The End

The leak

Legal impact

Earlier this year a survey for C-SPAN  asked voters: "Can you name any cases decided by the U.S. Supreme Court?"  Only one case got double digits:  40% named Roe v. Wade.

Public opinion

Turnout

John F. Kennedy and Profiles in Courage

• Ted Sorensen wrote much of it, probably most of it.
• Questions about airbrushing racism.
• JFK was thinking about running for president, and in the mid-1950s, a Democrat needed the South. Map of 1956 election:

About “problems of political courage in the face of constituent pressures, and the light shed on those problems by the lives of past statesmen.’’ Three types of pressure:

• pressure to be liked
• pressure to be re-elected, and
• pressure of the constituency and interest groups.

The problem is that all three considerations have a legitimate place.

In addition to the courage of your convictions, you should also have the courage of your doubts.

Sometimes, compromise takes courage.

Taft

• Prewar isolationism
• And why JFK downplayed that side of the story
• Nuremberg (start video at 11:00)
• Taft against NATO
• The story that led to the LBJ-RFK feud

On October 29, 1940, Congressman Lyndon Johnson happened to be in President Franklin Roosevelt’s office when FDR’s isolationist ambassador to London, Joseph Kennedy—at whom Roosevelt was furious for his freelancing and his insufficient outrage against Adolf Hitler—returned to the United States. LBJ omits the detail that as FDR invited Kennedy by telephone for dinner, he drew his finger across his throat, razor fashion. Johnson twits Roosevelt for his indifference to civil rights, contrasting that unfavorably with LBJ’s own record.

I was with President Roosevelt the day he fired Joe Kennedy. He picked up the phone and said, “Hello, Joe, are you in New York? Why don’t you come down and have a little family dinner with us tonight?” Then he hung up and said, “That son of a bitch is a traitor. He wants to sell us out.” Well, Kennedy did say Hitler was right.

Anyway, Roosevelt didn’t have any Southern molasses compassion. He didn’t get wrapped up in going to anyone’s funeral. Roosevelt never submitted one civil rights bill in twelve years. He sent Mrs. Roosevelt to their meetings in their parks, and she’d do it up good. But President Roosevelt never faced up to the problem.

Inherent limitations of Congress:

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

From Profiles:

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

... 

This is not to say that courageous politicians and the principles for which they speak out are always right. John Quincy Adams, it is said, should have realized that the Embargo would ruin New England but hardly irritate the British. Daniel Webster, according to his critics, fruitlessly appeased the slavery forces, Thomas Hart Benton was an unyielding and pompous egocentric, Sam Houston was cunning, changeable and unreliable. Edmund Ross, in the eyes of some, voted to uphold a man who had defied the Constitution and defied the Congress. Lucius Lamar failed to understand why the evils of planned inflation are sometimes preferable to the tragedies of uncontrolled depression. Norris and Taft, it is argued, were motivated more by blind isolationism than Constitutional principles.

 Review of the Dualities:

Two chambers: Bicameralism is real:  consider  the reopening

Two Congresses: Historical public opinion data and the two Congresses

Two parties:  polarization

Two political branches: even under POTUS 45

Mixed opinions on civility and compromise

National Security/The Two Congresses

 For our last class, on Tuesday: 

• John F. Kennedy, Profiles in Courage, chapter 1 ("Courage and Politics") and Chapter 11 ("The Meaning of Courage'). You may find free online copies of the book here, here, and at the Honnold website.  Also see chapter summaries here.

War and Intelligence


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.

The Two Congresses

From Morning Consult  -- guess which senator soared in home state popularity this year?

Tennessee 5:

MTG v. RCC

Could it be ... Satan?

Will she get away with it?

Two Congresses and Institutional Change

Approval of Congress (Davidson 472-474)

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 (Davidson 467-471)

Congress, Foreign Policy, and National Security

For Thursday, read Davidson, ch. 16.

RAND PAUL IRL

BLINKEN: If you look at the countries Russia attacked, these were countries that were not part of NATO

RAND PAUL: You could also argue the countries they've attacked were part of Russia

BLINKEN: I firmly disagree. It's the right of these countries to decide their future pic.twitter.com/4ZeZOVrK0i

— Aaron Rupar (@atrupar) April 26, 2022

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 444-447).
• 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.

Domestic Policy

 For Tuesday, read Davidson, ch. 15.

 Last class session will be Tuesday, May 3.

The 2022 Profiles in Courage Awards.  The first two names should be no surprise.

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

LONG-TERM PROJECTIONS

THE DEBT LIMIT

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

Voting rights

Two views of voter ID:

• FedSoc
• Report on TX law

Changes in Voting laws

For the People Act  -- passed House

H.R.4 - John R. Lewis Voting Rights Advancement Act of 2021

How the nuclear option works:

Mr. REID. I raise a point of order that the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.

The PRESIDENT pro tempore. Under the rules, the point of order is not sustained.

Mr. REID. I appeal the ruling of the Chair and ask for the yeas and nays.

(48–52 vote on upholding ruling of the chair)

The PRESIDENT pro tempore. The decision of the Chair is not sustained.

The PRESIDENT pro tempore. *** Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.[7]

Filibuster flips

Last Paper, Spring 2022

  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 (other than Liz Cheney!) 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 Congress. (Do not write about activities unrelated to congressional service, e.g., John Lewis's heroism on the Edmund Pettus Bridge.) 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. The authors of Congress and Its Members finished writing the 18th edition in mid-2021. Pick any chapter in the book and write a four-page update. That is, what events of the past year should materially change their analysis when they write the 19th edition?
3. Should Congress amend the War Powers Resolution? If so, how? In your answer, give careful consideration to alternative perspectives.
4. Write on a relevant 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.
• Graduating seniors should return essays to the Sakai dropbox for this class by 11:59 PM, Wednesday, May 4. All others should return essays by 11:59 PM, Friday, May 6.

Economic Policy

 For Thu, read LaPira, ch 11 plus short articles on voting rights and "the nuclear option."

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

• Reauthorization as a form of oversight (LaPira, ch. 12)
• Lapsed authorizations:

Appropriation

• Also a form of oversight -- with diminished capacity (LaPira ch. 9)

• Budget Authority
• Outlay
• Continuing resolutions

"The Budget Process" and key documents:

• The president's budget
• CBO reports

Revenue Bills and RECONCILIATION (Davidson 429-430)


Revenues -- Where the money comes from:

The tax system is more progressive than most people realize: 

 

Tax expenditures

Outlays -- Where the money goes:

Budget tables:  function, subfunction, agency

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

Deficit

LATEST LONG-TERM PROJECTIONS

THE DEBT LIMIT

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

Congress and the Judiciary

For Monday: Davidson, ch. 14, LaPira, ch. 9, 12.

For Thu of next week:  what domestic topics do you want to discuss?

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

How the Ways and Means Committee asked 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.

STILL IN COURT! 

Subpoenas and Contempt of Congress

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

Court-packing  (Davidson 367-368).

A check on the court:  jurisdiction-stripping, or court-stripping (Davidson 365-366 -- a 2020 article

Constitutional Amendments

Response to statutory (vs. constitutional) interpretation (Davidson p. 3363)  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, 378)

The Trump record on the courts (Davidson 377)

KBJ

Congress and the Executive, Continued

 For Thursday, Davidson, ch. 12

CRS report on federal employment (update to ch. 4 of LaPira):

NAIL: Nominations, Appropriations, Investigations, Legislation

Nominations 

• Extent of confirmation power (about 1200 jobs)
• Nominations: Senate data
• Cabinet nominations rejected or withdrawn
• Hearings:  Whitehouse and White; DeVos

Appropriations

• Limitation riders and the case of ACA

Investigation and Oversight 

• GAO 
• CBO
• CRS
• Diminished institutional capacity
• The role of the press -- featuring an alum of this course!!

Legislation:  Executive Branch Organization and Laws on Reporting 

• Inspectors General  (Trump firings)
• Reporting requirements
• The old legislative veto and the Congressional Review Act.  (A rare example)
• 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.

STILL IN COURT! 

Subpoenas and Contempt of Congress

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

Congress and the Executive

For next Tuesday, LaPira, ch. 4.   For next Thursday, Davidson, ch. 12.

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"

Checking the Executive

NAIL: Nominations, Appropriations, Investigations, Legislation

Nominations 

• Extent of confirmation power (about 1200 jobs)
• 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  (Trump firings)
• Reporting requirements
• The old legislative veto and the Congressional Review Act.  (A rare example)
• 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.

STILL IN COURT! 

Subpoenas and Contempt of Congress

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