Lawmakers Want Biden to Ask Permission Before Bombing Yemen Indiscriminately

As tensions in the Middle East escalate, some lawmakers are questioning whether the Biden administration can authorize attacks against the Houthi militants in Yemen without the express consent of Congress.

“We just need to get clarity about their perception about their legal authorities and the implications of those understandings moving forward. The American people want us to duly deliberate before committing to some sort of sustained action against the Houthis or others,” said Senator Todd Young, a Republican member of the Foreign Relations Committee who has helped lead efforts in the Senate to overturn the 2002 Authorization for Use of Military Force, or AUMF, that justified American action in Iraq. 

This month, the Biden administration authorized multiple strikes against the Houthis, an Iranian-backed organization based in Yemen that has disturbed traffic in crucial shipping lanes connecting to the Suez Canal. The Defense Department has characterized strikes against the Houthis as “defensive,” citing “imminent threat” of attack to merchant ships and U.S. Navy vessels. The Houthis began attacking commercial ships in the Red Sea in response to Israel’s military campaign in Gaza.

“I know of no definition of self-defense that includes protecting foreign flagships. It might be a really good thing to do—but what’s the legal justification for it?” Democratic Senator Tim Kaine, the other leader of efforts to overturn the 2002 AUMF in the Senate, told me on Tuesday. “There’s a ‘What’s the strategy?’ question. And since the administration said they expect more escalation, and that’s what’s happening—OK, then, well, what’s the plan to de-escalate?”

Indeed, President Joe Biden himself has acknowledged that, despite failing to dissuade the group from attacking vessels traveling through key sea lanes, the campaign against the Houthis may be open-ended: “Are they stopping the Houthis? No,” Biden said last week. “Are they going to continue? Yes.”

(Insert extremely quick primer: The Houthis control a portion of territory in Yemen, and a Saudi-backed campaign to uproot them—supported by the United States—proved to be largely ineffective; a truce was eventually implemented in 2022. That conflict displaced millions of people and further exacerbated a humanitarian crisis in the Middle East’s poorest country.)

On Tuesday, Young and Kaine were joined by Democratic Senator Chris Murphy and Republican Senator Mike Lee in sending a letter to the White House asking for more details on the administration’s strategy in responding to Houthi attacks. While the senators said they “support smart steps to defend U.S. personnel and assets” and “hold the Houthis accountable for their actions,” they “further believe Congress must carefully deliberate before authorizing offensive military action.”

“The Administration has stated that the strikes on Houthi targets to date have not and will not deter the Houthi attacks, suggesting that we are in the midst of an ongoing regional conflict that carries the risk of escalation,” the senators said, adding that there is “no current congressional authorization for offensive U.S. military action against the Houthis.” Kaine separately told me that his office has been in contact with White House staff but has not yet received a satisfying response as to the administration’s strategy against the Houthis.

Some lawmakers in the House have also raised concerns about the president’s authority to launch strikes against the Houthis. In an op-ed in The Nation last week, Democratic Representative Ro Khanna argued that Biden has “both the constitutional obligation and a political imperative” to seek authorization from Congress.

“Conducted with extensive planning and in coordination with five other countries, the multiple rounds of US airstrikes in Yemen are retaliatory strikes for deterrence, not defense,” said Khanna.

It’s not just the strikes against the Houthis that have members of Congress scratching their heads. Young and Kaine also each expressed bafflement at the Biden administration’s use of the 2002 AUMF to justify airstrikes in Iraq earlier this month. The White House said the strike was justified by Article 51 of the United Nations charter, which outlines a nation’s right to self-defense, as well as the 2001 and 2002 AUMFs.

“We could not understand, like, what was the [White House] counsel’s office thinking? And we still haven’t gotten a good answer,” said Kaine.

Young, who described himself as a “recovering attorney,” told me on Tuesday that it was a “mistake” to cite the 2002 AUMF for the Iraq strikes, calling it an “untenable position.” 

“Sometimes attorneys can get carried away. And that’s what happened in this case, which is what led the administration to a nonsensical and inconsistent position,” Young said. “The 2002 AUMF was drafted and passed for the narrow purpose of ensuring that we could go to war against Saddam Hussein’s regime. Saddam Hussein is dead, last time I checked—still dead, still very dead. And that AUMF is no longer in effect as a matter of law.”

The House voted in 2021 to repeal the 2002 AUMF. The Senate repealed the 1991 and 2002 AUMFs on a bipartisan basis last year, although that second measure has not made progress in the now Republican-controlled House. The recent strikes in Yemen—and, to a lesser extent, in Iraq—are once again raising questions about how far a president can go without congressional authority. Even in a divided and often dysfunctional Congress, some lawmakers argue that debating to authorize use of force in the legislature is a necessary next step.

“My anticipation would be that the president’s hand would be substantially strengthened if he came to Congress before committing to any longer-term action,” Young said.

This article first appeared in Inside Washington, a weekly TNR newsletter authored by staff writer Grace Segers. Sign up here.

Vibe check: The Chevron conundrum

Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: how lawmakers are reacting to a Supreme Court case with far-reaching effects.

The Supreme Court appears poised to overturn a key precedent that empowers federal agencies, which would in turn raise the level of specificity required for  Congress to draft regulatory laws to a near-impossible standard of complexity.

In oral arguments last week, conservative members of the court seemed skeptical of the so-called “Chevron doctrine,” a precedent that grants agencies authority to interpret congressional statutes when intent is unclear. The 1984 case that established the Chevron doctrine is one of the most cited cases in recent legal history; if overturned, it would transfer authority from executive agencies to the courts to determine legislative intent.

Although the Chevron doctrine was established during and supported by the Reagan administration, recent support for or opposition to it has largely fallen along party lines, with Democrats in favor of preserving agency authority and Republicans opposed.

“The Supreme Court is considering a power grab designed to make day-to-day governance less effective and to give the courts more power in determining every detail of how government works,” said Senator Elizabeth Warren, who joined an amicus curiae brief supporting the doctrine along with other Democratic senators. “Instead of having scientists, for example, figure out the safety standards on nuclear energy, overturning the Chevron doctrine would mean courts could make that decision.”

But Republicans argue that Congress should be more specific in outlining statutes, contending that changing administrations allow agencies to interpret laws differently based on who is in office. “For too long, Congress has been content to punt decision-making to unelected bureaucrats in the executive branch,” said Senator Ted Cruz, who led several other Republican lawmakers in an amicus brief urging the court to overturn the precedent. “The growth of the administrative state has allowed politicians to avoid accountability to the people.” (However, the Supreme Court justices—who would almost definitely end up deciding what actions taken by regulatory agencies are kosher and which aren’t—are just as unelected and perhaps even less accountable to voters than executive branch bureaucrats.)

Senator Josh Hawley, another Republican opponent of the doctrine, said that “Congress has deliberately given up authority to agencies.”

“And then, you know, we whine about it all the time. ‘Oh, these agencies, they pay no attention to us.’ Well, that’s because we’ve given them wide-open discretionary authority,” Hawley told me. He echoed the common Republican belief that agencies functionally amount to a “fourth branch of government,” unaccountable to Congress or the executive (a Deep State, if you will).

Still, requiring Congress to be more specific in developing statutes would require a degree of granularity lawmakers are not used to considering. Moreover, supporters of the doctrine argue that leaving a statute up to the courts would not necessarily ensure stability in interpretation, because conservative and liberal justices may rule differently on a law: This could ultimately bring a statute before the conservative-majority Supreme Court for final decision, which has shown itself to be largely hostile to government regulation.

Democratic Senator Sheldon Whitehouse—who led the brief supporting the doctrine and has pointed out the ties between the conservative Koch network and the plaintiffs in one of the Supreme Court cases under consideration—said that agencies are already held accountable.

“Look at all the CRAs we’ve done in this building,” Whitehouse said, referring to votes to undo agency actions under the Congressional Review Act. “Look at the appropriations riders that get put on, look at all the Oversight Committee work, look at what’s happening to [Homeland Security Secretary Alejandro] Mayorkas on the House side, and tell me that Congress doesn’t oversee agencies.”

Whitehouse, who has pressed for the Supreme Court to adopt a formal ethics code, also argued that the judicial branch may not be the best venue for interpreting laws. “Even if it were true, which it isn’t, the idea you could solve an accountability problem by moving the locus of decision to an even less accountable part of government, shows how little this argument makes sense,” Whitehouse said.

What I’m reading

NJ race to replace Menendez pits insiders vs. grassroots backlash, by Jonathan Tamari in Bloomberg

She filed a complaint after being denied an abortion. The government shut her down, by Caroline Kitchener and Dan Diamond in The Washington Post

A small town struggles to survive in the heart of Mississippi’s hospital crisis, by Devna Bose in Mississippi Today

‘It’s embarrassing’: Republicans worry they have no achievements to run on in 2024, by Sahil Kapur in NBC News

The menu trends that define dining right now, by Priya Krishna, Tanya Sichynsky, and Umi Syam in The New York Times

Fetterman’s break from the left excites Republicans, by Ursula Perano in Politico

Pet of the week

Without additional funding, a program providing affordable internet access for low-income Americans could end this spring. Last week, the Federal Communications Commission warned that the Affordable Connectivity Program, or ACP, was due to run out of funding in May and would no longer accept new enrollments beginning in early February. In October, the White House requested that Congress authorize an additional $6 billion for the program, which helps provide discounted internet access for around 23 million households.

In order to address that impending shortfall, a bipartisan crew of senators have introduced legislation to extend the program, which provides up to $30 monthly discounts on internet bills for low-income families and up to $75 monthly discounts for eligible households on tribal lands. The bill, which also has bipartisan support in the House, would grant the program an additional $7 billion to keep it running.

The ACP replaced the pandemic-era Emergency Broadband Benefit Program, which provided $50 monthly broadband subsidies for low-income households. “When the pandemic happened, it became crystal clear that a robust affordable broadband program is not a luxury, it’s a necessity,” said Gigi Sohn, the executive director of the American Association for Public Broadband, which supports the Affordable Connectivity Program Extension Act.

Senator Peter Welch, who introduced the legislation in the Senate, said that he was heartened by the bipartisan support; as the lack of broadband access particularly affects people living in rural areas, it’s an issue that crosses party lines. However, it’s unclear whether the legislation will be a part of the ongoing appropriations process to keep the government funded. “We have to contend with all the complications of a complicated budget,” said Welch.

Despite its bipartisan support, the program is not universally popular. Some Republicans have challenged the FCC’s claims that ending the program would lead to 23 million households getting disconnected. In a letter to FCC Chairwoman Jessica Rosenworcel last month, several Republican lawmakers argued that “it appears the vast majority of tax dollars have gone to households that already had broadband prior to the subsidy.”

“The program’s record of targeting taxpayer subsidies to consumers who already had broadband is further apparent in the FCC’s enrollment numbers: The number of households in the ACP—approximately 22 million—far exceeds the 16 million unconnected households according to 2021 Census data,” the letter said. However, many of the current beneficiaries of the ACP had previously obtained access through the Emergency Broadband Benefit Program.

Sohn said that the ACP helped both people who previously did not have access to the internet and those with “internet insecurity.” “There are families who may purchase internet for a couple months so the kids can do homework and then they disconnect over the summer,” Sohn said. “It’s not a constant connection, which is what you want.”

Welch argued that even if a household technically has access to broadband, it doesn’t mean that they can afford it. “This is a $30 rebate for folks, many of whom are making $15,000 a year with two kids. So we’ve got to help those folks so that they can get ahead, their kids can get ahead,” said Welch. “So I think it’s a totally worthwhile use of money.”

Representative Brian Fitzpatrick, the bill’s Republican co–lead sponsor in the House, also argued that keeping low-income Americans connected to the internet should outweigh concerns about cost.

“It’s more expensive for people not to have access. The downstream costs, economically and socially and psychologically, are much more expensive than not doing it,” Fitzpatrick said. “It’s an investment, not an expense. Not everything that you spend money on is an expense.”

Vibe check: Trump wins over GOP senators

Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: growing support for Trump among Republican senators.

With Senator Ted Cruz’s endorsement of former President Donald Trump on Tuesday, more than half of the 49 Republicans in the Senate now formally support Trump’s presidential bid. Despite the outright antagonistic relationship between the former president and Senate Minority Leader Mitch McConnell, Republican senators have increasingly fallen in line behind Trump’s campaign.

On Wednesday, Cruz told reporters that Trump’s blowout win in the Iowa caucuses this week left him with the belief that the race is “effectively over.” Senator Cynthia Lummis concurred, saying that “the window closed” on Trump’s would-be competition—the fact that Nikki Haley and Ron DeSantis are sallying on to compete in the New Hampshire and South Carolina primaries notwithstanding. “I think in 2023 the window was open to more candidates but when finally 2024 rolled around ... it just became apparent the window had closed and Trump was going to be the nominee,” Lummis told HuffPost reporter Igor Bobic.

Florida Senator Marco Rubio, who endorsed Trump on Sunday, explained to reporters why he had chosen Trump over his home state governor, Ron DeSantis. “I endorsed the candidate in the race who asked for my endorsement,” Rubio said.

Still, support for Trump among Republican senators isn’t universal. Senator John Thune, the GOP whip, told CNN that he has “always been worried” about Trump’s general election prospects. Senator John Cornyn said that “it’s not over yet.”

Senator Mike Rounds, who endorsed fellow Republican Senator Tim Scott for president before Scott dropped out of the race, told me that he was waiting to endorse another candidate. “I have a huge amount of respect for Tim, and … with him stepping into it, I think it probably would have been inappropriate—based on our relationship—not to have offered him my full endorsement,” Rounds said. “Now I can relax a bit.”

Perhaps unsurprisingly, Senator Mitt Romney—one of Trump’s harshest critics—expressed frustration with not only Trump but his supporters.

“I think a lot of people in this country are out of touch with reality and will accept anything Donald Trump tells them. You had a jury that said that Donald Trump had raped a woman, and yet I don’t think that seems to be moving the needle,” said Romney, referring to a ruling by a New York jury last year that Trump sexually abused writer E. Jean Carroll. “There are a lot of things about today’s electorate I don’t understand.”

What I’m reading

How Octavia Butler told the future, by Tiya Miles in The Atlantic

$6 trillion in taxes are at stake in this year’s elections, by Richard Rubin in The Wall Street Journal

‘This to him is the grand finale’: Donald Trump’s 50-year mission to discredit the justice system, by Michael Kruse in Politico

A death at Walmart, by Jasper Craven in The New Republic

The stunt awards are back, by Brandon Streussnig and Bilge Ebiri in Vulture

Hakim, meet Hakeem: How a young city farmer got to know a congressman, by Mihir Zaveri in The New York Times

Pet of the week

There’s a lot of news on the child tax credit this week, so I’m focusing the full newsletter on that topic. Rest assured, the key deals dominating conversation in Congress—on funding the government, foreign aid, and the border—will be live issues going forward. But the chances of a bipartisan deal on a critical anti-poverty measure is my favorite story on Capitol Hill this week.

I reported earlier this week that the top members of the tax-writing committees in the House and Senate are close to hashing out a deal on legislation that would expand the child tax credit and implement business-friendly tax benefits and deductions. Senate Finance Committee Chair Ron Wyden, a Democrat, and House Ways and Means Committee Chair Jason Smith, a Republican, have been negotiating an agreement for several months, and lawmakers believe that they are close to creating compromise legislation amenable to both parties.

Democrats have long aimed to reinstate some version of the expanded child tax credit that was briefly implemented by the American Rescue Plan Act in 2021, which drastically lowered child poverty during the six months it was in effect. However, it appears that one of the key elements of the expanded child tax credit that helped alleviate child poverty may not be included in the final tax deal.

Democratic members of the Ways and Means Committee told reporters on Wednesday that they had been briefed on a framework that would cost around $70 billion, with $35 billion each for the expanded child tax credit and business tax benefits. Democrats said they were told it would be paid for in part by ending employee retention tax credit claims. The framework discussed would also increase partial refundability of the child tax credit, without providing full refundability for the poorest Americans. However, a source familiar with the negotiations between Wyden and Smith cautioned that the numbers related by House Democrats were not final and that there were still elements of a deal under consideration.

The American Rescue Plan Act eliminated the earnings requirement for the credit and allowed families too poor to pay income taxes to claim it—a provision colloquially known as “full refundability.” The American Rescue Plan Act also increased the amount of the credit and disbursed it on a monthly basis, instead of an annual lump sum. During the six months that it was in effect, from July through December 2021, this measure contributed to a dramatic decrease in child poverty, as well as a drop in food insecurity among families with children.

Although the decrease in child poverty in 2021 was due to a combination of those changes to the child tax credit, the refundability portion was perhaps the most significant expansion, because it allowed parents without income tax liability to still access the credit. Under current law, the $2,000 credit is only refundable up to $1,600.

“The refundability piece is critical, because you can’t just raise benefit levels on their own and expect to see these gaps close,” said Megan Curran, the policy director of the Center on Poverty and Social Policy at Columbia University. Curran and her colleagues recently released a report finding that 18 million children under age 17 were ineligible for the full credit—including 91 percent of children living below the poverty line and 36 percent in households living between 100 and 200 percent of the poverty line.

Democrats have been unsuccessfully working to revive the credit for years, and the current negotiations appear to be the closest lawmakers have come to a deal. However, Democrats on the Ways and Means Committee were unhappy with the numbers they were seeing from Wyden and Smith’s talks.

“This has to be a CTC tax package that makes that kind of profound difference in people’s lives. And right now, I don’t think they’re there yet,” said Representative Jimmy Gomez, a member of the Ways and Means Committee.

Representative Don Beyer told reporters that “it’s definitely not enough.” “There’s no refundability, which we’ve always wanted. It’s not monthly, which we’ve always wanted. It does move the dollar amount up, which is good,” said Beyer. Democrats said that the amount refundable would be $2,000 by 2025, matching the amount of the nonrefundable credit.

Partial refundability meant that low- to middle-income children do not receive the full credit, as well as children in very poor households. Moreover, the amount available changes based on how many children a household has: For example, a parent with one child would need to earn around $31,000 per year to obtain the full credit, while a parent with two children would need to have an annual salary of $36,000.

Under the current framework being discussed, people earning under $2,500 would be ineligible. The credit would still phase in at a 15 percent rate for each dollar of earnings above $2,500. But rather than getting up to 15 percent of annual income in tax credits capped at $1,600 per year—the refundable amount of the current credit—those eligible would receive 15 percent of their income capped at $2,000 in 2025.

A source familiar with the negotiations also said that the framework would phase in the credit per child, allowing parents with multiple children to receive a higher amount. A November analysis by the Tax Policy Center found that phasing in the credit at a rate of 15 percent per child would “benefit 23 percent of families in the lowest income quintile by an average of $270.”

Democratic senators also appeared more sanguine with the turn of events than their House counterparts.

“It’s not going to be everything that I would’ve wanted,” Senator Michael Bennet, a Democratic member of the Finance Committee and longtime advocate for expanding the credit, told me on Wednesday. “We weren’t going to do any extensions of the [research and development] tax credit without improvements to the child tax credit, that’s going to make a difference here, and that’ll make a difference to a lot of poor kids.”

Some progressives voiced their frustration with the possible deal in a meeting of Democrats on the Finance Committee Wednesday morning. But Wyden noted that because the credit would be “relitigated,” it would give Democrats the opportunity to push for some of their priorities—such as full refundability—again in 2025.

“I’d much rather get into 2025 from a position of strength, which is what we get if we get the child tax credit improved now,” Wyden told me.

Meanwhile, Republican lawmakers appear pleased about the addition of benefits and deductions for businesses in a potential deal, even if it’s still unclear when an agreement will be formally announced. Smith told me that he believed “pro-growth tax policies” would be crucial for combating inflation.

“The three tax provisions of R&D, business expensing, and interest expensing—those are crucial, and they’re crucial for Republicans and they’re crucial for Democrats,” said Representative Blake Moore, a Republican on the Ways and Means Committee. However, he acknowledged that the future of such legislation is uncertain, adding: “I don’t have any visibility on how it plays out. I don’t think anybody truly, truly does.”

Lawmakers would want to pass a deal by the end of January, to allow for the credits to retroactively apply to the 2023 tax year. But that gives them little time to reach an agreement, and it’s uncertain what vehicle they would use to pass such comprehensive tax legislation. The opacity of the deal’s future was echoed by Neal, who sounded more bearish on its prospects. 

“This idea that it’s just around the corner doesn’t seem to be very plausible,” he told reporters.

What I’m Reading

The nation’s capital is falling behind on fighting violent crime. Here’s why, by Yours Truly. (Yes, I realize I’m promoting my own article in the “What I’m reading” section, but that’s because it’s a very thorough reported piece!)

The U.S. is dealing with an Israeli leader who’s losing control, by Nahal Toosi in Politico

Trump is connecting with a different type of evangelical voter, by Ruth Graham and Charles Homans in The New York Times

Skipping school: America’s hidden education crisis, by Alec McGillis in ProPublica

This tribe got their “land back.” But it’s no longer livable, by Margaret Grebowicz in The New Republic

The queerest thing about Taylor Swift, by Spencer Kornhaber in The Atlantic

Pet of the Week

Eons ago, in the fall of 2021, congressional Democrats mulled potential revenue streams for the Build Back Better Act, the multitrillion-dollar proposal to overhaul the nation’s social safety net, tax system, and climate policy. For instance, Senator Ron Wyden, the chair of the Senate Finance Committee, proposed a “billionaires income tax” on Americans with more than $1 billion in assets.

Fast-forward to 2023: The Build Back Better Act is a footnote in history, an ambitious idea sunk by conservative Democratic Senator Joe Manchin, and Republicans now control the House. But Wyden, along with 16 Democrats, formally introduced the Billionaires Income Tax Act at the end of November this year, offering a blueprint for the party’s economic argument ahead of the 2024 election.

“Look, I believe deeply in success. It’s what made this country so special. This isn’t an attack on success, this is a push for some fairness,” Wyden told me in an interview. “That’s what the public believes in, and why it’s picking up support.”

The legislation targets a practice known as “buy, borrow, die” that billionaires use to avoid paying income taxes: A billionaire buys assets that appreciate in value, borrows against those assets’ increasing and untaxed value, and then passes on the assets to beneficiaries when they die, without paying taxes. Wyden’s legislation would require people with more than $1 billion in assets to pay capital gains taxes on the appreciation of value in these assets—such as real estate, stocks, or collectibles—regardless of whether they are sold.

If it were to become law, such a proposal would likely be challenged in court as soon as the ink of the president’s signature was dry. But Wyden argued that enforcement mechanisms already exist in the tax code; moreover, the Sixteenth Amendment of the Constitution allows for Congress to tax earnings, and proponents argue that this proposal is an income tax, not a so-called “wealth tax.” Wyden also pointed out that Supreme Court justices seemed hesitant to upend the tax code in recent arguments for another tax-related case.

“I think people were kind of surprised how cautious the court was going to be,” Wyden said about recent oral arguments in Moore v. Harper.

Wyden believes that the hundreds of billions of dollars that could be generated from this tax could be used to shore up funding for Social Security and Medicare, both of which are facing impending shortfalls, or address childcare needs. Biden has proposed similar legislation, which would apply to around 20,000 households, as opposed to the roughly 1,000 people who would be affected by Wyden’s plan, but Wyden argued that both ideas had a similar purpose.

“These are bills that are very much complementary, designed to do the same thing and to make sure, as we have this debate, about what kind of economic system we want for our country, that Democrats are going to fight for a tax system that helps everybody get ahead and includes making the most fortunate pay their fair share,” he said.

While it might make for a good conversation-starter, recent history proves that such a proposal would be unlikely to make it through Congress, even if Democrats controlled both chambers once more. It would also likely take a back seat early next year to other tax-related priorities, such as ongoing negotiations to reinstate a version of the expanded child tax credit in exchange for extending research and development credits that many Republicans support.

But to Wyden, what the bill stands for is just as important as its prospects of passage.

“Last time I looked, there’s an election coming up in 2024, something rumored to that effect. And people are going to say, ‘What are you for?’” Wyden said, noting the relative popularity of increasing taxes on billionaires among average Americans. “Now there’s an actual piece of legislation, black-letter text, 17 senators on it—six members of the Senate Finance Committee—and that’s going to give us a chance to force a real debate.”

Vibe check: The woes of the 118th Congress

The Senate left Washington on Wednesday without reaching a deal on a supplemental funding package, including aid to Ukraine, Israel, and the Indo-Pacific region, as a bipartisan trio of senators continued negotiating a deal to reshape immigration and border policy.

Supporting Ukraine is increasingly unpopular with Republican voters, and GOP lawmakers have said they will not support a supplemental package without addressing one of the thorniest and most complex issues in Washington: immigration. Democratic Senator Chris Murphy, independent Senator Kyrsten Sinema, and Republican Senator James Lankford are expected to continue working on a deal over the holiday recess. Despite a pledge by Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell to hold a vote on a supplemental package next year, there are multiple obstacles to passage:

• Whatever immigration deal they announce will likely anger Republicans, who argue it does not go far enough, and Democrats, who believe it goes too far—a dynamic complicated by the fact that no Latino lawmakers are included in the negotiations.
• Even if such a package were to pass in the Senate, its prospects are dire in the House, given the aforementioned lack of widespread GOP support for Ukraine and anger about an immigration deal that hard-liners will see as too soft.
• Congress doesn’t return until the second week of January, just a few days before the Iowa caucuses—where former President Donald Trump holds a sizable lead. A victory in Iowa would further cement his status as the presumptive nominee, and he essentially has unilateral power to tank any deal.
• Congress also needs to worry about keeping the government open early next year, with the deadlines to fund several agencies split between mid-January and early February. “January is not going to be an enjoyable month,” Senator Susan Collins, the top Republican on the Appropriations Committee, told reporters on Tuesday. “Let me just say that. So Happy New Year to all of you.”

Let’s face it: Congress did not function especially well in 2023. Fewer than two dozen bills were signed into law this year, a dramatic decrease from previous years. The House was embroiled in chaos for much of the year, culminating in the ouster of former Speaker Kevin McCarthy in October and the ascension of Speaker Mike Johnson, a little-known Louisiana conservative with minimal leadership experience. Neither chamber managed to pass the 12 appropriations bills to keep the government funded. And if you think 2023 was bad, just wait until we’re in a presidential and congressional election year, when it becomes doubly difficult to pass anything substantive.

Lawmakers are also frustrated. “We don’t work around here,” said Senator Pete Ricketts, a freshman Republican. “Most normal Americans work 8 to 5, and work weekends to get the work done.” The Senate, on the other hand, typically has its first vote of the week on Mondays at 5:30 p.m. and its last on Thursdays at 1:45 p.m. This Tuesday, only 67 out of 100 senators showed up in Washington.

Senator Tim Kaine, a Democrat, said that he used the tactic of appending his priorities to must-pass bills like the annual defense authorization legislation; that way, even if Congress struggles to pass basic legislation, he can tell his constituents that he was able to get agenda items approved. “I got parts of 10 bills in the defense bill [this year],” said Kaine. “If you look at ’24, there may even be fewer bills with the [political] dynamics, but we will pass a defense bill.”

Basically: Congress isn’t operating as it should, and everyone—including lawmakers—knows it. When I asked Democratic Senator Jon Tester on Tuesday whether he believed Congress was functioning well, he gave me an incredulous look and laughed: “Are you serious?”

What I’m reading

Zac Efron wrestles with his legacy, by Daniel D’Addario in Variety
2023 was the year TV really put us through it, by Phillip Maciak in The New Republic
Why isn’t the government doing more about the housing crisis? by Annie Lowrey in The Atlantic
Inside The New York Times’ big bet on games, by Charlotte Klein in Vanity Fair
An egg fried rice recipe shows the absurdity of China’s speech limits, by Li Yuan in The New York Times
Immigrant workers are essential to Wisconsin’s dairy industry. But when they get injured, they’re often cast aside, by Maryam Jameel and Melissa Sanchez in ProPublica

Bonus: My favorite books I read this year

Most of these did not come out this year, because I’m terrible at reading books in a timely fashion. And yes, most of these are fantasy and science fiction, because I love fantasy and science fiction.

The Goblin Emperor, by Katherine Addison
Romney: A Reckoning, by McKay Coppins
Killers of the Flower Moon, by David Grann
Translation State, by Ann Leckie
Nona the Ninth, by Tamsyn Muir
The Hero of Ages, by Brandon Sanderson
The Priory of the Orange Tree, by Samantha Shannon
Witch King, by Martha Wells
Tomorrow, and Tomorrow, and Tomorrow, by Gabrielle Zevin

Pet of the week

Want to have your pet included at the bottom of the next newsletter? Email me: gsegers@tnr.com.

This week’s featured pet is Bam Bam, a playful and balloon-loving boy submitted by Eric Michael Garcia. Bam Bam is one and a half years old, and was adopted from the D.C. Humane Society.

In the wake of the U.S. Supreme Court decision overturning Roe v. Wade last year, there has been a scramble in the states to either further limit or protect access to abortion, with outcomes largely determined by which party controls the levers of state government. This, in turn, has led to a wave of lawsuits pushing back against particularly restrictive state laws.

Mary Ziegler, a law professor at University of California, Davis, said that abortion rights advocates were trying to “reverse engineer” the incremental legal strategy that anti-abortion groups used to undermine Roe over several decades.

“There are very few people who are going to be sympathetic to the idea of making someone carry a pregnancy to term that’s going to kill them, for example. So you’re trying to start with what you consider the more practical, winnable cases,” said Ziegler, who has written several books on the history of abortion access in the United States. While a potential victory could expand access to abortion in the short term, advocates are also filing these cases with an eye to long-term effects even in the case of defeat.

“You may be trying to show that these laws are unworkable, or you may be trying to show that they have cruel effects, or you may be trying to build political opposition to them,” Ziegler continued. “Also, you may be trying to gain recognition of state constitutional models that can be expanded or reinterpreted over time.”

The role of state courts in determining the future of abortion access was particularly apparent this week, as state supreme courts in Arizona, New Mexico, and Wyoming heard arguments in abortion-related cases. A lower court in Idaho is also hearing a case on whether four women can pursue lawsuits against the state after being denied abortions.

The Arizona case concerns a pre-statehood ban on nearly all abortions. Last year, a lower court ruled that the 1864 law, which only allows exceptions when the mother’s life is endangered, could not be applied to physicians performing abortions in the first 15 weeks of pregnancy. However, anyone who is not a doctor would still be subject to prosecution under the old law.

Jill Habig, the founder of the Public Rights Project, which is representing one of the defendants in the Arizona case, identified the connection between litigation to preserve abortion rights in states and ballot initiatives to expand access. Arizona will likely have an initiative on the ballot in 2024 to permit abortion through fetal viability, which is typically 24 weeks of pregnancy.

“What we’ve seen in the last couple of years is that litigation can often move faster in state courts than voters can, because of the election calendar,” Habig said. “This litigation is trying to preserve the status quo and make sure that Arizona doesn’t become the next Texas … then voters can potentially expand access.”

Another abortion-related decision in Texas made national headlines this week, when the state Supreme Court overturned a lower court ruling that would have allowed a pregnant woman whose fetus had been diagnosed with a fatal condition to obtain an abortion. The woman, Kate Cox, had already traveled out of state for the procedure.

The state Supreme Court argued that Cox, who was more than 20 weeks pregnant, did not qualify for an exception as outlined in Texas’s law banning abortion, which only applies when a pregnancy endangers the life or health of the mother. Cox’s lawyers and doctors argued that continuing her pregnancy would threaten her health and ability to have children in the future. Cox has been to the emergency room four times during her pregnancy.

Last week, a pregnant woman in Kentucky filed a lawsuit challenging that state’s two abortion bans, citing the state constitutional right to privacy and self-determination. The Kentucky Supreme Court previously upheld the state’s abortion bans, ruling in February that abortion providers could not raise their patients’ constitutional rights on their behalf. The decision noted that patients themselves could challenge the constitutionality of the laws, a tactic now taken by plaintiff Jane Doe in this latest lawsuit.

Ziegler said there was a pattern to several of these lawsuits, which include plaintiffs in “tragic circumstances,” often with wanted pregnancies, like Cox in Texas.

“We’ve started to see a lot more of these cases where either the plaintiffs have exceptional circumstances or the argument is based on exceptional circumstances,” Ziegler said.

Depending on the location, state courts may potentially be friendlier venues to abortion rights cases than federal courts; in many states, supreme court justices are elected by voters, and some state constitutions more explicitly protect the right to privacy than the U.S. Constitution.

“The state court landscape offers more opportunity both for immediate action and then short-term or medium-term change over the next few years,” Habig said.

Meanwhile, the U.S. Supreme Court announced on Wednesday that it would decide whether to restrict access to mifepristone, a medication used in more than half of all abortions in the country. The Biden administration and the manufacturer of the drug had appealed a lower court ruling that would make it more difficult to obtain mifepristone. The court’s consideration of the case demonstrates that the future of abortion access will not only be determined on a state-by-state basis.

Vibe check: Just say no (to Monumental)

Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: a decision that has Washingtonians on edge.

I try to keep my own personal feelings out of this newsletter, beyond the occasional arch aside. Alas, this week must be an exception, as I express the ire echoed by many Washingtonians about the decision by Monumental, owner of Washington’s NHL and NBA teams, to move their arena across the Potomac River into Virginia.

(You may be wondering, why did Grace dedicate an entire, lengthy segment of her weekly newsletter to this personal screed? First of all, if you’re based in Washington, D.C.—which I know many IW readers are—you probably have a strong opinion on this as well. Perhaps more importantly, the House did not vote until 5 p.m. on the day that this newsletter was due, and I needed to come up with something to fill this space.)

Let me first preface this by saying: I do not care about sports. I’ve only seen the Capitals play once, and thought that hockey was too fast to follow. I’ve never seen the Wizards play, and—from what little I know about basketball gleaned from watching SportsCenter at physical therapy—they’re supposedly pretty terrible. (Editor’s note: Can confirm.) The better Washington basketball team, the WNBA Mystics, would reportedly remain at the Capital One Arena in Washington, D.C.’s Gallery Place neighborhood.

But moving the arena to the Potomac Yard neighborhood of Alexandria, Virginia—a decision announced by Governor Glenn Youngkin and team owner Ted Leonsis on Wednesday—is a bad idea. I say this not just as a Washington resident, but as a former denizen of Alexandria. (I’m not going to explain all the details of the reported deal, but you should check out this Washington Post rundown.)

First of all, even if Capital One maintained its status as a live events venue, this would be a massive blow to Washington, D.C.’s already struggling downtown. The combination of the Covid-19 pandemic and the continued trend of work from home has decimated Gallery Place and surrounding neighborhoods like Penn Quarter.

But I believe it would be bad news for Alexandria, as well. The area across the street from the proposed new arena is home to a classic suburban strip mall, including one of the best Target stores in the DMV and my favorite Barnes and Noble. It’s also next to an absolutely bangin’ bike trail, which—along with being a vital community service—helped keep me and many other Northern Virginia residents of the time sane during the height of Covid. The proposal for the new arena includes future developments that could disrupt the idyll of the strip mall–bike trail nexus, not to mention strain the lowly Route One roadway, which already struggles with a glut of traffic.

Many local fans and Washington, D.C.-area residents are not pleased—at least, if memes are any indicator to go by. “I feel like no one is talking about the genius of putting an outdoor concert venue a quarter of a mile from an active airport runway,” Jason Rogers, the NHL reporter for Washington City Paper, wrote on X, noting the proposed arena’s proximity to Ronald Reagan National Airport.

“Bailing on your city is a pretty bold move for the worst team in basketball, after being bad for years. If you were actively trying to have as few fans as possible, what would you do differently?” Sam Baker, an editor for Axios, said in another post on X. José Andrés, the restaurateur with several restaurants in Gallery Place and Penn Quarter, wrote on X that he hoped these teams “can stay in the city that’s shown so much support.”

Despite the dread evinced by some Alexandrians, the local government is ecstatic. “A project this special will help the City realize our collective strategy and the vibrant vision for this neighborhood and for our City as a whole,” Alexandria Mayor Justin Wilson said. For now, the congressman representing the proposed arena location is remaining circumspect: “This is, of course, an exciting announcement and I am eager to learn more about practicalities, economics and opportunities involved,” said Representative Don Beyer in a statement.

(Moreover, there is no guarantee that any of the economic boom these local politicos are dreaming up will ever come to pass. As a 1997 Brookings Institution study determined, “Regardless of whether the unit of analysis is a local neighborhood, a city, or an entire metropolitan area, the economic benefits of sports facilities are de minimus.”)

Meanwhile, conservative lawmakers in the Virginia state legislature and the NIMBYs of NoVa have already raised concerns about moving the arena, threatening its prospects; the move must be approved by state legislators. Washington, D.C., residents—sports lovers and sports-indifferents alike—can only hope some kind of political spanner is thrown in the works before a final decision can be made.

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