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Nothing special, one post at a time since 2012

How To Fix a Lawless Supreme Court

The Judiciary Act of 1869 “provided that the Supreme Court of the United States would consist of the chief justice of the United States and eight associate justices [and] established separate judgeships for the U.S. circuit courts”.

There were nine circuit or appellate courts in 1869. The US population was around 38 million. Now there are thirteen circuits. The population is 338 million. We’ve also got a lot more laws and lawyers. A simple act of Congress, signed into law by the president, could add four justices to the Supreme Court, one for each circuit. Given the Court’s additional workload, simple arithmetic and common sense support adding four Supreme Court justices.

An added benefit would be that the president could nominate and the Senate could approve four justices who respect the Constitution and legal precedents; who don’t want to promote Christianity, patriarchy, white supremacy, plutocracy and the gun culture; and who don’t want to give corporations license to destroy the environment. In other words, seven honorable justices vs. the six dishonorable ones we have now.

I think that’s the best way to fix a lawless Supreme Court, although there are other possibilities (all, of course, assuming a Democratic House of Representatives and at least fifty Democratic senators go along).

Paul Waldman explains how states like California and New York are already working on new licensing requirements and the wide-ranging designation of what the Republican majority called “sensitive places” where guns can be prohibited:

[When you say] “the Supreme Court says I have the right to carry around this lethal instrument giving me the ability to murder anyone I encounter in an instant”, the rest of us are more than justified in responding: “Yes, that’s what the Supreme Court says. But we will take steps to protect ourselves from the danger you and other gun owners pose”….You’ll be able to get your guns, but just as you have to show you can operate a motor vehicle safely before getting a driver’s license, you’ll have to satisfy some requirements before getting a gun permit.

And just like you can’t drive your car on sidewalks or in grocery stores, you can’t take your gun anywhere you want. No doubt the Supreme Court Six will rule in favor of insanity, but, as Mr. Waldman says, some laws will survive, the legal process could take years and, meanwhile, lives will be saved.

Jamelle Bouie has written two columns on the same subject this week. From his second:

[Article 3, section 2 of] the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.” [But] the court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction.… It can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

He then discusses the “Guarantee Clause” (Article 4, section 4″, which says that “the United States shall guarantee to every State in this Union a Republican Form of Government”. A republic is generally considered to be a state in which supreme power is held by the people and their elected representatives, not by a monarch. Interestingly, courts have been reluctant to specify exactly what a republican form of government is, leaving that decision to Congress. Mr. Bouie continues:

[But we do have] Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, … and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”

This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”

A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.

 As Mr. Bouie says in his first column:

The Supreme Court does not exist above the constitutional system… In the face of a reckless, reactionary and power-hungry court, Congress has options….The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

It’s almost impossible to imagine the 50 Democrats in today’s Senate all having the courage and understanding to seize the moment and reform the Supreme Court (one of them who’s against reforming the filibuster is rumored to have killed a proposed surtax on incomes over 10 million dollars, I suppose because of her support for the working class).

But it looks like a terrible crisis may be approaching. Three law professors write in today’s Washington Post about a case the Court has agreed to hear later this year, Moore v. Harper:

Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.

Harper invites the Supreme Court to go back on that promise. This invitation is based on an unsupportable legal claim known as the independent state legislature theory (ISLT). The theory would disable state courts from protecting voting rights in federal elections.

In theory (and given the recklessness of the Republican majority), the Court might rule that state legislatures have absolute authority to determine how their states vote for president. State legislators could ignore the voters and appoint whoever they wanted to represent their state in the Electoral College.

The outcome in 2024 is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets [the rest]. Biden is going to the White House for another four years.

Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis.

We then hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote: North Carolina, Wisconsin, Michigan, Pennsylvania and Arizona.

CNN announces that DeSantis has won the election…. 

What Democrats Could Do

Lots of people are giving Congressional Democrats advice. One such person is Perry Bacon. He writes for The Washington Post. Here’s his suggestion (with commentary from me):

The Republican Party isn’t fit to lead, and most voters know it — that’s why Joe Biden won the presidency. But all those 2020 Biden voters shouldn’t be expected to turn out for two more years of Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) blocking most legislation in the Senate, sometimes joined by moderate Democrats in the House….

Democrats should level with voters. . . . There was never really a Democratic “trifecta,” because Manchin and Sinema are more independents than they are Democrats.

They should be clear about the solution: a Senate with at least 52 Democrats and a House with at least 218 Democrats [they would actually need more than 218, since that would give every Democrat in the House veto power, just like Manchin and Sinema have had in the Senate for the past two years]. If they get that, they can say, they will pass a specific agenda, something like this:
  1. Eliminate the filibuster.
  2. A national law guaranteeing a right to an abortion in the first trimester and in all cases of rape and incest.
  3. A democracy reform law mandating independent commissions to draw state and congressional districts lines free of gerrymandering; vote-by-mail and two weeks of early voting; proportional representation through multi-member congressional districts; and measures to prevent election subversion.
  4. ban on the sale of military-style weapons such as AR-15 rifles and high-capacity magazines, along with universal background checks for gun sales.
  5. A minimum income tax of at least 20 percent on billionaires.
  6. A ban on members of Congress buying individual stocks.
  7. National marijuana legalization.
  8. A climate change plan that puts the United States on a path to net-zero carbon emissions by 2050.
  9. A required civics and life-skills course for high school seniors, with the same curriculum throughout the country.
  10. Voluntary term limits of 12 years in Congress for all Democrats (six terms in the House, two in the Senate) [A better idea would be a voluntary retirement age, say 70 years — airline pilots have to retire at 65, some state judges have to retire at 70]
  11. What connects these ideas? First, many of them are already popular….

Second, they directly confront America’s biggest problem: the radicalized Republican Party and how our political system gives a small bloc of GOP voters, the party’s donors and its elected officials veto power over the preferences of most Americans, including many Republicans.

Third, they acknowledge this stark reality: The United States is experiencing a non-military, uncivil war that the Democrats must win.

The Republican agenda of expanding gun rights, narrowing voting rights and functionally abolishing abortion rights doesn’t seem coherent or logical until you view it as an agenda of White male Christian hegemony. Then it fits together perfectly. The Democrats must stop trying to duck the so-called culture wars and instead fight hard to win them. There is no middle ground between White male Christian hegemony and multiracial, multicultural social democracy — and the Democrats shouldn’t be shy about using their power to impose the latter, since it’s what a clear majority of Americans want.

[These proposals would be] an acknowledgement that America’s economic and political establishments have failed and need to be changed.

Unquote.

Mr. Bacon didn’t include any strictly economic proposals or any ideas for court reform, although he mentions “the proposal of legal writer Elie Mystal to create a 29-member high court” (others have suggested a smaller number, like 13 or 15). But it’s a pretty good list and would remind some voters what would be possible with more Democrats in Congress. 

Some Conservatives Want to Avoid a Coup in 2024

One such conservative is J. Michael Luttig. You know he’s a conservative, because he clerked for Antonin Scalia, worked for Ronald Reagan and was made a federal judge by the first President Bush. After 15 years as a judge, he was Boeing’s general counsel for 13 years (2008 income = $2.8 million). He’s apparently consulting with “a number of senior Republican senators” regarding changes to the Electoral Count Act. He warned America in a piece for the NY Times today: 

The clear and present danger to our democracy now is that former President D____ T____ and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. T____ or his anointed candidate is not elected by the American people.

The convoluted language in the law gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not “lawfully certified” or “regularly given” — vague and undefined terms — regardless of whether there is proof of illegal vote tampering. After the 2020 election, Republican senators like Ted Cruz of Texas and Josh Hawley of Missouri tried to capitalize on those ambiguities in the law to do Mr. T____’s bidding, mounting a case for overturning the results in some Biden-won states on little more than a wish. Looking ahead to the next presidential election, Mr. T____ is once again counting on a sympathetic and malleable Congress and willing states to use the Electoral Count Act to his advantage.

He confirmed as much in a twisted admission of both his past and future intent earlier this month, claiming that congressional efforts to reform the Electoral Count Act actually prove that Mike Pence had the power to overturn the 2020 presidential election because of the alleged “irregularities.” The former vice president pushed back forcefully . . . 

The back-and-forth repudiations by Mr. T____ and Mr. P____ lay bare two very different visions for the Republican Party. Mr. T____ and his allies insist that the 2020 election was “stolen,” a product of fraudulent voting and certifications of electors who were not properly selected. Over a year after the election, they continue to cling to these disproved allegations, claiming that these “irregularities” were all the evidence Mr. Pence needed to overturn the results, and demanding that the rest of the G.O.P. embrace their lies. The balance of the Republican Party, mystifyingly stymied by Mr. T____, rejects these lies, but, as if they have fallen through the rabbit hole into Alice’s Wonderland, they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

While the Republicans are transfixed by their own political predicaments, and the Democrats by theirs, the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

Democrats, for their part, should regard reform of the Electoral Count Act as a victory — essential to shore up our faltering democracy and to prevent another attack like the one at the Capitol on Jan. 6, 2021. These are actually the worthiest of objectives.

Republicans should want to reform the law for these same reasons, and more. Of course, some may never support reform of the Electoral Count Act simply because the former president has voiced his opposition to the efforts to revise it. But there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington . . . [although he doesn’t mention that the Constitution (Article I, Section 4, Clause 1) gives Congress the authority to change the rules for elections].

Constitutional conservatives, especially, should want Electoral Count Act reform, because they should be the first to understand that the law is plainly unconstitutional. Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states. In fact, the Constitution gives Congress no role whatsoever in choosing the president, save in the circumstance where no presidential candidate receives a majority of the electoral votes cast.

T____ acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law. . . . No Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

If the Republicans want to prevent the Electoral Count Act from being exploited in 2024, several fundamental reforms are needed. First, Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.

Congress should also increase the number of members required both to voice an objection and to sustain one to as high a number as politically palatable. At the moment, only one member of each chamber is necessary to send an objection to the Senate and House for debate and resolution — an exceedingly low threshold that proved a deadly disservice to the country and the American people during the last election.

Currently, Congress has the power under Article II and the Necessary and Proper Clause to prevent states from changing the manner by which their electors are appointed after the election, but it has not clearly exercised that authority to prevent such postelection changes. It should do so.

Finally, the vice president’s important, but largely ministerial, role in the joint session where the electoral votes are counted should once and for all be clarified.

It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. Republicans and Democrats need to . . . fix this law before it enables the political equivalent of a civil war three years hence. The law is offensive to Republicans in constitutional and political principle, officiously aggrandizing unto Congress the constitutional prerogatives of the states. It is offensive to Democrats because it legislatively epitomizes a profound threat in waiting to America’s democracy. The needed changes, which would meet the political objections of both parties, should command broad bipartisan support in any responsible Congress. . . . 

Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

The Best Argument Against the Filibuster: It’s Unconstitutional!

There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?

When Will We Build Back Better? And What Will We Do?

“Build Back Better”. It’s not a great slogan, but Biden’s BBB bill will be passed eventually. It won’t be as sensible as what Biden originally proposed. A few “conservative” or flaky congressional Democrats insisted on making it worse. But it will make a difference in millions of lives when it finally becomes law.

Democrats in the House say they want to pass it this coming week, which means by Thursday, November 18. Then, however, both the House and Senate take another much needed break until the end of November. Assuming House Democrats do their job next week, Senate Democrats will then have two weeks to do theirs, before it’s break time again.  Unless Senate Democrats approve it by December 10, it won’t get done until 2022 (we really are living in the future). 

Almost all the news about BBB has been about the spending side of the bill, leaving out the popular offsetting taxes the bill would impose on corporations and people with plenty of cash to spare. The other thing the news has mostly ignored is what the bill would do. A relatively objective and nonpartisan group called the Committee for a Responsible Federal Budget has kindly provided the list below. The CFRB concludes it would have a small effect on the federal deficit in its present form. In the long run, they say it would have a bigger effect, assuming all the temporary parts of the bill are made permanent. But there’s no doubt whatsoever these things are worth doing and we can afford to do them (unlike the last Republican tax cut, for example, which wasn’t worth doing and made good things like BBB less easy to afford).

What’s in the Build Back Better Act?

Policy Cost/Savings (-)
Family Benefits  $585 billion
Provide universal pre-k & establish an affordable child care program (6 years) $390 billion
Establish a paid family and medical leave program $195 billion
Climate & Infrastructure  $555 billion
Invest in clean energy & climate resilience $220 billion
Establish or expand clean energy & electric tax credits $190 billion
Establish or expand clean fuel & vehicle tax credits $60 billion
Establish or expand other climate-related tax benefits $75 billion
Enact infrastructure & related tax breaks $10 billion
Individual Tax Credits & Cuts $210 billion
Extend Child Tax Credit (CTC) increase to $3,000 ($3,600 for kids under 6) for one year $130 billion
Make CTC fully refundable for 2023 & beyond $55 billion
Extend expanded Earned Income Tax Credit (EITC) for one year  $15 billion
Other individual tax changes $10 billon
Health Care  $335 billion
Strengthen Medicaid home- and community-based services $150 billion
Extend expanded Affordable Care Act (ACA) premium tax credits & make premium tax credits available to those in Medicaid coverage gap through 2025 $125 billion
Establish Medicare hearing benefit $30 billion
Invest in the health care workforce $30 billion
Other Spending & Tax Cuts  $310 billion
Build & support affordable housing $170 billion
Increase higher education & workforce spending $40 billion
Other spending & investments $100 billion
Reduce or Delay TCJA Base Broadening $290 billion
Increase SALT deduction cap to $80,000 through 2025 $285 billion+
Delay amortization of research & experimentation expenses until 2026 $5 billion’
Enact Immigration Reform  ~$100 billion
Subtotal, Build Back Better Act Spending & Tax Breaks  $2.4 trillion
Increase Corporate Taxes -$830 billion 
Impose a 15 percent domestic minimum tax on large corporations -$320 billion
Impose a 15 percent global minimum tax & reform international taxation -$280 billion
Impose a 1 percent surcharge on corporate stock buybacks -$125 billion
Enact other corporate tax reforms -$105 billion
Increase Individual Taxes on High Earners  -$640 billion
Expand the 3.8 percent Net Investment Income Tax -$250 billion
Impose a 5 percent surtax on income above $10 million & an 8 percent surtax on income above $25 million -$230 billion
Extend and expand limits on deductibility of business losses -$160 billion
Other Revenue -$170 billion
Reduce the tax gap by funding IRS & other measures -$125 billion*
Reinstate superfund taxes on oil -$25 billion
Expand nicotine taxes -$10 billion
Reform tax treatment of retirement accounts -$10 billion
Health Care -$250 billion
Repeal Trump Administration drug rebate rule -$150 billion
Reform Part D formula, cap drug price growth, & allow targeted drug price negotiations -$100 billion
Establish $80,000 SALT deduction cap from 2026 through 2030 & $10,000 cap in 2031 -$300 billion+
Subtotal, Build Back Better Act Offsets  -$2.2 trillion
Net Deficit Increase, House Build Back Better Act  ~$200 billion
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