Signing Statements, Continued

As we discussed yesterday, courts usually avoid ruling on issues such as signing statements, because they stay away from "political questions."  For more on the "political question" doctrine, click here.

Ben poses a good question: "Is it possible that Congress itself passes some sort of legislation that deals with these signing statements?"

Years ago, some lawmakers introduced legislation to curb signing statements in general.  The bills never went far, in part because they had little chance of overcoming a presidential veto.

But it is possible to anticipate signing statements on an case-by-case basis.  Leigh Ann Caldwell reports at NBC:

Faced with the probability of a presidential signing statement and uneasy about the process of handing out hundreds of billions of dollars of loans and grants to small and big businesses, Congress built into the legislation multiple oversight entities and requirements for transparency meant to protect against favoritism, fraud and fiduciary recklessness.
...
The president’s signing statement pertains to a newly created special inspector general for pandemic recovery responsible for overseeing the more than $400 billion of loans to big businesses by the Treasury secretary. The new position mirrors a special inspector general created to oversee the Troubled Asset Relief Program, or TARP, in the Wall Street bailout.

The president is responsible for appointing the special inspector general and the Senate has the responsibility to confirm. If the president fails to appoint an inspector general, Democrats are sure to complain that the president and the administration has something to hide.

... 

Congress also created two other oversight boards, including one with similar responsibilities as the special inspector general. Although it doesn’t have subpoena power, a congressional oversight panel made up of five members will also oversee the big business fund run by Treasury and the Federal Reserve. Each congressional leader will appoint a member and the fifth member is agreed upon between Pelosi and Senate Majority Leader Mitch McConnell. The Treasury secretary and the Federal Reserve are also required to post companies that have been given loans within seven days on their websites.

Additionally, a committee of inspectors general from nine federal agencies, known as the Pandemic Response Accountability Committee, or PRAC, was given $80 million to audit and investigate the federal governmen'ts coronavirus response and implementation of all relief funds.

Continuity of Congress

From CRS:

The Constitution provides that in the event of vacancies in the representation from any state, the governor of the affected state shall issue writs of election to fill such vacancies or, in the case of a Senate vacancy, may, if so empowered by state law, make a temporary appointment until an election may be held, in accordance with state law. Plans exist for the protection of the leadership of Congress, evacuation from the seat of government being a primary action. Additional details of these plans and comparable plans of legislative branch agencies, such as the Congressional Budget Office, the General Accounting Office, and the Library of Congress, are not public information. 

 ...

Shortly after the September 11 terrorist attacks, political scientist Norman Ornstein questioned the adequacy of constitutional arrangements concerning the continuity of Congress in the event that many or most of its Members were lost as a result of similar such terrorist action. “A literal reading of the Constitution,” he wrote, “would cast doubt on whether Congress could even convene under those circumstances.” However, noting that, since the Civil War era, both houses of Congress had defined a working quorum “not as a majority of the overall membership of the House and the Senate but as a majority of those duly chosen, sworn and living,” Ornstein thought the situation might be complicated and made more problematic “if there were a substantial number of Members alive but incapacitated.” Moreover, he commented, even if these difficulties were overcome, “for Congress to operate under those circumstances for long — passing sweeping anti-terrorist laws, emergency appropriations and economic recovery measures — would tax its legitimacy, particularly if there were much greater partisan and regional differences among the surviving (and ambulatory) lawmakers than existed in the full House.”

His solution — “to create a small, short-term task force of constitutional scholars and former lawmakers” to make recommendations — was realized with the Continuity of Government Commission, jointly created by the American Enterprise Institute and the Brookings Institution. In June 2003, this panel called for a constitutional amendment to give Congress the power to provide legislatively for the appointment of temporary replacements to fill vacant House seats after a catastrophic attack and to fill temporarily House and Senate seats that are held by incapacitated members. Other proposals included rules changes to ensure that Congress could be effectively reconvened after an attack, and to provide in advance for short-term appropriations for the executive branch if Congress is unable to meet.

During the 108th Congress, several reform measures were introduced, but only a few came to a vote. The House supported (H.Con.Res. 190) establishing a temporary joint committee to study and make recommendations concerning the continuity and authority of Congress during times of crisis. Later, it approved legislation (H.R. 2844) to require the states to hold special elections to fill vacancies in the House in extraordinary circumstances, but rejected, on a 353-63 vote, a proposed constitutional amendment (H.J.Res. 83) authorizing the temporary appointment of House Members, from a preestablished list, as a safeguard against the loss of a majority of Members due to death or incapacity. 

On March 3, 2005, the House, on a 329-68 roll call vote, approved legislation (H.R. 841)requiring the states to hold special elections to fill vacancies in the House inextraordinary circumstances. Two different constitutional amendments (H.J.Res. 26 and S.J.Res. 6) also have been introduced in this regard.

 The House Committee on Appropriations reported an original measure (H.R. 2985) on June 20 making appropriations for the legislative branch for FY2006. It contained a title that included the text of the earlier House-approved continuity in representation bill (H.R. 841). This title remained in the legislation as approved by the House on June 22 on a 330-82 vote, continued through conference deliberations, and became law when the President signed the appropriations measure on August 2, 2005.

Congress and the Executive I

The Struggle Over Presidential Authority: Article I and Article II

Vetoes (Davidson 296-299).

Statements of Administration Policy (Trump examples)

1— Strongly Support Passage
2— Support Passage
3— Do not Object to Passage
4— No Position on Passage
5— Oppose
6— Strongly Oppose
7— Secretary’s veto Threat (single and multiple agency)
8— Senior Advisor’s Veto Threat
9— Presidential Veto Threat

Newt Gingrich, Lessons Learned the Hard Way (1998):

We had not only failed to take into account the ability of the Senate to delay us and obstruct us, but we had much too cavalierly underrated the power of the President, even a President who had lost his legislative majority and was in a certain amount of trouble for other reasons. I am speaking of the power of the veto. Even if you pass something through both the House and the Senate, there is that presidential pen. How could we have forgotten that? For me especially it was inexcusable, because when I was Republican whip during the Bush Administration one of my duties had been precisely to help sustain presidential vetoes.

Item Veto:

Supreme Court struck it down in Clinton v. City of New York.

Guess who was primarily responsible..

Signing statements 

• A de facto item veto?
• As a candidate, Obama opposed signing statements  -- but as president, he issued them
• Trump examples

Other forms of executive action

• National security Hamilton in Federalist 8: "It is of the nature of war to increase the executive at the expense of the legislative authority." (more in two weeks)
• Executive orders
• Presidential proclamations  
• National Emergencies Act: special powers 
• National emergency
• Presidential memoranda  and Trump examples
• Agency memoranda (DACA)

But what one administration does unilaterally, another administration can try to undo unilaterally:

• Reversal of DACA

Courts can also undo actions.  The case of DAPA -- US v. Texas

Power to Persuade

LBJ and negotiation

CQ on presidential success (review from a few weeks ago)

Presidential approval and the "decay curve"


The way it used to be:

Congress and Coronavirus

Natasha Bertrand and Maggie Severns at Politico:

On Jan. 24, at the urging of Sen. Lamar Alexander (R-Tenn.), administration officials held a briefing for the full Senate. But the classified session was sparsely attended, two Senate aides said, because it was put together at the last minute and was held on the same day as a deadline for senators to submit their impeachment questions. Only about 14 of them showed up.

“The initial thought from the Dems, I think, is that we were trying to distract from impeachment,” a GOP Senate aide said. A White House official recalled feeling surprised at the “incredibly” poor attendance, noting that it came “even though the amount of concern expressed then was rather intense.”

But Alexander, along with three Senate colleagues, issued only a bland statement afterwards that betrayed little sense of alarm. “We are monitoring the outbreak of a novel coronavirus closely and are in close communication with United States government agencies on actions and precautions needed to prevent further spread of this virus,” the Jan. 24 statement read. “We thank administration officials for providing us with an update on this important issue, and for detailing their efforts to protect the American public. We will continue to work closely with administration officials to ensure the United States is prepared to respond.”

Within days, however, Democrats began stepping up their warnings. On Jan. 26, Senate Minority Leader Chuck Schumer called on the Department of Health and Human Services to declare coronavirus a public health emergency, which would free up $85 million in funding for federal agencies. “Should the outbreak get worse they’re going to need immediate access to critical federal funds that at present they can’t access,” Schumer said.

Rhode Island and New York conflict

Rhode Island's governor issued a quarantine order that initially only applied to New Yorkers traveling to Rhode Island. Additionally, Rhode Island authorities checked for NY license plates and went door to door looking for New Yorkers. Governor Cuomo threatened to sue Rhode Island over this order, and the governor has now made the order to apply to all out of state travel, not just New York after this threat. Cuomo has been compared to LBJ because of his combination of charm and brute political force. Did RI back off from this NY discrimination just because of Cuomo's threat to sue RI and outside pressure? Or do you think there was more political dealing involved? And what would that look like?

Stimulus Signing Statement

The Davidson book (p. 302) very briefly mentions signing statements. 

This coming week, we shall discuss them in more detail.  This Politico article, by Kyle Cheney, gives a clue about what they are and why they matter.

President Donald Trump intends to ignore provisions in the newly passed $2 trillion coronavirus relief bill intended to shore up Congress' oversight of the massive rescue program.

The legislation establishes a "special inspector general" to review and investigate loan decisions made by the treasury secretary as part of the coronavirus relief effort, an accountability measure that was a central part of Democrats' demands to shore up transparency in the bill. The provision requires the inspector general to notify Congress if he or she is "unreasonably refused or not provided" any information.

But in a signing statement issued shortly after he approved the bill, Trump says he'll be the last word on whether this provision is followed.

"I do not understand, and my Administration will not treat, this provision as permitting the [inspector general] to issue reports to the Congress without the presidential supervision required" by Article II of the Constitution, Trump said in the signing statement.

Trump also indicated he would treat as optional a requirement in the bill that key congressional committees be consulted before Department of Veterans Affairs, Department of State or U.S. Agency for International Development spends or reallocates certain funds.

"These provisions are impermissible forms of congressional aggrandizement with respect to the execution of the laws," Trump says in the statement.

Whether you agree or disagree with this position, do not think that it is unprecedented. Presidents of both parties have tried to exercise such power.

More to come... 

Breakdown of Spending in the Mega Bailout

Breakdown of Spending in the Mega Bailout

"But the overwhelming majority of the money in the bill falls into four categories: help for the health system, for people, for small businesses, and for big businesses. 

The Democrats generally wanted more than Republicans wanted for health and families, and they generally got their way, while the two parties generally agreed on a $366 billion small business bailout that includes strong protections for workers. It’s the big-business bailout where Democrats mostly caved—and that’s the piece of the legislation that raises the most questions, because it’s dramatically different from any bailout the U.S. has ever done before.

There are questions worth asking about all four major categories."

Signing

When a president signs an important bill, there is often a signing ceremony.  Sometimes it takes place in the Oval Office.  By tradition, the president invites a bipartisan group of lawmakers who worked on the bill, and other guests.  Here is a photo of President George W. Bush signing a 2008 bill that updated the Americans with Disabilities Act.  (His father, who signed the original version in 1990, was a guest.)

President George W. Bush signs the Americans with Disabilities Amendments Act Thursday, Sept. 25, 2008, in the Oval Office of the White House. Joining him for the signing of the law that amends the ADA Act of 1990, are, from left: Former President George H.W. Bush, Republican Rep. James Sensenbrenner of Wisconsin and his spouse, Cheryl Sensenbrenner; Democratic Rep. Steny Hoyer of Maryland; Republican Rep. Buck McKeon of California; Democratic Rep. Jerry Nadler of New York; Senator Tom Harkin (D-Iowa); Senator Mike Enzi (R-Wyo.); Democratic Rep. Jim Langevin of Rhode Island, and U.S. Attorney General Michael Mukasey. White House photo by Joyce N. Boghosian

Yesterday, Trump signed the stimulus bill.  The White House invited no Democrats to the event.  At a time of social distancing, the attendees were standing way too close together.




In line with custom (background here), the president handed out souvenir pens -- even though sharing pens is a major breach of coronavirus guidelines.

Seriously, guys:  DO NOT SHARE PENS!

The House Vote

Members Arrive on the Hill

Despite Rep. Massie's efforts, the stimulus bill just passed by voice vote.  (It takes one-fifth of those present to force a recorded vote.)

Melanie Zanona at Politico:

House lawmakers scrambled to get back to Washington for today’s vote on the $2 trillion economic rescue passage, even though leadership was hoping to pass it by a simple voice vote and was desperate to protect members from being potentially exposed to coronavirus. But there are concerns that a single member — namely, liberterian Rep. Thomas Massie (R-Ky.) — may force a roll call vote or request a quorum. And if that happens, Speaker Nancy Pelosi is insisting that an in-person vote will happen Friday instead of over the weekend — a directive that was delivered during a 6 p.m. conference call last night.

Leaders in both parties encouraged members to return to D.C. for the vote if they are willing and able, while the majority whip asked offices to let them know ASAP if their bosses were planning on making the trip. But many lawmakers are furious: they don’t want to be recorded as absent on what is likely to be the biggest and most historic piece of legislation that they will ever vote on. Yet the short notice, canceled or limited flights and states with different safety guidelines have created a whole lot of headaches — and anger — among members.

Retiring Republican Pete King of suburban NY:

Heading to Washington to vote on pandemic legislation. Because of one Member of Congress refusing to allow emergency action entire Congress must be called back to vote in House. Risk of infection and risk of legislation being delayed. Disgraceful. Irresponsible.

— Rep. Pete King (@RepPeteKing) March 27, 2020

A former House GOP spokesperson:

It is quite the statement of his character that Thomas Massie is legitimately threatening the health of his colleagues, many in their 60s or 70s even 80s, for a stunt on a bill he knows is going to pass. I hope no one forgets what he’s done here.

— Brendan Buck (@BrendanBuck) March 27, 2020

The House will be voting under unusual social-distancing protocols.  Click here for the document. 

Who got special deals in the stimulus and why they got them

Travel agents' relief

Special deal: The ability to apply for $25 billion in loans and loan guarantees reserved for the airlines.

Better, faster sunscreen

Special deal: Tucked in the final bill is language ensuring that the FDA reviews newer and more novel ingredients for over-the-counter sunscreen products in a timely fashion.

Equity for small states

Special deal: The agreement would provide $150 billion for state and local governments, with no state getting less than $1.5 billion. States are clamoring for help as tax revenue evaporates and unemployment claims climb by the tens of thousands every day.

Job security for military brass

Special deal: The rescue package permits Trump to extend the terms of up to seven senior military leaders: the Air Force chief of staff; the chief of space operations; the chief of the National Guard Bureau; the directors of the Army and Air National Guard; and the chief of the Army and Navy Reserves. Many of those top officers' terms are set to expire later this year. The provision would permit Trump to keep these current leaders in the job until successors are confirmed.

A win for the credit reporting industry

Special deal: Consumers wouldn't get a negative credit report if they have an agreement with a lender to delay payments or make partial payments. That was a way to stave off a total ban on negative credit reports during the crisis. The credit reporting industry contended a total ban would have been highly damaging to its products.

Student loan tax boon

Special deal: The final package creates a new tax benefit for student loan borrowers whose employers help them pay off their debt. Under the bill, a company could pay up to $5,250 of an employee’s student loan payments each year on a tax-free basis.

Casinos roll the dice and win

Special deal: Casinos pushed for provisions to make sure they wouldn’t be blocked from federal aid. They're allowed to apply for portions of the $350 billion in Small Business Administration loans if they’re a small business and need less than $10 million. Larger casinos can apply for $454 billion in loans backed by Treasury.

Free video visitation in prison

Special deal: The legislation will mean free video conference and phone calls for inmates during the pandemic, if Attorney General Bill Barr agrees.

Harbor dredging help

Special deal: The deal includes language making it easier for Congress to dole out money for harbor dredging by exempting from discretionary spending caps the Army Corps of Engineers funding provided through the Harbor Maintenance Trust Fund. The provision is a boon for ports that need dredging work, like the one in Mobile, Ala., in Senate Appropriations Chairman Richard Shelby's (R-Ala.) home state.

Relief for farmers

Special deal: The stimulus provides $9.5 billion in emergency aid for the agriculture industry and replenishes $14 billion in spending authority to the Agriculture Department’s Commodity Credit Corp., a Depression-era financial institution set up to stabilize the farm economy — the same USDA agency sending trade bailout payments to farmers. Producers ranging from dairy farmers and cattle ranchers to fresh fruit and vegetable growers are eligible.

President Trump Delivers Coronavirus Guidelines to Governors

President Trump delivered a letter to US governors today saying that his administration is working to create guidelines for state/local governments to use when making decisions regarding coronavirus. According to Trump, these guidelines would outline the next phase of the US response to the virus:

https://www.npr.org/2020/03/26/822049287/read-president-trumps-letter-to-governors-on-new-coronavirus-guidelines

While these guidelines are not yet known, it is possible that the administration's recommendations differ from the policies preferred by state governors. Trump has already said that he hoped to reopen the US economy by Easter, despite skepticism from critics:

https://www.cnn.com/2020/03/25/politics/donald-trump-coronavirus/index.html

If these guidelines clash with the preferences of state governors, how does the country proceed? Does the federal government have the power to "open up" a state that has been locked down by its governor? Or do governors have complete autonomy in this regard?

The Senate Decides

Erica Werner, Mike DeBonis and  Paul Kane at The Washington Post:

Facing one of the worst economic downturns in American history, one that is unsparing in its trauma, the Senate late Wednesday unanimously approved a $2 trillion emergency relief bill that attempts to arrest the financial havoc caused by the coronavirus pandemic.

Lawmakers acted with unusual speed and cooperation to produce the largest economic rescue package in U.S. history.

The sprawling legislation, which passed 96 to 0, would send checks to more than 150 million American households, set up enormous loan programs for businesses large and small, pump billions of dollars into unemployment insurance programs, greatly boost spending on hospitals, and much more.

The Senate’s most liberal and conservative members joined together to support the mammoth spending bill, illustrating how concerned policymakers have become about the health care strains and financial pain the country now faces.

....

Wednesday night’s vote capped drama-filled days of up-and-down negotiations over legislation originally introduced by McConnell a week ago, but which Democrats viewed as unacceptably tilted toward corporations. They negotiated major changes, including an approximately $250 billion increase in spending on unemployment benefits that would expand eligibility and allow laid-off workers to receive an additional $600 a week for four months, on top of the benefits their state unemployment agencies pay.

Schumer touted the measure as “unemployment insurance on steroids,” but in one of the final hang-ups Wednesday, a group of four conservative senators raised concerns that the program would provide incentive for people to leave the workforce since in some cases they might end up making more on unemployment than at their job.

Trump and Treasury Secretary Steven Mnuchin spoke with the objecting senators — Ben Sasse (Neb.), Lindsey O. Graham (S.C.), Tim Scott (S.C.) and Rick Scott (Fla.) — with Mnuchin explaining that it was the most efficient way to structure the program since the alternative would require working with a patchwork of different state unemployment systems.

Bernie had a few words about those objections.



Bizarro Social Distancing:

Senators are extremely close to one another on the Senate floor as they vote on the stimulus bill to respond to the coronavirus crisis. Not keeping much distance at all. pic.twitter.com/FswKLmnfwG

— Clare Foran (@ckmarie) March 26, 2020

GOP delay in Senate COVID vote

CNN just reported that 3 GOP senators are not going to vote unless they are changed made to the stimulus bill. Does this mean it will go to an amendment vote? Procedurally, what will happen next?

COVID and the 2020 Census

From U.S. News:

"We must fulfill our constitutional obligation to deliver the 2020 Census counts to the President of the United States on schedule," the U.S. Census Bureau said in a recent statement. "The key message right now for anyone with questions about how COVID-19 will affect the 2020 Census: It has never been easier to respond on your own, whether online, over the phone or by mail – all without having to meet a census taker."
 . . . "Even before the onset of a fast-moving, highly unpredictable pandemic, analysts forecast strong headwinds for an accurate 2020 count. Though Congress approved a higher-than-expected $7.6 billion in spending for the Census Bureau last December, earlier budget cuts had forced the agency to scale back preparation for 2020, including outreach efforts and testing.

The Bureau has also reduced its number of physical offices and struggled to hire outreach staff, while the president's drumbeat of anti-immigrant rhetoric had many worried about further disenfranchisement of already hard-to-reach populations. (Last June, the Supreme Court ruled that President Trump could not include a citizenship question on the survey, although questions about citizenship still appeared on test questionnaires.)"

. . ."It's still unclear how drastically the pandemic may impact the Bureau's ongoing hiring of door knockers, who are scheduled in mid-May to begin in-person follow-ups to households that don't respond to the mailed invitations. Seniors, who typically represent a large portion of the workforce, may be particularly reticent because of the outbreak, although the burgeoning economic crisis may also prove a boon to the effort, as more people search for part-time work. On Wednesday, days after NPR confirmed that one census supervisor had contracted COVID-19 and was in quarantine, the Bureau's director announced he was suspending all field operations, including training sessions, until April 1.

More broadly, the tally among immigrant and poor communities, a population already vulnerable to an undercount, may be disproportionately impacted. The Census Bureau and local governments and affiliates, after spending months organizing Get Out the Count campaigns, are abruptly cancelling the in-person promotional events, as well as Q&A sessions that are critical to boosting participation. The widespread closures of public spaces like schools and libraries will also reduce digital access and shut down communication networks."

Questions this raises for me: Has there ever been an instance like this where the census was threatened? If the results of the census are more skewed because of this pandemic, are there measures that can be taken in the coming years to increase the data's integrity? If an unprecedented amount of the population is not accounted for, will the data still be used to draw district lines?  

Senate Deal: "A Painstaking Scrub"

Erica Werner,  Mike DeBonis and  Paul Kane at The Washington Post:

The Senate plans to vote Wednesday afternoon on a $2 trillion stimulus package that is designed to flood the U.S. economy with money in an effort to stabilize households and businesses that have been floored by the coronavirus outbreak.

Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles E. Schumer (D-N.Y.) announced the breakthrough on the Senate floor around 1:30 a.m., after a long day of talks with Treasury Secretary Steven Mnuchin and other administration officials.

The Senate reconvenes at midday, and a vote could come shortly after that.
...
The legislation, unprecedented in its size and scope, would send $1,200 checks to many Americans, create a $367 billion loan program for small businesses, and establish a $500 billion lending fund for industries, cities and states.

The legislation ensures that these taxpayer-backed loans cannot go to firms owned by President Trump, other White House officials or members of Congress. This would suggest that Trump-owned properties, including hotels that have been impacted, cannot seek taxpayer assistance.

...


As the bill was coming together in the final days, Democrats fought to make numerous changes. For example, the White House and Republicans agreed to allow an oversight board and create a Treasury Department special inspector general for pandemic recovery to scrutinize the lending decisions and detect abusive or fraudulent behavior.
...
After Senate passage, the next step is a little less clear. The House is out of session, so action there could take longer, depending on whether lawmakers can agree to pass the bill by “unanimous consent,” which would require agreement from all members of the chamber.

...
The delay in finalizing a deal came, in part, because aides launched a painstaking scrub of the bill’s text, to make sure that one of the most ambitious pieces of legislation ever attempted by Congress — thrown together in little over a week — actually said what lawmakers wanted it to say.

Senate Republicans were being extra meticulous because they felt an earlier and much smaller coronavirus relief bill, which Mnuchin negotiated in a rush with Pelosi this month, turned out to have provisions related to paid sick leave that GOP senators opposed — but which they reluctantly accepted. Now, they wanted to double- and triple-check Mnuchin’s work in brokering a deal with Schumer, given the enormous stakes.

People Advocate for Releasing Prisoners to Prevent the Spread of COVID-19

As many states enforce the practice of social-distancing to prevent the spread of COVID-19, individuals are pushing New York Governor Cuomo to release prisoners. As of Saturday morning, 38 prisoners and prison employees tested positive, and the number of COVID-19 cases could rise exponentially.

Brooklyn public defender Scott Hechinger has been very vocal about this growing crisis in New York jails. He tweeted that 20,493 people in NY prisons are over 50, and 666 people are in jail only because they are awaiting parole hearings for technical (noncriminal) violations on Rikers Island.

https://www.nbcnewyork.com/news/local/jails-in-crisis-tri-state-prisoners-slowly-released-to-manage-covid-19-spread/2339878/

Also, Harvey Weinstein tested positive for COVID-19 while in prison.

https://abcnews.go.com/Health/wireStory/harvey-weinstein-tests-positive-coronavirus-prison-69749470

First immigrant in ICE detention center tests positive for COVID-19

This post is especially for students assigned to the Judiciary Committee.

To prevent the spread of COVID-19, we must follow two simple rules: impose social distance and constantly wash hands with soap. However, ICE detention centers are notorious for their crowded and unsanitary conditions. According to the New York Times, most young detainees go without showering in the duration of their stay. Detainees at the Elizabeth Detention Center in New Jersey are given 1 bar of soap per week. If they want more soap, they have to buy it. Guards are given hand sanitizer; migrants are not. Dozens of migrants sleep together in a shared common dorm.

Given these conditions, a COVID-19 outbreak in a detention center will be a public health catastrophe.

This morning, an immigrant in New Jersey became the first ICE detainee to test positive for COVID-19. ICE detainees in New Jersey launched a hunger strike for soap. The ACLU of California is suing ICE, calling for the immediate release of 13 at-risk detainees in 2 California detention centers. Likewise, ACLU of Washington is suing ICE, calling for the release of at-risk detainees at a Tacoma detention center.

In my opinion, those who are the most vulnerable to COVID-19 must be the priority of all containment attempts, including the undocumented.

Proposed policies I have seen include a moratorium on deportations, moratorium on ICE arrests, release of at-risk detainees, and the release of all detainees.

Does the class have any policy ideas?

Links:

https://thehill.com/policy/national-security/department-of-homeland-security/489312-first-immigrant-in-ice-detention

https://www.aclusocal.org/en/press-releases/lawsuit-demands-ice-release-immigrants-risk-death-covid-19

https://www.thenation.com/article/society/corona-covid-immigration-detention/

https://www.propublica.org/article/ice-detainee-says-migrants-are-going-on-a-hunger-strike-for-soap

https://www.nytimes.com/2019/06/21/us/migrant-children-border-soap.html

https://www.aclu.org/press-releases/aclu-sues-ice-release-immigrants-especially-vulnerable-covid-19

House Voting During Emergency

See the revised second-half syllabus:

https://gov101.blogspot.com/2020/03/revising-rest-of-course.html

At Politico, Jake Sherman and Heather Caygle discuss a new report from the House Rules Committee:

Notably, the report — which was commissioned by Speaker Nancy Pelosi (D-Calif.) — suggests that remote voting is not a viable option at the moment. Remote voting would be “one of the biggest rule changes in the last century, in one of the most critical institutions in our country,” the report says. The idea of remote voting also faces significant logistical and legal challenges.

“Although off-the-shelf products exist to allow a Member to videoconference their vote, for example, they have not been tested under the sort of pressure they would face from enemy states or other bad actors trying to force the system offline or prevent individual Members from accessing it,” the report says. “Such a system has to be extensively tested, not used for the first time on must-pass legislation.”

House leadership needs to decide quickly how it will consider the Senate’s coronavirus legislation. Senate Minority Leader Chuck Schumer (D-N.Y.) said Monday evening that he would work through the night to hatch an agreement with the Trump administration.

Mobile voting is unpopular in both the Democratic and Republican leadership, but has gained in popularity in the rank and file. Just hours before the report came out, more than 70 Democrats sent a letter to McGovern pushing for a temporary change in House rules to allow members to vote remotely. The letter did not raise the idea of voting via unanimous consent or voice vote.

“Unfortunately, during such circumstances, requiring members to vote in person may pose public health risks or even be physically impossible for persons under quarantine,” the Democrats, led by California Rep. Katie Porter, wrote. “We need to provide a mechanism through which Congress can act during times of crisis without having to assemble in one place.”

The report suggests other options Democratic leaders have at their disposal. They can call lawmakers back and hold the vote open for an extended period of time. They can institute “paired” voting, which is a relatively complex system that allows lawmakers to hatch an agreement with another member. They can reset the quorum necessary to vote. Or they can, under the current rules, change the quorum.

The report does suggest one potential rule change: allowing proxy voting. In this scenario, a member would allow a colleague to vote on their behalf.

Voting by unanimous consent has its limits: all it would take is one of the current 430 House members to object to passing the bill unanimously to derail the vote and force a chunk of the chamber back to Washington. In addition, some lawmakers are worried about the optics of voting on the biggest recovery package in American history via voice vote.

C-SPAN DOES NOT CONTROL THE CAMERAS IN EITHER CHAMBER!

And that’s the reason why the public can’t ever see the whole picture of the #Senate chamber. https://t.co/wr4COCblgP

— susan swain (@cspanSusan) March 23, 2020

Manchin and McConnell argue over cloture on the floor

Starting around the ~33:00 mark, Senators McConnell and Manchin go back and forth on cloture and delaying the bill.

https://www.c-span.org/video/?470560-1/senate-fails-advance-coronavirus-economic-relief-package&live=&start=1973

Direct Payments to Americans

https://www.politico.com/news/2020/03/22/congress-send-americans-money-complicated-142725
This article walks through the many decisions Congress must make about the logistics of giving Americans direct payments to help cope with the economic downturn caused by COVID-19. 

Defense Production Act

The Defense Production Act gives the federal government broad authority to direct private companies to assist in national defense, including terrorism and natural disaster responses. It was signed into law by Harry Truman. Why hasn’t Trump invoked this authority? He said he would invoke it “in case we need it”, but it seems like this act would allow him to federalize the medical supply chain which would help hospitals and medical workers. Is there a political reason he’s holding back?

Don't Stand Near Rand

Seven years ago, a Rand Paul filibuster about drones led to the hashtag #StandWithRand. 

The new hashtag should be #DoNotStandNearRand

Nicholas Fandos and Catie Edmondson at NYT:

 Senate Republicans were struggling to salvage a more than $1 trillion economic rescue package to respond to the coronavirus crisis when they got the message on Sunday afternoon: One of their own had been walking around the Capitol with Covid-19 for days as they debated how best to confront the rapidly spreading pandemic.

Senator Rand Paul had tested positive for the coronavirus, Senator Mitch McConnell, the majority leader, told fellow Republicans over lunch. It was the news that lawmakers had been dreading for weeks as they went about their travel- and handshake-heavy routines while the disease circulated around the country.

The news set off a frantic race to retrace the steps of Mr. Paul, who had continued to show up in the Senate — even using the private senators’ gym, where he swam laps in the pool on Sunday morning — until he received the results of his coronavirus test sometime after his workout.

It injected a potentially dangerous new element into the intense negotiation over a stabilization package to bolster the country’s health system and social safety net and to prop up an economy teetering on the brink of collapse.

Mr. Paul, 57, Republican of Kentucky and a former practicing eye doctor, was “asymptomatic,” his staff said, relieving immediate concerns about his health despite a 2017 injury that affected his lungs. But his diagnosis raised the likelihood that other members of the 100-person Senate, where nearly half are 65 or older, had been exposed and might fall ill or need to self-quarantine just as they were racing to enact the rescue plan.

Mr. Paul had been informed last weekend that he had attended a fund-raiser in Kentucky with two individuals who later tested positive for Covid-19, a warning that sent a handful of other prominent elected officials into self-quarantine out of caution.

Not Mr. Paul.

He pressed on with his Washington schedule anyway. On Wednesday afternoon, he spoke and voted on the Senate floor. He dined at the Republicans’ closed luncheon on Thursday and on Friday, sitting with fellow senators. And after being informed of the diagnosis on Sunday, Senator Jerry Moran, Republican of Kansas, rose to tell fellow Republicans at lunch that he had seen Mr. Paul that morning at the senators-only gym, according to two people who heard him and Mr. Moran’s spokesman.

“I’ve never commented about a fellow Senator’s choices/actions. Never once,” Senator Kyrsten Sinema, Democrat of Arizona, who is known to frequent the senators-only pool, wrote on Twitter. “This, America, is absolutely irresponsible. You cannot be near other people while waiting for coronavirus test results. It endangers others & likely increases the spread of the virus.” (A spokesman for Ms. Sinema said she had been practicing social distancing and had not been to the pool in two weeks.)

Mitt Romney and Mike Lee were in close contact with Sen. Paul in recent days, so right after the revelation, they self-quarantined.  Romney has special reason to do so: his wife has multiple sclerosis.

Cory Gardner and Rick Scott are self-quarantining because of unrelated exposures.

So, without remote voting, the GOP is five votes short as the Senate decides on a gargantuan stimulus package.

Party-Line Vote on COVID-19 Stimulus Bill

Information from this article (Washington Post).

This evening, the Senate failed to pass a coronavirus stimulus package to address monetary loss for businesses, lost wages, and layoffs. Even though the senators promise to work "around the clock" to pass legislation, I wonder about how the public perceives the party-line vote on this bill. The virus-- and its economic ramifications-- are a "common enemy." Democrats voted against the bill in part because they believed that it was "tilted too far in favor of corporations." To what extent is passing the "procedural hurdle" of the vote, as Politico called it, as soon as possible more important than the details of the package itself? If the Democrats continue to resist passing the package, will it reflect poorly on them? It will be interesting to see how this plays out in the coming day(s).

I also wanted to consider the idea of a "common enemy" and its implications on congressional actions and partisanship more broadly. I immediately think to the Senate's unanimous approval of the Secure and Trusted Telecommunications Networks Act. This bill bans using federal dollars to purchase from telecom companies that are perceived threats, such as Huawei. Huawei supplies are used in "some of the most under-served areas," a point which may sway some Democrats to vote against the bill. However, the bill's unanimous passage is symbolic of rallying against the common enemy of a national and economic security threat.

Breit Bart: Urging Congress to Utilize Doctors Who Passed Their Licensing Exam but Were Not Matched to a Residency Program

Just as the coronavirus epidemic went nationwide, 1,200 young American doctors have been put on the sidelines because they were denied a place in the limited number of medical residencies for 2020, said Kevin Lynn, founder of Doctors Without Jobs. 

“More than 6 percent of the graduates of U.S. medical colleges did not get ‘matched‘ into a residency this week in a hospital, which means they will never practice medicine,” said Lynn, “That is a systemic problem,” he said, adding, “we have an ever-increasing need for effective healthcare delivery in this country, and yet we seem to have made it extremely difficult to become a doctor.”

Without a residency for specialized training on their resumé, the fully qualified doctors cannot get doctors’ jobs because they are excluded from employers’ insurance coverage, he said.

Congress should quickly get the doctors into work during the epidemic by extending employers’ insurance coverage to include the many doctors who pass their tests but who have not had a residency, Lynn said. 

Last week, President Donald Trump and Congress changed insurance rules to allow people to use tens of millions of N95 face masks that were designed for non-medical purposes. McClatchy reported March 20:

The purpose of the new legislative provision is to protect manufacturers from liability if U.S. citizens use the masks outside of a hospital environment during a public health crisis, and contract disease.

Under current law, “someone could buy one from Home Depot and say they got coronavirus while walking on the street and wearing a respirator, and the manufacturer will be liable,” said one congressional aide involved in the deliberations.

They Got Warnings

Norman Ornstein and Thomas Mann at The Washington Post:

There are no provisions, constitutionally, legally or within congressional rules, to enable Congress to meet remotely. This is true even though these challenges are not new; we faced them in the aftermath of 9/11 and with the subsequent anthrax threat that could have left a majority of members of the House and Senate incapacitated. Yet Congress failed to seriously address these vulnerabilities.

It’s not for want of trying. We first worked with then-Rep. Brian Baird (D-Wash.), and then with Sen. John Cornyn (R-Tex.), then-chairman of the Senate Judiciary subcommittee on the Constitution, in an attempt to focus Congress, the presidency and the Supreme Court on the lack of road maps to make sure our institutions can function in the case of an attack, natural disaster or, as now, health crisis.

We started with columns and op-eds. We testified before Congress. We created a Continuity of Government Commission, co-chaired by Lloyd Cutler, a former two-time White House counsel, and former senator Alan Simpson (R-Wyo.). We held hearings and issued three reports, on Congress, presidential succession and the judiciary.

The results were, to put it mildly, disappointing. The indifference we first encountered from congressional leaders was soon joined by intense opposition from powerful Republicans in the House. Some responded with simple obduracy. Others passionately believed that the House, which had never had a member serve who was not first elected, should not allow under any circumstances for emergency interim appointments for those killed or incapacitated by a mass attack. They were not moved by the argument that a House with temporary appointments during a catastrophe was better than no House at all.

In the Senate, we were able to secure support from Cornyn and then-Sen. Russ Feingold (D-Wis.), but the constitutional amendment they passed in subcommittee died in the full Judiciary Committee. Other than making provisions for an alternative location if the Capitol were uninhabitable, nothing of significance was done.

Another Acronym: the STOCK Act

The STOCK (Stop Trading on Congressional Knowledge) Act of 2012 forbids Members of Congress and staff from using nonpublic information derived from their official positions for personal benefit.

Asher Stockler at Newsweek:

alls are mounting for an investigation into Republican Senators Richard Burr and Kelly Loeffler for potential violations of the 2012 STOCK Act—a law Burr voted against when it cleared the Senate eight years ago.

Reports Thursday showed that the senators, who hold powerful committee assignments, dumped millions of dollars of stock ahead of the recent coronavirus-induced market panic.

By Friday, the two faced steep criticism of their actions, and Citizens for Responsibility and Ethics (CREW) filed a complaint against them with the Senate Ethics Committee, saying the sales possibly violated the STOCK Act, an insider-trading ban for members of Congress.

Noah Bookbinder, CREW's executive director, said that Burr's actions "should be investigated right away."

Burr, the chairman of the Senate Intelligence Committee, sold off between $628,000 and $1.72 million of his holdings on February 13, ProPublica found. Some of his largest transactions involved shares of hotel chains that would lose between one-half and two-thirds of their value in the economic turbulence weeks later.

Reuters reported that his committee had been receiving daily updates on the novel coronavirus.

Loeffler, who sits on the Senate committee with oversight of the health care industry, unloaded between $1,275,000 and $3,100,000 in stocks jointly owned with her husband, the chairman of the New York Stock Exchange, from late-January to mid-February. The Committee on Health, Education, Labor and Pensions hosted a coronavirus briefing, with top administration officials, for the entire membership of the Senate on the same day that Loeffler's portfolio began these trades, The Daily Beast reported.

In a statement Friday, Burr said his decision relied on public reporting but called for an ethics inquiry into the matter. Loeffler said in a statement that her investments are controlled by a third-party advisor and that she was unaware of the trades

Cuomo and NY Congressional Delegation

Governor Cuomo is giving a press conference on NY’s response to COVID-19 right now. He told the NY congressional delegation to look at the recent COVID-19 aid bill. According to the Governor, the bill was written in a way that left out NY state to receive 6 billion dollars of aid. My question is how will the delegation fix this language? Can NY House members introduce a new bill with a parallel processed bill in the Senate with Senator Gillibrand or Schumer to include NY? Will  Schumer and Gillibrand add an amendment to the current bill in the Senate?

Burr, Loeffler, and Coronavirus

Tim Mak at NPR:

The chairman of the Senate Intelligence Committee warned a small group of well-connected constituents three weeks ago to prepare for dire economic and societal effects of the coronavirus, according to a secret recording obtained by NPR.

The remarks from U.S. Sen. Richard Burr were more stark than any he had delivered in more public forums.

On Feb. 27, when the United States had 15 confirmed cases of COVID-19, President Trump was tamping down fears and suggesting that the virus could be seasonal.

"It's going to disappear. One day, it's like a miracle. It will disappear," the president said then, before adding, "it could get worse before it gets better. It could maybe go away. We'll see what happens."

On that same day, Burr attended a luncheon held at a social club called the Capitol Hill Club. And he delivered a much more alarming message.

"There's one thing that I can tell you about this: It is much more aggressive in its transmission than anything that we have seen in recent history," he said, according to a secret recording of the remarks obtained by NPR. "It is probably more akin to the 1918 pandemic."

Burr did not give a similar warning to the general public in his home state.

Robert Faturechi and Derek Willis at ProPublica:

Soon after he offered public assurances that the government was ready to battle the coronavirus, the powerful chairman of the Senate Intelligence Committee, Richard Burr, sold off a significant percentage of his stocks, unloading between $628,000 and $1.72 million of his holdings on Feb. 13 in 33 separate transactions.

As the head of the intelligence committee, Burr, a North Carolina Republican, has access to the government’s most highly classified information about threats to America’s security. His committee was receiving daily coronavirus briefings around this time, according to a Reuters story.

A week after Burr’s sales, the stock market began a sharp decline and has lost about 30% since.

Lachlan Markay,  William Bredderman, and Sam Brodey at The Daily Beast:

 The Senate’s newest member sold off seven figures’ worth of stock holdings in the days and weeks after a private, all-senators meeting on the novel coronavirus that subsequently hammered U.S. equities.

Sen. Kelly Loeffler (R-GA) reported the first sale of stock jointly owned by her and her husband on Jan. 24, the very day that her committee, the Senate Health Committee, hosted a private, all-senators briefing from administration officials, including the CDC director and Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases, on the coronavirus. 

“Appreciate today’s briefing from the President’s top health officials on the novel coronavirus outbreak,” she tweeted about the briefing at the time.

That first transaction was a sale of stock in the company Resideo Technologies valued at between $50,001 and $100,000. The company’s stock price has fallen by more than half since then, and the Dow Jones Industrial Average overall has shed approximately 10,000 points, dropping about a third of its value.
...
Loeffler’s office did not respond to a request for comment from The Daily Beast on the transactions and whether they were prompted or informed by information shared at that late January briefing. It’s illegal for members of Congress to trade on non-public information gleaned through their official duties. 

Late Thursday night, she did offer a statement, tweeting: “This is a ridiculous and baseless attack. I do not make investment decisions for my portfolio. Investment decisions are made by multiple third-party advisors without my or my husband’s knowledge or involvement.

“As confirmed in the periodic transaction report to Senate Ethics, I was informed of these purchases and sales on February 16, 2020—three weeks after they were made.”

COVID and Elections

With President Trump mentioning that he believes COVID-19 may last into late summer and members of congress falling ill, it is becoming increasingly likely that the national conventions will need to be rethought. I thought this article (NBC) gave an interesting account of the ramifications for changing the national convention, especially regarding fundraising. How is this pandemic going to challenge the integrity of our next presidential election?

Also, I enjoyed this podcast by Politico that discussed the election and COVID. 

Congress and COVID

Melanie Zanona at Politico:

It was only a matter of time. Reps. Mario Diaz-Balart (R-Fla.) and Ben McAdams (D-Utah) became the first known members of Congress to test positive for coronavirus, raising fears about the deadly virus spreading through the halls of the Capitol. Lawmakers who closely interacted with the infected individuals are now under self-quarantine, including House Minority Whip Steve Scalise and several other members of the GOP whip team. Both Diaz-Balart and McAdams voted on the floor last Friday with hundreds of their colleagues and started experiencing symptoms Saturday, and there’s no telling how many other people they may have interacted with — though the Capitol physician is attempting to map it out.

The pair of positive tests underscores the predicament facing Congress: lawmakers need to be in the Capitol to pass legislation to fight the pandemic, but being clustered together is a huge health risk for members, who tend to be older and more vulnerable. This is only going to increase pressure on leadership to cancel in-person voting. Earlier this week, a bipartisan group of over 50 lawmakers sent a letter to House leadership urging them to enact a remote voting plan, per CNN, arguing that Congress must hold itself to the same standards it's asking of other Americans. “In. Person. Voting. Should. Be. Reconsidered,” Rep. Debbie Mucarsel-Powell (D-Fla.) tweeted last night. “For the safety of our communities, during this emergency, we must be able to legislate from our districts.”

But so far, Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell have rebuffed those calls. They did announce new steps to promote better social distancing during votes, while House lawmakers won’t return until the next coronavirus bill is ready to vote on. But the nature of the job makes it nearly impossible for members to practice social distancing, and the number of quarantines — and cases — is only likely to climb. What if the GOP’s whip team is still under quarantine when they vote on the next coronavirus bill? At what point does legislative business become impossible to conduct in person? It’s all just another reminder of how the coronavirus is truly a crisis like no other for Congress. Much more from Kyle: https://politi.co/33y9OYC.

NPR got a recording of Senator Richard Burr of North Carolina privately warning a small, well-heeled audience about coronavirus three weeks ago.

Dual Nature of Representatives and the Corona Virus Crisis

House lawmakers look to tamp down panic, amp up response efforts in their districts

Lawmakers recently passed two emergency coronavirus relief packages and are working on a third, but outside of the steps being taken in the Capitol, members said they’ve been working with local officials to ensure individuals have access to the proper information and resources needed to combat the virus as efficiently as possible.