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US Politics: 50 shades of Scalia


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10 hours ago, lokisnow said:

significant typo here I thought I edited a correction, but apparently the edit did not go through:

Violating the non binding norms of non constitutional senate traditions that are not formalized by senate RULES is not remotely a constitutional crisis.

The constitution grants the Senate the power to set their own rules.

If the Senate passes a rule that states: "Silence or Inaction by the Senate in regards to presidential appointments does not signify consent" then they have set a RULE as they are allowed to set by the constitution. And this RULE then precludes the possibility of the president using the loophole outlined in the linked article that "silence implies consent" 

My point is that it is incredibly easy for the Senate to set RULES that explicitly define what Advise and Consent is. If the president then tried to seat appointments that did not meet these new RULES of Advise and Consent his appointments would be in violation of the constitution--even though the constitution is vague enough to suggest that the president can define Advise and Consent however he wants to, since the constitution also says the Senate can define its own rules the Senate can of course formalize their own definitions of advise and consent. No court would side with the president.

The current problem arises because there are not explicit rules defining what Advise and Consent is within the Senate body. The way appointments and nominations works is defined by NORMS--not by formal rules--and these NORMS and TRADITIONS are obviously vulnerable to novel tactics (such as outlined in the above link) specifically because they are not codified.

It's easy to violate an unwritten Senate norm as the article suggests while keeping your violation within the bounds of being Constitutional.

It is not easy to violate a formal rule of senate procedure while keeping your violation within the bounds of being Constitutional.

For instance it is easy to violate the unwritten behavioral norm to NOT burn the American flag and still have the violation be Constitutional.

and it would be easy for the Senate to pass a RULE stating that the burning of an American flag by a sitting Senator is grounds for expulsion from the Senate body and still have that Senate rule be constitutional.

Yes, and what happens if the Clinton Administration chooses to ignore the Senate rule? Perhaps arguing that Senate rules pertain to internal procedure only, and cannot be used to define the Advice and Consent clause in the wider constitution?

(Probably attempted impeachment, but the Republicans will lack the numbers to pull that off).

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4 hours ago, Shryke said:

What makes you think it was done? It's still ongoing. What we are seeing right now is not new but simply a continued escalation of an ongoing crisis with the US government as set up by the US Constitution. 

of course it's ongoing, the rules established were weak and rather limited because even though escalations drove the senate to set rules, it didn't lead to rules that would really constrain or mandate senate behavior.  The rules passed were deliberately weak, partly because the crisis that led to the rules didn't yield much political capital and partly because the escalations that led to the new rules were not different in kind, they only differed in volume, from the norms violations democrats had recently dabbled in.

As I outlined very early on in this thread, Obama established language in his nomination of Garland that lays the foundation for additional rule changes if Garland isn't treated according the traditions and norms of Senate behavior. Likely, he only intended this to force a rules change eliminating the filibuster for supreme court nominations. However, Republicans responded with escalations of a different sort. Not only the systemic disrespect they displayed to all of the democrat parties involved in the nomination, but they also escalated to new violations such as not setting hearings, not meeting with the nominee, not allowing an up or down vote, not allowing a cloture vote and explicitly disallowing a lame duck option.

The likely response now is probably going to be far more extensive than Obama envisioned. Not only will the Senate eliminate the filibuster for supreme court nominations, they are now likely to codify into formal rules the specific requirements of advise and consent as regards to judicial nominations--probably with timelines and deadlines codified into rules as well. 

It's a long shot, but the Senate may even constrain it's own behavior by requiring a senator to submit names for judicial vacancies to the president within a year of being informed of the vacancy. This seems unlikely, as it would constrain their behavior, but it is also the only way to compel republican senators to work on filling judicial vacancies (they'll be free to nominate as many right wing judges as they want, and if new rules codify that all judges must get a hearing and up or down vote within X days of the nomination, all of those judges will also come to a vote, and some may even get through).

 

1 hour ago, Roose Boltons Pet Leech said:

Yes, and what happens if the Clinton Administration chooses to ignore the Senate rule? Perhaps arguing that Senate rules pertain to internal procedure only, and cannot be used to define the Advice and Consent clause in the wider constitution?

(Probably attempted impeachment, but the Republicans will lack the numbers to pull that off).

Why would they? The Senate obviously has authority over their own rules and advise and consent is a senate function, thus subject to senate rules, not the authority of the president.

President Trump would probably attempt an authoritarian power grab such as you outline, but I don't see a risk-averse Clinton presidency burning political capital for the sake of making the presidency more authoritarian--ultimately such an action would not advance the interests or policy preferences of a Clinton administration.

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1 minute ago, lokisnow said:

Why would they? The Senate obviously has authority over their own rules and advise and consent is a senate function, thus subject to senate rules, not the authority of the president.

The Senate sets its own rules, but there are obviously limits. It can't rename itself the House of Pancakes, for instance. Nor can it give certain states a third senator, and give those new senators voting rights.

In this case, the President might plausibly argue that *how* the Senate consents is a matter for the Senate, but *whether* the Senate has consented is a matter of external interpretation. After all, the President isn't a member of the Senate - he or she isn't bound by their rules.

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2 minutes ago, Roose Boltons Pet Leech said:

The Senate sets its own rules, but there are obviously limits. It can't rename itself the House of Pancakes, for instance. Nor can it give certain states a third senator, and give those new senators voting rights.

In this case, the President might plausibly argue that *how* the Senate consents is a matter for the Senate, but *whether* the Senate has consented is a matter of external interpretation. After all, the President isn't a member of the Senate - he or she isn't bound by their rules.

Perhaps, but if the Senate sets rules for what the Senate considers to comprise advise and consent there is really no legal ground for the president in this scenario. Such outlandish loopholes are only made possible by the absence of Senate action in regards to defining the parameters of its advise and consent function. If the president tried to exploit such a loophole it would be closed easily by a rule before it ever was litigated in the courts. So even though it's possible, it's easy to prevent. and if it did happen, action would be taken to prevent it ever happening again. However, although it is possible, it is not remotely probable. 

But it is silly to mix up the behavior of the president with the technicalities of Senate procedural function. and ultimately, as regards the last seven years of senate behavior on appointments and nominations the problems are all internal to the senate and will need to be resolved internally by the senate the president has nothing to do with it, no matter how irritated he may be by the senate's inability to address the ways their institution has been disrupted by simple tactics. 

The president is not the green lantern.

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8 hours ago, Roose Boltons Pet Leech said:

The Senate sets its own rules, but there are obviously limits. It can't rename itself the House of Pancakes, for instance. Nor can it give certain states a third senator, and give those new senators voting rights.

In this case, the President might plausibly argue that *how* the Senate consents is a matter for the Senate, but *whether* the Senate has consented is a matter of external interpretation. After all, the President isn't a member of the Senate - he or she isn't bound by their rules.

RBPL,

Where does the President get the power to say what "advise and consent" means?  The Senate can at least say that it is writing the rules for how it does what it is Constitutionally charged to do.  With the existence of the Recess Appointment it makes it very hard to argue the President can just take silence, without recess, as assent.

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Worth pointing out that the Senate has weak rules because it's a "feature" of our Madisonian system that relies on coalition building. With weak rules, each senator is a very powerful individual agent capable of holding multiple often self-contradicting coalitions with other individual agents at any given time. Think about it as a game theory problem for even a few seconds, and you'll see why slow action and gridlock are inherent in the system as designed. It empowers individual agents and makes collection Party or Leadership directed action very difficult to organize.

Strong Rules tend to be for the benefit of Party/Leadership agency over individual agency, and thus act as a constraint on the actions of the individual agents. Naturally the agents are incentivized by the system to not constrain themselves for the benefit of the Party and Leadership, so the rules are often never formalized as the individual agents prefer to leave the system of behavioral norms in place in stead. 

So If the Senate establishes rules that end blue slips and secret holds and establishes rules about what constitutes advise and consent such as: The judiciary committee will set a hearing and report out of committee every nomination within three months of the nomination being received by the Senate and every nomination will receive an up or down vote before the entire senate within three months of reporting out of committee, that constrains individual agents and empowers leadership--but the system would operate coherently. 

Effectively the senate is a city with 100 intersections but no stop lights nor stop signs, it is assumed that everyone will stop at every intersection and behave in a way that allows yourself and others to move through an intersection in an orderly  and traditional way because that's how it's always been done and the senate objects to the limitations on their freedom represented by the ideas of speed limits, stop signs, or other traffic rules being codified for a system that worked fine before.

The system I outlined would actually be quite good for senators of the opposite party of the president because they could recruit from a wider pool of candidates if there is a predictable and time-constrained outcome to the nomination process. And they would find that they could get more candidates confirmed because some will always slip through the cracks or be found non-objectionable. 

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http://www.latimes.com/business/la-fi-jobs-report-20160401-story.html

215,000 new jobs last month, unemployment ticked up a tenth of a point as long term unemployed reenter the labor market and begin looking for work again. I skimmed three articles on the jobs report and no one mentioned the all important revisions. :/

 

 

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Clinton proposes closing loophole that allows those on disability to earn less than minimum wage.

New York State not only upped its minimum wage during budget time negotiations, but also mandated paid family leave.

New York state just passed the nation's most comprehensive paid family leave policy yet, guaranteeing that all New Yorkers — men and women, employees of small and large firms, and full-time or part-time employees — can take three months of partially paid time off to take care of a new child or a sick family member without losing their jobs.

New York will join California, New Jersey, and Rhode Island in guaranteeing paid family leave. But New York's benefits will be much more generous — offering 12 weeks while California and New Jersey offer six, and Rhode Island just four. (It's still not as generous as Washington, DC's 16-week proposal, which hasn't passed yet but is looking likely to.)

 

New York's plan uses a popular model in working as insurance, funded by small paycheck contributions (about a dollar per week) from employees. Bosses won't have to chip in, nor will taxpayers.

The policy will also be phased in gradually — starting off at 8 weeks and 50 percent of pay in 2018, and reaching 12 weeks and 67 percent of pay in 2021.

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I think McConnell is extremely confident the republicans keep the senate. There's two likely flips to democrats and four republican held seats and two democrat held seats that are basically average out to 50-50, democrats basically have to flip coin six times and come up with heads on all six flips to win the senate. McConnell really likes those odds.

but I think senators like Moran are more nervous about the odds and also that by completely blocking all the process norms for the nomination they're likely to face substantive process reforms if they do lose the senate, and I think senators like Moran are more worried about the loss of that autonomy and power than Anything else. Moran is guaranteed reelection until he dies, but he won't like losing blue slips, secret holds and being forced to set hearings deadlines for every presidential appointment and losing the ability to just kill a nominee in committee by never reporting them to the floor.

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Unbelievably great article on the VA and the unholy cabal attempting to dismantle it for profit and ideology. Anyone who has had a relative that benefitted from the VA ought to read.

yes, it is a long article, but it is john Oliver level of outstanding investigative journalism.

http://www.washingtonmonthly.com/magazine/marchaprilmay_2016/features/the_va_isnt_broken_yet059847.php?page=all

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On 03/04/2016 at 4:59 PM, lokisnow said:

I think McConnell is extremely confident the republicans keep the senate. There's two likely flips to democrats and four republican held seats and two democrat held seats that are basically average out to 50-50, democrats basically have to flip coin six times and come up with heads on all six flips to win the senate. McConnell really likes those odds.

Doesn't work like that - you're not dealing with coin flips, which are entirely independent events, but rather with national trends that nudge each seat in the same direction.

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5 hours ago, Roose Boltons Pet Leech said:

Doesn't work like that - you're not dealing with coin flips, which are entirely independent events, but rather with national trends that nudge each seat in the same direction.

Exactly. If the Democrat wins the White House, that probably means there was a national trend towards Democrats in general, which will likely mean a Democratic Senate. Put Trump at the top of the GOP ticket and I think it is just possible that means a Democratic House, too.

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2 hours ago, TrackerNeil said:

Exactly. If the Democrat wins the White House, that probably means there was a national trend towards Democrats in general, which will likely mean a Democratic Senate. Put Trump at the top of the GOP ticket and I think it is just possible that means a Democratic House, too.

Wrong thread buddy :P

That said, the House shouldn't be in play, even if Trump turns out to be a disaster. But I suspect there will be a lot more overall votes cast for Democratic House candidates than Republican House candidates.

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6 hours ago, TrackerNeil said:

Exactly. If the Democrat wins the White House, that probably means there was a national trend towards Democrats in general, which will likely mean a Democratic Senate. Put Trump at the top of the GOP ticket and I think it is just possible that means a Democratic House, too.

Unfortunately democrats have already conceded the house due to inept candidate recruitment, which is more of a political comment than an election comment. 

Nearly two hundred house seats already have candidates set for the general elections and democrats are opting not to run in the seats they would have to win to flip the house if they are in a general election facing trump.

This trend of democrats not running in elections they have to win to flip the house is likely to hold true as the other 60% of the election slates are firmed up in the forthcoming weeks.

Democrats are literally not running enough candidates to make flipping the house a realistic possibility. They've decided to pursue the Debbie WassermanShultz strategy of allowing huge numbers of republicans to run unopposed.

This gives republicans an incredibly high floor in the House elections and means democrats are incapable of capitalizing on exogenous shocks in the general election such as a trump candidacy.

Since the election slates are 40% already set, democrats would have to massively overcorrect in the remaining 60% of slates to make it mathematically possible to win the house, but that means they're running candidates in districts they can't win even in a wave election. There just are not enough seats left in the house to flip the house in 2016. The math is basically the same uphill battle Sanders is facing in winning delegates from an increasingly small pool of available delegates.  

It is too late to change the house election outcome and republicans will hold this house even in a wave election backlash against Trump.

Whether or not Trump is the general election candidate does not matter because democrats are not running enough candidates to win the house.

sorry to burst your bubble, but the horse race narratives about the house are wrong, and just click bait. Democrats fundamentally do not believe in competing in order to win elections. Democrats fundamentally believe they are owed victories in elections by a simple just world. They are wrong and their embrace of this fallacy means they have already lost the house this year.

 

speaking of,here is some tasty click bait on this subject.

 

https://www.nationaljournal.com/s/621683?oref=t.co&mref=twitter_share&unlock=JERSL1NMH8TAIFUS

 

https://newrepublic.com/article/131919/retaking-house-democratic-pipe-dream

 

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http://civicskunkworks.com/the-real-lesson-from-15-americas-trickle-down-experiment-has-failed/

 

Quote

So convinced are we that there must be a cost to raising wages — a “basic trade-off, per Economics 101,” as Lane might say — that it’s never occurred to us to model the cumulative cost of keeping wages too low.

How many jobs have we lost — how much GDP have we sacrificed — by allowing the minimum wage to fall so far behind growth in productivity, median wage, and even inflation? “How low is too low?” minimum wage critics should be forced to answer.

Reich’s model actually explains the actual data collected from actual minimum wage increases over the past 80 years. It predicts what happened rather than what did not.

And if this model proves true, it demands a paradigm shift in our entire approach to this debate: For rather than reflexively asking the question of whether the benefits are worth the jobs we might lose if we raise the minimum wage, we need to start asking how many jobs might we lose if we don’t? For if raising the minimum wage would result in a cumulative net gain in employment, however small, doesn’t that necessarily mean that we have fewer jobs today than we otherwise would have had we not kept the minimum wage so low?

The biggest flaw in the standard economic models is that they never account for the increased consumer demand generated by a higher minimum wage. They correctly consider the reduction in wages due to capital-labor substitution and productivity gains. They correctly consider the reduction in consumer spending due to higher prices. And they correctly consider the reduction in jobs and GDP due to these cumulative effects.

But what these standard models have consistently failed to consider is the “income effect“: the countervailing increase in consumer spending due to higher wages. Instead, these old models — the ones on which most economists still rely — seem to assume that the money paid out in higher wages is simply pissed into a black hole or something.

 

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As the country moves forward, Mississippi has decided to go in reverse:

http://www.npr.org/sections/thetwo-way/2016/04/05/473107959/mississippi-governor-signs-religious-freedom-bill-into-law

Can these various laws that allow government employees to deny services to LGBTQ people be upheld as constitutional? 

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21 minutes ago, Tywin et al. said:

As the country moves forward, Mississippi has decided to go in reverse:

http://www.npr.org/sections/thetwo-way/2016/04/05/473107959/mississippi-governor-signs-religious-freedom-bill-into-law

Can these various laws that allow government employees to deny services to LGBTQ people be upheld as constitutional? 

No, but they're not necessarily supposed to.  They're either red meat for reelection purposes.  

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38 minutes ago, MerenthaClone said:

No, but they're not necessarily supposed to.  They're either red meat for reelection purposes.  

Well that's obvious, of course they're red meat (what was the other option you implied with "either?"). But I'm curious if they could actually withstand a court challenge. Somewhat similar laws have been upheld for the private sector. I'm wondering if there is any chance they could be for the public sector (I doubt it, but you never know, and I'm not a lawyer (although I did ace the LSAT B)))

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5 minutes ago, Tywin et al. said:

Well that's obvious, of course they're red meat (what was the other option you implied with "either?"). But I'm curious if they could actually withstand a court challenge. 

A few more Republican nominees to the Supreme Court and the answer to your question is "yes."

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