Martin J Sweet
Fri, 29 Jan 2010 15:30:00 -0800
No anger intended. I found the post that called Cantor's comments "incredibly dumb" to be a disingenuous attack, based only on what could be justified as an exceptionally narrow reading of how our branches of government operate; only if one subscribes to the School House Rock idea of government: "the legislative branch legislates, and the executive just says 'yes' or 'no.'" Don - your post was merely the last one I received in a list.
The President was faced with a choice - craft a health care bill on his own, or let Congress have at it. I tend to suspect that Obama saw what happened to Clinton and chose a different path: to cede control to the House to come up with a package. That was a political choice that appears not to have worked out as he hoped (for now). Cantor's criticism of Obama reflected a belief that the House version of the bill was "too" liberal (even more than would have come from Obama), and that had the President sent legislation to the Hill, that we would have had more conservative legislation. That does not sound like an "incredibly dumb" criticism to me. Was it cynical? Would he actually have voted for reform should the bill have been more conservative (i.e., coupled with tort reform)? I don't know - but I'm pretty sure that such conjecture is outside of the scope of expertise of a conlaw prof. ****************************** Martin J. Sweet Honors College Florida Atlantic University ****************************** From: Crowley, Donald [mailto:crow...@uidaho.edu] Sent: Friday, January 29, 2010 6:04 PM To: Martin J Sweet; Rosenthal, Lawrence; Steven Jamar Cc: Conlawprof@lists.ucla.edu Subject: RE: Outsourcing Legislation from WH to the House of Representatives I'm not sure what the point of Martin's post was. It sounds angry but about what? That someone earlier called Cantor's comments "incredibly dumb?" I didn't call it that-I just agreed that is was cynical. The specifics of the post are puzzling. I don't know that Obama "ceded" control of the legislation to the House. They just finished first. Their version was more popular (and better legislation) than the eventual Senate version. The 60 vote super majority is not a requirement. As you know the Senate has a long tradition of allowing filibusters but that privilege has been grossly abused in this Senate and essentially has made the Senate dysfunctional. The House is now in a position where it either has to accept the Senate version (because of the continual filibuster) or let it die. Thus it seems like the Senate has held the cards all along. The Republican position from the very beginning was to not accept anything that amounted to real reform of the system. Sometimes they even voted against things they had proposed. If they really believe the public opposes this then why not let it come to a vote and then the Democrats will have to live with the results of what they think is bad legislation. For the record I actually agree that Obama should have played a more active role in the process. Some aspects of the bill are redistributive and getting redistributive legislation through Congress usually takes strong Presidential leadership. Somehow I don't think this was Cantor's point. Don From: Martin J Sweet [mailto:mswe...@fau.edu] Sent: Friday, January 29, 2010 2:43 PM To: Crowley, Donald; 'Rosenthal, Lawrence'; 'Steven Jamar' Cc: Conlawprof@lists.ucla.edu Subject: RE: Outsourcing Legislation from WH to the House of Representatives It's polisci 101 that the President wears more than one hat. Con Law says "Commander in Chief" and maybe "Executive in Chief" - but polisci 101 says 1. President as head of state; 2. Chief Executive; 3. Commander in chief, chief diplomat; 4. Chief legislator; and 5. Chief of party. Um, yes, Presidents have agendas. Somewhere in the recesses of my mind come those phrases "New Deal," "Fair Deal," "Great Society," etc. I think that might have something to do with the President actually taking charge of legislation (especially in times of unified government; polisci calls "divided government" - in the original post - when different parties control the WH, S, and H). Cantor's idea merely suggests that the Obama ideal point estimation is to the right of the House ideal point - and by ceding control to the House on health care that we wound up with a proposal not acceptable to the Senate (with and ideal point to the right of the House and Obama because of the super-majority requirement). The polemics that this is "incredibly dumb" are just that. ****************************** Martin J. Sweet Honors College Florida Atlantic University ****************************** From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Crowley, Donald Sent: Friday, January 29, 2010 4:50 PM To: Rosenthal, Lawrence; Steven Jamar Cc: Conlawprof@lists.ucla.edu Subject: RE: Outsourcing Legislation from WH to the House of Representatives It is hard to know what the public knows about the health care legislation. The House bill which included a public option polled much better than the version the Senate passed. Thus Cantor's point about "outsourcing" the bill to the "left wing" agenda of the House which is supposedly outside the mainstream is pretty clearly untrue. Larry seems to implicitly notice this by acknowledging the main "deal cutting" occurred in the Senate and was an attempt to get "centrist" Democrats on board. These deals (necessary to break the Republican filibuster) made the bill worse. The last time we were here (1993) the Republican complaint was the White House tried to write the legislation instead of letting Congress do it. Now the complaint is that Obama outsourced the legislation to the House. I'm with Steve---Cantor is just engaging in cynical posturing. Don From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Rosenthal, Lawrence Sent: Friday, January 29, 2010 12:58 PM To: Steven Jamar Cc: Conlawprof@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-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Friday, January 29, 2010 12:37 PM Cc: Conlawprof@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.finkel...@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.finkel...@albanylaw.edu www.paulfinkelman.com _____ From: "Miller, Darrell (mille2di)" <mille...@ucmail.uc.edu> To: "Conlawprof@lists.ucla.edu" <Conlawprof@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: <mailto:darrell.mil...@uc.edu> darrell.mil...@uc.edu faculty page: http://www.law.uc.edu/faculty/profiles/miller.php SSRN: <http://ssrn.com/author=1107305> http://ssrn.com/author=1107305 _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
_______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.