Category Archives: Congress
Ahead of two days of congressional testimony, Facebook CEO Mark Zuckerberg’s prepared statement can be read here. — Joe
Here’s the blurb for Victoria Nourse’s Misreading Law, Misreading Democracy (Harvard UP, 2016):
American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.
Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.
Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.
Claims of neutrality in SCOTUS confirmation hearings have negative effects on the legitimacy of the Court as an institution
Here’s the abstract for Carolyn Shapiro’s The Language of Neutrality in Supreme Court Confirmation Hearings, Dickinson Law Review, Forthcoming:
At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials — like statutes and precedents — and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then-Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some Senators, however, they differed from answers given by other recent nominees largely in degree and tone, not in kind. Indeed, all four most recent nominees before Gorsuch — but especially Chief Justice Roberts and Justice Sotomayor — made similar claims, of which Roberts’s invocation of the neutral umpire is only the most famous.
Such forceful claims of neutrality and their attendant implication that there are necessarily right and wrong answers to difficult legal questions — answers that can be determined through deductive reasoning or by examining legal texts through the right lens — are not new, but their role and prominence in Supreme Court confirmation hearings have changed over the years. Using both qualitative and quantitative analysis, including empirical research on confirmation hearings already reported, this Article charts the history of such discussions in Supreme Court confirmation hearings from Justice Harlan’s hearing in 1955 through Justice Gorsuch’s hearing in 2017 — the period of time during which all nominees have been expected to appear before the Senate Judiciary Committee. More specifically, the Article focuses on the extent to which nominees and Senators have claimed that there are objectively correct answers to the hard questions faced by the Supreme Court or, alternatively, have acknowledged and discussed the reality that textual and historical sources often do not provide clear answers and that Supreme Court Justices must balance competing interests, precedents, and constitutional principles and apply constitutional provisions and doctrines in new and complex factual circumstances.
Specifically, the Article establishes that during the Warren court years, claims of objectivity were often made by conservative Senators, with relatively little discussion of alternative views of judging by either Senators or nominees. By the late 1980s and 1990s, however, Senators and nominees were having surprisingly candid conversations about the role of the Supreme Court, conversations that acknowledged the importance of judgment and judicial philosophy in resolving many difficult constitutional questions. Since 2000, however, nominees have largely eschewed such discussions and, along with Republican Senators, have embraced claims of objectivity and neutrality.
As the Article demonstrates, however, such claims about the Court and its work are highly inaccurate, and they may have negative effects on the legitimacy of the Court as an institution. After all, when the Court announces its decisions in difficult cases, members of the public can plainly see that different Justices both approach those cases differently and often disagree about the result in predictable ways. News media regularly refer to the “liberal” and “conservative” Justices. So there is a significant disconnect between the claims made during confirmation hearings and the actions the Justices take — and research suggests that such a disconnect can undermine public confidence in the institution. The Article closes by proposing that Senators use their questions during confirmation hearings to combat the myth that judging, especially on the Supreme Court, is necessarily about reaching objectively correct, logically deducible conclusions.
Two pending House resolutions would condemn and censure President Trump if passed. They are H.Res. 496 and H.Res. 700. From The Constitutionality of Censuring the President (Legal Sidebar 10096, Mar. 12, 2018): “While each house of Congress has authority to discipline its own Members through censure, congressional censure of the President is rare. For that reason, there seems to be a recurring question as to whether Congress has the constitutional authority to adopt such a measure at all. As discussed below, it would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” — Joe
While the reported 150-page committee report is not yet available, the Committee has published a one-page summary here. According to the summary the draft report contains 40+ initial findings that describe:
- A pattern of Russian attacks on America’s European allies;
- Russian cyberattacks on U.S. political institutions in 2015-2016 and their use of social media to sow discord;
- A lackluster pre-election response to Russian active measures;
- Concurrence with the Intelligence Community Assessment’s judgments, except with respect to Putin’s supposed preference for candidate Trump;
- We have found no evidence of collusion, coordination, or conspiracy between the Trump campaign and the Russians;
- How anti-Trump research made its way from Russian sources to the Clinton campaign; and
- Problematic contacts between senior Intelligence Community officials and the media.
From the introduction to Resolutions to Censure the President: Procedure and History (Feb. 1, 2018 R45087):
Censure is a reprimand adopted by one or both chambers of Congress against a Member of Congress, President, federal judge, or other government official. While Member censure is a disciplinary measure that is sanctioned by the Constitution (Article 1, Section 5), non-Member censure is not. Rather, it is a formal expression or “sense of” one or both houses of Congress. As such, censure resolutions targeting non-Members use a variety of statements to highlight conduct deemed by the resolutions’ sponsors to be inappropriate or unauthorized.
Resolutions that attempt to censure the President for abuse of power, ethics violations, or other behavior, are usually simple resolutions. These resolutions are not privileged for consideration in the House or Senate. They are, instead, considered under the regular parliamentary mechanisms used to process “sense of” legislation.
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law?
For an answer to the post title’s question, see Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stanford Law Review 901 (2013) and Part II, 66 Stanford Law Review ___ (2014) by Abbe R. Gluck and Lisa Schultz Bressman. Here’s the abstract for Part I:
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.
Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.
All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.
Recommended. — Joe
From the summary of Congressional Budget Resolutions: Historical Information (Nov. 16, 2015 RL30297):
The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended; 2 U.S.C. 601-688) provides for the annual adoption of a concurrent resolution on the budget each year. The congressional budget resolution represents a budget plan for the upcoming fiscal year and at least the following four fiscal years. As a concurrent resolution, it is not presented to the President for his signature and thus does not become law. Instead, when adopted by Congress, the budget resolution serves as an agreement between the House and Senate on a congressional budget plan. As such, it provides the framework for subsequent legislative action on budget matters during each congressional session.
From the introduction of The Debt Limit Since 2011 (Jan. 19, 2018 R43389):
On September 6, 2017, an agreement on the debt limit and a continuing resolution was announced between President Trump and congressional leaders. Two days later a measure (P.L. 115-56) was enacted to implement that agreement, which included a suspension of the debt limit through December 8, 2017. Once that suspension lapsed, Treasury Secretary Mnuchin invoked authorities to employ extraordinary measures. One recent estimate suggests those would last until sometime in early March and another indicated the critical date could fall between late February and late March 2018. Secretary Mnuchin reportedly asked some congressional leaders to act on the debt limit before the end of February 2018.
From Unauthorized Childhood Arrivals: Legislative Options (Sept. 14, 2017 IN10777):
In 2012, the Department of Homeland Security (DHS) began granting deferred action through the Deferred Action for Childhood Arrivals (DACA) program to certain individuals without lawful immigration status who had arrived in the United States as children and met other requirements. The requirements included initial entry into the United States before age 16, continuous U.S. residence since June 15, 2007, and being under age 31 as of June 15, 2012. Deferred action provides protection against removal from the United States. Individuals granted deferred action also may receive work authorization. Initial grants of deferred action under DACA were for two years and could be renewed in two-year increments. As of March 31, 2017, DHS had approved 787,580 initial requests for DACA from applicants residing in all 50 states, the District of Columbia, and several U.S. territories.
On September 5, 2017, the Trump Administration announced plans to terminate the DACA program. In a memorandum issued the same day, DHS explained that DACA would be phased out and that beneficiaries whose grants of deferred action were set to expire after March 5, 2018, would not be able to request a renewal. As a result, under the Administration’s plan, a beneficiary whose period of deferred action expires after March 5, 2018, will lose DACA protection on the expiration date.
From the CRS report, The Debt Limit Since 2011 (Jan. 19, 2018 R43389): “On September 6, 2017, an agreement on the debt limit and a continuing resolution was announced between President Trump and congressional leaders. Two days later a measure (P.L. 115-56) was enacted to implement that agreement, which included a suspension of the debt limit through December 8, 2017. Once that suspension lapsed, Treasury Secretary Mnuchin invoked authorities to employ extraordinary measures. One recent estimate suggests those would last until sometime in early March and another indicated the critical date could fall between late February and late March 2018. Secretary Mnuchin reportedly asked some congressional leaders to act on the debt limit before the end of February 2018.” — Joe
Membership of the 115th Congress: A Profile (CRS R44762 Jan. 17, 2018) “presents a profile of the membership of the 115th Congress (2017-2018) as of January 3, 2018. Statistical information is included on selected characteristics of Members, including data on party affiliation, average age, occupation, education, length of congressional service, religious affiliation, gender, ethnicity, foreign births, and military service.” — Joe
H.Res. 496 “censures and condemns President Trump for his inadequate response to the violence in Charlottesville, Virginia, on August 12, 2017, for his failure to condemn the White supremacist groups responsible for actions of domestic terrorism, for asserting that “both sides” were to blame and excusing the violent behavior of participants in the Unite the Right rally, and for employing people with ties to White supremacist movements in the White House” and “urges President Trump to fire all White House advisors who have urged him to cater to the White supremacist movement.” Introduced on Aug. 18, 2017, H.Res. 496 now has 134 cosponsors, all Democrats. Here’s the text. — Joe
Simpson is the co-founder of the opposition research firm Fusion GPC, the firm associated with the Steele dossier. Here’s the text. Recommended. — Joe
Censure of the President by the Congress (December 8, 1998 98-843): “Exploring a possible compromise between an impeachment and taking no congressional action, certain Members of Congress and congressional commentators have suggested a congressional “censure” of the President to express the Congress’ disapproval of the President’s conduct which has been the subject of an ongoing independent counsel investigation. This report provides an overview and discussion of the legal basis and congressional precedents regarding a congressional “censure” of the President.”
Congressional Consideration of Resolutions to “Censure” Executive Branch Officials (September 14, 2017 IN10774): “Over the history of the federal Congress, Members have proposed resolutions to formally express the House or Senate’s censure, disapproval, loss of confidence, or condemnation of the President or other executive branch official or their actions. This Insight summarizes the parliamentary procedures the House and Senate might use to consider a resolution to censure or condemn an executive branch official and provides links to additional reading material on the subject.
Two Types of “Censure” Resolutions
An important distinction should be made between two types of “censure” resolutions: (1) resolutions expressing the sense of the House or Senate that the behavior or actions of an executive branch official should be condemned or censured and (2) resolutions that censure a Member of Congress for “disorderly behavior,” including ethical violations.
Resolutions that censure officials of the executive branch for abuse of power or inappropriate behavior, including ethical violations, are usually simple resolutions of the House or Senate. Such resolutions, however, are distinct in an important way from the simple resolutions by which either chamber may censure one of its own Members, even though the reasons for censure may be similar. Article I, Section 5, of the Constitution grants each chamber the power to discipline its own members, and resolutions censuring a Senator or Representative are based on this power. Resolutions censuring an official of another branch, on the other hand, are merely expressions of the sense of the House or the Senate about the conduct of an individual over whom Congress has no disciplinary authority (except through impeachment). Consequently, both houses treat these two types of “censure” resolutions very differently in a parliamentary sense. Resolutions of either type, however, have been rare.”
Also, Resolutions Censuring the President: History and Context, 1st-114th Congresses (September 14, 2017 IN10775). — Joe
Introduction to the Legislative Process in the U.S. Congress ( Jan. 10, 2018 R42843) “introduces the main steps through which a bill (or other item of business) may travel in the legislative process—from introduction to committee and floor consideration to possible presidential consideration. However, the process by which a bill can become law is rarely predictable and can vary significantly from bill to bill. In fact, for many bills, the process will not follow the sequence of congressional stages that are often understood to make up the legislative process. This report presents a look at each of the common stages through which a bill may move, but complications and variations abound in practice.” — Joe
From the CRS report, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017 (Nov. 9, 2017 R40879):
A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.
Although Representatives of both political parties have utilized resolutions of inquiry, in recent Congresses, such resolutions have overwhelmingly become a tool of the minority party in the House. This development has led some to question whether resolutions of inquiry are being used primarily for partisan gain or are unduly increasing the workload of certain House committees. Others have attributed the increase to a frustration among minority party Members over their inability to readily obtain information from the executive branch.
Available data suggest that 28% of the time, a resolution of inquiry has resulted in the production of information to the House. In half of the cases examined here, however, it is simply unknown, unclear, or in dispute whether the resolution of inquiry produced any of the requested information, a fact which might suggest the need for additional investigation of the efficacy of this parliamentary oversight tool by policymakers.
Legal doctrines condemning the extortion of sexual favors as a condition of employment or job advancement and other sexually offensive workplace behaviors resulting in a “hostile environment” have evolved from judicial decisions under Title VII of the 1964 Civil Rights Act and other federal equal employment opportunity laws. The earlier judicial focus on economic detriment or quid pro quo harassment — that is, making submission to sexual demands a condition of job benefits — has largely given way to Title VII claims alleging harassment that creates an “intimidating, hostile, or offensive environment.”
One such hostile work environment for women is the halls of Congress. For example, in 2006, Republican Rep. Mark Foley of Florida resigned after being accused of sexually harassing teenagers who served as pages. In 2010, Democratic Rep. Eric Massa of New York resigned after aides accused him of making unwanted sexual overtures. In 2015, GOP Rep. Blake Farenthold of Texas settled a lawsuit brought by a former aide who’d accused him of sexual harassment. Affairs with aides, meanwhile, led to the resignations of two other Republicans, Rep. Mark Souder of Indiana, in 2010, and Sen. John Ensign of Nevada, in 2011. In a 2016 survey by Congressional Quarterly, four out of 10 women reported that they saw sexual harassment as a problem in Congress while one in six had personally been victimized.
In 1995, Congress enacted The Congressional Accountability Act (CAA) aimed at ensuring its staffers enjoy the same workplace rights as those in the private sector. Sexual misconduct claims of violation of the CAA must go through a mandatory, multi-step dispute resolution process supervised by the Office of Compliance. All employees must follow established dispute resolution procedures in order to process their claims under the CAA.
The process starts with a 30-day cooling-off period where the parties continue going to work while being counseled about workplace rights. Then there would be a 15-day waiting period during which to decide whether to bring this to mediation. If the accuser chose mediation, they would be required to sign a non-disclosure agreement. Mediation would last for 30 more days. When that period ended, there would be 30 more days for a “cooling-off” period before a worker could file a formal complaint. For details, see Dispute Resolution Process – Filing a Claim on the Office of Compliance website.
Additional resources include a CAA FAQ, CAA Handbook and Office of Compliance rules and procedures. Here is the list of annual settlements of all CAA claims, not just sexual harassment ones, by year with total annual settlement amounts for all workplace disputes. — Joe