Congressional History and the Field of Blood

"All of American history comes from the Civil War. It is the most important event in our history. Everything before it led up to it, everything since, everything, is a consequence of it." -- Ken Burns


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 [Washington, 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

The Field of Blood by Joanne Freeman (PO `84):

(start around 9:30)

Foreign Policy, Intelligence, and Political Courage

SJ Res 7 and Yemen

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 was neither a treaty nor an executive agreement (and note the addressee)
• 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

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..."

War, Intelligence, Foreign Policy

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

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

Iraq

SJ Res 7 and Yemen





The Iraq War Resolution

Final Essay, Spring 2019

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. Should Congress amend the War Powers Resolution?  If not, explain why current law is superior to its alternatives.  If so, explain what changes you would make.  In your answer, take account of military and political tradeoffs.
3. In light of the Mueller report, should the House of Representatives launch an impeachment inquiry?  In your answer, examine the legal, factual, and political issues, and ponder the A. Johnson, Nixon and Clinton precedents. What are grounds for impeachment?  What are the potential risks and benefits to both parties?

• 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, Wednesday, May 8. Papers will drop one gradepoint for one day’s lateness, a full letter grade after that.  

Domestic Policy

Distributive Politics

Earmarks and the Cunningham Bribe Menu (Davidson 405-407)



John Hudak at Brookings:

The removal of congressional earmarking does not make earmarking going away. It simply transfers that power and that practice from the legislative branch to the executive branch. Presidents—and their appointees—engage in pork-barrel politicking (earmarking) in the same way Congress does. Reforming the process in Congress by curtailing the practice of earmarking simply shifts that power more explicitly to a president and a cadre of unelected bureaucrats in government. Eliminating earmarking is a serious abdication of power by Congress which empowers a branch of government beyond what the Founders intended.

Regulatory Politics

Regulation and Its Cost (by CMC alum Richard Morrison)

Social Insurance (Theodore Marmor):

Social insurance, like commercial insurance, is about protection against financial risk. It is “insurance” in the sense that people contribute to a fund to protect themselves against unpredictable financial risks. These include outliving one’s savings in old age, the early death of a breadwinner, the onset of a disability that makes work difficult if not impossible, the high costs of acute illness, involuntary unemployment, and work-related injury. Yet unlike with commercial insurance, contributions are not prices in a market and thus do not depend on the contributor’s risk profile (unless commercial regulations say otherwise, in essence creating “social” insurance through the backdoor). Instead of a contract between an enrollee and an insurer, social insurance is a system of shared protection among the insured, most comparable to mutual insurance in the commercial realm, with contributions made in proportion to one’s market income. In social insurance, the “insurer”—whether a government agency or a corporate body with a joint labor-management board—is the agent of the contributing enrollees. And unlike commercial insurance, the social insurance “contract” mandates participation by law, since otherwise adverse selection would cause its unraveling.

Poverty Rate by Age

................18-64................65+

1959............17.0.............35.2
1969............08.7.............25.3
1979............10.9.............15.2
1989............10.2.............11.4
1999............10.1.............09.7
2009............12.9.............08.9
2017............11.2.............09.2

Credit Social Security for the decline in elder poverty

See how different the figures would be:















REVISITING A TOPIC FROM MARCH 6:



Policy Windows and  The Issue-Attention Cycle

Pitzer alums and Congress!

Kara Eastman PZ '92, who was a social worker before entering the 2018 midterm race, is running for Congress again in 2020, presumably against incumbent Republican Rep. Don Bacon. In 2018, Eastman who ran on a platform that featured medicare-for-all was just two percentage points away from defeating Bacon in a Nebraska congressional district that voted for Trump.

Rep. Debbie Mucarsel-Powell (D-Fla.) PZ '93, CGU '96, also ran and won a very close race against incumbent Republican Carlos Curbelo.

Here is an article with more information about 7C alums who ran in the 2018 Congressional midterms.

Alum Runs for Congress

Andrea Drusch at McClatchy:

Democrat Candace Valenzuela, a 34-year-old Carrollton-Farmers Branch school board member, is launching a campaign Monday against Texas GOP Rep. Kenny Marchant, one of the party’s top targets in 2020.

She will face an uphill battle for her party’s nomination in Texas’ 24th district, where several high-profile Democrats are eyeing the race. The suburban north Texas seat has long been a conservative stronghold, but the region’s rapidly changing demographics have recently made it more competitive.

Valenzuela, whose mother is Mexican-American and father is African-American, hopes to capitalize on that in her bid against Marchant, a seven-term congressman who narrowly beat a poorly funded opponent in 2018.

...
Valenzuela brings a unique background to the campaign. She grew up in El Paso, where she was homeless at age three.

After her mother left the military, the family lost their home and bounced between staying with grandparents, a Mormon family that took them in and a homeless shelter. Valenzuela recalls sleeping in a bed made out of a kiddy pool outside of a convenience store for several days while they had no place to stay.

“Growing up I dealt with homelessness, with food insecurity, with trouble paying for bills,” said Valenzuela. She credited public school education, food stamps and housing assistance for helping her achieve a full-ride scholarship to Claremont McKenna College in California.

“I’m running for Congress because the opportunities there were there for me to succeed don’t seem like they’re there any more, or they’re under threat,” she added.

Operatives at the Democrats’ House campaign arm and EMILY’s List, a group that backs women who support abortion rights, say they’re still talking to a number of other more well-known candidates who are also considering the race.

The general election race would not be quixotic: Marchant won by just three points in 2018. 

Power of the Purse

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
• Automatic CR?
• Pro
• Con
• The 2018 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 and RECONCILIATION (Straus ch. 5)

Part 6:  What happens if the US government defaults on the federal debt?


Revenues -- Where the money comes from:

The tax system is more progressive than most people realize (esp. slide 17):  

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.

Deficit

Debt

Courts and Oversight

Z


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

Gorsuch and the nuclear option (Davidson 368-369)

Blue Slips and Senatorial Courtesy (Davidson, 369)

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



Problems with oversight:

Capacity

• Multiple charts
• Declining committee capacity

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.



Hearing Prep


Mnuchin v. Waters, yesterday:





Graham and Barr, this morning:




How the Ways and Means Committee is asking for Trump's tax returns:

26 USC 6103

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

Subpoenas and Contempt of Congress

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

Congress and Courts

Ecclesiastes 1:9 New International Version (NIV)

What has been will be again,
what has been done will be done again;
there is nothing new under the sun.

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

Advice and Consent

• District courts and blue slips (Davidson 369-370)  -- Mike Lee discusses
• 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."
• Borking:

Compare Kavanaugh and Thomas:

Simulation: Tonight and After

Good work!  Tonight's floor session starts promptly at 6:30 PM in RN15.   Please arrange to finish no later than 9 PM.

For Monday, please read Davidson, ch. 12.

Peer evaluation: On Monday, April 8 (the Monday after simulation) please bring in a short memo in which you identify three or four Gov 101 participants who did a particularly good job. Give a couple of sentences to each person you name, explaining why she or he stood out. Give special attention to those who did their work behind the scenes. Please take some care with these memos. In addition to using them for evaluating the assignment, I save them so that I may quote them in future letters of recommendation. Peer evaluations are anonymous: please bring in hardcopy and do not put your own name on the sheet.

Writeup: In analyzing your role in the simulation, please cover these points:

• How well did your positions and goals match those of your real-life counterpart?
• What methods did you use? In the circumstance that you dealt with, would your counterpart have done the same?
• What obstacles did you face?
• What did you achieve?
• How did the simulation both resemble and differ from the real world?
• Overall, what did you learn?

You may include relevant supporting materials, such as: memoranda, bill drafts, or strategy notes. (Better yet, just refer to material that is already online, and provide the URLs.) Please be selective here: do not include everything, just the key items.

• Essays should be double-spaced, and between 5 and 6 pages long. I will not read past the 6th page. (Supporting materials do not count against the page limit.) 
• Submit the writeups as Word documents, not pdfs.
• Cite outside sources with Turabian endnotes.
• Watch your spelling, grammar, diction, and punctuation. Errors will count against you.
• Return essays to the class Sakai dropbox by 11:59 PM, Friday April 19. Your grade for the simulation will drop one gradepoint for one day's lateness, a full grade after that.