Tag Archives: Condemnation claims

Houston Churches Face Goliath in Eminent-Domain Battle

21 Friday Aug 2015

Posted by in Houston, Landowner Rights, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer

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He and the church have helped congregants through drug addictions and gang violence, establishing a youth center and food pantry as part of the church’s mission, but they may have encountered a problem they cannot overcome: the power of eminent domain.

Bishop Roy Lee Kossie has been preaching at Latter Day Deliverance Revival Church in Houston’s Fifth Ward for 50 years, starting his work in 1965 when the area had gained notoriety as one of the city’s most dangerous neighborhoods.

At that time, the Fifth Ward became known as the “Bloody Nickel.” But, decades before the spur of its neighborhood violence, locals simply called it the “Nickel.” The neighborhood had served as a hub for minority-owned businesses and development during an era of redlining and de facto segregation. Congressman Mickey Leland and Congresswoman Barbara Jordan are products of the Fifth Ward, both attending Phillis Wheatley High School on Lyons Avenue, one of the nation’s largest black schools before desegregation.

The neighborhood, once flourishing with the hustle-and-bustle of local businesses, began to change in the 60s, according to the Texas State Historical Association, when upwardly mobile residents moved out to seek broader opportunities that stemmed from integration. Some attribute the neighborhood’s economic and social fall to Highway 59’s exclusion of Lyons Avenue and Jensen Drive – two of the Fifth’s busiest streets at the time – as exits on the major roadway, according to Houston History Magazine.

“The decline was slow,” Patricia Pando wrote in the Houston History Magazine. “Businesses did not disappear overnight. Nevertheless, by the late 1960s, the Lyons Avenue and Jensen Drive intersection was all but abandoned except for the still booming nightclub activity.”

The area’s decline did not, however, scare Bishop Kossie away from his church on Lyons Avenue. The church worked to acquire property, including the lots of two neighboring nightclubs, for its ministry.

“People shot first and asked questions later,” he said in a news release from the Liberty Institute. “But, we love this community. This is where the Lord called us and this is where we want to stay.”

He and the church have helped congregants through drug addictions and gang violence, establishing a youth center and food pantry as part of the church’s mission, but they may have encountered a problem they cannot overcome: the power of eminent domain.

The Houston Housing Authority (“HHA”) has made offers to purchase three of the church’s properties and has threatened to use eminent domain if those offers are not accepted, according to a lawsuit filed August 3 by Latter Day Deliverance Revival Church (“Latter Day”) and Christian Fellowship Missionary Baptist Church (“Christian Fellowship”). Liberty Institute is representing the churches and stated that the HHA was also seeking property owned by Christian Fellowship, a church that has been in the neighborhood for nearly 40 years.

The two churches in Houston’s Fifth Ward assert that the HHA’s use of eminent domain for a redevelopment project infringes upon the churches’ right to practice religion freely as the entity is seeking to take an “undeveloped” plot that Latter Day currently uses for parking and for its outdoor ministry in addition to other properties owned by the churches.

The HHA was seeking a total of four parcels from the two churches, three from Latter Day and one from Christian Fellowship, according to the Houston Chronicle. Christian Fellowship resides on one of those parcels, and the HHA planned to demolish the church to build a library, according to a lawyer for the Liberty Institute quoted in the Houston Chronicle Aug. 4.

The HHA initiated a redevelopment project in the Houston neighborhood in partnership with the Fifth Ward Community Redevelopment Corporation (“FWCRC”), an organization dedicated to revitalizing the historic Houston neighborhood through various development projects. The project, however, has come under public scrutiny since the lawsuit was filed. The HHA and the FWCRC altered their initial plan in response to the criticism, and their new plan would allow Pastor Quinton Smith to continue his 20-year career at Christian Fellowship.

“Toward ensuring [Pastor Smith’s] congregation continues its important presence in this community, I have asked our authority’s president, Tory Gunsolley, to work with our consultants to create an alternate development plan that does not include the property of First Christian Fellowship Missionary Baptist Church,” Chairman of the Houston Housing Authority Board of Commissioners Lance Gilliam said. “Unfortunately, that alternate plan will not allow us to include a new library. We recognize, however, that this sacrifice is balanced by the very real impact Pastor Smith and his congregation will have on the lives of existing and future residents of the Fifth Ward.”

Despite this alteration, the HHA and the FWCRC still plan to acquire Latter Day’s property to build a private health clinic.

“Although I applaud Bishop Kossie’s and his congregation’s impact on the quality of life in the Fifth Ward, I cannot provide him any comfort regarding our disagreement,” Gusnolley said.

The court has granted the churches a temporary restraining order to keep the housing authority off their properties but has not yet decided on whether the potential HHA taking violates the Texas Religious Freedom Restoration Act.

The HHA and the FWCRC may have noble intentions for the Fifth Ward as the FWCRC has a history of involvement in the community that includes the building of more than 300 homes in an effort to revitalize the Nickel. But, if we have learned anything since Kelo, it is that economic growth and development should not be cause enough to infringe upon someone’s constitutionally-protected property rights. Latter Day purchased its parcels of land with a vision in mind, and the HHA should not come between the church and that vision without having a compelling reason vested in the public interest to do so.

Co-authored by Justin Hodge and Ayla Syed.

If you have any questions about this blog, please feel free to contact Justin Hodge (jhodge@jmehlaw.com). 

The Eminent Domain Reforms that Could Have Been

19 Friday Jun 2015

Posted by in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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As Texas’ 84th Legislative Regular Session closed on June 1, several bills pertinent to eminent-domain reform were sent to the political junkyard where other legislative “almosts” and “could-have-beens” also reside.

Senate Bill 1601, which would have excluded high-speed rail from using eminent domain and thwarted the development of the Texas Central High-Speed Railway between Dallas and Houston, never made it out of the Senate Transportation Committee. The bill was initiated by Senator Lois Kolkhorst, R – Brenham, who filed it with the Texas Senate on March 12 this year in order to better control the use of eminent domain by private companies. To read more about this bill, please read our blog.

Senator Kolkhorst also initiated Senate Bill 474, which died in the Texas House of Representatives after passing through the Senate by a 25-6 vote. In an effort to encourage fair initial offers, the bill would have required those seeking to acquire property to reimburse landowners for their attorneys’ fees if a panel of special commissioners, judge or jury determined the value of the land to be at least 20 percent higher than the amount offered by the condemnor during a condemnation proceeding. The bill initially required compensation only if the value exceeded the offer by at least 10 percent, but that number was changed to 20 percent in the Senate Committee on State Affairs. The House Land and Resource Management Committee left the bill pending. To read more about SB 474, please read our blog.

Senate Bill 479 faced a fate similar to SB 474’s as it made its way out of the Senate in a 29-1 vote only to be left perpetually pending in the House Business and Industry Committee. The bill, authored by Senator Charles Schwertner, R – Georgetown, would have more narrowly defined the phrase “actual progress.” In Texas, a landowner can repurchase his or her land if the condemning party has not made “actual progress” toward the intended use of the property within 10 years of the taking. “Actual progress,” however, can be difficult to define, and SB 479 would have helped remediate that ambiguity. To read more about SB 479, please read our blog.

Co-authored by Justin Hodge and Ayla Syed.

If you have any questions about this post, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

Private Toll Company Takes a Toll

24 Friday Apr 2015

Posted by in Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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State Representative Cindy Burkett, R-Sunnyvale, filed a bill to strip the Texas Turnpike Corporation of its power of eminent domain, so it would no longer have the authority to condemn and take land. Currently, Texas Turnpike Corp. may be the only private entity that can still condemn land to build toll roads. In 1991, the State of Texas repealed a law that gave private toll companies the power of eminent domain, but Texas Turnpike Corp. was grandfathered.

House Bill 565 sponsored by Representative Burkett was sparked by public outcry over the Texas Turnpike Corp.’s attempt to build the State’s only private toll road northeast of Dallas. The company had originally intended to build the road as part of its Northeast Gateway project, which aims to create an alternative to nearby Interstate 30. However, after intense opposition from cities and residents on the road’s path, the company backed down from building it.

Texas Turnpike Corp. has been searching for a project to develop for a while. When the company’s chief executive, John Crew, was asked how many projects the company had completed in its more than 20-year history, Crew responded “we haven’t done any.” Last year it eventually focused on the Northeast Gateway project.

Neal Barker, a spokesman for the corporation, said the facility offered by the project is “a reliever to 30 and a time saver.” Crew added that the company is just trying to build projects that the state and others can’t afford.

Contrastingly, landowners and residents in the path of the toll road were overwhelmingly opposed to building the road. Christopher Kurinee, a Hunt Country resident, claimed the Texas Turnpike Corp. was “a private company trying to take private land.”

Allowing private companies the power of eminent domain for “public use” continues to be a contentious issue in Texas as private companies can generate profits from their projects. According to Representative Burkett, “the eminent-domain process should begin and end with officials who are directly accountable to the voters, not to corporate shareholders.”

House Bill 565 was referred to the House Committee on Transportation and approved as substituted. It will likely be placed on the calendar for consideration by the full House of Representatives.

See the bill here.

Co-authored by Justin Hodge and Maithili Bagaria.

If you have any questions about HB 565, feel free to contact Justin Hodge at jhodge@jmehlaw.com

TxDOT Considers Expanding I-10 Between Houston and San Antonio

17 Friday Apr 2015

Posted by in Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, TxDOT

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The Texas Department of Texas (TxDOT) may soon expand the 200-mile route between San Antonio and Houston on I-10 by one lane in each direction, according to San Antonio Express-News.

TxDOT has not yet identified funding for this expansion and still has to complete an environmental review of the project before it can finalize plans.

Several road projects to improve mobility between large Texas cities – San Antonio, Austin, Dallas and Houston – have already been initiated in an effort to accommodate Texas’ population growth in recent years. Many of these projects may require the use of eminent domain to acquire the land needed for expansion, and landowners should pay attention to proposed projects near them. To read more about some of these projects, click here.

Co-authored by Justin Hodge and Ayla Syed.

If you have any questions about upcoming road projects or eminent-domain cases in Texas, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

JMEH Partners Testify in Front of Senate Committee, Advocate for Bill to Stop Eminent-Domain Abuse

27 Friday Mar 2015

Posted by in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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Marrs Ellis & Hodge, LLP, partners Justin Hodge and Luke Ellis testified in front of the Texas Senate Committee on State Affairs on March 9, 2015, in favor of a bill that would better protect landowners in eminent domain proceedings and help ensure that the fear of legal fees would not prevent landowners from seeking just compensation for their property.

Senate Bill 474, proposed by Senator Lois Kolkhorst, R — Brenham, would require those seeking to acquire property to reimburse landowners for their attorney’s fees if the award by the special commissioners exceeds the condemnor’s offer for the property prior to the proceedings by at least 10 percent.* The bill would also require reimbursement of attorney’s fees if the case moves beyond the special commissioners’ hearing to court and the award exceeds the condemnor’s offer prior to the proceeding by at least 10 percent.

Luke Ellis

Luke Ellis

Ellis and Hodge were the first among the five individuals
invited to testify in front of the Texas Senate Committee on State Affairs. Ellis opened the testimonies by describing a situation in which a landowner purchases a piece of land for $300,000. The landowner then builds a home on the land and spends $200,000 on construction, bringing the landowner’s total cost to $500,000.

An entity wants to use that land for a project that would serve some public purpose, and that entity offers the landowner $300,000. The landowner, knowing the amount he or she has spent on the property, then seeks legal counsel from an attorney. The attorney fights the case for a period of one to four years, at the end of which a jury awards the landowner $500,000.

“Has that landowner recovered in full for the benefit that [his or her] land has provided to our entire community?” Ellis asked the committee after setting up his example. “The answer, under the Texas system as it exists today, is a very definitive no.”

Ellis stated that the landowner does not recover in full in this process because of the attorney’s fees and legal costs required to combat low offers in court, especially when the landowner has to pay for experts and appraisals to counter the condemnor’s experts and appraisals. Ellis then went on to read the language in both the 5th Amendment of the U.S. Constitution that requires condemning authorities to give landowners just compensation for their properties and Article 1, Section 17 of the Texas Constitution that requires adequate compensation.

“But, in Texas, as the system exists, you don’t get just compensation or adequate compensation,” Ellis said. “You get adequate compensation less the cost it takes you to achieve adequate compensation, and that’s not a fair system for Texas landowners.”

SB 474 graphic2

This graphic is not representative of every path a condemnation case can follow and does not in any way offer legal advice. This graphic simply presents a the number of paths a hypothetical case could follow in context of SB 474.

The debate on SB 474 centers on whether the bill would have a fiscal impact on the government and increase the cost of condemnation. When presenting her bill, Senator Kolkhorst stated that the bill would not significantly increase costs to the government, and Ellis agreed with this in his testimony. Ellis said this bill would decrease litigation as it would incentivize condemning authorities to make a fair offer that landowners would want to accept initially.

“Condemnors have absolutely no incentive to treat landowners fairly. They’re a business. There is no penalty to make low offers to start,” Ellis said of the current system, adding that condemning entities often make low offers to “wash away” those afraid of a legal battle.

Ellis also described the abuse of power that often occurs in these legal battles as condemnors who can afford to run up legal costs and/or expert fees often do so to tire the landowner’s financial resources and ability to fight low offers.

“We believe [SB 474] is the first and a very strong step in trying to balance the scale,” Ellis said.

Hodge also testified and gave a personal testimony of his family’s experience in an eminent-domain proceeding. His family owned a ranch near the Bell-Williamson county line, and his grandfather had spent his lifetime drilling more than 70 water wells on that ranch looking for water to feed their livestock.

Hodge’s grandfather passed away, and Hodge’s father found seven commercial-grade water wells on the property. Hodge’s family contracted with local communities to make use of those water wells until the State of Texas, through the Department of Transportation (“TxDOT”), decided to build a safety rest stop on the ranch in 2006.

“They wanted 28 acres, and, in fact, they were taking the property where six of those seven commercial water wells existed,” Hodge said. “That was a shock to us. We begged and pleaded with TxDOT to move the safety rest stop.”

TxDOT did not move the location of the rest stop. Hodge’s family fought the state’s $350,000 offer for six years. The state did not include any compensation for the water underneath their property in its offer and argued that the water underneath the property did not belong to the landowners, a position that Hodge said ran contrary to nearly a century of case law in Texas.

The Hodge family case went in front of a jury of six people in Bell County, who awarded the family $5.8 million as just compensation for their loss of the water and land.

“You’re probably asking, ‘Well, aren’t you made whole? Isn’t your family made whole in that situation?’ And, the answer is no,” Hodge said to the committee. “We had to pay, as a family, more than $2 million in attorney fees to get that $5.8 million, and that doesn’t include expert costs associated with [the legal battle]. That was money my grandfather had worked hard for to pay for college educations for his great grandchildren, my father’s grandchildren, and my children.”

“This is a bill that will help landowners like my family, landowners…who have to bear a huge cost for the community” Hodge added. “[SB 474] stops abuse.”

Senator Kolkhorst modeled the bill after similar bills in effect in other states in an effort to help stop this abuse.

“The spirit of SB 474 is just to say, if you need to, you can access the courts,” Kolkhorst said. “And, if you were wronged, those fees will be paid by those who wronged you.”

SB 474 is currently pending in the Texas Senate Committee on State Affairs. If passed as currently written, the bill would go in effect September of 2015.

*In Texas, if a landowner and the condemning authority cannot agree to an amount for the property, a panel of three court-appointed special commissioners will determine an award for the property.  If either party objects to the award, the case then proceeds to a court where a judge or jury determines the fair-market value of the property in question.

If you want to hear Ellis and Hodge’s testimonies, please visit  http://youtu.be/H9psHmXLexw. If you have any questions about SB 474, please feel free to contact Justin Hodge at jhodge@jmehlaw.com.

Co-authored by Justin Hodge and Ayla Syed.

New RRC Rules Require Pipeline Companies to Do More than Simply Check a Box

13 Friday Mar 2015

Posted by in Pipelines, Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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The Texas Railroad Commission’s (RRC) new pipeline permitting rules that require oil companies to verify their common-carrier status went into effect last week, marking a significant move away from the previous rules that simply required companies to check a box to claim common-carrier status.

The RRC has maintained that its T-4 permit only allows a company to operate a pipeline and does not automatically entrust the company with the power of eminent domain. The limit of this power, the RRC says, remains with the court as it always has.

The new rules will require up-front proof of common-carrier status. Pipeline companies previously only offered proof that they carried unaffiliated third-party product if and when its common-carrier status was challenged.

This rule change comes after the landmark 2012 case in which the Texas Supreme Court ruled that a pipeline company must do more than show its T-4 permit as proof of its common-carrier status. (Texas Rice Land Partners, Ltd. v. Denbury Green-Texas, LLC, 363 S.W.3d 192 (Tex. 2012)).

If you have any questions about the new rules or anything related to eminent domain, please feel free to contact Justin Hodge (jhodge@jmehlaw.com).

Coauthored by Justin Hodge and Ayla Syed.

Is ‘Actual Progress’ Being Made?

14 Saturday Feb 2015

Posted by in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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I believe governments should only use their eminent domain authority as a last resort, but the truth is, it’s a power rampant with abuse and misuse…Texas has a storied history of defending private property rights, and this legislation will preserve that proud tradition by holding government more accountable.” – Senator Charles Schwertner

Eminent domain laws in Texas may receive a slight tweak if recently-filed Senate Bill 479 passes into legislation. Senator Charles Schwertner, R – Georgetown, authored the bill that could more narrowly define “actual progress,” a broad phrase that currently requires those who invoke the power of eminent domain to make “actual progress” toward the intended use of the condemned land within 10 years.

After the 10-year period, the landowner can repurchase the land at the original price paid by the condemning entity. This may prove more difficult than necessary for the landowner as the law currently does not clearly define “actual progress,” and Schwertner hopes his bill will help remedy that ambiguity in an effort to better protect landowners in eminent domain cases.

“I believe governments should only use their eminent domain authority as a last resort, but the truth is, it’s a power rampant with abuse and misuse,” Schwertner said in an announcement of SB 479, according to the Austin Business Journal. “Texas has a storied history of defending private property rights, and this legislation will preserve that proud tradition by holding government more accountable.”

The proposed amendment to 21.101 of the Texas Property Code would define actual progress as including three of the following:

  1. The “performance of [a] significant” amount of labor on the property or other properties related to the development of the intended project;
  2. The purchase or obtainment of a “significant” amount of material for the property or other properties required for the public use project;
  3. The hiring of and/or “significant” work by an architect, engineer, or surveyor for the purpose of developing the property or other properties for the public use project;
  4. Application of state and/or federal funds for the project for which the property was purchased; or
  5. Application of a state and/or federal permit to develop the property or other properties related to the public use project.

(Read the proposed bill here). If you have any questions about SB 479 and its potential impact on eminent domain cases in Texas, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

Coauthored by Justin Hodge and Ayla Syed.

Big Funds Keep on Turning, Texas Highways Keep on Stirring

07 Saturday Feb 2015

Posted by in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, TxDOT

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A big move by Texas legislators could potentially funnel $25 billion over the span of a decade to the State Highway Fund – the second headline-making highway funding plan proposed this year.

Texas Senator Robert Nichols, R – Jacksonville, filed two pieces of legislation, Senate Bill 5 and its complementary constitutional amendment, Wednesday that could potentially move a portion of funds raised from new and used vehicle sales tax to the State Highway Fund.

Nichols serves as the chairman of the Senate Transportation Committee, and the bills were co-authored by Senator Jane Nelson, R – Flower Mound, the chairwoman of the Senate Finance Committee.

If approved by the State Legislature, the legislation would appear on the November ballot for voter approval and follow a path to implementation similar to Proposition 1 (Read our post on Proposition 1 here).

Additional highway funding would give TxDOT more leeway to expand and build upon current infrastructure and also allow it to finance new roadway projects. These projects often include condemnation proceedings to acquire land needed for expansion from current landowners. As Texas’ transportation infrastructure continues to expand, eminent domain will stay at the forefront of legal battles produced by new projects.

*Post title modified from “Proud Mary,” a song made popular by Tina Turner.

Coauthored by Justin Hodge and Ayla Syed.

Pipeline May Be Key to Unlocking Next Government Shutdown

02 Wednesday Oct 2013

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Photo by Anne Sherwood for The New York Times. Dawson County Montana–one of the areas through which the proposed Keystone Pipeline XL would pass if approved.

The Keystone Pipeline XL may be a key to unlocking the next cement door put up by the GOP to meeting fiscal deadlines, the New York Times reported. The Republican Party will likely seek approval of the pipeline in the discussion to raise the national debt ceiling, which has an Oct.-17 deadline, rather than in debates pertaining to the missed Oct. 1 budget deadline that defunded the U.S. government and brought the government into its second day of the shutdown. Tying the pipeline to the debt ceiling could have a significant impact on landowners’ rights as TransCanada, the pipeline builders, try to attain land for the project, which will bring into question the eminent domain rights of the company as a “public” utility as well as any resulting condemnation claims.

House of Representative member Lee Terry (R-Nebraska) said to the NYT that the Republicans feel the debt ceiling debate may be their “only option” in seeing the pipeline come to fruition, and his opinion may not be far from the truth considering President Obama’s more aggressive approach toward preventing climate change in his second term. The pipeline crosses an international border and needs approval from the Obama administration in order to continue, and the President has ordered an internal review to consider the potential environmental risks the Keystone Pipeline XL may impose. A decision on the pipeline from the President without interference from Congress could come in early 2014, but a Republican-led, last-ditch effort to guarantee the pipeline’s completion may change that timeline.

President Obama stated that he has little patience for any provisions on the upcoming debt ceiling bill, and considering the lack of bipartisanship that has become a trademark of about the last 4 years of U.S. politics, another looming budget battle about the national debt ceiling, and, therefore, the Keystone Pipeline, likely awaits the Congress currently tied up on approving a national budget.

This battle will most likely not carry the same momentum as the current budget debates simply because it follows the budget deadline that resulted in defunding the U.S. government, a move not well received or likely to be repeated within the same term. But, nothing is certain, especially the future of the Keystone Pipeline XL.

Supporters of the pipeline argue that it would help decrease the United States’ dependency on the Middle East for oil and create more jobs within the nation, while opponents fear the carbon emissions that would result from such a large build.

The Center for Biological Diversity, a non-government organization that often lobbies for greater environmental protection for endangered species, recently released a study about the potential damage the pipeline will cause on habitats it crosses, according to Al Jazeera America on Sept. 29. Al Jazeera America also reported that the Intergovernmental Panel on Climate Change, sponsored by the United Nations, released a report linking global warming to “human carbon dioxide output from fossil fuels, including carbon-rich tar sands oil like that which the Keystone pipeline is designed to transport.”

The Pew Research Center reported that about two-thirds of Americans support the pipeline, but the same margin of Americans also opposes great carbon emissions. Waiting for the Obama administration’s report on the Keystone Pipeline XL could lead to a well-informed decision that considers all different arguments for and against the pipeline, but forcibly linking that decision to the debt ceiling may rush an important decision on an issue that is clearly more grey than black or white.

The decision to link the pipeline to the Oct. 17 deadline might change considering the potential political ramifications that will result from the current government’s continued failure to pass a budget — a move not boding well for Republicans in office as their constituents begin to feel the effects of a government shutdown domestically and abroad.

Coauthored by Justin Hodge and Ayla Syed.