Outsourcing Legislation from WH to the House of Representatives

Fri Jan 29 15:55:03 PST 2010

I don't think it is that novel.   Why should a President be criticized for adhering to the Constitution, on the basis that it shows a lack of political judgment?   To put it more pointedly,  if Obama gets a bill that does not comply with the holding in Citizens United (or Heller, or Sullivan, or Printz, or Roe) shouldn't he reject it, and not be denigrated for doing so, even if the bill is wildly popular?

________________________________________
From: Nelson Lund [nlund at gmu.edu]
Sent: Friday, January 29, 2010 5:35 PM
To: Miller, Darrell (mille2di)
Cc: 'Rosenthal, Lawrence'; Steven Jamar; Conlawprof at lists.ucla.edu
Subject: Re: Outsourcing Legislation from WH to the House of Representatives

As I said, Rep. Cantor's criticism of the President may be right or wrong (I take no position on that question). But it was not "incredibly dumb" and it certainly need not have reflected some risible ignorance of the Constitution.

With respect to the last point, it would seem to require a novel notion of fairness to say that it's unfair to criticize a President for showing a lack of political judgment.

Nelson Lund
George Mason

Miller, Darrell (mille2di) wrote:
But what if the President stepped aside from the details of the bill precisely in the (perhaps naïve) belief that the House is the part of government that is actually supposed to directly reflect the will of the people.    Reagan-like he says “here’s my big policy goal, you in the House, with your fingers most on the pulse of the will of the people, go forth and do the people’s work.”  (This would seem to me to be close to what Article II requires in terms of “recommendations”, as Professor Lund has indicated).

More broadly, is it fair to criticize the President for acting in a manner consistent with Constitutional design when it shows a lack of political judgment?

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
Sent: Friday, January 29, 2010 3:58 PM
To: Steven Jamar
Cc: Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
Subject: RE: Outsourcing Legislation from WH to the House of Representatives

This strikes me as quite unfair criticism of Rep. Cantor.   In context, it seems clear to me that his point is not that President Obama did something improper by leaving the crafting of the health care legislation to Congress, but that he took a course of action that was politically imprudent, and which reflects poorly on the President’s judgment.  Surely he is correct on that point.  Congressional support for any major piece of legislation is sure to collapse if it becomes sufficiently unpopular, and in that respect, if the President chose to embrace health care reform as his own political priority (as he did), it would have been politically prudent to ensure that the bill did not become so laden with special interest provisions that it would become a political liability.  That, of course, is precisely what happened to the bill (although the deal-cutting actually seems to have been much more problematic in the Senate than the House).  In retrospect, this seems to me to be an entirely fair criticism of the President’s approach.

Larry Rosenthal
Chapman University School of Law

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, January 29, 2010 12:37 PM
Cc: Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
Subject: Re: Outsourcing Legislation from WH to the House of Representatives

Paul,

I'm sure Cantor knows -- and that Darrell's point is correct -- Cantor is engaging in cynical campaigning (is there any other kind?) to undermine Obama.  If Cantor were Majority Whip, I'm sure we'd find him complaining about Obama trying to usurp the proper constitutional function of the House by being too involved in the legislation process.

It is just substantively nonsense, cynically done for political gain.

Of course the President has a huge role to play in legislation -- including directing it.  And some Presidents (e.g., Bush II, Lyndon Johnson) play that role much more vigorously than others (Eisenhower, Carter, even Reagan).

No.  He understands what he is saying, why he is saying it, and is clearly doing what has become (and has been in the past) the norm for some politicians -- make points, not policy.

Steve

On Fri, Jan 29, 2010 at 3:19 PM, Paul Finkelman <paul.finkelman at yahoo.com<mailto:paul.finkelman at yahoo.com>> wrote:
Last time I knew the job of the House of Representatives WAS to write legislation.  I guess Cantor does not understand Article I of the US Constitution.  It is partisan, but sadly, it is also incredibly dumb

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>

www.paulfinkelman.com<http://www.paulfinkelman.com>

________________________________
From: "Miller, Darrell (mille2di)" <mille2di at ucmail.uc.edu<mailto:mille2di at ucmail.uc.edu>>
To: "Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>" <Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>>
Sent: Fri, January 29, 2010 2:43:38 PM
Subject: Outsourcing Legislation from WH to the House of Representatives

>From Politico, full link here: http://www.politico.com/news/stories/0110/32192_Page2.html

Cantor criticized Obama for last year’s “outsourcing of the legislative activity from the White House to Nancy Pelosi here in this House,” which he said has resulted in “a bill shift and an agenda shift way to the left and outside the mainstream of this country.”

To me, this seems like a fairly gross exploitation of people’s ignorance of our system of divided government, and an indictment of partisan gerrymandering which makes this kind of statement politically resonant.

Darrell A.H. Miller
Assistant Professor of Law
University of Cincinnati College of Law
PO Box 210040
Clifton Avenue & Calhoun Street
Cincinnati, OH 45221-0040
v: 513-556-0133
f: 513-556-1236
e: darrell.miller at uc.edu<mailto:darrell.miller at uc.edu>

faculty page:
http://www.law.uc.edu/faculty/profiles/miller.php

SSRN:
http://ssrn.com/author=1107305

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Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.

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