Congress and the Judiciary

On Wednesday, we discuss scandal and the congressional disciplinary process. Will post a reading.  By coincidence, this week is the perfect time for this subject.

For next week, which domestic issues do you want to discuss?

Don 't forget your weekly writeups by the end of the week.

SCOTUS as a check on Congress

• Federal statutes that SCOTUS has overturned.
• Upholding Obamacare (Davidson 346)  CA v. TX decision
• "Judicial activism" (347)
• Regulations and The end of Chevron deference

Congress as a check on the judiciary

Court-stripping (Davidson 355-356)

Amending the Constitution

11th Amendment (1795): Overturned Chisholm v. Georgia (1793), which had allowed citizens of one state to sue another state in federal court, restricting federal judicial power over states.

13th Amendment (1865): Abolished slavery, effectively overturning aspects of Dred Scott v. Sandford (1857), which had ruled that Congress could not prohibit slavery in territories.

14th Amendment (1868): Granted citizenship to all born/naturalized in the US, directly overturning the Dred Scott ruling that African Americans could not be citizens.

16th Amendment (1913): Authorized a federal income tax, overturning Pollock v. Farmers' Loan & Trust Co. (1895), which had declared a federal income tax unconstitutional.

26th Amendment (1971): Lowered the voting age to 18, overturning part of Oregon v. Mitchell (1970), which held that Congress could set voting ages for federal elections but not state/local elections. [1, 2, 3, 4, 5]

Impeachment of Judges and the strange case of Alcee Hastings and his comeback De mortuis nil nisi bonum

 Supreme Court Nominations (361-367)

Fortas roll call:  a filibuster precedent..

Clarence Thomas.

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

Feinstein stepped in it when ACB was up for Court of Appeals

Merrick Garland and "the Biden Rule" 

Gorsuch and the nuclear option 

KBJ

Blue Slips and Senatorial Courtesy (Davidson, 368-370)

Applies to US Attorneys:

The Trump record on the courts 

Congress and Bureaucracy II

Questions on the writeup?

For Monday, Davidson ch. 12

Today, no in-person student hour but available for Zoom after 2 pm  and tomorrow between 10 and 3. Please email me first.

For Wed: will post article on censure, reprimand, and other issues surrounding misconduct.

From last time:

Congress "organizes" the executive:

• The "organization" of DHS.
• DNI and the intelligence community

Subpoenas and Contempt of Congress (see Cassidy & RFK above)

• Inherent contempt
• Civil contempt
• Criminal contempt

Impeachment (Davidson, 338)

Article I, Section 3, Clause 7:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Alexander Hamilton (in Federalist No. 72)

An avaricious man, who might happen to fill the office, looking forward to … yield[ing] up the emoluments he enjoyed … might not scruple to have recourse to the most corrupt expedients.

An ambitious man, too, when … seated on the summit of his country’s honors, … would be … violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard.

The Grounds

• Treason (the sole indictment since 1954)
• Bribery
• High Crimes and Misdemeanors Precedent from England?
• Gerald R. Ford 1970: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

There is no appeal.

Andrew Johnson Impeachment -- see esp. Article Ten

Impeachment v. Bill of Attainder

Persons subject to impeachment

(A separate process for disciplining members of Congress.  More a week from today)

The list

The Process

• The House
• "Due process" does not apply.
• The Fifth Amendment says no person shall "be deprived of life, liberty, or property, without due process of law." Impeachment merely removes a person from office.
• The Senate
• The rules
• The role of the Chief Justice

The Special Case of the President

The "take care" clause

At Harvard Law Review, Andrew Kent.Ethan J. Leib, and Jed Handelsman Shugerman have an article titled "Faithful Execution and Article II." From the abstract:

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.

Nixon

Congress & Bureaucracy

Constituents remember good constituent service:

Weekly email writeups resume next week.  Focus on sim paper and peer evaluations (if you have not already submitted yours).

What else do you want to discuss in the remainder of the course?

LARP v IRL

• Compressed time
• No dilatory tactics
• No press, public, staff, House, or SCOTUS
• Limited role of POTUS (see below)
• Inherent limitations of simulation
• But role-play is still powerful

NAIL: Nominations, Appropriations, Investigations, Legislation

Nominations 

• Article II, sec. 2: "[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.:
• Extent of confirmation power (about 1200 jobs)
• Schedule F?
• Nominations: Senate data
• "Nuclear option" (back to Davidson 243).  Dems in 2013 with executive and lower-court noms.  Reps in 2017 with SCOTUS.  WHERE YOU STAND DEPENDS ON WHERE YOU SIT.
• Cabinet nominations rejected or withdrawn
• Hearings:   McCain in 2014 on nominee for Norway ambassador (at 2;20) Whitehouse and CEQ.
• Cassidy and RFK:

• Oopsie -- but what can Cassidy do now?

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 (Davidson 334-35) and the Congressional Review Act.  (Davidson, 326)
• Congress "organizes" the executive:
  --  The "organization" of DHS.
-- DNI and the intelligence community

• Inherent contempt
• Civil contempt 
• Criminal contempt

Next time:  Congress and DOGE

Simulation 2026

The manual   For nearly 40 years, the customary professorial answer to most questions has been "You figure it out."

The roster

The State of the Union

Congress and POTUS II

End class early: Pallavi Raju (Kaine) will be here.

Broader discussion of Congress and presidential power. The NYT article.

Power to Persuade

Trump honey and vinegar

1. Republicans who lost primaries after opposing Trump U.S. House

Member	State	Year	Reason / Context
Liz Cheney	Wyoming	2022	Lost GOP primary after voting to impeach Trump and serving as vice-chair of the Jan. 6 committee.
Jaime Herrera Beutler	Washington	2022	Voted to impeach Trump; eliminated in the 2022 “jungle” primary amid pro-Trump challenges.
Tom Rice	South Carolina	2022	Voted to impeach Trump; defeated by Trump-backed challenger Russell Fry.
Peter Meijer	Michigan	2022	Voted to impeach Trump; defeated in GOP primary by Trump-backed John Gibbs.
Mark Sanford	South Carolina	2018	Prominent Trump critic; lost primary to Trump-endorsed challenger Katie Arrington.
Bob Good	Virginia	2024	Initially backed Ron DeSantis instead of Trump in the presidential primary and lost to Trump-endorsed challenger John McGuire.

2. Republicans who retired rather than run again amid conflict with Trump

U.S. House

Member	State	Year	Notes
Adam Kinzinger	Illinois	2022	One of two Republicans on the Jan. 6 committee; chose not to seek reelection.
Anthony Gonzalez	Ohio	2022	Voted to impeach Trump; announced retirement citing political toxicity and threats.
Fred Upton	Michigan	2022	Impeachment vote; retired after intense pro-Trump backlash.
John Katko	New York	2022	Impeachment vote; retired amid expected Trump-aligned primary challenge.
Paul Ryan	Wisconsin	2018	As Speaker, clashed with Trump on several issues and chose to retire rather than seek reelection.

U.S. Senate

Member	State	Year	Notes
Jeff Flake	Arizona	2018	Frequent Trump critic; announced retirement saying the party was abandoning conservative principles.
Bob Corker	Tennessee	2018	Openly clashed with Trump and retired rather than run again.
Ben Sasse	Nebraska	2022	Long-time Trump critic; left the Senate to become president of the University of Florida.
Thom Tillis	North Carolina	2026	Announced retirement after conflict with Trump and backlash from MAGA activists.

LBJ and negotiation

Interview with the Bush leg affairs shop:

So we're going over Labor Day 1990 to look at the buildup in Bahrain, Kuwait, and Saudi Arabia. There are two planes, one Senate, one House. I'm on the House plane obviously because I'm the House Deputy. But we have this mixture of young and older Members.

Newt was on the plane but Bob Michel, Rostenkowski, [William] Broomfield, Dante Fascell, I think Dingell was on the plane. The delegation was headed by Gephardt, who at the time was majority leader. It's a 15-hour flight. We're going to stop in the Azores but we have dinner served on the plane and all the younger guys separate, go off, read books, go to bed. The older guys set up a card table at the front of the plane, proceed to play cards and drink all night long. I'm hanging out there, just listening to these guys.

So the conversation is banter and this and that and then, "What are we going to do about this, we probably need a resolution. Foley and Gephardt already signaled that they're going to be against it." These guys just, as they did on so many issues, started talking back and forth about what they would do. When it came time for the vote we worked with Fascell, we worked with Rostenkowski, got a lot of these older guys to pass the resolution. It is a little-recognized fact that for the Second Gulf War resolution we got a lot more Democratic votes than we did the first one, despite having that big coalition. But that for me was almost the breaking point. It became increasingly rare to see that kind of cooperation across the aisle.

CQ/Roll Call on presidential success 

Presidential approval and the "decay curve"

AP report on Iran polls: "About half of registered voters — 53% — oppose U.S. military action against Iran, according to a new Quinnipiac Poll conducted over the weekend. Only 4 in 10 support it, and about 1 in 10 are uncertain. A new Ipsos poll also found more disapprove than approve of the strikes."

War Power and Iran

• The notification -- note the word consistent instead of compliant
• The War Powers Resolution

Libya:  Where You Stand Depends On Where You Sit

A moment when the Shadow Congress came out of the shadows and decided on war.

• Foley (start about 5:40)
• Michel (start at beginning)

Congress and POTUS

 Simulation details.  Will adjourn early for informal caucusing.  Jenna Milbrodt (Risch) will be here to advise.  Pallavi Raju (Kaine) will be here on Wed.  Harrison Steck is willing to play Trump.

Reserved Kravis 161 for committee meetings during simulation.

For Wednesday, let's have a broader discussion of Congress and presidential power.  Read this NYT article, bring questions and comments.

Acronym time!

The Struggle Over Presidential Authority: Article I and Article II

Vetoes.  

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 (285-286) and other warnings.

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 (287): Supreme Court struck it down in Clinton v. City of New York.

Guess who was primarily responsible..

Signing statements (291)

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

Other forms of executive action   (Live from New York!)

• 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: special powers and Trump tariffs
• Presidential memoranda  and Trump examples
• Agency memoranda (DACA)

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

• Reversal of DACA
• Reversal of border emergency

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

They can oust people illegally holding office.

Power to Persuade

Trump honey and vinegar

LBJ and negotiation

Interview with the Bush leg affairs shop

CQ/Roll Call on presidential success 

Presidential approval and the "decay curve"

Deals and the Shadow Congress

Adjourn at 10:35 for preliminary meetings.  Harrison Steck-- Shaheen from 2025 -- will be present to provide guidance and answer questions.  From my presidency course, recruit a president and cabinet members.

For your write-ups, explain how what you learn this week could guide your activity in the simulation.

Questions on the assignment?

• BLUF
• DC research 

For Monday, read Davidson, ch. 10.

Expertise and acceptable sources of information.

• "Everyone is entitled to his own opinion, but not to his own facts"
• Stipulated knowledge and CBO.
• Knowledge levels of members.    

Repeated interactions

• Short-term:  confidence building
• Longer term: reputations, grudges, and the Favor Bank
• How does partisanship hinder interaction?  Workaround: working groups or "gangs."

The Secret or Shadow Congress

Examples:

The final two-plus years of the Trump administration, for example, began with a government shutdown and featured two presidential impeachments. But they also saw the passage of a major conservation bill, a new trade agreement, significant criminal-justice reform, and several pandemic-relief packages.

In 2022: The House overwhelmingly passed legislation to reform the beleaguered U.S. Postal Service. Days later the Senate approved, without a single vote in opposition, a bill proposed in response to the #MeToo movement that bans the use of forced arbitration in workplace sexual-harassment and assault cases. A bipartisan group of senators also announced an agreement on a long-stalled reauthorization of the Violence Against Women Act, likely clearing the way for its passage.

Update 

One key is the presence of institutionalists (Cole and DeLauro -- and Thune!)

Another key is privacy

 Think about the downsides of public meetings

• Who actually attends (or watches) and takes notes?
• How do members behave?  What kindsof questions do they ask?

A third key is the range of potential beneficiaries:

Most public lands are in the West:

 

Public Lands 2019

The vehicle

(The military administers 8.8 million acres of land)

Suspension of the rules gets around germaneness issues.

More recent examples:

• Public lands provision of 2021 NDAA
• Kevin and Avonte's Law