Q and A

Here are some questions that we might not be able to discuss during the class today.

Sam asks:

Why are presidents vetoing fewer bills than in the past?  This NPR article (click the link) is a few years old, but still provides a good answer:  among several other things, SAPs have stopped bills long before they got to the president's desk.

What is the role of OIRA?  From CRS:

E.O. 12866, issued by President William Clinton in 1993, calls for OIRA to review “significant” regulatory actions at both the proposed and final rule stage. The order also requires agencies to assess potential costs and benefits for “significant” rules, and, for those deemed as “economically significant” regulatory actions, agencies are required to perform a cost-benefit analysis and assess the costs and benefits of “reasonably feasible alternatives” to the planned rule.22 Furthermore, under E.O. 12866, agencies generally must “propose or adopt a regulation only upon a reasoned determination that the benefits” of the rule “justify its costs.” E.O. 12866’s requirements for OIRA review and cost-benefit analysis do not apply to independent regulatory agencies. 

Is it high-profile?  Sometimes.  Famed legal scholar Cass Sunstein headed OIRA in Obam's first three years.

Jensen asks about a report that DOJ has requested legislation to suspend the writ of habeas corpus in certain cases during the emergency.   The Constitution does empower Congress to suspend the writ "during Rebellion or Invasion" but it is hard to see how the current crisis qualifies.  Difficult questions of constitutional interpretation arise with issues that the Framers could not have anticipated (e.g., regulation of the broadcast spectrum).  This crisis is not one of those issues. By the late 18th century, the practice of quarantine during epidemics was already hundreds of years old.

Augusta asks about filibuster flip-flops.  In 2012, Manu Raju wrote at Politico:

An angry Harry Reid took to the floor Thursday and demanded changes to the Senate’s hallowed filibuster rules, siding with junior Democrats who have sought to substantially weaken the powerful delaying tactic.

It’s a risky move for the Senate majority leader, who could find himself in the minority in a matter of months and need the filibuster to block the GOP’s agenda. But Reid — who struck a “gentleman’s agreement” last year with Senate Minority Leader Mitch McConnell to preserve the filibuster from an effort by Sens. Tom Udall (D-N.M.) and Jeff. Merkley (D-Ore.) to water it down — signaled he is now on board with their effort given the gridlock in the Senate.

“If there were ever a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight,” Reid said on the floor. “These two young, fine senators said it was time to change the rules of the Senate, and we didn’t. They were right. The rest of us were wrong — or most of us, anyway. What a shame.”

As Augusta points out, Merkley himself later switched sides, mounting a symbolic faux-filibuster against Gorsuch.  Is there any political price to pay for such flip-flops?  Nope.  NORMALS DO NOT CARE ABOUT PROCEDURE.  Whether the issue is the filibuster, budget process, restrictive rules, or PAC reform, ordinary Americans know little and care less.