A sad reflection for the end of the 114th Congress...

Unsure if anyone is still looking at the blog, but find below a reflection on leaving Congress by Steve Israel:

"But I think the way Congress treats its departing members is a refreshing exercise in humility, and a surprising example that the institution can move fast — when it must."

http://www.nytimes.com/2016/12/16/opinion/the-humiliations-of-life-after-congress.html?_r=0

And the Semester Ends

Inherent limitations of Congress:

• Except in simulation, legislation is usually slow. (And swift action is not necessarily smart action.)
• In a body resting on geographic representation, parochialism is inevitable. (And it is often legitimate.) See Davidson 456-457.
• A multi-member, bicameral institution will have a hard time planning. (And planning is overrated.)

Ethics

Public perception 

Actually, Congress used to be much more corrupt

Checks and balances

JFK on the complexity of courage:

• The pressure to "go along" -- but we "should not be too hasty in condemning all compromise as bad morals."
• The pressure to seek reelection -- but lawmakers "who go down to defeat in a vain defense of a single principle will not be on hand to fight for that or any other principle in the future."
• The pressure to serve interest groups -- but "they are the articulate few whose views cannot be ignored and who constitute the greater part of our contacts with the public at large, whose opinions we cannot know..."
  

The Wealthiest Counties did not vote for Hillary Clinton, but the Poorest Counties did.

Breitbart recently published an article saying that, had it not been for the coastal elite in 52 counties, the election would have been a slam dunk for Donald Trump.

This narrative is false. While Trump tied with Hillary Clinton on voters who earned more than $250K/year or more, the idea that Trump won everything except for the Bougie coastal elites is flat-out wrong. I used the U.S. Census Bureau data from 2010 and county-level election data from November, and examined the fifty counties with the highest Median Household Income. 25 of them voted for Trump, and many of them by sizable margins. Here's a map I made with Microsoft Paint for more perspective:

In fact, only 16 of the named 52 counties made the cut from the original Breitbart article.

50 wealthiest counties:
--25 voted for Donald Trump
----Of these 25, 14 were in Southern or Midwestern states
----Some of these counties, like Sussex County, NJ voted for Donald Trump by more than 30 points
--9 voted for Hillary Clinton
----These were likely not included in the original Breitbart article because they were either close, like Queen Anne's County, MD or not on the coast, like Oakland County, MI
--16 are the "Coastal Elite" counties that Breitbart selects
----Of these 16, 8 are in Northern Virginia, and an additional 3 are in Maryland. The remaining 5 are split between California (3), New York (1), and Massachusetts (1)
------Of the 8 in Northern Virginia, 4 are independent cities with small size

By contrast, of the 50 poorest counties in America, 2/3 (33) voted for Hillary Clinton. This is especially poignant, given that Donald Trump won far more counties than Hillary Clinton. Of these 33 counties that voted for Hillary, 5 are Hispanic majority, 3 are Native American majority, and 25 are African-American majority. 16 of the 17 poorest counties that Donald Trump won are more than 75% white (Luna County, NM is actually Hispanic majority). Here's another map I made with MS Paint to outline where the poorest counties are and how they voted:

Breitbart is not the only publication to accuse HRC for going for the elite coastal vote. It is certainly true that the wealthiest counties are concentrated in super zip-heavy coasts surrounding DC and New York. Nevertheless, the idea that this election was America's poor and working class heartland vs. the coastal elites misunderstands both the distribution of wealth and politics in America.

Democrats? Nearly all-white top staff? Huh?

Senate Democrats' top staff ranks are lily-white:

http://www.politico.com/story/2016/12/senate-democrats-race-232312

Chuck Schumer, the Minority Leader-to-be, is considering various proposals for party rules to boost minority hiring. Among them is a mandate to interview diverse candidates for top staff positions, without a mandate to hire them. The Senate Black Legislative Staff Caucus is pushing legislation to create a chief diversity officer for the whole Senate.

Simulation Video!

Summing Up I

Beating Cabinet nominees

In response to Ian's post:  Goldwater v. Carter  (Fisher, p. 265).

In response to Bruno's post -- Manu Raju and Ted Barrett report at CNN:

Democrats are worried that if Trump adds two Democrats to his Cabinet -- potentially North Dakota Sen. Heidi Heitkamp and West Virginia Sen. Joe Manchin -- the balance of power in the chamber could tilt further to the GOP. So they are making the case to their colleagues to stay put.
...
If Manchin and Heitkamp were to leave for the Trump administration, the GOP would have a clear shot to pick up the open seats in 2018. In West Virginia, the Democratic governor, Earl Ray Tomblin, would fill the open seat until the next election in the red state. And in North Dakota, a special election would occur within 95 days of the vacancy, giving the GOP an immediate chance to grow their numbers in the first year under Trump.

In response to Caroline's question:

• Technical corrections legislation
• Scott Levy in the Straus reader (p. 36): "How does one discern a well-drafted bill from a poorly drafted one?  How does one distinguish a drafting error from a questionable policy decision?  To be honest, I do not know that we can."
• Process issues -- Heather Caygle reports at Politico:
  

  SENATE TAKES A MULLIGAN— Turns out that in the Senate, you can pass a bill – and then take it right back. On Monday afternoon, the Senate easily cleared money-laundering legislation from Sens. Richard Shelby and Sherrod Brown and then almost as quickly, reversed its passage. Sources tell Huddle that the Democratic cloakroom had accidentally OK’d the hotline request that had included the terrorism financing measure and other items, without registering an objection that came from their own side. Hey, mistakes happen.

  So where did that objection come from? West Virginia Sen. Joe Manchin, who along with three other Democrats from coal states has vowed to gum up the works on anything and everything in the Senate until legislation regarding health care and pensions for coal-miners gets addressed in the chamber. Confirming the hold, a Manchin spox emailed us: “We are going to object to everything going forward.”

• Once in a while, Congress just repeals.  Case study:  Medicare catastrophic health insurance.

The Elusive Question of the Mandate

• Popular vote for president
• Turnout
• House vote in 2016
• In 2014, GOP got 56.8% of seats with 51.2% of the vote.
• Historical:  popular vote and seats (Table 2-2)
• Congressional approval

The Oath of Office:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

On January 12, 1991, House Speaker Tom Foley (D-WA) spoke about the impending Gulf War. This is what grownups look like:

RCP Trump Cabinet Tracker 

http://www.realclearpolitics.com/trump_cabinet/index.html

Luring Red-State Democrats into the Cabinet

The Trump transition team is eyeing Joe Manchin for Secretary of Energy. This is likely an extension of the strategy behind picking Heidi Heitkamp for a Cabinet position.

http://www.politico.com/blogs/donald-trump-administration/2016/12/trump-joe-manchin-for-energy-secretary-232068

EDIT: This seems less likely than appointing Heitkamp, as Earl Ray Tomblin, WV's governor, is a Democrat (as is Jim Justice, WV's governor-elect). Not the same strategic appeal as appointing Heitkamp, but the Trump transition team could still do it if they really wanted to emphasize coal.

Trump and the Power of Diplomatic Recognition: US and Taiwan

Well, we talked about this possibility in class but even then it was in relation to US-Cuba relations:  With a single phone call Trump has put into question the future of US-China/US-Taiwan diplomatic relations. http://www.bbc.com/news/world-us-canada-38191711 This is the BBC article, but CNN, ABC, FOX, Huffington Post, and many others have reported on the story.

While Trump did not officially recognize Taiwan, or even physically receive a foreign diplomat from the the government of Taiwan, the phone call still breaks decades of tradition in relation to our country's support of the "One-China" Policy. 

On a side-note, but possibly of political interest, it has been reported that Trump wants to build luxury hotels and resorts in Taiwan. http://shanghaiist.com/2016/11/18/trump_taiwan_expand.php.

Here are articles from the WSJ and the Hill on the subject that I think also give a good picture of the situation: 

http://thehill.com/blogs/blog-briefing-room/news/308559-trump-makes-history-with-phone-call-to-taiwan-leader

http://www.wsj.com/articles/donald-trump-spoke-with-taiwan-president-tsai-ing-wen-1480718423

Maybe this means nothing for the future of our foreign relations with China and is just a possible signal of Trump's political tactlessness, or maybe this is a reflection of Trump's anti-China rhetoric we saw on the campaign (in relation to outsourcing jobs and such).

Followup to Our Discussion of the War Power

Trump has said that he will nominate retired Marine General James Mattis to be Secretary of Defense. Congress must pass a special waiver for the nomination to go through.  The National Security Act of 1947 said that anyone “who has within ten years been on active duty as a commissioned officer in a Regular component of the armed services shall not be eligible asSecretary of Defense.”  In 2008, Congress reduced the period to seven years, but Mattis retired only three years ago.

Congress has waived the law once. From the 1950 CQ Almanac:

The House and Senate Sept. 15 gave final approval to a special bill (HR 9646) which would allow Gen. George C. Marshall to be appointed as Secretary of Defense. The President signed the bill Sept. 18 and submitted Marshall's appointment to the Senate for confirmation. The Senate confirmed Marshall Sept. 20 (see p. 355).

The bill set aside a provision in the National Security Act (Unification Act) of 1947 barring from the post of Secretary of Defense any person who had served as an officer in the Armed Forces during the past ten years. The exemption applies only to Marshall. The bill fixed Marshall's pay as his Army retirement pay plus the amount over that figure ordinarily paid a Cabinet member.

The bill passed, but of those GOP House members and senators who cast a yea or nay vote, a majority opposed the waiver.

In the Senate, Democrats supported the bill 37-1 while Republicans opposed it 10-20. 

In the House, Democrats supported the bill 192-5, while Republicans opposed it 27-100.

Senator Robert A. Taft of Ohio, "Mister Republican," explained:

The Secretary of Defense should be a civilian. No one even disputes the fact that this basic principle of the unification act [The National Security Act of 1947] is right ... General Marshall, like anyone who has served all his life in the Army, has certain definite views to which he is committed. Human nature being what it is, he must always be in the position of defending and justifying the policies he has supported in the past. An officer of one of the services, such as the Army, must inevitably be more interested in its operation than in that of the other two forces, such as the Navy and the Air Force. This is one of the reasons why the Secretary should be a civilian.

Graham, McCain unveil 'fix' to 9/11 Saudi law

http://www.politico.com/story/2016/11/graham-mccain-saudi-arabia-911-232026

"Passing any fix to the law during the lame duck session would require the unanimous consent of all 100 senators, a tall order considering Congress hopes to recess next week for the rest of the year."

How often does Congress pass "fixes" to laws? What are other examples of imperfect laws that were passed hurriedly and overwhelmingly, similar to JASTA?

Congress, the President, and the War Power

Prologue:  nuclear war

Steps in launching a nuclear war

(No, the 25th Amendment is not much of a remedy)




Hamilton in Federalist 8: "It is of the nature of war to increase the executive at the expense of the legislative authority."

Tocqueville, p. 126: "If the Union’s existence were constantly menaced, and if its great interests were continually interwoven with those of other powerful nations, one would see the prestige of the executive growing, because of what was expected from it and of what it did."

Politics

• Surveys on national priorities
• Gallup trend and terrorism

The Constitution:

Article I, section 8:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

 To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Article II, section 2:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;

CRS explains that a declaration of war has enormous legal consequences

[A] declaration of war automatically brings into effect a number of statutes that confer special powers on the President and the Executive Branch, especially concerning measures that have domestic effect. A declaration, for instance, activates statutes that empower the President to interdict all trade with the enemy, order manufacturing plants to produce armaments and seize them if they refuse, control transportation systems in order to give the military priority use, and command communications systems to give priority to the military. A declaration triggers the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the United States. It activates special authorities to use electronic surveillance for purposes of gathering foreign intelligence information without a court order under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed forces until the end of the war, can make the Coast Guard part of the Navy, gives the President substantial discretion over the appointment and reappointment of commanders, and allows the military priority use of the natural resources on the public lands and the continental shelf. 

There have been 11 declarations of war.

Use of military force abroad (usually without a declaration of war)

The War Powers Resolution


Perspectives changes once a candidate becomes a president:



AUMF after 9/11



The Iraq War Resolution

President Obama's Libya letter

Senator Obama on War Powers: 

President Obama on war powers:



AUMF Today