Outsourcing Legislation from WH to the House of Representatives

Sat Jan 30 17:28:38 PST 2010

If anyone is determined to defend Cantor under all circumstances, there is nothing I can say that will be persuasive.  But it is obvious that from 1789 until the early 1900s, most Presidents, most of the time, did not exercise much leadership over Congress.  Rep. Cantor seems to want the President to try to exercise leadership over Congress.

Since the time of FDR the idea of Presidential leadership has come to be accepted as the norm by most commentators.  I assume that is the view that Rep. Cantor has also come to adopt.  If I take this simple point, then I do not have call him either "dumb" or "dishonest" to disagree with him.  I even try to avoid saying that he is historically uninformed, although his position is most plausible to the historically uninformed.  I repeat that if anyone is determined to defend Cantor at all costs, then there is nothing that one can say that will be found persuasive.

Matthew Holden, Jr.

-----Original Message-----
From: Nelson Lund <nlund at gmu.edu>
To: conlawprof at lists.ucla.edu
Cc: matthewhpolsci at aol.com
Sent: Sat, Jan 30, 2010 9:42 am
Subject: Re: Outsourcing Legislation from WH to the House of Representatives

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 
dhering to the Constitution, on the basis that it shows a lack of political 
udgment?   To put it more pointedly,  if Obama gets a bill that does not comply 
ith the holding in Citizens United (or Heller, or Sullivan, or Printz, or Roe) 
houldn't he reject it, and not be denigrated for doing so, even if the bill is 
ildly popular?
________________________________________
rom: Nelson Lund [nlund at gmu.edu]
ent: Friday, January 29, 2010 5:35 PM
o: Miller, Darrell (mille2di)
c: 'Rosenthal, Lawrence'; Steven Jamar; Conlawprof at lists.ucla.edu
ubject: 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 
ake no position on that question). But it was not "incredibly dumb" and it 
ertainly 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 
airness to say that it's unfair to criticize a President for showing a lack of 
olitical judgment.
Nelson Lund
eorge Mason

iller, Darrell (mille2di) wrote:
ut what if the President stepped aside from the details of the bill precisely 
n the (perhaps naïve) belief that the House is the part of government that is 
ctually supposed to directly reflect the will of the people.    Reagan-like he 
ays “here’s my big policy goal, you in the House, with your fingers most on the 
ulse of the will of the people, go forth and do the people’s work.”  (This 
ould 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 
onsistent with Constitutional design when it shows a lack of political 
udgment?

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
ent: Friday, January 29, 2010 3:58 PM
o: Steven Jamar
c: Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
ubject: RE: Outsourcing Legislation from WH to the House of Representatives
This strikes me as quite unfair criticism of Rep. Cantor.   In context, it seems 
lear to me that his point is not that President Obama did something improper by 
eaving the crafting of the health care legislation to Congress, but that he 
ook a course of action that was politically imprudent, and which reflects 
oorly on the President’s judgment.  Surely he is correct on that point.  
ongressional support for any major piece of legislation is sure to collapse if 
t becomes sufficiently unpopular, and in that respect, if the President chose 
o embrace health care reform as his own political priority (as he did), it 
ould have been politically prudent to ensure that the bill did not become so 
aden with special interest provisions that it would become a political 
iability.  That, of course, is precisely what happened to the bill (although 
he deal-cutting actually seems to have been much more problematic in the Senate 
han the House).  In retrospect, this seems to me to be an entirely fair 
riticism of the President’s approach.
Larry Rosenthal
hapman 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
ent: Friday, January 29, 2010 12:37 PM
c: Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
ubject: 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 
ngaging in cynical campaigning (is there any other kind?) to undermine Obama.  
f Cantor were Majority Whip, I'm sure we'd find him complaining about Obama 
rying to usurp the proper constitutional function of the House by being too 
nvolved 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 
irecting it.  And some Presidents (e.g., Bush II, Lyndon Johnson) play that 
ole 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 
hat has become (and has been in the past) the norm for some politicians -- make 
oints, not policy.
Steve

n Fri, Jan 29, 2010 at 3:19 PM, Paul Finkelman <paul.finkelman at yahoo.com<mailto:paul.finkelman at yahoo.com>> 
rote:
ast time I knew the job of the House of Representatives WAS to write 
egislation.  I guess Cantor does not understand Article I of the US 
onstitution.  It is partisan, but sadly, it is also incredibly dumb
----
aul Finkelman
resident William McKinley Distinguished Professor of Law
lbany Law School
0 New Scotland Avenue
lbany, NY 12208
18-445-3386 (p)
18-445-3363 (f)
paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>

_______________________________
rom: "Miller, Darrell (mille2di)" <mille2di at ucmail.uc.edu<mailto:mille2di at ucmail.uc.edu>>
o: "Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>" 
Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>>
ent: Fri, January 29, 2010 2:43:38 PM
ubject: 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 
rom the White House to Nancy Pelosi here in this House,” which he said has 
esulted in “a bill shift and an agenda shift way to the left and outside the 
ainstream of this country.”
To me, this seems like a fairly gross exploitation of people’s ignorance of our 
ystem of divided government, and an indictment of partisan gerrymandering which 
akes this kind of statement politically resonant.
Darrell A.H. Miller
ssistant Professor of Law
niversity of Cincinnati College of Law
O Box 210040
lifton Avenue & Calhoun Street
incinnati, OH 45221-0040
: 513-556-0133
: 513-556-1236
: darrell.miller at uc.edu<mailto:darrell.miller at uc.edu>
faculty page:
ttp://www.law.uc.edu/faculty/profiles/miller.php
SSRN:
ttp://ssrn.com/author=1107305

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--
rof. Steven Jamar
oward University School of Law
ssociate Director, Institute of Intellectual Property and Social Justice 
IIPSJ) Inc.

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