Foreign Policy, National Security, and the Two Congresses

 NATIONAL SECURITY ACT OF 1947:  NSC, CIA, DOD, AF

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

• The Treaty Clause
• 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)
• CONGRESS HAS DELEGATED A GREAT DEAL OF POWER TO POTUS

Two Congresses and Institutional Change

Approval of Congress (Davidson 468-71)

Ethics.  Barack Obama spoke with Bryan Cranston:

There’s power in nostalgia, but the fact is the world is wealthier, healthier, better educated, less violent, more tolerant, more socially conscious and more attentive to the vulnerable than it has ever been. Now, there’s also enormous cruelty and tragedy and stupidity and pain. But we tend to forget what the world was like. I’m old enough to remember the ’70s, when we were still getting out of Vietnam, and we had lost tens of thousands of young soldiers. And when they came back home, they were completely abandoned. We left an entire swath of Southeast Asia in chaos. In Cambodia, two million people were slaughtered — about four times the number of people who have been killed in Syria during this conflict. But we don’t remember that.
...
I say this because I’m trying to inoculate them against cynicism, which is a powerful force in our culture. It’s what passes for wisdom, being ironic and cynical. Now, it’s true that the political landscape has changed in ways that are really unhealthy. But there are fewer lubricants to get things done. L.B.J. did great things, but he also relied on bagmen and giving them favors for which I would be in jail or impeached. People are surprised when I say that Congress is less corrupt now than it’s ever been.

The transparency problem

From Eman: Tax Politics

President Biden recently proposed an increase in the capital gains tax for people who are making over $1 million a year. This tax would therefore apply to .3 percent of individuals in the United States. Revenue from this additional 20 percent increase would then be used to fund Biden’s $2.3 trillion proposals for additional healthcare and antipoverty funding, potentially including childcare, pre-kindergarten, and community college tuition assistance.

Since the Senate is currently at a 50-50 split, Biden needs the support of all Senate Democrats to be able to pass this proposal. However, moderate Democrats and those in divided states may be hesitant to approve this spending plan. For example, Senator Manchin (D-WV) has said: "If I don't vote to get on it, it's not going anywhere. So, we're going to have some leverage here. And it's more than just me, Hoppy. There are six or seven other Democrats who feel very strongly about this. We have to be competitive and we're not going to throw caution to the wind." Manchin is a proponent of pursuing more bipartisan proposals with fewer tax increases and lower budgets. Generally, in the 50-50 Senate, moderate Democrats have much more power in dictating Democratic policy, which may pose an interesting challenge to Biden now, and later on in his presidency.

Articles: 

• https://thehill.com/policy/finance/550315-white-house-defends-bidens-proposal-to-increase-capital-gains-taxes https://www.wsj.com/articles/capital-gains-taxes-are-on-bidens-radar-as-he-seeks-money-for-social-programs-11619192256 
• https://www.forbes.com/sites/jonathanponciano/2021/04/25/manchin-insists-hes-not-a-roadblock-to-bidens-2-trillion-infrastructure-plan-but-blasted-proposed-tax-hikes/?sh=4bf8c75e28e0
• https://www.cnn.com/2021/04/05/politics/manchin-infrastructure-bill-tax-hikes/index.html

Congressional Reapportionment

 Today the Census Bureau released final state population totals from the 2020 census, which will be used to reapportion congressional seats (and thus, electoral votes). This article from the Cook Political Report provides an overview of what this might mean politically, but there are lots of other resources/takes out there as well.

States losing a House seat: CA, NY, IL, WV, OH, MI, PA

States gaining a seat: FL, NC, OR, MT, CO, TX (gaining 2)

This largely shifts power from mostly Democratic states to mostly Republican states in the South and West. But some in Florida argue that we should be receiving two instead of one and blame the Trump Administration for an inaccurate census count. Regardless, this continues Florida's streak of adding at least one rep every reapportionment since 1900, the longest such streak of any state. 

Congress, National Security, and 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 Syria Airstrikes

Foreign Affairs Generally

• Trade Agreements (Davidson 440-442).
• Congress has delegated tariff powers to POTUS -- with perverse consequences in the early stages of the pandemic
• Power over Information

War and Intelligence

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

From CRS:

The War Powers Resolution (P.L. 93-148) was enacted over the veto of President Nixon on November 7, 1973, to provide procedures for Congress and the President to participate in decisions to send U.S. Armed Forces into hostilities. Section 4(a)(1) requires the President to report to Congress any introduction of U.S. forces into hostilities or imminent hostilities. When such a report is submitted or is required to be submitted, Section 5(b) requires that the use of forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends the time period. Section 3 requires that the “President in every possible instance shall consult with Congress before introducing” U.S. Armed Forces into hostilities or imminent hostilities.

From 1975 through March 2017, Presidents have submitted 168 reports as the result of the War Powers Resolution, but only one, the 1975 Mayaguez seizure, cited Section 4(a)(1), which triggers the 60-day withdrawal requirement, and in this case the military action completed and U.S. armed forces had disengaged from the area of conflict when the report was made.

Budgets, Domestic Policy, and the Pandemic

 For next Monday, read Davidson, ch. 15.

The magic word is "emergency."

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

LATEST LONG-TERM PROJECTIONS

THE DEBT LIMIT

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

Pearlstein: " It is harder today for the government to access and analyze independent, unbiased information, and easier to avoid processes that might compel that information’s consideration."

• Congress delegated power to the executive branch.
• Rules applying to agencies do not apply to the White House.
• Congress diminished its own capacity.

What happens, then, when the White House is dysfunctional?

• Failure to appoint officials
• Firing inspectors general

An allusion to Tocqueville: "The constitutional decision to divide government power among three federal branches was not only to protect Americans from tyrannical concentrations of power, but also to give the government a chance at correcting its own mistakes."

BUT IS THE SYSTEM ADEQUATE TO THE TIME?

Does federalism work in a national and global economy?

Do checks and balances work at a time of partisan polarization?

Federalist 62: "The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow."

Last Assignment, Spring 2021

 Answer one of the following:

1. In Profiles in Courage, JFK wrote about courageous senators. All were white men.  Write a profile in courage. Choose a woman or person of color who has served in the House or Senate.  In light of JFK'S concept of courage (see the first and last chapters of the book), identify and explain your subject's courageous action. In this action, did this person face obstacles that a white male would not have encountered?  (You may find free online copies of the book here, here, and on the Honnold website.)
2. What are plausible scenarios for the 2022 midterm elections for the House and Senate?  In light of party balance, the composition of Senate seats up for election, and the history of midterms, which party has the best chance for controlling the House and Senate?  What conditions (e.g., the state of the economy) could influence the outcome?
3. The authors of Congress and Its Members finished writing the 17th edition in April 2019.  Pick any chapter in the book and write a four-page update. That is, what events of the past two years should materially change their analysis when they write the 18th edition?

• You may also write on a topic of your choice, subject to my approval.
• 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. Submit your essay to the Sakai dropbox by May 7. (You may also email me an attached copy.)  I reserve the right to dock papers one gradepoint for one day's lateness, a full letter grade after that.

Economic Policy, Domestic Policy

 

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.

Authorization

Appropriation

• Budget Authority
• Outlay
• Continuing resolutions
• The 2020 omnibus -- what is it?  Trump "redlined" it but Congress ignored him.

"The Budget Process" and key documents:

• The president's budget
• CBO reports

Revenue Bills and RECONCILIATION (Straus ch. 5)


Revenues -- Where the money comes from:

The tax system is more progressive than most people realize: see esp. pages 18, 20, and 23. 

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

LATEST LONG-TERM PROJECTIONS

THE DEBT LIMIT

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

Pro-Trump House Members form group promoting "Anglo-Saxon" traditions...

 This article details plans by Reps. Marjorie Taylor Greene and Paul Gosar to form a caucus calling for a "common respect for uniquely Anglo-Saxon political traditions." Naming itself (shockingly!) the America First Caucus, the group states that "intellectual boldness" is needed to "follow in President Trump's footsteps, and potentially step on some toes and sacrifice sacred cows for the good of the American nation."

Some more quotes from the group's document:

"America is a nation with a border, and a culture, strengthened by a common respect for uniquely Anglo-Saxon political traditions. History has shown that societal trust and political unity are threatened when foreign citizens are imported en-masse into a country, particularly without institutional support for assimilation and an expansive welfare state to bail them out should they fail to contribute positively to the country."

The group will "work towards an infrastructure that reflects the architectural, engineering and aesthetic value that befits the progeny of European architecture."

It adds that public infrastructure "must be utilitarian as well as stunningly, classically beautiful, befitting a world power and source of freedom."

Edit: Minority Leader Kevin McCarthy issued the following statement, most likely in direct response to the America First Caucus

America is built on the idea that we are all created equal and success is earned through honest, hard work. It isn't built on identity, race, or religion. The Republican Party is the party of Lincoln & the party of more opportunity for all Americans - not nativist dog whistles. 

DC Statehood is Back

https://thehill.com/homenews/house/548118-house-committee-expected-to-pass-dc-statehood-bill-on-wednesday

H.R. 51, the bill giving DC statehood is likely to pass the House at the end of the month. DC statehood has been on Congress' agenda for many terms now as the battle to give them statehood continues. The bill will probably be stalled in the Senate as it was during the 116th Congress. Republicans are against statehood for DC because of its Democratic leaning population and they believe it is a power grab from Democrats to receive more votes and power in the government. The battle for statehood seems to be a losing battle but one many legislatures are not willing to give up on. 

When I was in DC license plates in DC actually have "no taxation without representation" which I think is interesting. Although DC does not have statehood residents of the area have found ways to vote by registering in Virginia and Maryland, but understandably a place that runs government would like the power of the vote and the effect on the government. 

Congress and the Courts

For Monday: Davidson, ch. 14, Straus, ch. 5.

For Wed:  what domestic topics do you want to discuss?

ALSO:  FINAL WEEK -- WHAT TOPICS DO YOU WANT TO REVISIT OR ADD?

Court-packing  (Davidson 349-350).

A check on the court:  jurisdiction-stripping, or court-stripping (Davidson 357-358 -- still in the news

Constitutional Amendments

Response to statutory (vs. constitutional) interpretation (Davidson p. 355)  Lilly Ledbetter Fair Pay Act

Supreme Court Nominations

Clarence Thomas:



In hearings, senators try to get judicial nominees on the record.  NOTE WHAT ALITO SAYS (START AT 18:45) ABOUT STARE DECISIS.





Merrick Garland and "the Biden Rule" 

Gorsuch and the nuclear option 

Blue Slips and Senatorial Courtesy (Davidson, 369)

The Trump record on the courts

Simulation Meets Real Life

 In the simulation, I, as Sen. Marco Rubio (R-FL), advocated legislation that would monitor China's growing presence in the Americas out of concern/care for Rubio's upcoming 2022 reelection in which Latin American exile groups (particularly those from socialist countries) will play a significant role. 

His most likely opponent, as of today, is Rep. Stephanie Murphy (D-FL), a co-chair of the moderate Blue Dog Coalition. Today, Murphy introduced a bill "to Assess China’s Efforts to Expand Presence and Influence in Latin America and the Caribbean," which would require the "U.S. government to develop a plan of action to counter China’s malign activities in the region." 

Good thing I got in front of her on this issue.

Capacity and Oversight

 For Wed, Davidson, ch. 12 

REVIEW FROM LAST TIME: NAIL:   Nominations, Appropriations, Investigations, Legislation

Nominations 

• Extent of confirmation power
• Nominations: Senate data
• Cabinet nominations rejected or withdrawn
• Hearings:  Whitehouse and White; DeVos
• Recess appointments, "acting" officials, and the Vacancies Act (Of course, there is a CMC connection)
  

Appropriations

• Limitation riders and the case of ACA

Investigation, Oversight, and Capacity

•  RTFM
• Oversight hearings and letters.  
• Katie Porter to witnesses: be afraid, be very afraid
• Annual Percentage Rate
• Postcards
• GAO 
• CBO
• CRS
• Diminished institutional capacity

Legislation:  Executive Branch Organization and Laws on Reporting 

• Inspectors General  (POTUS WAS DISPLEASED!)
• Reporting requirements
• The old legislative veto and the Congressional Review Act.  (Not much action so far this year)
• Congress "organizes" the executive:
  --  The "organization" of DHS.
-- DNI and the intelligence community

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 the Executive Branch

For next Monday, read:

Casey Burgat, “Congressional Undersight,” R Street Institute, November 2019, https://www.rstreet.org/wp-content/uploads/2019/11/188-2.pdf

For Wed, Davidson, ch. 12 

Presidents and Persuasion

• LBJ and negotiation
• Interview with the Bush leg affairs shop
• The Biden legislative affairs shop
• CQ on presidential success (review from a few weeks ago)

Presidential approval and the "decay curve"

NAIL:   Nominations, Appropriations, Investigations, Legislation

Nominations 

• Extent of confirmation power
• Nominations: Senate data
• Cabinet nominations rejected or withdrawn
• Hearings:  Whitehouse and White; DeVos

Appropriations

• Limitation riders and the case of ACA

Investigation and Oversight (more on Monday about congressional capacity)

• GAO -
• CBO
• CRS
• Diminished institutional capacity

Legislation:  Executive Branch Organization and Laws on Reporting 

• Inspectors General  (POTUS WAS DISPLEASED!)
• Reporting requirements
• The old legislative veto and the Congressional Review Act.  Democrats do not like it now, but will like it more if they get unified control.
• Congress "organizes" the executive:
  --  The "organization" of DHS.
-- DNI and the intelligence community

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

Parliamentarian on Reconciliation and the Death of Rep. Alcee Hastings

 Monday night the Senate Parliamentarian ruled that budget reconciliation could be used multiple times in the same year, which will change Democrats' calculations on how they can get legislation through the narrowly-divided chamber. This article from The Hill lists and explains 5 ways this changes things:

1. Biden can potentially get a lot more done without GOP support

2. It further erodes the power of the filibuster

3. It gives even more power to Joe Manchin. 

4. It decouples the legislative schedule from budgeting

5. It takes pressure off the debt ceiling

Also, Rep. Alcee Hastings (D-FL), the co-chair of the Florida congressional delegation, passed away at 84. We talked about him earlier in the course, because he was impeached and removed from the federal bench in 1989. He then failed in a run for Florida Secretary of State in 1990, but won election to the House representing Florida's 20th congressional district in 1992. 2013 redistricting moved him to the 23rd district. He never faced serious challengers in his congressional career given the strong Democratic lean of his majority-Black district.

Congress and the President

 The Struggle Over Presidential Authority: Article I and Article II

Vetoes (Davidson 296-299).

Statements of Administration Policy (Biden 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

Interview with the Bush leg affairs shop

The Biden legislative affairs shop

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

Presidential approval and the "decay curve"