Thursday, July 16, 2015

The War Between the States ... Isn't Over ... The Coming Congressional Skirmishes

Representative Jarred Huffman of California succeeded, by late night machinations and albeit only temporarily, in gaining House passage of legislation that would prohibit the display of the Confederate battle flag in certain United States Cemeteries. The full story can be read in articles such as this one.

The essence of the story is that Rep. Jared Huffman of California proposed an amendment to an Interior Department funding bill, the essence of which was to prohibit virtually all displays of Confederate flags in US military cemeteries superintended by the National Park Service. The amendment passed on a voice vote, and at a time when the language of the amendment was not publicly available on Congress' own website. A day later, the House, by a similar voice vote, adopted another amendment to the same bill that had the effect of adopting by statute an existing Obama administration rule on flag displays in such cemeteries. That existing Obama administration rule permits Confederate flag displays under certain conditions and on certain days.

The matter grew so contentious for the House leadership that the House rose, leaving the question of final adoption of the Interior Department legislation for a later time. As it turns out, however, Huffman's is not the only proposal addressing the display of the Confederate Flag. A search today reveals several other pieces of proposed legislative action touching on the flag. All but one of these proposals are pending in the House of Representatives, the other, of course, is pending in the Senate.

The proposals currently pending (don't expect these to be the last) fall into six categories.

First, there is Representative Sheila Jackson Lee's proposal, House Resolution 342 (H.Res.342 - Expressing the sense of the House of Representatives regarding the enhancement of unity in America.). H.Res. 342 is currently pending in the House Judiciary Committee, where it was referred to the Subcommittee on the Constitution and Civil Justice. Lee's proposal would not have the effect of law if adopted by the House. Instead, if adopted by the House, H.Res. 342 simply expresses, albeit awkwardly, the sense of the House that the Nation can only become
"a more perfect union— 
(1) through avoidance of “government speech”, as the State of Texas did in Walker III v. Texas Division, Sons of Confederate Veterans, Inc., which promotes or displays symbols, signs, and vestiges of racism, oppression, and intimidation in the States, localities, and territories;
(2) by immediately abating the use of “government speech” through signs, actions, and words that promote division and tear at the fabric of the American society; and 
(3) by promoting tolerance and unity by taking actions to ensure that “government speech” does not foster division, disharmony, intolerance through government-issued or sponsored flags, signs, images, or other symbols whether displayed in public or private."
Lee's proposal is milquetoast, so far as it goes. What is left unsaid in the proposal, of course, is the source of possible contentiousness. Lee notes that the Supreme Court recently affirmed the power of the State of Texas to refuse to issue a State license plate with a Confederate flag depicted on it. The Court's decision depended entirely on the Court concluding that the contents of a license plate constitute government speech and that States can decide what messages to communicate. As I read Lee's proposal and her remarks, I think she actually intends, ultimately, to see the handful of States that use the Confederate Battle Flag as a component of the State flag, the State Seal, or as part of any State Vehicle tag discontinue those uses.

Second, there are Representative Bennie Thompson's and Representative Nancy Pelosi's proposals, House Resolutions 341 and 355  (H.Res.341 - Raising a question of the privileges of the House and H.Res.355 - Raising a question of the privileges of the House). H. Res 341 is currently pending before the House Administration Committee, and H. Res. 355 has also been referred to the same Committee. H. Res. 341 makes several assertions of fact and/or principle. Key among those are the following:
[T]he House of Representatives has several State flags with imagery of the Confederacy throughout its main structures and House office buildings;
[I]t is an uncontroverted fact that symbols of the Confederacy offend and insult many members of the general public who use the hallways of Congress each day;
Congress has never permanently recognized in its hallways the symbols of sovereign nations with whom it has gone to war or rogue entities such as the Confederate States of America;
[C]ontinuing to display a symbol of hatred, oppression, and insurrection that nearly tore our Union apart and that is known to offend many groups throughout the country would irreparably damage the reputation of this august institution and offend the very dignity of the House of Representatives; and
[T]his impairment of the dignity of the House and its Members constitutes a violation under rule IX of the Rules of the House of Representatives of the One Hundred Fourteenth Congress.
Both H. Res. 341 and H. Res. 355 have, as their ultimate goal, removal of Confederate battle flags in the portions of the Capitol building under House superintendence:
Resolved, That the Speaker of the House of Representatives shall remove any State flag containing any portion of the Confederate battle flag, other than a flag displayed by the office of a Member of the House, from any area within the House wing of the Capitol or any House office building, and shall donate any such flag to the Library of Congress.
Article I of the Constitution gives the House (and the Senate) complete constitutional authority to make the Rules for their Proceedings. The Administration Committee's website does not reflect any currently planned action on the resolutions.

Third, there is Representative James Clyburn's proposal, House Resolution 344 (H.Res.344 - Urging the discontinued use of the Confederate battle flag, which represents pain, humiliation, torture, and racial oppression, in remembrance of the Emanuel 9). H. Res. 344 is currently pending in the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee. The Resolution, if adopted by the House, would appeal to the States to discontinue the display of the Confederate battle flag in state and public locations. Clyburn's proposal notes several ongoing uses of the Confederate battle flag, or portions of it, in State flags and on automobile license plates:
[T]hree ... States still have depictions of or symbolic references to the Confederate battle flag adopted in their own flags, including—
  1. Mississippi: the upper-left corner of the State flag is a smaller version of the Confederate battle flag; 
  2. Alabama: the red cross of the State flag was designed to preserve some of the distinctive features and ideals of the Confederate battle flag; and 
  3. Florida: the cross on the State flag was inspired by the design of the Alabama flag[; and]
[]Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia continue to allow the depiction of the Confederate battle flag on license plates[.]
Clyburn's plea to the States would, if adopted, urge the change because "continued display of the Confederate battle flag has resulted in perpetual racial tension and conflict; instilled pain in the lives of American people; and been appropriated as a symbol of hatred, brutality, and oppression[.]" The House Judiciary Committee's website reflects no currently pending hearings or mark-ups regarding H. Res. 344.

Fourth, there is Representative Ruben Gallego's proposal, House Resolution 3007 (H.R.3007 - To amend title 38, United States Code, to prohibit the display of the Confederate battle flag in national cemeteries). H.Res. 3007 is currently pending before the House Committee on Veteran's Affairs. Unlike the proposals previously discussed, this proposal actually would produce a new law of the United States. To become effective, it would have to be approved by both the House and the Senate, and either signed by the President, or approved over his veto.

This proposal, like the preceding ones, invokes history, offense, and our tortured history as justification for the proposed ban:

  1. The Confederate battle flag is a potent reminder of a deeply divisive period of our Nation’s history, recalling the human suffering of slavery and Jim Crow.
  2. For millions of Americans, including veterans and their families, the Confederate battle flag is a symbol of intolerance, injustice, and inequality.
  3. Flying the Confederate battle flag, originally the banner of forces fighting the armies of the United States, is offensive and inappropriate at cemeteries and other sites dedicated to the memory of America’s courageous war dead.

The proposal in its present form is problematic. It would likely prohibit the display of the State flags of Mississippi, Alabama, and Florida. It would likely prohibit cars with certain license tags issued by the States of Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia from entering affected cemeteries. And, to the extent that departmental regulations or law permit the placement of individual items at headstones or by columbaria, such a prohibition might violate the First Amendment principle that content-based restrictions on speech are subject to heightened scrutiny.

The Veterans' Affairs Committee website does not indicate any currently pending action on H. Res. 3007.

Fifth, there are three "opportunistic" proposals related to the House's consideration of the 2016 Appropriations legislation for the Department of the Interior. There are Representative Jared Huffman's proposals, House Amendment 586 to House Resolution 2822 (H.Amdt.586 to H.R.2822) and House Amendment 592 to House Resolution 2822 (H.Amdt.592 to H.R.2822), and there is also Representative Jeffries' proposal, House Amendment 606 to House Resolution 2822 (H.Amdt.606 to H.R.2822). H. Amend. 586 and H. Amend. 592, according to Rep. Huffman's House website, will "prevent the future sale of Confederate flag merchandise in National Park Service (NPS) stores and to disallow any grave in any Federal cemetery operated by the Park Service to be decorated with a Confederate flag." Representative Jeffries' H. Amend. 592 prohibits the use of federal funds for the purchase or display of Confederate flags by the National Park Service. Jeffries explained his proposal prohibits "allocation of federal funds in connection with the purchase or display of a confederate flag on a public building or facility under the authority of the National Park Service" except in "specific circumstances where the flags provide historical context."

The House of Representatives voted on all three of the proposed amendments to the Department of the Interior 2016 Appropriations bill, and approved all three. Subsequently, as mentioned at the top of this post, the House had an additional amendment to the Appropriations bill, House Amendment 651, offered by Representative Calvert. Calvert's proposal, H. Amend. 651, prohibits the use of funds to prohibit the display of flags otherwise permitted by National Park Service Regulation 61 (the previously mentioned Obama administration regulation). All of these amendments, and the underlying appropriation, are currently pending further action by the House of Representatives.

Sixth, and finally, there is Senator Sherrod Brown's proposal, Senate Bill 1689 (S.1689 - A bill to amend title 23, United States Code). Senate Bill 1689 is currently pending in the Senate Committee on Environment and Public Works. Of the six categories of pending proposals, if S. 1689 is brought to the Senate floor for a vote, it would likely be the greatest source of contention.

I have discussed in other posts the Spending Clause of the Constitution and the power of Congress to use its Spending Clause power in a "carrot and stick manner" to reward, or punish, desired behaviors. Examples of Congress doing so include previous congressionally devised pushes to raise the legal drinking age in the States and to lower the maximum highway speed limit in the States. Sherrod's proposal would use that carrot and stick in a two step approach to eliminate State vehicle license tags that depict Confederate flags. There is some lack of clarity to the provision, and, as worded, it might actually, depending on how States respond, result in a total of 10% loss of funding, if a State both continues to issue offending license tags and continues to allow the use of previously issued tags.

The Senate Committee on Environment and Public Works website does not show any current pending hearing, mark-up, or other proceeding related to Senator Brown's proposal.


Given that none of the matters referred to House or Senate committees have yet been scheduled for hearings or markups, it is likely that further proceedings on the proposals will wait till after summer. Still, if the denuding of symbols and heritage are matters of concern to you, you may want to express your views to your Representative and Senators. If so, you can reach them by dialing 202-224-3121 and asking to be connected to their office.