History III and The End

AFTER THE SIMULATION AND THE WHOLE COURSE, I HOPE YOU HAVE A DEEPER APPRECIATION FOR OUR CLASS ANTHEM.

Mixed opinions on civility and compromise

Norris

• Norris v. Cannon
• Something that JFK leaves out of the story of Norris and the Armed Ship Bill
• 1928 election

Congress and Progressive Reforms

16th Amendment

• The first Form 1040
• Form 1040 today

17th Amendment


Taft

• Prewar isolationism
• And why JFK downplayed that side of the story
• Taft against NATO
• And how the story led to the LBJ-RFK feud

Inherent limitations of Congress:

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

From Profiles:

 Although the public good was the indirect beneficiary of his sacrifice, it was not that vague and general concept, but one or a combination of these pressures of self-love that pushed him along the course of action that resulted in the slings and arrows previously described. It is when the politician loves neither the public good nor himself, or when his love for himself is limited and is satisfied by the trappings of office, that the public interest is badly served.

... 

This is not to say that courageous politicians and the principles for which they speak out are always right. John Quincy Adams, it is said, should have realized that the Embargo would ruin New England but hardly irritate the British. Daniel Webster, according to his critics, fruitlessly appeased the slavery forces, Thomas Hart Benton was an unyielding and pompous egocentric, Sam Houston was cunning, changeable and unreliable. Edmund Ross, in the eyes of some, voted to uphold a man who had defied the Constitution and defied the Congress. Lucius Lamar failed to understand why the evils of planned inflation are sometimes preferable to the tragedies of uncontrolled depression. Nor-
ris and Taft, it is argued, were motivated more by blind isolationism than Constitutional principles.

Congressional HIstory II

The Compromise of 1850

Webster 1/26/1830:

 Let their last feeble and lingering glance rather behold the gorgeous ensign of the Republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original luster, not a stripe erased or polluted, nor a single star obscured, bearing for its motto no such miserable interrogatory as, “What is all this worth?” nor those other words of delusion and folly, “Liberty first and Union afterward”; but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart—Liberty and Union, now and for ever, one and inseparable!

Daniel Webster, 3/7/1850 (during the South Carolina secession crisis):

I wish to speak to-day, not as a Massachusetts man, nor as a Northern man, but as an American, and a member of the Senate of the United States. It is fortunate that there is a Senate of the United States; a body not yet moved from its propriety, not lost to a just sense of its own dignity and its own high responsibilities, and a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels. 

Thomas Hart Benton and pistols in the Senate




KANSAS-NEBRASKA



You want polarization? Here's some polarization. Representative Preston Brooks of South Carolina beats Senator Charles Sumner of Massachusetts

.

Lincoln-Douglas debate (24:32)

Houston -- end of chapter 5 "I refuse to take this oath"

Congress and the Civil War

The Lincoln movie and parliamentary procedure




The Lincoln movie, more generally...

The congressional oath of office dates from this era.

Background on the impeachment process.

There is an entire site on the Johnson impeachment.

See the Tenth Article of Impeachment:

[Johnson did] make and deliver with a loud voice certain intemperate, inflammatory and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby, amid the cries jeers and laughter of the multitudes then assembled and in hearing ... Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof said Andrew Johnson has brought to high office of the President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office.

Another impeachment

Congressional History I

From Article I, section 2

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Akhil Amar on the Three-Fifths Clause:

The radical vice of Article I as drafted and ratified was that it gave slaveholding regions extra clout in every election as far as the eye could see - a political gift that kept giving. And growing. Unconstrained by any explicit intrastate equality norm in Article I, and emboldened by the federal [3/5] ratio, many slave states in the antebellum era skewed their congressional-district maps in favor of slaveholding regions within the state. Thus the House not only leaned south, but also within coastal slave states bent east, toward tidewater plantations that grabbed more than their fair share of seats. ... The very foundation of the Constitution’s first branch was tilted and rotten.

And not just the first branch. The Article II electoral college sat atop the Article I base: The electors who picked the president would be apportioned according to the number of seats a state had in the House and Senate. In turn, presidents would nominate cabinet heads, Supreme Court justices, and other Article III judges.

Consequences of the Three-Fifths Clause.  From William Lee Miller, Arguing About Slavery:

Five of the first seven presidents were slaveholders [Washingtonm, Jefferson, Madison, Monroe, Jackson], for thirty-two of the nation’s first thirty-six years forty of its first forty-eight, fifty of its first sixty four, the nation’s president was a slaveholder. The powerful office of Speaker of the House was held by a slaveholder for twenty-eight of the nation’s first thirty-five years. The president pro tem of the Senate was virtually always a slaveholder. The majority of the cabinet members and — very important — of justices of the Supreme Court were slaveholders. The slaveholding Chief Justice Roger Taney, appointed by slaveholding President Andrew Jackson to succeed the slaveholding John Marshall, would serve all the way through the decades before the war into the years of the Civil War itself; it would be a radical change of the kind slaveholders feared when in 1863, President Lincoln would appoint the anti-slavery politician Salmon P. Chase of Ohio to succeed Taney.

Congressional Tenure:

Adams

• Embargo
• The myth of the whisper spot
• The Gag Rule

Territorial Expansion and Slavery

Calhoun denounces the "all men are created equal" line in the Declaration

Webster and Benton

"GOP split as banks take on gun industry"

I just read an interesting piece in Politico about how banks are taking on the gun industry in the wake of the Parkland shooting. In the past month, both Citigroup and Bank of America announced they would limit their business with gun manufacturers--especially those making military-grade weapons for the civilian market. The banks cited frustration over legislative inaction as one of their motives for supporting gun control.

Republicans disagree over how to treat the banks' new restrictions; some believe the government must respect the free-market and thus the decisions of a private business, while others argue that banks should not take a political stance on such a contentious topic. In an interview, Sen. John Kennedy said, "Frankly, [the banks] ought to stay out of Congress' politics. That's our job to legislate with respect to the Second Amendment, and the United States Supreme Court's job to interpret the Constitution. I would be offended by it if they came out in support of the Second Amendment. If they want to be involved in politics, the CEO ought to quit and run for Congress."

I think it is interesting how private institutions can influence policy through their own business practices. With increased gridlock and a Congress that does not effectively check the president, I am curious to see what new political tactics private corporations will use over the next several years. If this article is any indication, we can expect to see corporations strengthen their political stances with concrete business policies.

Foreign Policy, Intel, Courage

From the Department of "Holy Crap!"

#TedCruz, #BetoORourke Too Close To Call in Texas Senate Race, Poll Finds; In Texas Governor’s Race, #GregAbbott Tops #LupeValdez or #AndrewWhite https://t.co/e3MoBelgd8

— Quinnipiac Poll (@QuinnipiacPoll) April 18, 2018

Federalist 70

Intelligence and Oversight: Hearings in the 1970s:

• House committee
• Senate committee
• Members do NOT need security clearances
• The community
• Intelligence budget
• Secret law:  the executive and Congress

Treaties and International Agreements

• Presidential power and Article II:" he shall receive Ambassadors and other public Ministers."
• US v. Curtiss-Wright (1936): "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."
• International Law and Agreements: Effect on US Law
• Article VI:  "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
• Treaties (US Senate)
• CRS on Reservations:   "After the Senate has begun considering this resolution, amendments proposing to change the text of the treaty itself are no longer in order. Senators may amend the resolution of ratification, however, by attaching to it reservations, declarations, statements, or understandings that can affect the interpretation or implementation of the treaty."
• Executive agreements
• The Iran deal is neither a treaty nor an executive agreement (and note the addressee)
• Ad hoc procedure for congressional review
• Congressional-executive agreements
• ARTICLE I: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
• Trade Promotion Authority (TPA) and TPP  and Fact-checking
• CONGRESS HAS DELEGATED A GREAT DEAL OF POWER TO POTUS

Trump tweeted Tuesday night that Japan and South Korea are lobbying for the U.S. to re-enter TPP, but South Korea was never part of the deal. https://t.co/xGw2wCcKzW

— Axios (@axios) April 18, 2018

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..."

Final Essay, Spring 2018

Answer one of the following:

1. Take any of JFK’s “profiles in courage.” How might a critic disagree with the analysis? How does this story illustrate differences and similarities between the Congress of its time and the Congress of today?
2. Describe and analyze an act of political courage by a House member or senator that has taken place since 2000. Include an analysis of the relevant obstacles, risks, and consequences.  How does this profile illustrate changes in Congress since the mid-1950s?
3. It is January 2019. Suppose Democrats have won a narrow (230-205) majority in the House and the GOP has a tenuous (50-50, with Pence breaking the tie) grip on the Senate. Choose an issue on which there could be a constitutional conflict between Congress and President Trump.  Examples include:  assertions of executive privilege, allegations of misconduct, the power of the purse,  executive agreements, and war powers -- among others.  Drawing on Trump's statements and activities, explain what he might do create a conflict.  What specific constitutional questions would arise?  In light of the composition of Congress, what would be the likely outcome?

• Essays should be typed (12-point), double-spaced, and no more than four pages long. I will not read past the fourth page. 
• Submit papers as Word documents, not pdfs.
• Cite your sources. Use Turabian/Chicago endnotes. 
• Watch your spelling, grammar, diction, and punctuation. Errors will count against you. Return essays to the Sakai dropbox by 11:59 PM, Tuesday, May 1. Papers will drop one gradepoint for one day’s lateness, a full letter grade after that.

Greitens

From Talha:

This is an nterestingi read in the Washington Post about evidence of a “probable felony related donor list for a charity founded by Gov. of Missouri Eric Greitens. The investigation was conducted by the Missouri Attorney General Josh Hawley who turned in the evidence to the St. Louis circuit attorney. This allegation comes just a few days after reports of Greitens involvement in sexual contact with a woman who worked as his hairdresser. Democrats on Tuesday insisted that the chamber should not debate legislation until addressing impeachment proceeding; Republicans on the other hand dismissed the charges as a distraction from considering a tax-bill that they brought before the House.

Greitens released a statement saying he was the target of a “which hunt”.

[Hawley is running against McCaskill.]

The Rules of the Senate are about to change

According to POLITICO, it appears that the Senate is about to make a rare change in the rules to accommodate my Senator, Tammy Duckworth, who just had a baby. The Chairman and Ranking Member of the Senate Rules Committee have both expressed support for a change that would allow children under the age of 1 to be brought onto the Senate floor by Senators during votes. This is to allow Senator Duckworth to take care of her newborn while still serving in her role as a Senator. Sen. Duckworth is a tough woman, and while she said she is taking an unofficial maternity leave, she will still be around to take any major votes if needed.

This change is indicative of how archaic the Senate still is in many ways, that this is the first Senator to ever have a baby while serving and necessitate this rule change. While it is getting better, the body is still dominated by old, white men and that is reflected in how these kind of policies are not already in place, something that has been in place in most other workplaces for a long time. Hopefully this is a start of a larger process to modernize the Senate a bit more and make it easier for more different people to serve.

Congress, War, Intelligence

On January 12, 1991, House Speaker Tom Foley (D-WA) and Republican Leader Bob Michel (R-IL) spoke about the impending Gulf War. Click for video of their remarks, so you can see what grownups look like:

• Tom Foley
• Bob Michel

Miles's Law and the Syria Airstrikes

Legal Issues Surrounding Syria: AUMF after 9/11 and analysis of the 4/13/18 airstrikes

Prologue:  Steps in launching a nuclear war

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."

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






The Iraq War Resolution

Congress, the Power of the Purse, and Domestic Policy

Yes, really, no kidding, the federal tax system is more progressive than most people think. 

CBO Slide Deck

From the Full Report:

Rescission?  Eh!

Balanced Budget Amendment -- CMC alum David Dreier at 1:25

Role of Money in Congressional Races

The Orange County Register posted an article about the role of big money in congressional races. They say that "the sky-high stakes of several congressional races that touch Orange County soon could attract big money and political gamesmanship on a scale rarely seen locally." Four longtime Republican seats won by Hillary Clinton are on the line, and after California's June primary, it is likely that big money will start pouring in. Professor Pitney was also quoted in the article, saying that TV ads can also make a huge difference in this type of an election. In addition, PACs and other interest groups are expected to pour money into these toss-up races soon, likely in the form of mailers, TV ads, and other resources.

Best Comments on the Z Hearing

Rich Galen is an old pal from the Hill.

Most, maybe all, of the questions Senators are asking Zuckerberg were were written by 30-year-old legislative assistants who actually use and understand Facebook. Hence the Senators sounding like they're students in an ESL class.

— Rich Galen (@richgalen) April 10, 2018

A bonus joke for Seinfeld fans:

The hearing's going to end soon because the Earlybird Special starts at 4:30

— John Podhoretz (@jpodhoretz) April 10, 2018

Congress and Fiscal Politics

What happens if the US government defaults on the federal debt?

THE CBO REPORT IS COMING OUT AT THIS VERY HOUR

Constitutional Provisions

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”
— U.S. Constitution, Article I, section 7, clause 1

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

-- U.S. Constitution, Article I, section 8, clause 12

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
— U.S. Constitution, Article I, section 9, clause 7

What follows would baffle a Martian.

Part 1: Authorization

Part 2: Appropriation

• Budget Authority
• Outlay
• Continuing resolutions
• The omnibus -- what is it?  Trump had to sign it to find out what was in it.  And the Fox reaction freaked him out.

Part 3:  "The Budget Process" and key documents:

• The president's budget
• CBO reports

Part 4:  Mandatory and Discretionary Spending

Part 5:  Revenue Bills

Part 6:  The Debt Ceiling


Revenues -- Where the money comes from:

The tax system is a lot more progressive than most people realize:  

Tax expenditures

Outlays -- Where the money goes:

Budget tables:  function, subfunction, agency

No, we cannot balance the budget by catching Social Security fraud: only 13 people aged 112 or older are getting checks.

Debt, last year's projection:

Facebook's CEO, Mark Zuckerberg, Goes to Congress

https://www.washingtonpost.com/news/the-switch/wp/2018/04/06/facebooks-zuckerberg-long-resisted-going-to-congress-now-hell-face-a-reckoning-lawmakers-say/?utm_term=.85e79f0d04e1

Mark Zuckerberg will be testifying in two congressional hearings this week. This will be very interesting to see since Facebook is under investigation all over the world because of their privacy issues, which can have huge implications for the entire tech industry. Many lawmakers want to confront Facebook, “We can no longer go with the mantra ‘trust us’ because they have proven untrustworthy,” Blumenthal said about Facebook." I was surprised to see the responses of many Senators in this article about the big tech companies: Google, Facebook, and Amazon. 

I wonder how these hearings will turn out and what Congress will try passing as a result of that. What do you all think about this situation? 

Contempt of Congress: A Coda (CAUTION: STRONG LANGUAGE)

CNN reports:

Corey Lewandowski had a blunt message for Democrats on the House Intelligence Committee: He wasn't going to answer their "fucking" questions.

Lewandowski, President Donald Trump's former campaign manager, was the final witness in the yearlong House investigation that descended into vitriol and back-biting -- ultimately resulting in two separate partisan reports that will leave the American public no closer to learning how the Russians interfered in the 2016 elections.

But Lewandowski, who agreed to come back to the committee a second time in March after initially refusing to answer questions about topics occurring once he left the campaign in June 2016, was in no mood to give Democrats anything they wanted, saying he would only answer "relevant" questions.

And, according to four sources with direct knowledge of the situation, the Trump confidante repeatedly swore at Democratic lawmakers to make the point he wasn't going to talk further.

I'm not answering your "fucking" question, Lewandowski shouted at one point.

Courts and Congressional Oversight

Fifty years ago today, Robert Kennedy gave what was probably the greatest extemporaneous speech by an American:



Supreme Court nominations

• The modern era of SCOTUS fights started 50 years ago, with Fortas
• March 16, 1970: As the Senate is considering he nomination of Judge G. Harrold Carswell to fill the Fortas seat, Senator Roman Hruska (R-NE) says in a TV interview, "Even if he [Carswell] were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? We can't have all Brandeises and Frankfurters and Cardozos."

SEE THURBER 184-189




Merrick Garland and "the Biden Rule" (Thurber 182)

Gorsuch and the nuclear option (Davidson 368-369)

Mitch McConnell on judgeships

Blue Slips and Senatorial Courtesy (Davidson, 369)

From The Washington Examiner:

A home state senator historically has been able to block a judicial nominee by deciding not to return a blue slip of paper to the chairman of the Senate Judiciary Committee under the "blue slip" tradition.

“With many states in the 9th Circuit having two Democratic senators, it makes it tricky to get through committee with the way the parliamentary games are played in the Senate,” [Cato legal scholar Ilya] Shapiro said.

The blue slip tradition has been honored differently by past chairmen of the Senate Judiciary Committee, and Sen. Chuck Grassley, R-Iowa, the current chairman, has held committee hearings and votes on two judicial nominees despite unreturned blue slips.
“If you look at where the vacancies are, it’s not as easy as it might look,” [University of Richmond law professor Carl] Tobias said.

Three of the seven vacancies on the 9th Circuit, for example, are in California, which has two Democratic senators, Sen. Dianne Feinstein, D-Calif., the Senate Judiciary Committee’s top Democrat, and Sen. Kamala Harris, D-Calif., a member of the committee and a possible presidential candidate in 2020.

Already, Feinstein has indicated Trump may face a difficult path if he were to nominate conservative judges to the 9th Circuit.

“It’s no secret that President Trump and Republicans want to reshape the 9th Circuit and we will not accept unwarranted, partisan attacks on our courts,” she said in a statement on Reinhardt’s death. “I am fully committed to ensuring that 9th Circuit nominees reflect our state’s communities and values and are well-regarded by their local bench and bar.”

Suing the president... a Stag (Liz Wydra `98) explains it all:



Problems with oversight:

Capacity (Connelly 122-124)

Staffs.......1995.......2015

CRS.........746..........609
GAO.....4,572.......2,989

CBO.........214.........235

Hearings in the Contemporary Congress (Colbert at about 5:00).    See Thurber 135.




A hearing goes very, very bad.

Contempt of Congress (Connelly 110-112):

• The definitive encyclopedia article!
• Inherent contempt
• Civil contempt 
• Criminal contempt

Congress and the Courts

The Ultimate Simulation:  The Stanford Prison Experiment








What happens when the court declares a law unconstitutional?

Statutory interpretation (Davidson 355-357): special ed cases


Checks on the Judiciary

Court-stipping (Davidson, 358-59) and Patchak v. Zinke

Impeachment:  most impeachment trials have involved judges

Court organization and administration

Constitutional amendments

• 11th -- lawsuits
• 13th -- slavery
• 16th -- income tax
• 26th -- voting age

US Courts of Appeal

Supreme Court nominations

• The modern era of SCOTUS fights started 50 years ago, with Fortas
• March 16, 1970: As the Senate is considering he nomination of Judge G. Harrold Carswell to fill the Fortas seat, Senator Roman Hruska (R-NE) says in a TV interview, "Even if he [Carswell] were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? We can't have all Brandeises and Frankfurters and Cardozos."

Politico: ‘It sucks’: Senators fume over McConnell’s tight grip

Mitch McConnell's use of his power as Senate Majority Leader to limit debate, floor amendments, roll call votes, etc. is frustrating both Republican and Democratic senators - especially new senators - who want open debate on key issues. Each year under McConnell, the Senate votes on fewer amendments. Now, senators are beginning to accept this is as the new normal (senators have filed a little over 1,000 amendments through September, while senators in the previous two-year Congress filed over 5,000).

McConnell, who spent years in the minority party and experienced the frustration many are now feeling under his rule, promised that as Leader he would bring back a "free-wheeling Senate."

https://www.politico.com/story/2018/04/02/mitch-mcconnell-republican-senators-frustration-489762