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obvious-labyrinth-blog · 9 years ago

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Part 3: Trump’s Other Wall

Trump has been president for less than a month so we don’t have quite the same amount of information to go on as we did with Bush and Obama. Because his presidency is in its infancy, there isn’t much to look at besides his cabinet (as far as this series is concerned), but that’s okay because the entire point of this 3 part series (part 1, part 2a, part 2b) has been to eventually lead up to this moment! Now we have the tools to understand what’s happening in the Senate and the historical context of the Bush Administration and the Obama Administration, which means we’re ready to look at present-day events to see if Trump really is facing “unpresidented” obstruction.

The Claims:

“But the most notable difference already has taken place: it is once again patriotic to obstruct the workings of government! Parliamentarians unite!” - op-ed in the Milwaukee Journal Sentinel

“Democratic senators plan to aggressively target eight of Donald Trump’s Cabinet nominees in the coming weeks and are pushing to stretch their confirmation votes into March — an unprecedented break with Senate tradition.” - Washington Post

“Senate Democrats Obstruct President Trump’s Nominees” - (terrifyingly) The White House

Good Things Come to Those Who Wait?

There is one thing that is actually true - it is taking Trump longer than usual to assemble his cabinet, for a newly elected president [1, 2]. Currently, it’s taking an average of 16 days for his nominees to move from their committee meetings to the Senate floor, which is indeed longer than the 7 days it took for Bush’s first cabinet or the 11 days it took for Obama’s first cabinet [1].

But there are some things that are different about Trump and his cabinet nominees that neither Bush nor Obama faced:

1) Did He Really Win?

Trump didn’t win the popular vote - he only received 45.96% of the votes, compared to Clinton’s 48% [3, 4]. He did win the Electoral College, but why the Electoral College is (considered by some to be) an antiquated hold-over of a bygone era is a post for another time [3, 4].

There has been one other president in recent history that has won via the Electoral College but lost the popular vote: George W. Bush; he received 47.87% of the votes, while Gore received 48.38% [3]. There have only been 5 presidents in the history of the United States that lost the popular vote, including Bush and Trump [3].

Bush lost the popular vote by a margin of 0.51% and Trump lost by a margin of 2.04%, which doesn’t seem like a huge deal but that small percentage represents millions of people [3, 4].

2) The Apprentice Has a Higher Approval Rating Than the President*

*I have never watched the Apprentice in my life and I have no idea if this is factual

Trump has the lowest approval rating for a new president since at least Eisenhower [5]. Bush, even after not winning the popular vote, held an approval rating of 59% in February 2001, while Obama’s initial approval rating was 64%. Trump has hovered in the 40s, with an average of 44% [5].

I’m not a pollster or avid fan of polling to begin with (you can ask my friends and they will happily tell you that I vocally declare my dislike for polls pretty much every time they are mentioned), but there is evidence that approval ratings do matter for presidents and legislative success [6, 7].

3) The Clumsy Cabinet

I won’t mince words here: Trump’s cabinet nominees are almost universally unqualified for the positions they have been tapped for. If you’ve read the news or been on any social media site since Trump’s inauguration, you have likely heard that his cabinet is full of billionaires that might have business conflicts, people that have minimal government experience and people that don’t have the expertise necessary to run the department they’ve been nominated for but that’s not what I’m going to talk about because many of those things can apparently be contested regardless of how much evidence one presents.

Instead, I’ll put forth that many of his cabinet nominees are unqualified simply because they, their businesses, or their statements stand in direct opposition to the goals of the department they are hopeful to direct.

Environmental Protection Agency, mission statement: “to protect human health and the environment.”

Scott Pruitt, EPA Administrator (awaiting Senate floor) • The EPA accomplishes their mission by developing and enforcing regulations, giving grants, studying environmental issues, and educating people about the environment [8]. Scott Pruitt, Trump’s nominee to head the EPA and current Attorney General in Oklahoma, has sued the EPA 14 times [9, 10, 11]. Many of these lawsuits are being fought over perceived overreach by the EPA, with the complainants believing that the EPA has acted outside of its authority [10, 12]. Also, many of the complainants in these lawsuits are companies that have donated to Pruitt directly and would be forced to make potentially costly changes to waste disposal methods or renovations to facilities if EPA regulations were enforced [9, 10, 13]. When asked, Pruitt has not explicitly stated that he would recuse himself from any currently pending litigation, even if appointed as head of the EPA, instead saying he would follow the recommendations of his ethics committee [11]. Pruitt, while not an out-and-out climate change denier, has also said that “the degree and extent of human impact and what should be done about [climate change] are subject to continuing debate and dialogue” [10, 11, 12]. Addressing and reducing the effects of climate change are one of the EPA’s primary goals [31].

Department of Education, mission statement: “to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.”

Betsy DeVos, Secretary of Education (has been confirmed) • Betsy DeVos, Education Secretary confirmee, is a well-established champion of tax credits for parents to send their children to private/religious schools and charter schools, publicly-funded but privately-operated schools that can make impactful changes in communities, but can also lack oversight, decrease performance and drain funding from already struggling districts, but she hasn’t been a vocal advocate for public education [14, 15]. She was asked during her committee hearing if she could commit to not working to privatize public schools or cutting public education funding and she refused to give the requested yes or no answer, providing a vague non-answer instead [14]. She has also stated that she would support Trump if he were to repeal the Gun-Free School Zones Act and she has made statements that it should up to individual states how they choose to comply with the Individuals with Disabilities Education Act (IDEA), a federal law (which isn’t, you know, how that works)[14]. While it may be important for parents to have access to choices regarding their child’s education, an Education Secretary that doesn’t seem interested in advocating for public education as strongly as she has lobbied for privatized education is likely at odds with department goals [14, 15, 16].

Department of Labor, mission statement: “To foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.”

Andy Puzder, Secretary of Labor nominee (awaiting committee meeting) • Andy Puzder, CEO of CKE Restaurants (Carl’s Jr. and Hardees) and Secretary of Labor nominee, is critical of minimum wage increases and has a history of opposition to overtime rules and paid-leave policies, as well [9, 17, 19]. He is supportive of increased automation in the fast food industry, which is frequently cited as a threat to actual humans in the labor force [17, 18]. CKE has been the target of lawsuits alleging underpayment and has had to make back payments to employees [17, 19, 20]. Puzder has a history of undermining or explicitly working against the core values of the Labor Department, especially “promot[ing]... the welfare of the wage earner”,”improv[ing] working conditions,” and “assur[ing] work-related benefits and rights” [9, 17, 20, 21].

Department of State, mission statement: “The Department's mission is to shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere. This mission is shared with the USAID, ensuring we have a common path forward in partnership as we invest in the shared security and prosperity that will ultimately better prepare us for the challenges of tomorrow.”

Rex Tillerson, Secretary of State (has been confirmed) • Tillerson, confirmed Secretary of State, has a history of being critical of US sanctions against Russia when they stood in the way of deals brokered between Russia and the company he was CEO of before becoming Secretary of State - ExxonMobil [9, 22]. Tillerson also has an “unusually copacetic relationship with Vladimir Putin” [9]. And yes, I do mean the same Russia that is under investigation for possibly interfering in our election. The same Russia accused of war crimes in Syria by the UN. It may be difficult to tell from the mission statement alone, but the State Department oversees the international relations of the United States and also represents the United States at the UN [24]. To that end, I also mean the same Russia that is making the situation in Syria worse, resulting in a flood of Syrian refugees seeking asylum - indeed the same Syrian refugees the State Department has been trying to help (Trump’s Travel Ban notwithstanding)[9, 23, 25].

Other Nominees • Ben Carson, Department of Housing and Urban Development nominee, has had to walk back from statements he has made in the past regarding public assistance programs and fair housing initiatives, statements that were at odds with one of HUD’s primary goals - to provide quality rental homes and oversee public housing assistance programs [26, 27, 28].

And I realize that this one won’t win me any favors from Trump supporters or critics of the ACA, but Tom Price, Secretary of Health and Human Services nominees, has been a vocal opponent of the Affordable Care Act [9, 29]. HHS’s mission statement is “to enhance and protect the health and well-being of all Americans” and I would argue that stripping the access to health insurance that millions of Americans have through the Affordable Care Act is directly at odds with that mission statement (but if you’re not sold by that argument (I don’t blame you, but I had to try) his sweetheart deals may give you pause)[9, 29, 30].

And my personal favorite, Rick Perry, Department of Energy nominee, once advocated for the very same department he has now been tapped to lead to be eliminated (or he would have, if he could have remembered it)[32].

4) It’s the Principle of the Thing

Even if most of Trump’s cabinet members were not directly opposed to the goals of the departments they may one day one run, there have still been huge ethical hurdles for some candidates… mostly that they had hearings scheduled before the OGE had finished their ethics investigations [33, 34, 35]. The Office of Government Ethics is responsible for the investigations that prevent and resolve conflicts of interest, and with so many of Trump’s nominees being executives and philanthropists-cum-lobbyists, there are quite a lot of conflicts of interest, meaning an ethics investigation is highly important [33, 36].

The Unprecedented Obstruction?

As we’ve looked at with both the Bush and Obama administrations, maybe Senate Democrat’s BAD! obstruction isn’t actually all that novel. And maybe the obstruction is warranted.

Trump has a historically low approval rating and millions of people contest his win of the presidency and those millions of people are upset, which means that Democratic and Republican senators alike are receiving calls, letters, and faxes at an exhausting rate, asking them to either hold these unqualified nominees to task (or, for Republicans, at least reconsider casting their vote in favor) [38, 39, 40]. The boycotting and delaying of committee hearings has been done before, too - by Republicans. The debates and extended time on the floor has been a tactic used by both parties in recent presidencies, as previous posts have well covered. And Trump has a long way to go before he hits the average number of days it took to confirm Obama’s second cabinet (34 days)(and Obama’s approval ratings during the beginning of his second term are much closer to Trump’s approval ratings now)[1, 41].

Democratic senators throwing a wrench into the system may actually just be them doing their job. And Republican Senators calling for Senate Dems to ease up and just let cabinet nominees through may not actually be doing their’s, especially if there are ethical concerns or conflicts of interest that still need to be divested.

Oh, and those two fun vocabulary words from my last post?

kleptocracy (n, klep·toc·ra·cy) - government by those who seek chiefly status and personal gain at the expense of the governed

kakistocracy (n, kak·is·toc·ra·cy) - government by the worst people

Navigation: Part 1 - Part 2a - Part 2b - Part 3 (this!)

[1] https://docs.google.com/spreadsheets/d/1Yx1i6xEgAZCKg2-moEnqv5lO_9gKg3XqnVcminrll6E/edit#gid=0

[2] https://www.washingtonpost.com/news/the-fix/wp/2017/01/20/donald-trump-will-start-his-presidency-with-the-smallest-confirmed-cabinet-in-decades/?utm_term=.a9b9d5fa2c25

[3] https://en.wikipedia.org/wiki/United_States_presidential_elections_in_which_the_winner_lost_the_popular_vote

[4] http://www.nytimes.com/elections/results/president

[5] http://www.gallup.com/poll/203198/presidential-approval-ratings-donald-trump.aspx

[6] https://fivethirtyeight.com/features/trump-won-despite-being-unpopular-so-can-he-govern-that-way/

[7] https://hbr.org/2017/02/trumps-low-approval-numbers-matter-heres-why

[8] https://www.epa.gov/aboutepa/our-mission-and-what-we-do

[9] https://www.theatlantic.com/business/archive/2017/01/trumps-appointees-conflicts-of-interest-a-crib-sheet/512711/

[10] https://www.washingtonpost.com/news/energy-environment/wp/2016/12/07/trump-names-scott-pruitt-oklahoma-attorney-general-suing-epa-on-climate-change-to-head-the-epa/?utm_term=.a9d177ee3402

[11] http://www.npr.org/2017/01/18/510472412/epa-nominee-scott-pruitt-acknowledges-existence-of-climate-change

[12] https://www.theguardian.com/us-news/2016/dec/07/trump-scott-pruitt-environmental-protection-agency

[13] https://www.nytimes.com/2017/01/14/us/scott-pruitt-trump-epa-pick.html?_r=1&mtrref=www.theatlantic.com&gwh=9EA39F71D3681CE53B9387328E4BB687&gwt=pay

[14] http://www.politico.com/story/2017/01/betsy-devos-education-public-schools-233720

[15] https://www.nytimes.com/2016/11/23/us/politics/betsy-devos-trumps-education-pick-has-steered-money-from-public-schools.html

[16] https://www2.ed.gov/about/landing.jhtml

[17] https://www.nytimes.com/2016/12/08/us/politics/andrew-puzder-labor-secretary-trump.html

[18] http://www.businessinsider.com/self-service-kiosks-are-replacing-workers-2016-5

[19] http://www.cbsnews.com/news/andrew-puzder-donald-trumps-labor-secretary-pick/

[20] https://www.theatlantic.com/politics/archive/2017/02/president-trumps-missing-labor-secretary/515655/

[21] https://www.dol.gov/general/aboutdol/mission

[22] http://www.politifact.com/truth-o-meter/statements/2017/jan/12/rex-tillerson/tillerson-misleads-russian-sanctions-opposition/

[23] https://www.state.gov/s/d/rm/index.htm#mission

[24] https://en.wikipedia.org/wiki/United_States_Department_of_State

[25] http://www.telegraph.co.uk/news/worldnews/europe/russia/11856922/Russia-refuses-to-help-Syrian-refugees.html

[26] https://www.nytimes.com/2017/01/12/us/politics/ben-carsons-hud-housing-nominee-hearing.html

[27] http://www.latimes.com/politics/la-na-pol-carson-hud-20170112-story.html

[28] https://portal.hud.gov/hudportal/HUD?src=/about/mission

[29] http://www.politico.com/story/2017/01/tom-price-health-secretary-confirmation-hearing-233796

[30] https://www.hhs.gov/about/

[31] https://www.epa.gov/climatechange/what-epa-doing-about-climate-change

[32] http://www.latimes.com/politics/la-na-pol-trump-perry-20161213-story.html

[33] https://www.washingtonpost.com/politics/ethics-official-warns-against-confirmations-before-reviews-are-complete/2017/01/07/e85a97ee-d348-11e6-9cb0-54ab630851e8_story.html?utm_term=.d2ad4925e7d6

[34] https://www.theguardian.com/us-news/2017/jan/08/trump-cabinet-nominees-ethics-review-conflict-of-interest

[35] http://thehill.com/homenews/senate/313175-ethics-office-accuses-gop-of-rushing-trump-cabinet-confirmations

[36] https://www.oge.gov/web/oge.nsf/Mission%20and%20Responsibilities

[37] http://www.nytimes.com/2013/05/10/us/politics/republicans-block-vote-on-nominee-to-lead-epa.html

[38] http://www.politico.com/story/2017/01/betsy-devos-confirmation-senate-phone-lines-234216

[39] https://www.theatlantic.com/politics/archive/2017/02/is-betsy-devos-going-down/515346/

[40] https://www.washingtonpost.com/world/national-security/more-than-1100-law-school-professors-nationwide-oppose-sessionss-nomination-as-attorney-general/2017/01/03/dbf55750-d1cc-11e6-a783-cd3fa950f2fd_story.html?utm_term=.3c4f7dae6502

[41] http://www.gallup.com/poll/116479/barack-obama-presidential-job-approval.aspx

#obstruction #republican #democrat #senate #trump #epa #education #labor #ethics

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obvious-labyrinth-blog · 9 years ago

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Part 2(b): Obstruction... Everyone’s Doing It?

Senate Majorities - 111th - 114th Congress

111th Congress (09-10) - Democratic Senate/Democratic House 112th Congress (11-13) - Democratic Senate/Republican House 113th Congress (13-14) - Democratic Senate/Republican House 114th Congress (15-17) - Republican Senate/Republican House

The Obama Administration

First Cabinet • Obama began work on his cabinet quickly after winning the 2008 election, citing a need to act "swiftly and boldly" in the midst of an economic crisis, using vigorous vetting that some called "invasive" in the hopes that his cabinet would not face any unexpected problems… he was not so lucky [1]. Obama had many strong cabinet nominees, but he also tapped a number of nominees that either withdrew or faced extended committee hearings over one thing: taxes.

Obama's first Health and Human Services nominee, Tom Daschle, withdrew his name after it was discovered he owed $140,000 in taxes

The second HHS nominee (and eventual confirmee), Kathleen Sebelius, did not pay $7,000 in income taxes between 2005 and 2007

Timothy Geithner, Treasury nominee, faced comparable tax concerns

Hilda Solis, Labor Secretary nom, faced similar issues when her committee hearings had to be cancelled abruptly in the wake of a report that her husband had, only just the day before, settled tax liens

Bill Richardson, Obama's original pick for Secretary of Commerce, withdrew his name due to an ongoing investigation of possible involvement in trading government contracts in exchange for campaign funding and his second pick, Judd Gregg, withdrew citing ideological differences [3, 4]. Eric Holder, Attorney General nominee, faced criticism for his role in the pardoning of Marc Rich, a financier that left the country to avoid prosecution, and for his views on gun control; despite these concerns, however, he still carried strong bipartisan support and was confirmed with a vote of 75-21 [5, 6, 7]. Kathleen Sebelius faced stiff Republican opposition when she voiced her interest in Obama's government-run insurance plan and would continue to be contentious because of the role she would play in healthcare reform; she was confirmed with a vote of 65-31 [7, 8].

Due largely to the slow down caused by the tax fiasco and a number of candidates withdrawing their names, Obama's first cabinet was not complete until April 2009 - Kathleen Sebelius was the last to be confirmed on 4/28/09 [7]. Despite the set backs, the average number of days it took for his nominees to go from their initial committee hearings to confirmation on the Senate floor was only 11 days (and that includes the outliers of Solis an Sebelius, who took 46 days and 28 days respectively - without their inclusion, the average is 7 days - on par with Bush's first cabinet)[7].

Second Cabinet • Obama's second cabinet was… a different experience altogether. The average number of days it took for Obama's nominees to go from their first committee meeting to their confirmation on the Senate floor was 24 (and that's the average excluding Loretta Lynch, who waited 85 days, and Thomas Perez, who waited 91 days - with their numbers included, the overall average jumps to 34 days) [7]. The majority of nominees in Bush's first and second, as well as Obama's first, cabinet were confirmed via voice vote, but all of the nominees in Obama's second cabinet were confirmed via roll call vote, a more time consuming procedural process and one used most frequently when voting on a controversial matter [9]. Cloture was motioned, and invoked, on 5 of Obama's nominees… and those numbers make you stop and think "wait, what the hell is going on?"

This article would end up being too long if I tried to summarize each of the contested nominees, because they were almost all contentious in some way or another so I'm going to focus on the 5 nominee confirmations that resulted in cloture: Chuck Hagel, Thomas Perez, Loretta Lynch, Slyvia Burwell and Jeh Johnson [7].

Chuck Hagel, Secretary of Defense nominee, took 26 days from committee to confirmation and his nomination actually faced cloture twice - it failed the first time and passed, invoking cloture, the second time [7]. Hagel, a Republican candidate that had been a Senator himself, faced much opposition: he was accused of being an anti-Semite and anti-LGBT (rumors likely started by conservative-leaning groups that lead an oppositional media campaign against his nomination), he was criticized for his opposition to sanctions on Iran, and he was hammered with questions about Obama's role in Benghazi, despite "[having] had no role in formulating the Obama administration's defense and national security policies" at that point [10, 11, 12].

Thomas Perez was touted, by multiple sources, to be Obama's most liberal cabinet pick yet - Senator Mitch McConnell called him a "crusading ideologue" and he faced criticism for his involvement in "partisan decisions" during his time in the Justice Department's Civil Rights Division [13, 14, 15, 16]. During his time at the Civil Rights Division, Perez had "blocked partisan voting schemes, cracked down on police brutality, protected gay and lesbian students from harassment" and addressed racial profiling and Islamophobia… he was also Obama's only Latino candidate for his second cabinet… it's actually not a surprise at all that Perez's nomination was contested: he was highly qualified but many of his policies stood in direct opposition to those of Republicans [14]. He was exactly the nominee that one would have expected Senate backlash for, but that isn't why he is unique - he is unique because he was one of the 7 hotly contested nominees that resulted in the "nuclear option" being narrowly avoided [17]. Perez was allowed to be confirmed, by a vote of 54-46 (along exact party lines, a rare occurrence), as a part of a deal that was struck between Senate Democrats and Republicans to avoid the "nuclear option" [17].

Attorney General nominee Loretta Lynch's case took 85 days to get from committee to confirmation - but her story didn’t start there: it took 161 days from the time her nomination was introduced to the Senate to her final floor vote. And this all happened after the "nuclear option" had been invoked and changed Senate rules. Senate Republicans had concerns about Lynch and Obama's recently signed immigration EO, fearing she was too supportive of his order and citing the importance of an independent Justice Department [19]. But the strange thing about Loretta Lynch is that there wasn't overwhelming concern over her policies, and she was much more well liked by Republicans than the AG she would replace, Eric Holder - her appointment was simply held hostage by Senate Republicans in a effort to make sure that other matters were addressed [18, 19]. Senate GOP wanted to ensure that there would be a vote on a human trafficking bill that Senate Dems contested contained unnecessary language about abortion and the GOP staunchly refused to bring Lynch's nomination to the floor until the bill had been addressed [18, 19]. Lynch, when her nomination did finally make it to the Senate floor, was confirmed on a 56-43 vote.

Sylvia Burwell, Health and Human Services nominee, was in much the same boat as Loretta Lynch - she was well liked by both sides but contentious not because of her character or policies, but because she would taking Kathleen Sebelius' place as the leader of Obamacare [20, 21]. With the "nuclear option" now in effect, cloture was easily invoked and her nomination was confirmed with a vote of 78-17 [7]. And the same was largely true for Department of Homeland Security nominee, Jeh Johnson, he had Republican support built from his time with the Pentagon and though Senator John McCain felt that Johnson had not been properly vetted or provided solid responses, Johnson was easily confirmed due to the recently changed Senate rules [22, 23, 24].

*as a side note, I want to clarify that these five nominees were not appointed in the order I addressed them above. Hagel was confirmed in 2/2013, Perez in 7/2013, the “nuclear option” was invoked in 11/2013, Johnson was confirmed in 12/2013, Lynch in 4/2014, and Burwell in 6/2014

Recess Appointments • Obama made significantly fewer recess appointments than presidents before him; he appointed less than 40 people while Reagan had made 232 recess appointments and Clinton had made 139 [26, 27]. He faced similar procedural tactics from his 112th Congress as Bush, where Senate remained continuously in session via pro forma sessions to prevent him from making recess appointments [27, 28]. The White House argued that the Senate was not doing any legislative business during these pro forma sessions, arguing that could be defined as a "recess," and Obama said he would not "stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve" and he pushed through 3 nominees to the National Labor Relations Board anyway, which eventually resulted in a Supreme Court case over the constitutionality of the appointments [27, 28]. The Supreme Court, in a 9-0 ruling, ruled Obama's appointments void because the Senate had not truly been in recess when the appointments were made [27, 29, 30].

No Chill: The “Nuclear Option”

Executive and Judicial Nominations • Like Bush, Obama also faced a great deal of opposition to his judicial nominees. Unlike Bush, there wasn't huge pushback of his nominees for fear of stacking the bench in some kind of political way, but, similar to Loretta Lynch's nomination, it seemed like these potential appointments were often held hostage to make sure that other matters were addressed or because, as some Democratic Senators accused, "[Republicans] are trying to politicize the courts" [31, 32, 33]. The reaction was nearly identical to what had happened while Bush was in office, it was just that the parties had switched - it was now Republicans refusing to hold hearings, drawing out the committee process by withholding blue slips and debating candidates at length and Democrats voicing concern that "the stalling, the delays, the obstruction… were all about something else, some collateral issue" or that Senate Republicans were "politicking at the expense of a functional judicial system" [31, 32, 33].

There were cloture motions on 237 judicial and executive nominees that Obama put forth to the Senate during his tenure [34, 35]. Cloture was successfully invoked on 155 of those nominations, while it was rejected 14 times and withdrawn or vitiated 63 times [34, 35]. While cabinet nominations were admittedly more difficult for the Obama administration than likely any other president in history, it was the fight over judicial/executive nominees that was likely the impetus for the "nuclear option" finally being invoked in 2013 [36]. And even after the "nuclear option" was activated, cloture motions were still brought to over 150 of Obama's nominations. Strangest of all is that 215, or about 90%, of these nominees were eventually confirmed, most of them with bipartisan support… so truly, what was all the fuss about (for comparison, only 63% of Bush's cloture'd nominees were confirmed) [34, 35]?

(For an overall look at Obama's judicial nominees compared to Bush and Clinton, this is a good report.)

Obstruction: It's All Just Politics

*here is a warning that much of this section will likely be tainted with my opinion because there simply is no right answer to the following questions.

So what is obstruction?

When Bush held the White House, there were constantly calls for democrats to end their delays and they responded by saying they would cease the blockade if Republicans would listen to their concerns. And once Obama took office, republicans dug their heels in, blocked as much legislation and as many nominees as they could and said their concerns were not being addressed while democrats pleaded with them to stop, to allow the legislative branch to function properly once again. The language is, funnily, strikingly similar, even when the sides are flipped.

And really the only thing that is hugely noticeable in all the research that I've done for these articles is that the "unprecedented" deadlocks experienced during Bush and Obama's administrations have been growing steadily for a long time. Amid all the calls for sensibility and reason, it seems that our representatives are letting their partisan politics drive their behavior in Congress rather than common sense, an understanding of the law or compromise (and we're not blameless in that, we elected them).

partisan (n, par·ti·san) - a firm adherent to a party, faction, cause, or person; especially : one exhibiting blind, prejudiced, and unreasoning allegiance <political partisans who see only one side of the problem>

My own cynicism aside, however, I do think it matters how we define obstruction, and how we decide what is good obstruction and what is bad obstruction. I'm inclined to say that when the obstruction reaches levels that effectively brick the United States government, you are likely doing something wrong. But if the obstruction in question doesn't actively harm the American public*, then regardless of which side is doing it (even if it is personally annoying to your own politics), maybe it's okay?

*I know, I know - delay in the government almost always hurts real people. The debate over judiciary nominees may not seem like a huge deal, but it left nominees in limbo for months at a time and it left courts bogged down in too many cases for them to realistically handle

From the definition of obstruction alone, it's all obstruction. Some of it is definitely overreach, but from the perspective of the powers the Senate affords to the minority party, a great deal of it is just the minority using those powers effectively. One would hope that there would be a good reason for making Loretta Lynch wait 161 days to be confirmed as Obama's second AG, but who decides what a good reason is? Republicans supposedly feared the legislation they were most interested in would be dismissed or overlooked if they didn't put up a fight, and as personally irritating as their methods were, I can't say that I blame them for leveraging the powers given to them.

So obstruction… everyone really is doing it. It's the new way… only it's not really all that new.

Part 3 coming soon, with new vocabulary like kleptocracy and kakistocracy... yep, that means we’re talking Donald Trump.

Navigation - Part 1 - Part 2a - Part 2b (this!) - Part 3

[1] http://www.cnn.com/2008/POLITICS/11/25/obama.cabinet/index.html?_s=PM:POLITICS

[2] http://articles.latimes.com/2009/jan/21/nation/na-inaug-congress21

[3] http://thehill.com/blogs/congress-blog/labor/89613-president-obamas-top-10-failed-nominees-and-appointees-sen-demint

[4] http://www.cbsnews.com/news/obama-introduces-commerce-pick-locke/

[5] http://www.nytimes.com/2009/02/03/us/politics/03holder.html?_r=0

[6] http://www.cnn.com/2009/POLITICS/01/07/holder.confirmation/

[7] https://docs.google.com/spreadsheets/d/1Yx1i6xEgAZCKg2-moEnqv5lO_9gKg3XqnVcminrll6E/edit#gid=0

[8] http://articles.latimes.com/2009/apr/01/nation/na-sebelius1

[9] https://en.wikipedia.org/wiki/Voice_vote#United_States

[10] https://www.theguardian.com/world/2013/feb/14/republicans-senate-block-hagel-nomination

[11] http://www.nytimes.com/2013/02/27/us/politics/hagel-filibuster-defense-senate-confirmation.html?mtrref=www.google.com

[12] https://en.wikipedia.org/wiki/Chuck_Hagel#Criticism_of_the_nomination

[13] http://articles.baltimoresun.com/2013-07-15/news/bs-md-perez-filibuster-20130715_1_perez-confirmation-democrats

[14] http://www.motherjones.com/mojo/2013/07/obamas-new-labor-secretary-will-be-most-progressive-member-his-cabinet

[15] http://articles.latimes.com/2013/mar/10/news/la-labor-secretary-nominee-thomas-perez-20130310

[16] http://www.msnbc.com/rachel-maddow-show/the-historical-oddity-thomas-perezs

[17] http://www.politico.com/story/2013/07/senate-nuclear-option-094259

[18] http://www.cnn.com/2015/03/15/politics/mitch-mcconnell-loretta-lynch-confirmation/

[19] https://www.theatlantic.com/politics/archive/2015/03/loretta-lynchs-long-wait/387874/

[20] http://thehill.com/blogs/floor-action/senate/208389-senate-confirms-burwell-as-hhs-secretary

[21] http://www.cnn.com/2014/04/11/politics/burwell-hhs/

[22] http://articles.latimes.com/2013/dec/16/nation/la-na-dhs-johnson-20131217

[23] http://www.msnbc.com/rachel-maddow-show/more-functional-senate

[24] https://www.washingtonpost.com/politics/jeh-johnson-confirmed-as-secretary-of-homeland-security/2013/12/16/deb5d64c-669d-11e3-8b5b-a77187b716a3_story.html?utm_term=.6de019e5bd6d

[25] http://thehill.com/homenews/232854-gop-cools-on-loretta-lynch

[26] http://www.pewresearch.org/fact-tank/2014/01/13/obama-lags-his-predecessors-in-recess-appointments/

[27] https://fas.org/sgp/crs/misc/R42329.pdf

[28] http://www.cbsnews.com/news/supreme-court-weighs-obamas-recess-appointments/

[29] https://www.theatlantic.com/politics/archive/2014/06/heres-what-the-supreme-courts-recess-appointments-decision-means/373525/

[30] http://www.politico.com/story/2014/06/supreme-court-recess-appointments-108347

[31] http://www.motherjones.com/politics/2015/11/senate-republicans-block-obama-judge-nominations

[32] http://www.politico.com/story/2015/07/payback-gop-blocks-obama-judge-picks-judiciary-119743

[33] http://onlineathens.com/local-news/2012-02-15/senate-confirms-cuban-born-judge-11th-circuit

[34] https://fas.org/sgp/crs/misc/RL32878.pdf

[35] https://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm

[36] https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.fb624715b65a

#filibuster #cloture #obstruction #republican #gop #democrat #dems #senate #recess appointments #executive #obama

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obvious-labyrinth-blog · 9 years ago

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Part 2(a): Obstruction... Everyone’s Doing It?

obstructionism (n, ob·struc·tion·ism) - deliberate interference with the progress or business especially of a legislative body

In 2011, the talk was all about those “obstructionist Senate republicans” and now, in 2017, it’s all about those “obstructionist Senate democrats”... so which is it?

Simply, if they are in the minority party (which the Senate democrats are, at the moment), then they are being obstructive - it’s their right, and you could argue, their duty. Part 1 focused on the powers of the minority party in the Senate - largely powers that allow the disruption or slowing down of Senate proceedings - in other words, powers that are specifically created to obstruct.

But obstruction is more political than a simple definition. And if we want to discuss obstruction, we have to have a way to measure it and we have to have the context to understand it, so that is where we will start.

Filibusters and Why They Don’t Matter: The Rise of Cloture

People might say that the filibuster is a fine measure of obstruction in the Senate, but the filibuster is a tricky, undefined thing and as such, is difficult to qualify (or quantify); one could attempt to make the case that only long, meaningless talks on the Senate floor should be considered filibusters, but then one is leaving off the myriad other ways that filibusters, in some sense of the word, can occur - from invoking time-consuming procedural steps to withholding consent - on or off the Senate floor [1, 2]. Though many people have offered their differing perspective on how the filibuster should be defined, most definitions fall short in one way or another because a filibuster isn't so much an action as it is a matter of intent (and to that end, I personally agree with seeing it as a "refusal to allow a matter to come to a vote") [1, 2].

Filibusters may be difficult to define and track, but cloture isn't - there are plenty of ways to see how often cloture has been moved on since it became an option in the Senate back in 1917 [1, 3]. Though tempting, cloture shouldn't necessarily be confounded with the filibuster - filibusters can happen in the absence of cloture and cloture can happen in the absence of a filibuster [1]. If the filibuster is used by opponents to legislation, then cloture is the tool of the proponent - when invoked, it mandates an end to debate and almost always guarantees that the measure will face a final floor vote [1]. And though the presence of cloture alone doesn't necessarily mean the legislation/nominee was contentious, or that there were obstructionist methods at play, it is evidence of an extra step taken in the process of Senate confirmation, especially when something like a UC agreement could have been reached in its place [4].

To that end, I'm going to use cloture motions (specifically cloture motions on presidential nominees) through recent administrations to look at how the minority party has flexed their power to obstruct, delay or stop.

It’s Never That Simple: Recess Appointments

Presidents are allowed to appointment nominees, without Senate confirmation, to "vacancies that may happen during the Recess of the Senate" [5, 6]. If a president were so inclined, he could use his recess appointment power to appoint controversial nominees without Senate approval (though these recess appointments do, of course, have to be confirmed by Senate at some point before the end of the next session of Congress, but this can realistically mean a recess appointment remains in the position for up to year (or longer) without Senate confirmation) [5, 6].

Senate Majorities - 107th-110th Congress

Here’s some important context information that I’m going to cite here, so I don’t have to keep returning to it:

Bush Administration Congress Majorities

107th Congress (01-02) - Republican Senate (until June 2001), Democratic Senate until January 2003)/Republican House 108th Congress (03-04) - Republican Senate/Republican House 109th Congress (05-06)- Republican Senate/Republican House 110th Congress (07-09)- Democratic Senate (by coalition)/Democratic House

The Bush Administration

First Cabinet • Bush started his presidency with a Republican-controlled Congress and one might be tempted to think that would be an easy start but Bush's first cabinet faced its fair share of opposition. His Attorney General nominee, John Ashcroft, was viewed as an "extreme right-winger" with highly controversial views on abortion, gun control and even the National Endowment for the Arts; his committee meetings lasted over 2 weeks and, though there was a promise that no filibuster would occur once his nomination reached the Senate floor, there was an entire day of debate devoted to his nomination [7, 8]. He was confirmed to his appointment by a vote of 58-42 [10]. Gale Norton, Bush's nominee for Secretary of the Interior, was purported to be an anti-environment extremist and many Democratic Senators felt strongly that she was an unqualified choice; she was confirmed with a vote of 75-25 [9, 10]. And Bush's original pick for Secretary of Labor, Linda Chavez, was embroiled in scandal about her employment of an undocumented immigrant and withdrew her name from the running entirely [11]. Despite the disputed nominees, Bush's cabinet was fully installed by the beginning of February 2001 - John Ashcroft was the last nominee to be confirmed, on 2/1/01 - and it took an average of 7 days for his nominees to move from their initial hearings to final floor confirmation [10].

Second Cabinet • Bush's second cabinet faced an a little more backlash from the democrats that made up the Senate's minority in 2005. Condoleezza Rice, nom'd for Secretary of State, faced criticism for her advocacy for the Iraq war and the vague answers she provided in her hearings, while Alberto Gonzales, Attorney General nominee, drew intense critique for his views on prisoner interrogation techniques and torture - Rice’s case took 8 days to move from committee to Senate floor, while Gonzales took 28 [10, 12, 13]. His first nominee for the recently established Department of Homeland Security, Bernard Kerik, abruptly withdrew his name after history of his employment of an undocumented immigrant was discovered (and he was later mired in further controversy) - causing some to say that Kerik had been nominated before he had been vetted (which is not a great look for someone that is meant to be in charge of Homeland Security, of all departments) [14]. But Bush faced his biggest pushback in 2006, for his Secretary to the Interior nominee, Dirk Kempthorne - the second cabinet nominee in history to be subjected to a filibuster [15]. Kempthorne, thought to be relatively middle-of-the-road policy wise (and therefore a safe pick), was filibustered by 2 senators for his oil drilling policies [15, 16]. Cloture was invoked and Kempthorne was confirmed by voice vote. Despite the debate over these nominees, it still only took an average of 12 days for his nominees to move from their initial hearings to confirmation [10].

Recess Appointments • Bush used his executive recess appointment powers 171 times while he was in office, 95 of which resulted in eventual Senate confirmation [17]. But as his recess appointments grew more contentious, he found himself locked in an increasingly difficult battle with the Senate that culminated in the Senate refusing to recess at all, essentially eliminating his ability to make recess appointments altogether [18, 19, 20, 21]. Bush, through heavy Senate Democrat opposition, pushed through U.S. Ambassador to the U.N. nominee John Bolton in August 2005 [21]. Suspicious of Bush trying to use his executive power to appoint more contested nominees, the 110th Senate went into pro forma sessions near the end of 2007 and used them throughout 2008 to prevent Bush from making any further recess appointments until his tenure ended [22, 23].

Cooler Heads Prevail?: How the Nuclear Option Was (Almost) Avoided

Judicial Nominations • If Bush's cabinet nominees made it through the confirmation process relatively unscathed, the same cannot be said for a number of his judicial appointment nominations while he was in office [1, 26]. Though it could be contested that Bush did not start the all-out war on the horizon for judicial nominees, the Bush Administration did face a great deal of opposition for its noms throughout their 4 congresses; there were claims that he was trying to stack the federal judiciary with conservative jurists or "trying to create the most ideological bench in the history of the nation" and this is where the Senate Democrats truly flexed their minority power muscles [24, 25, 26]. Senate Democrats used minority powers and related tactics to delay hearings (or not hold them at all), withhold committee votes, and debate nominees at length [24]. Senate Republicans made statements that the Democratic obstruction was responsible for the “deterioration of the judicial confirmation process,” while Democrats voiced concern that Republicans “broke with tradition in brushing aside the objections of the nominees' home-state senators” (senatorial courtesy) and had all but brought this upon themselves [25].

As previously discussed, it can be misleading to read too much into a proposed cloture motion for a number of reasons, but as an example of the bipartisan deadlock that the Senate was experiencing over these nominees, consider the following: cloture was filed over Miguel Estrada's nomination 7 times and over Priscilla Owen's nomination 4 times… the overwhelming average is once [1]. The Senate GOP wanted these nominees confirmed badly, and Senate Dems used every opportunity to prevent appointments from happening.

In 2005, during the 109th Congress, at the arguable height of the deadlock, Senate Republicans cited the actions of Senate Democrats as obstruction and threatened to invoke the "nuclear option" [1, 26]. There was a bipartisan effort from the "Gang of 14" to find a solution other than the "nuclear option" and they ultimately agreed to drop the filibustering efforts on 3 candidates (out of the 7 contested nominees at the time) and to not block future nominees unless there were "extraordinary circumstances" [1, 24]. There were, however, still a number of blocked nominees after the "nuclear option" was avoided - time ran out for the Senate to consider contested nominees and they were returned to the White House to be re-nominated once Senate reconvened after the 2006 election period [24, 27]. After the election, Bush had lost his Republican majority in the Senate and the contested nominees that had been returned and then re-nominated lost all chance of being confirmed by a friendly Senate [24, 27]. The 110th Congress, a Democratic majority, confirmed few Bush nominees [24].

Through his entire term, cloture motions were presented on 38 Bush nominees; cloture was invoked 14 times, rejected 13 times and withdrawn or vitiated 11 times [1]. Of these 38 contested nominees, 24 were successfully confirmed by the Senate [1].

In an effort for this not to win first place for the longest/most boring thing you’ve read this week, I decided to stop here - but I’m coming back with Pt 2(b) very soon where we’re going to look at Obama’s cabinet nominations, his recess appointments and we’ll see if he fared any better than Bush when it came to other executive/judicial nominees (hint: he didn’t... he definitely didn’t).

Navigation: Part 1 - Part 2a (this!) - Part 2b - Part 3

[1] https://fas.org/sgp/crs/misc/RL32878.pdf

[2] https://www.washingtonpost.com/news/monkey-cage/wp/2014/05/15/how-we-count-senate-filibusters-and-why-it-matters/?utm_term=.0565c56a33f0

[3] https://www.senate.gov/reference/clotureCounts.htm

[4] https://www.washingtonpost.com/news/monkey-cage/wp/2013/11/12/what-senate-cloture-votes-tell-us-about-obstruction/?utm_term=.99b5230017b1

[5] https://www.senate.gov/CRSpubs/3d313cc2-9515-4533-b1f0-3f762cd09007.pdf

[6] https://en.wikipedia.org/wiki/Recess_appointment

[7] https://www.theguardian.com/world/2001/jan/14/usa.comment

[8] http://edition.cnn.com/2001/ALLPOLITICS/stories/01/31/ashcroft.debate.01/index.html

[9] http://edition.cnn.com/2001/ALLPOLITICS/stories/01/29/norton.confirmation.02/index.html

[10] https://docs.google.com/spreadsheets/d/1Yx1i6xEgAZCKg2-moEnqv5lO_9gKg3XqnVcminrll6E/edit#gid=0

[11] http://www.washingtonpost.com/wp-srv/aponline/20010109/aponline172303_000.htm

[12] http://articles.latimes.com/2005/jan/20/nation/na-cabinet20

[13] http://www.nytimes.com/2005/02/01/politics/senate-rift-deep-in-debate-over-attorney-general-nominee.html?_r=0

[14] http://www.washingtonpost.com/wp-dyn/articles/A56247-2004Dec10.html

[15] http://articles.latimes.com/2013/feb/13/news/la-pn-hagel-senate-filibuster-20130213

[16] http://www.nytimes.com/2006/04/08/washington/bushs-interior-nominee-comfort-in-consensus.html

[17] https://fas.org/sgp/crs/misc/RL33310.pdf

[18] http://www.nytimes.com/2007/11/21/washington/21recess.html

[19] http://articles.latimes.com/2002/jan/12/news/mn-22187

[20] http://www.cnn.com/2007/POLITICS/11/19/senate.reid/

[21] http://articles.latimes.com/2005/jul/30/nation/na-bolton30

[22] http://www.politico.com/blogs/politico-now/2007/12/reid-calls-for-pro-forma-sessions-clears-dozens-of-executive-appointments-004783

[23] http://www.politico.com/story/2008/05/pro-forma-sessions-block-bush-010596

[24] https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies

[25] http://www.washingtonpost.com/wp-dyn/articles/A6017-2004Jul22.html

[26] http://www.latimes.com/opinion/la-ed-judges8-2009feb08-story.html

[27] http://www.washingtonpost.com/wp-dyn/content/article/2006/11/15/AR2006111501396.html

#filibuster #cloture #obstruction #republican #democrat #senate #recess appointments #judicial #executive #bush

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obvious-labyrinth-blog · 9 years ago

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Part 1: School House Rock Lied to You

In a perfect world, passing legislative bills through the Senate would work the same way that that cute little singing bill sitting on the Capitol told us it would, but it's rarely that simple. And hey, you try working the many steps to invoke cloture into a catchy 3 minute jingle.

Powers of the Senate

The Senate, along with the House of Representatives, composes the legislative branch of the United States [1]. The Senate and the House share some of the same powers (both can propose legislation, both can conduct investigations) but the Senate alone is uniquely responsible for: impeachment trials, approval of executively proposed treaties and confirmation of executive and judicial nominees [1, 2].

How Legislation Moves Through the Senate

In a perfect world, here is a very condensed version of how most bills would move through the Senate [3, 4]:

1. The bill is drafted, introduced and then moved to the appropriate committee 2. The committee holds hearings, reviews reports and hears testimony before marking up the bill or determining if the bill needs amending. 3. The committee sends the bill back to the Senate floor. 4. If consensus is reached to hear the bill, the senators on the floor begin the process of debating and further amending the bill. 5. There is a call for a vote and the bill is passed.

It continues to the House from there, and you know the rest if you've ever watched School House Rock. But there are a lot of ways this process can change - the bill may go to more than one committee, the bill may die in committee, the motion to hear the bill on the Senate floor may be contested, or debate over amendments may threaten to take too much time and the bill may be tabled (which almost always results in the bill dying) [5].

Throughout the remainder of this post, I will mostly refer to legislature moving through Senate, but the process for confirming a presidential nominee is nearly identical.

Consent is Important

The procedural side of passing a bill through the Senate can be very time consuming - roll-call itself can take upwards of 15 minutes, depending on when legislation is introduced, senators may need to wait a number of legislative days before it can be addressed on the floor, or a senator may choose to lengthily debate a motion if they are in disagreement… this is where unanimous consent comes in [5, 7]. Unanimous consent is hugely important to things moving through the Senate in an expedited fashion [5, 6].

Unanimous consent means just that - unanimous - and if any one senator objects, the request is rejected [8]. Before a bill moves from committee to the floor, it must be approved for the floor - either by unanimous consent request or by majority agreement (which requires a formal vote) [5, 6].

Unanimous consent agreements (UC agreements) can also save a great deal of time in Senate proceedings. UC agreements, usually proposed by the majority leader or the bill's floor manager, allow senators with an interest in the bill to negotiate an agreement before the bill is on the floor, allowing for easier passage through proceedings [5, 6, 9].

UC agreements can cover many topics: the number of amendments that can be proposed after the bill is introduced, the amount of time that can be spent debating amendments, stipulations that proposed amendments be germane, or even requiring a supermajority vote for passage of the bill - all things that would normally dramatically slow down the processing of a bill, but are now agreed upon before the bill takes the floor [5, 6, 9, 10].

The Art of Procrastination: the Delay

The Senate is often unevenly split between a majority and minority party and it may seem, at face value, like the majority party has the advantage, but there are a number of balances in place that give the minority party a surprising amount of power to be leveraged [5]. A great deal of a dissenting senator or minority party's power comes from withholding their consent, meaning that unanimous consent requests have to be denied and UC agreements cannot be reached [5, 7]. Senators can also force lengthy procedural steps to occur - like roll-call, or quorum calls - or if there is a threat that a bill may die in committee, they can circumvent the committee altogether [5].

If a dissenting senator or minority party was so inclined, they could likely bring Senate functioning to a grinding halt, but the founding fathers intended for the Senate to be a "compromise between principle and pragmatism," meaning that senators may choose to employ these delaying or preventative tactics to protect bills or issues that are of great interest to them (or to ensure that bills they deem too dangerous are effectively killed), but they must also realize that these same tactics could be used against them in the future [5].

The Senate's Favorite "F" Word: the Filibuster

Of all the preventative or delaying tactics that are available in the Senate, the filibuster is the one that gains the most media attention - likely because it as absurd as it sounds to watch Ted Cruz read Green Eggs and Ham to a room of elected officials for 15 hours. The filibuster is unique to the Senate now, as it was removed from the House in 1842 [11].

When discussing legislation, each senator is permitted to speak, and for an unlimited amount of time, until they yield the floor [1, 5, 10]. A filibuster is what happens when a senator refuses to yield - the senator just talks and talks and talks, hoping to incite enough frustration that the bill is just dropped [5, 11, 12]. Any time there is a motion on a bill, from the motion to introduce the bill to a motion to amend the bill, there is a "debatable question" introduced and any time there is a "debatable question," there is room for a filibuster [5, 14].

There are a number of rules that a senator must follow once they have started a filibuster - they cannot sit down, they cannot eat, they cannot leave the Senate floor (even to go to the bathroom) - but there are also clever ways to avoid or twist these rules that make filibustering less of a monumental task [12]. Often times, the threat of a filibuster alone is enough for the bill's manager to seek a UC agreement, concede changes to a bill, or seek cloture [5, 12].

Cloture

So how do you stop a filibuster? By tabling/dropping the bill or by invoking cloture [11, 14]. Invoking cloture results in a vote wherein a supermajority can call for an end to debate [11, 14]. For most business a supermajority is 3/5ths of the senators (60, if all seats are filled), but to invoke cloture on a motion to change Senate's standing rules requires a 2/3rds vote (67, if all seats are filled) [14, 16].

Here is how cloture is invoked [14]:

1. 16 senators sign a cloture motion "to bring to a close the debate" on the bill. 2. A senator presents the cloture motion to the floor. 3. There is a 2-day waiting period. 4. After the 2-day waiting period, the Senate votes on the cloture motion. 5. The cloture motion passes if it passed by a supermajority.

After cloture has been invoked a number of new restrictions are placed on Senate procedures and the bill - the debate on the bill is limited to an additional 30 hours, proposed amendments must be germane, dilatory measures are prevented, etc [14, 15].

Cloture can be invoked before a filibuster has even started, as well - if the threat of a filibuster is present, proponents of a bill may seek cloture before any action is even taken on the bill on the floor [14].

113th Congress Changes

In 2013, the 113th Congress changed some of the filibuster/cloture rules; some of the rule changes affected only the 113th Congress, but some of the rules would have an effect on Congresses to come [11, 13]. I will only address the rules that affected future Congresses.

The first change was that a cloture motion over a motion to proceed (to allow the bill onto the Senate floor) would mature after one day rather than two and if the motion was successful, then the motion to proceed would not be considered debatable [13]. This cloture motion would need to be a bipartisan effort, presented by the majority and minority leader, as well as 7 senators from each party [13]. The intention for this rule change was that proponents of a bill may not have to seek unanimous support to introduce a bill to the floor, but could also avoid the lengthy debate process that could arise from a motion to proceed being debated [13].

The second change involved expediting the movement of a bill from completion on the Senate floor to a conference committee with the House, one of the methods used to finalize a bill before it can be sent to the executive branch [13]. The change combined the 3-part process of agreeing to a conference and appointing conference representatives into one motion, which would be subject to 2 hours of debate and then the supermajority vote would be held [13]. Then a simple majority vote could arrange for conference with no further permitted debate [13]. This, again, offered an option for moving a bill to conference without needing unanimous consent and was arranged in the hopes of increasing conference use, rather than amendment exchange with the House [13].

The Nuclear Option

On November 21, 2013, the Senate again voted to change long-term Senate rules (i.e. these rules changes would have an effect on future Congresses), but this time they did so using the "nuclear option" [17].

When the "nuclear option" is used, Senate rules can be changed by a simple majority vote rather than the 2/3rds supermajority vote that rule changes would usually necessitate [17]. This is accomplished by making an appeal on a precedent, declaring the precedent in question as unconstitutional and then moving to table the precedent - a decision that made by a simple majority vote [17].

So what rule was changed on November 21, 2013? The Senate voted 52-48 to "lower the vote threshold… for invoking cloture on most presidential nominations" - changing the threshold to the simple majority rather than the supermajority that is needed to invoke cloture normally [18, 19]. The change in rules essentially meant that presidential nominees could no longer be filibustered [20]. The rule change did not apply to Supreme Court nominees [19, 20].

(Fear not, you did not just read all of that for no reason - in Part 2 (coming soon) of this post, we’re going to look at the implications of these rule changes, why these changes were made in the first place and how some of these tactics are now being used in the 115th Congress.)

Navigation: Part 1 (this!) - Part 2a - Part 2b - Part 3

[1] https://en.wikipedia.org/wiki/United_States_Senate

[2] https://www.senate.gov/history/powers.htm

[3] https://www.senate.gov/reference/resources/pdf/legprocessflowchart.pdf

[4] http://www.carper.senate.gov/public/index.cfm/how-a-bill-becomes-a-law

[5] https://fas.org/sgp/crs/misc/RL30850.pdf

[6] https://www.congress.gov/legislative-process/senate-floor

[7] https://www.washingtonpost.com/posteverything/wp/2017/01/27/democrats-in-congress-can-block-trumps-agenda-if-they-want-to-heres-how/?utm_term=.9fa3e815ce8a

[8] https://www.senate.gov/reference/glossary_term/unanimous_consent.htm

[9] https://www.senate.gov/reference/glossary_term/unanimous_consent_agreement.htm

[10] https://fas.org/sgp/crs/misc/98-310.pdf

[11] https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate

[12] http://keithhennessey.com/2013/03/07/filibusters/

[13] https://fas.org/sgp/crs/misc/R42996.pdf

[14] https://www.senate.gov/CRSpubs/3d51be23-64f8-448e-aa14-10ef0f94b77e.pdf

[15] https://en.wikipedia.org/wiki/Cloture#United_States

[16] https://www.senate.gov/CRSpubs/be873e40-a966-4feb-9d72-cf23a93cbe46.pdf

[17] https://en.wikipedia.org/wiki/Nuclear_option

[18] https://fas.org/sgp/crs/misc/R43331.pdf

[19] https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.a32a8c25a2fb

[20] https://www.theguardian.com/world/2013/nov/21/harry-reid-senate-rules-republican-filibusters-nominations

#senate #legislation #lesgislature #filibuster #cloture #nuclear option

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obvious-labyrinth-blog · 9 years ago

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But Obama did it too!

Trump released an executive order suspending entry for immigrants from certain countries on January 27, 2016. First came the claims that the countries identified in the EO came from Obama, swiftly followed by claims that Obama had indeed done the same thing Trump was doing now.

The Claims:

"Donald Trump has received much flak from Democrats and Republicans alike for his proposal to ban Muslims from entering the U.S through executive authority. However, the past six presidents have all used the executive power to bar different classes of immigrants." - the Daily Caller [1]

"As for Barack Obama, he did indeed ban immigration from Iraq, for much longer than Trump’s order bans it from the seven listed nations, and none of the people melting down today uttered a peep of protest." - Breitbart [2]

"MORE HYPOCRISY: Obama Banned all Iraqi Refugees for 6 Months in 2011 – Liberals SAID NOTHING!" - the Gateway Pundit [3]

The Background:

The International Emergency Economic Powers Act (IEEPA) is "a United States federal law authorizing the President to regulate commerce after declaring a national emergency in response to any unusual and extraordinary threat to the United States which has a foreign source." [4] It allows the President "to block transactions and freeze assets to deal with the threat" that he has identified [4].

The Executive Orders:

Obama released 22 EOs or proclamations while he was in office that either blocked property or suspended entry into the US or did both. 13 EOs blocked the property of and barred entry into the US of certain individuals - usually individuals that had committed human rights violations or were threats to the peace and democracy in their country, depending on the EO [5-17]. 7 EOs only blocked the property of individuals (again, specific individuals that meet the criteria of the EO) [18-24]. Obama also released 2 presidential proclamations that barred entry into the US for immigrants/nonimmigrants that were subject to UN travel bans/IEEPA sanctions (the first) and those that had committed or participated in human rights violations (the second) [25, 26]. Each of the 22 EOs specified specific individuals by criteria outlined in the EO; none of these EOs or proclamations blanket barred entry into the US for an entire country.

But Iraq, tho:

In May 2011, 2 Iraqi men were arrested under the suspicion of terrorism (and later charged, tried and imprisoned) - the men had come to the United States in 2009 disguised as Iraqi refugees [27, 28, 29]. In response to this incident and other reports of terrorists gaming the refugee screening system, Obama and his administration implemented a significantly more strict method for screening refugees from Iraq [27, 28, 29, 30]. This new and more involved screening method greatly slowed down the number of accepted refugees allowed entry into the US, but at no point were they banned from entering the US [27, 28, 29]. Only one report refers to a complete halt of processing refugees, while other sources describe a tremendous slow down but never an all-out stop [27, 28, 29, 31]. The influx of refugees slowed to that of a trickle but entry into the US was never barred and processing of refugees was never halted.

(and for those looking for outrage over this dramatic slowing down, check out this Washington Post op-ed, or this article from the New Yorker.)

Fine, but what about Cuba?:

Obama recently ended the "wet foot, dry foot" immigration policy that has long been in place for Cubans seeking asylum in the US [32]. The policy allows for those fleeing Cuba and entering the US to pursue legal residency a year after their arrival [33]. Of this policy change, Obama has said, "By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries" and this change will allow for the deportation of Cubans that enter the country illegally [32]. With this change of policy, Obama is not banning Cuban immigrants, but rather treating them the same as immigrants from other countries that enter the US illegally are treated.

The Conclusion:

Obama did bar entry into the US for specific individuals (that had committed human rights violations or were a threat to peace and democracy) while he was President, but he never imposed a suspension of entry upon an entire country. Obama's administration, for a period of time, greatly reduced the number of Iraqi refugees that were allowed entry into the US, but only because new screening measures had been put into place that greatly slowed down screening agencies. Obama ended the "wet foot, dry foot" policy, which does not ban Cuban nationals from entering the country, but rather has them enter the US through the same methods other immigrants use.

[1] http://dailycaller.com/2016/06/16/the-past-six-presidents-have-all-used-executive-power-to-block-certain-classes-of-immigrants/

[2] http://www.breitbart.com/big-government/2017/01/29/trumps-immigration-pause-sober-defenses-vs-hysterical-criticism/

[3] http://www.thegatewaypundit.com/2017/01/hypocrisy-obama-banned-iraqi-refugees-6-months-2011-liberals-said-nothing/

[4] https://en.wikipedia.org/wiki/International_Emergency_Economic_Powers_Act

[5] https://obamawhitehouse.archives.gov/the-press-office/2012/04/23/executive-order-blocking-property-and-suspending-entry-united-states-cer

[6] https://obamawhitehouse.archives.gov/the-press-office/2012/05/01/executive-order-prohibiting-certain-transactions-and-suspending-entry-un

[7] https://obamawhitehouse.archives.gov/the-press-office/2012/07/11/executive-order-blocking-property-persons-threatening-peace-security-or-

[8] https://obamawhitehouse.archives.gov/the-press-office/2014/03/06/executive-order-blocking-property-certain-persons-contributing-situation

[9] https://obamawhitehouse.archives.gov/the-press-office/2014/03/17/executive-order-blocking-property-additional-persons-contributing-situat

[10] https://obamawhitehouse.archives.gov/the-press-office/2014/03/20/executive-order-blocking-property-additional-persons-contributing-situat

[11] https://obamawhitehouse.archives.gov/the-press-office/2014/04/03/executive-order-blocking-property-certain-persons-respect-south-sudan

[12] https://obamawhitehouse.archives.gov/the-press-office/2014/05/13/executive-order-blocking-property-certain-persons-contributing-conflict-

[13] https://obamawhitehouse.archives.gov/the-press-office/2014/12/19/executive-order-blocking-property-certain-persons-and-prohibiting-certai

[14] https://obamawhitehouse.archives.gov/the-press-office/2015/04/01/executive-order-blocking-property-certain-persons-engaging-significant-m

[15] https://obamawhitehouse.archives.gov/the-press-office/2015/11/23/executive-order-blocking-property-certain-persons-contributing-situation

[16] https://obamawhitehouse.archives.gov/the-press-office/2016/03/16/executive-order-blocking-property-government-north-korea-and-workers

[17] https://obamawhitehouse.archives.gov/the-press-office/2016/04/19/executive-order-blocking-property-and-suspending-entry-united-states

[18] https://obamawhitehouse.archives.gov/the-press-office/2010/08/30/executive-order-president-blocking-property-certain-persons-with-respect

[19] https://obamawhitehouse.archives.gov/the-press-office/2011/04/29/executive-order-13572-blocking-property-certain-persons-respect-human-ri

[20] https://obamawhitehouse.archives.gov/the-press-office/2011/05/18/executive-order-13573-blocking-property-senior-officials-government-syri

[21] https://obamawhitehouse.archives.gov/the-press-office/2011/07/25/executive-order-13581-blocking-property-transnational-criminal-organizat

[22] https://obamawhitehouse.archives.gov/the-press-office/2011/08/18/executive-order-13582-blocking-property-government-syria-and-prohibiting

[23] https://obamawhitehouse.archives.gov/the-press-office/2012/02/06/executive-order-blocking-property-government-iran-and-iranian-financial-

[24] https://obamawhitehouse.archives.gov/the-press-office/2012/05/16/executive-order-blocking-property-persons-threatening-peace-security-or-

[25] https://obamawhitehouse.archives.gov/the-press-office/2011/07/25/presidential-proclamation-suspension-entry-aliens-subject-united-nations

[26] https://obamawhitehouse.archives.gov/the-press-office/2011/08/04/presidential-proclamation-suspension-entry-immigrants-and-nonimmigrants-

[27] http://articles.latimes.com/2011/jul/18/nation/la-na-refugee-terror-20110719

[28] http://www.nytimes.com/2011/07/13/world/middleeast/13baghdad.html?pagewanted=all

[29] http://www.newyorker.com/news/george-packer/iraqi-refugees-a-debt-defaulted

[30] http://thelistproject.org/the-refugee-crisis/timeline-of-events/

[31] http://abcnews.go.com/Blotter/al-qaeda-kentucky-us-dozens-terrorists-country-refugees/story?id=20931131

[32] http://www.cnn.com/2017/01/12/politics/us-to-end-wet-foot-dry-foot-policy-for-cubans/

[33] https://en.wikipedia.org/wiki/Wet_feet,_dry_feet_policy

#executive order #travel ban #visa ban #muslim ban #obama banned iraqi refugees #obama #trump

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obvious-labyrinth-blog · 9 years ago

Text

Obama and the 7 Nations

Significantly less catchy than the White Stripes and their 7 Nation Army, don’t you think? On January 27, 2016, Donald Trump signed an executive order (EO) regarding refugees, setting the internet aflame with article after article about Trump’s new “Muslim Ban.” And just as quickly as liberals could tear into the EO, conservative articles cropped up making claims that we actually had Obama to thank for the ban, saying that Trump hadn’t picked the countries most affected by the ban, but that Obama had.

So... what’s the truth?

The Claims:

"Trump has enacted a harsh executive order cracking down on visitors from these countries (particularly Syrians), but his crackdown only includes those seven countries because of Obama’s policy" - Seth Frantzman [1]

"White House press secretary Sean Spicer on Sunday defended President Donald Trump’s latest executive order on immigration and refugee vetting, arguing the Obama administration originally flagged the seven “countries of particular concern.” - the Hill [2] The History:

The Immigration and Nationality Act (INA) was originally introduced in 1952 and has since been overhauled and amended a number of times; the INA stands alone as law, but it is also included within the United States Code (U.S.C.) under Title 8, which covers "aliens and nationality" [3, 4].

The Visa Waiver Program (VWP) was established in 1986 with the aim of facilitating tourism and short business trips [5]. The VWP makes traveling to and from approved countries easier because if the trip is less than 90 days, a visa does not need to be obtained [5].

The Laws:

The Visa Waiver Program Improvement and Terrorist Travel Prevention Act (HR158) restricted the use of the Visa Waiver Program for aliens who had travelled to "Iraq, Syria, or any other country or area of concern" - meaning those that wanted to enter the United States and had been to Iraq, Syria or "countries of concern" recently would need to obtain a visa through the regular immigration process [6, 7]. The bill was intended as an amendment to the INA [6].

Iran, Sudan and Syria were considered "countries of concern" due to their inclusion on the State Sponsors of Terrorism list [6, 8]. Iran, Syria and Sudan have never been removed from the list since their addition [9]. Syria was added in 1979, Iran was added in 1984 and Sudan was added in 1993 [8]. HR158 also included language that would allow the Secretary of Homeland Security a 60-day period to review and add additional countries to the list, along with language that permits an annual review [6].

HR158 was passed in the House, but never made it through the Senate [6].

The same language was then introduced as an amendment to the Consolidated Appropriations Act of 2016 (HR2029), which passed both the House and the Senate before it was signed into law by Obama on 12/18/2015 [10]. On 2/18/16, the Department of Homeland Security announced that they would include 3 more countries to the "countries of concern" after their 60-day review: Libya, Somalia and Yemen [11].

The combination of HR2029, the pre-existing Sponsors of Terrorism List and the Department of Homeland Security’s additions resulted in these countries being considered "countries of concern": Syria, Iraq, Iran, Sudan, Libya, Somalia and Yemen.

The Executive Order:

Trump's executive order (EO) does not mention any country explicitly other than Syria [12]. In section 3( c) of Trump's EO, the clause that was introduced into the INA from HR2029 is cited, saying that entry into the United States for aliens from these countries will be suspended for a 90-day period [12, 13]. Section 5( c) of Trump's EO specifically indicates that refugees from Syria will be barred from entering the United States "until such time as [Trump has] determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest" [12].

But wait:

There have been other bills passed into law that placed visa restrictions on aliens from these countries of interest. Bush signed the Enhanced Security and Visa Entry Reform Act of 2002 (HR3525) on 5/12/02 [14]. HR3525 aimed to address a number of visa and passport security issues, but also included a clause that restricted the issue of visas to "nonimmigrants who are from countries that are state sponsors of international terrorism" [14]. The language of the bill identified "Iraq, North Korea, Iran, Sudan, Cuba, Libya and Syria" as state sponsors of terrorism [15]. A number of these countries were removed from the Sponsors of Terrorism list while Bush was still in office - Iraq in 2003, libya in 2006 and North Korea in 2008 [9]. Cuba was removed from the list while Obama held office, in 2015 [9].

The Conclusion:

In part, the 7 countries that Trump's EO affects did come specifically from the Obama Administration. Iraq, Iran, Sudan, Libya and Syria had all been targeted for visa restriction by the Bush Administration with HR3525, but Iraq and Libya were removed from the Sponsors of Terrorism list while he was still in office, leaving restrictions placed on Iran, Sudan and Syria only [8, 9, 14].

While Obama's HR2029 specifically mentions both Iraq and Syria, Syria was already considered a state sponsor of terrorism [8, 9, 10]. Obama's Homeland Security Administration added Libya, Somalia and Yemen [11]. One could argue that Obama only added 4 of the 7 countries, as 3 of them were hold-over “countries of concern” from even before the Bush Jr. administration [8, 9]

Obama’s HR2029 did not bar entry to the United States for individuals from these countries, but rather made these countries unable to qualify for the VWP. Aliens from these countries could still access the United States, they would just need to go through the longer process of obtaining a visa [7]. Trump’s EO calls for a 90-day suspension of entry for aliens from these countries [12]

The language of HR2029 also allows for an annual review, which Trump could have utilized to add or remove countries from the list before releasing his EO [6, 10, 13].

[1] https://sethfrantzman.com/2017/01/28/obamas-administration-made-the-muslim-ban-possible-and-the-media-wont-tell-you/

[2] http://thehill.com/homenews/administration/316733-spicer-obama-administration-originally-flagged-7-countries

[3] https://www.uscis.gov/laws/immigration-and-nationality-act

[4] https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1952

[5] https://en.wikipedia.org/wiki/Visa_Waiver_Program

[6] https://www.congress.gov/bill/114th-congress/house-bill/158/text

[7] https://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program

[8] https://www.state.gov/j/ct/list/c14151.htm

[9] https://en.wikipedia.org/wiki/State_Sponsors_of_Terrorism

[10] https://www.congress.gov/bill/114th-congress/house-bill/2029/text

[11] https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiver-program

[12] http://www.cnn.com/2017/01/28/politics/text-of-trump-executive-order-nation-ban-refugees/index.html

[13] http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1187&num=0&edition=prelim

[14] https://www.uscis.gov/ilink/docView/PUBLAW/HTML/PUBLAW/0-0-0-24919.html

[15] http://cjonline.com/stories/051502/ter_border.shtml#.WI54zCMrL-k

#executive order #muslim ban #7 countries #visa ban #trump #obama

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