by Thomas F. Koch

Thanksgiving Day, 2022 is now in our past, and I hope everyone had a good day.  When we consider those things for which we are thankful, what frequently comes to mind are family, friends, good health, and the like.  Of course, there’s nothing wrong with giving thanks for those things, but they are hardly cause for a national holiday.  We also need to give thanks for things of greater consequence, like the privilege of living in this nation and this state, for having rights like free speech, freedom of religion, due process of law, equal protection of the laws, trial by jury if needed, and much more. 

We need to recognize also that one day a year is insufficient for giving thanks; we need to wake up each morning giving thanks for these things. And we do not give thanks in a vacuum; it is to God, our Creator, to whom we owe our thanks, for it was by faith in “the Laws of Nature and of Nature’s God” that the founders of this nation were led to write a Declaration of Independence and a Constitution that continue to serve and guide us after all these years.  So yes, happily we thank our Creator God, each day, for the many blessings we enjoy!

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Ever since the United States Supreme Court overruled Roe v. Wade, speculation has been rampant concerning what actions Congress might take on abortion policy.  Senator Lindsay Graham, for example, has introduced a bill to outlaw most abortions after the fifteenth week of pregnancy.  On the other hand, many liberals would like to pass a national law protecting the right to an abortion in nearly all instances.  I suggest that all such laws would be unconstitutional.

In Dobbs v. Jackson Women’s Health, 597 U.S ____, at pages 78-79, the Supreme Court summarized its decision as follows:

Abortion presents a profound moral question.  The Constitution does not prohibit the citizens of each State from regulation, or prohibiting abortion.  Roe and Casey arrogated that authority.  We now overrule those decisions and return that authority to the people and their elected representatives.

In my view, nothing could be clearer. The states—not the federal government—have the authority to regulate abortion.  Whether that decision is wise or correct is certainly debatable, but it is now the law. (Personally, from a lawyer’s point of view, I wish the Court’s ruling had not been so broad; I agree with Chief Justice Roberts that the Court could have approved Mississippi’s law without overruling Roe.)

What is missing from all of the discussion and commentary that I have seen since Dobbs was decided is the impact of the oft-forgotten Tenth Amendment to the Constitution, which reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In my view, that tells the Congress “hands off,” and means that most of the fear mongering on both sides of the issue is pure political posturing.

Vermont, for example, has just passed an amendment to our state Constitution protecting the right of “reproductive autonomy.”  The wisdom of that amendment might still be debated, but it passed overwhelmingly and will be enrolled as part of our Constitution.  Congress has no business deciding otherwise.  The Tenth Amendment says so.

“But what about the Commerce Clause?” you might ask.  That clause of the Constitution gives Congress the right to regulate interstate commerce, and it has been broadly used in the last 85 years to expand the powers of Congress.  I would argue that Congress would have the power to protect women who need to travel from one state to another to get an abortion, those who assist them, and those who provide them abortion services.  But I do not believe that Congress has the authority under Dobbs to regulate or prohibit abortion as such, and candidates for federal office—on both the right and the left—should stop trying to scare people with what the other side might do. 

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There’s the story about the dog that always chased the truck as it came down the road.  One day he actually caught it.  Then he had to figure out what to do with it.

After trying for many years, the Democrats in the legislature finally have a veto proof majority.  They can pass any bill they want.  The Governor can veto it, but with a 2/3 vote in both the House and the Senate, they can override the veto and make the bill a law without the Governor’s signature.  So, what will they do?

Will they once again pass the Clean Heat Standard?  This would set up a mechanism for imposing a fee (actually a tax by a different name) on fossil fuels that would not require another vote of the legislature.  The idea is to raise the price of gasoline, diesel, and home heating fuels so that Vermonters will use less of these fuels, and also to use some of the funds raised for such things as winterizing homes and installing electric vehicle charging stations.

Will they impose  restrictions on the purchase, possession, and use of firearms?  Will there be more regulation of hunting?

Will new taxes be imposed on employers or employees, or both, to fund a mandatory family leave policy?

Will more taxes be raised to support a child care industry that has already been made excessively expensive by legislative interference and over-regulation?

Will landlords be forced to prove “just cause” for not renewing a lease?  This will certainly cause evictions to go to a full-fledged trial, resulting in delay, clogging court dockets, and reducing—not increasing—the supply of affordable rental housing.

Will non-citizens be given the right to vote in all municipal elections, statewide?

These are only few of the ideas that were discussed, to one extent or another, during the past two years.  Undoubtedly, there will be more “good” ideas introduced as bills during this biennium.  What will actually pass now that the Governor’s veto means next to nothing?  Who knows?  

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I have always attempted to keep “Scribblings” from being overtly partisan and to present issues and legislative proceedings in an objective manner.  Sometimes, however, the facts are such that any discussion of the subject will necessarily appear quite partisan.  That is the situation with regard to party discipline in the legislature.

Rep. Rob LaClair and I have previously written that the Democrats recruit very nice people to run for the Vermont House of Representatives, train them in how to run a successful campaign, and see that their campaigns are adequately funded.  These people generally promise to be independent and to use their best judgment on behalf of their districts. 

Once they are elected, however, and get to Montpelier, they find out that there is a different set of rules.  They are expected to vote as their party leadership tells them to vote, and if they do not, there are consequences.

One thing that is particularly distressing is that sometimes there are Representatives who do not even know what the question is that they are voting on.  Frequently, they miss the debate, which, of course, is designed to point out the strengths and weaknesses of the legislation in issue and perhaps, even just occasionally, convince some Representatives to change their original positions on an issue. 

Two committees—Appropriations and Ways and Means—routinely meet while the full House is in session and therefore miss the debate; those two committees alone account for 22 members, and they may not be the only committees off the floor.  Other members may be off in the cafeteria having a coffee, out for a jog, or in the legislative lounge returning phone calls to constituents.  

When there is a roll call, three bells ring, summoning all Representatives to the House Chamber to vote.  As they file in, Democrats look at the strategically located desk of the majority leader, where there will be a sign that says YES or NO.  (Since COVID, there may be some more sophisticated communication via cell phone to which neither I nor any other Republican I know has access.)  In many cases, that is all they know about the issue they are about to vote on, especially if they enter the Chamber while voting is in progress and no talking is allowed.

Most dutifully follow their instructions (even if they have previously expressed a private view that “this bill is stupid,” or something like that.)  In some cases, a Representative may receive permission to vote against leadership, because, for example, the bill in question is so disadvantageous to the Representative’s district that voting with leadership might cost the Representative re-election. 

A Representative who deviates without permission, however, is quickly reprimanded.  That Representative might be promptly “leaned on” to change his or her vote.  Failing that, a “discussion” in the Speaker’s office might be held; in past years, Representatives have been seen emerging from such meetings in tears.  A Representative might be informed that no bill that he or she sponsors will ever see the light of day; or the Representative might be assigned to an undesirable committee. 

Failing all that, and if a Representative votes independently too frequently, leadership may recruit someone else to run against the uncooperative Representative in a primary.  These are not hypotheticals; there are Representatives (or former Representatives) who have been on the receiving end of these measures.

I need to conclude by saying that there are no comparable measures among the Republican minority.  On any given issue, the Republican caucus may vote to take a position, and it is, therefore, expected that a majority of Republicans will vote to support the caucus position.  Any Republican, however, is free to vote his or her conscience and will never be disciplined for deviating from the caucus position. 

The GOP “Whip” might well try to convince a member to vote with the caucus, but if the answer is “no,” that answer is accepted and respected.  If it is said that the Republican Party is unorganized and undisciplined, the plea must be “guilty.”  As a former Republican Representative, I have to say that I like it that way!

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Finally, are you feeling manipulated?  We have Black Friday, Small Business Saturday, Cyber Monday, Giving Tuesday, etc.  And every other day of the year seems to be designated for some recognition or another—anything to separate us from our money!  We’re being told what to do and when.  I’m not buying any of it! I’ll buy what I want when I want and give to charities I choose when I wish, but I just have a negative reaction to all the hype! My wife says I’m a curmudgeon.  (I just don’t understand why.)  Cheers!

“Scribblings” originated as a report on legislative affairs while the writer was a member of the Vermont House of Representatives from Barre Town.  Since then, it has been written less frequently and with less focus on the legislature and more of whatever happens to move the writer.  If you are not on the distribution list and wish to be added, simply send your name, town of residence, and email address to TomKochVT@gmail.com.  If you are currently on the distribution list and wish to be removed, make that request at the same address—no offense taken.