Outsourcing Legislation from WH to the House of Representatives

Sat Jan 30 07:42:14 PST 2010

Contrary to what text? The text contains an express mandate to exercise 
leadership, commanding that the President "/shall/ from time to time 
recommend to their [i.e. Congress'] Consideration such Measures as he 
shall judge necessary and expedient."

I certainly wouldn’t interpret this to mean that Obama violated the 
Constitution by failing to make a detailed legislative proposal. But to 
suggest that he would have violated the Constitution by making such a 
proposal is untenable.

Nelson Lund
George Mason

matthewhpolsci at aol.com wrote:
>
> Paul S. Reinsch was an early (circa 1900-1920s) political science 
> writer on legislative processes.  I recall (subject to check) that he 
> edited a reader on government in which one of the articles was by a 
> United States senator who argued forcefully that the President had no 
> right to send draft legislation to Congress.
>  
> The idea of "Presidential leadership of Congress" had not yet become 
> part of political science analysis and journalistic common sense.  
> Should we just give Cantor credit and presume that he, being educated 
> in the world redefined by FDR, et. seq. assumes, contrary to history 
> and text,  that "Presidential leadership" is the norm and the mandate?
>  
> Matthew Holden, Jr.
>
>
> -----Original Message-----
> From: Miller, Darrell (mille2di) <mille2di at ucmail.uc.edu>
> To: Nelson Lund <nlund at gmu.edu>
> Cc: 'Rosenthal, Lawrence' <rosentha at chapman.edu>; 
> Conlawprof at lists.ucla.edu <Conlawprof at lists.ucla.edu>
> Sent: Fri, Jan 29, 2010 5:55 pm
> Subject: RE: Outsourcing Legislation from WH to the House of 
> Representatives
>
> 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 <mailto: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 <mailto: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 <mailto: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><mailto: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 <mailto: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><mailto: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><mailto: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><mailto:paul.finkelman at albanylaw.edu <mailto:paul.finkelman at albanylaw.edu?>>
>
> www.paulfinkelman.com<http://www.paulfinkelman.com <http://www.paulfinkelman.com%3chttp//www.paulfinkelman.com>>
>
>
> ________________________________
> From: "Miller, Darrell (mille2di)" <mille2di at ucmail.uc.edu <mailto:mille2di at ucmail.uc.edu><mailto:mille2di at ucmail.uc.edu <mailto:mille2di at ucmail.uc.edu?>>>
> To: "Conlawprof at lists.ucla.edu <mailto:Conlawprof at lists.ucla.edu><mailto:Conlawprof at lists.ucla.edu>" <mailto:Conlawprof at lists.ucla.edu%3E%22?> 
> <Conlawprof at lists.ucla.edu <mailto:Conlawprof at lists.ucla.edu><mailto: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><mailto: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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