 2021, https://www.washingtonpost.com/opinions/2021/09/20/kyrsten-sinema-needs-show-us-what-she-believes/↩
  9. [9]Amber Phillips, “How the Senate parliamentarian could make or break Democrats’ spending bill,” Washington Post, September 16, 2021, https://www.washingtonpost.com/politics/2021/09/16/senate-parliamentarian-elizabeth-macdonough-reconciliation/↩
  10. [10]Sarah Binder, “Mitch McConnell is wrong. Here’s the filibuster’s ‘racial history,’” Washington Post, March 24, 2021, https://www.washingtonpost.com/politics/2021/03/24/mitch-mcconnell-is-wrong-heres-filibusters-racial-history/↩
  11. [11]Wanda D. McCaslin and Denise C. Breton, “Justice as Healing: Going Outside the Colonizers’ Cage,” in Handbook of Critical and Indigenous Methodologies, eds. Norman K. Denzin, Yvonna S. Lincoln, and Linda Tuhiwai Smith (Thousand Oaks, CA: Sage, 2008), 511-529.↩
  12. [12]Steven E. Barkan, Criminology: A Sociological Understanding, 3rd ed. (Upper Saddle River, NJ: Pearson Prentice Hall, 2006).; Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: New, 2011); Herbert J. Gans, The War Against The Poor: The Underclass And Antipoverty Policy (New York: Basic, 1995); Michael B. Katz, “How America abandoned its ‘undeserving’ poor,” Salon, December 21, 2013, http://www.salon.com/2013/12/21/how_america_abandoned_its_undeserving_poor/; James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University, 2006); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004); Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, MA: Harvard, 2012); John Paul Rollert, “Greed Is Good: A 300-Year History of a Dangerous Idea,” Atlantic, April 7, 2014, http://www.theatlantic.com/business/archive/2014/04/greed-is-good-a-300-year-history-of-a-dangerous-idea/360265/↩
  13. [13]Igor Bobic and Arthur Delaney, “Progressive Democrats Stare Down Moderates In Battle Over Biden Agenda,” Huffington Post, September 30, 2021, https://www.huffpost.com/entry/nancy-pelosi-infrastructure-vote_n_6155b857e4b0487c855b9a42; Jonathan Chait, “Joe Manchin Has Put Biden’s Presidency in Mortal Danger,” New York, September 2, 2021, https://nymag.com/intelligencer/2021/09/joe-manchin-pause-biden-presidency-failed-danger-congress-democrats.html; Jonathan Chait, “Kyrsten Sinema Threatens to Kill Her Own Infrastructure Bill,” New York, September 20, 2021, https://nymag.com/intelligencer/2021/09/kyrsten-sinema-threatens-infrastructure-bill-biden-build-back-better.html; Democracy Now! “‘We Need to Deliver’: Anger Grows at Sens. Manchin, Sinema over Obstruction of Democratic Priorities,” September 21, 2021, https://www.democracynow.org/2021/9/21/35_trillion_spending_bill_ro_khanna; Olivier Knox, “It’s Bernie vs Manchin as spending breakthrough remains elusive,” Washington Post, October 7, 2021, https://www.washingtonpost.com/politics/2021/10/07/its-bernie-vs-manchin-spending-breakthrough-remains-elusive/; Marianne Levine and Burgess Everett, “Democrats grit their teeth after Manchin lists demands,” Politico, September 30, 2021, https://www.politico.com/news/2021/09/30/democrats-grit-teeth-manchin-demands-514836; Kristina Peterson and Lindsay Wise, “Democrats’ $3.5 Trillion Budget Framework Exposes Party Tensions,” Wall Street Journal, August 11, 2021, https://www.wsj.com/articles/democrats-3-5-trillion-budget-framework-exposes-party-tensions-11628704569; Greg Sargent, “Bernie Sanders erupts at Joe Manchin, and a deeper dispute is revealed,” Washington Post, October 7, 2021, https://www.washingtonpost.com/opinions/2021/10/07/sanders-manchin-reconciliation-democrats/; Marianna Sotomayor, “Waiting for ‘Manchema’: House liberals grow exasperated with two Democratic senators as Biden agenda struggles,” Washington Post, September 30, 2021, https://www.washingtonpost.com/politics/manchin-sinema-reconciliation-liberals/2021/09/30/3aa2b376-2130-11ec-8200-5e3fd4c49f5e_story.html; Daniel Strauss, “Can Pramila Jayapal Stare Down Manchin and Sinema?” New Republic, September 29, 2021, https://newrepublic.com/article/163811/pramila-jayapal-infrastructure-manchin-sinema; Paul Waldman, “Kyrsten Sinema needs to show us what she believes in,” Washington Post, September 20, 2021, https://www.washingtonpost.com/opinions/2021/09/20/kyrsten-sinema-needs-show-us-what-she-believes/↩
  14. [14]Mike DeBonis, “Joe Manchin gets all the attention. But Kyrsten Sinema could be an even bigger obstacle for Democrats’ spending plans,” Washington Post, September 15, 2021, https://www.washingtonpost.com/politics/sinema-reconciliation-manchin/2021/09/15/8c583f96-162d-11ec-9589-31ac3173c2e5_story.html; Hans Nichols, “Manchin backs as little as $1 trillion of Biden’s $3.5 trillion plan,” Axios, September 8, 2021, https://www.axios.com/scoop-manchin-backs-as-little-as-1-trillion-of-bidens-35-trillion-plan-91d079e0-84a7-4f8f-94d4-212827a61339.html; Tony Romm, “Sens. Manchin and Sanders square off as Democrats clash over $3.5 trillion economic package,” Washington Post, September 12, 2021, https://www.washingtonpost.com/us-policy/2021/09/12/manchin-sanders-reconciliation/↩
  15. [15]David Dayen, “Manchin’s Cherry-Picking of Budget Estimates,” American Prospect, November 5, 2021, https://prospect.org/infrastructure/building-back-america/manchins-cherry-picking-of-budget-estimates/↩
  16. [16]Tony Romm, Marianna Sotomayor, and Mike DeBonis, “Congress approves $1.2 trillion infrastructure bill, sending measure to Biden for enactment,” Washington Post, November 6, 2021, https://www.washingtonpost.com/us-policy/2021/11/05/house-infrastructure-reconciliation-vote/↩
  17. [17]David Dayen, “Manchin’s Cherry-Picking of Budget Estimates,” American Prospect, November 5, 2021, https://prospect.org/infrastructure/building-back-america/manchins-cherry-picking-of-budget-estimates/; Glenn Kessler, “Why Biden says his plan is ‘fiscally responsible,’ while Manchin decries ‘gimmicks,’” Washington Post, November 2, 2021, https://www.washingtonpost.com/politics/2021/11/02/why-biden-says-his-plan-is-fiscally-responsible-while-manchin-decries-gimmicks/↩
  18. [18]Tony Romm, Marianna Sotomayor, and Mike DeBonis, “Congress approves $1.2 trillion infrastructure bill, sending measure to Biden for enactment,” Washington Post, November 6, 2021, https://www.washingtonpost.com/us-policy/2021/11/05/house-infrastructure-reconciliation-vote/↩
  19. [19]David Benfell, “If you seek justice, don’t blame the U.S. Senate Parliamentarian,” Not Housebroken, November 5, 2021, https://disunitedstates.org/2021/09/20/if-you-seek-justice-dont-blame-the-u-s-senate-parliamentarian/↩

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