Author Topic: The Trump Presidency  (Read 399066 times)

Offline JayUtah

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Re: The Trump Presidency
« Reply #120 on: February 23, 2017, 12:18:24 PM »
So no law that prevents industry from polluting rivers can ever be implemented in the future? That's ridiculous.

We have the principle that no Parliament can bind future Parliaments.

And in like manner no Congress can bind a future Congress.  However the measure that was overruled this week was not a law, but an executive rule.  The law still stands, but at present relies on the enforceable detail that is provided in rules prior to Obama's term.  This is common in American lawmaking.  Laws are written in general language.  The Congress relies upon the agencies and offices of the executive to implement the law in terms of rules that can be practically enforced and argued before a court in terms of evidence.  These rules are themselves the product of extensive scientific study, deliberation, hearing, and debate.  To explain this in terms familiar to English style parliamentary practice, it is roughly analogous to delegated legislation as opposed to primary legislation.  Nearly every bill in Congress delegates power to an office of the executive, which has previously been given authority by statute, to make and enforce rules consistent with the language of the bill.  Thus every bill in Congress is, to a certain extent, a case of delegated legislation.  The body of rules made by means of this delegated power is the Code of Federal Regulations (CFR) and it is de facto law in the United States.

The normal oversight that Congress retains in this situation is generally deemed sufficient.  Each office of the Executive (cf. the Crown) that has been granted statutory authority to make and enforce rules is answerable to a committee of the Congress, and ultimately to Congress itself.  The relevant committee can, and frequently does, call before it the officers of the executive to hold them accountable for their rulemaking and enforcement (or lack thereof) and has the power, through legislation, to compel obedience on specific points.  But the entire system of delegated authority is, in the American system as in the English system, meant to relieve Congress or Parliament from legislating in fine, from wading through myriad technical details, and from consideration of informal or minor changes.  Hence it works best when the executive is staffed with competent conscientious people and left to its own devices.

The law 30 USC 1211 authorizes the creation of an office of the executive whose job is to make and enforce rules pursuant to the Surface Mining Control and Reclamation Act of 1977.  The Act itself contains such vague language as, "(c) assure that surface mining operations are not conducted where reclamation as required by this chapter is not feasible;  (d) assure that surface coal mining operations are so conducted as to protect the environment;  (e) assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations[.]"  Questions such as feasibility under (c), the specific details alluded to in (d), and what precisely constitutes "adequate procedures" and "contemporaneous[]" under (e) are what is delegated to the executive to determine, what forms the basis of the pertinent rules in CFR (in this case large portions of CFR Parts 700, 701, 773, 774, 777, and 827), and what delegated answers were wiped away this week.  Specifically, those parts of the CFR existed before Obama took office, but were substantially revised during his term to interpret 30 USC Subchapter 25 (the relevant law) for enforcement purposes.  Those revisions were eliminated by Congress, thus the relevant parts of CFR revert back to their unrevised form.

This Congress may not bind a future Congress.  But it may bind this and future Presidents, and because the Congressional Review Act specifically (CRA) affects powers ordinarily belonging to the Congress but delegated to the Executive for practical purposes, it may indeed place longstanding restrictions on how that delegated power may be wielded by any officer of the executive as long as the law remains in force.  In this case the Act prevents the executive from attempting to establish the rule overturned under the provisions of the CRA in "substantially the same form."  It also enjoins any court from reviewing the Act of Congress that overturned the rule.  (The judiciary in the United States receives its subject-matter jurisdiction from Congress.)  But because no Congress can bind a present or future Congress, a "substantially" similar rule could be allowed by act of Congress, as you suggest.  That is, in 2018 when a new Congress is seated, they can adopt a measure specifically to allow the clean-water rule enacted under President Obama and overturned by Congress and President Trump to be reinstated in the CFR in its pristine form.  But it must be a specific law, specifically aimed at the individual rules that were overturned.  And Trump will simply veto that act of Congress.  Or conversely, Congress could substantially revise the law itself -- 30 USC 1201 et seq.  This would compel the executive to revise its rules to be consistent with the changes in the law, and that would negate the specific restrictions prohibited by the Congressional Review Act.  But this is simply not likely to happen in any conceivable future.  Hence my hyperbolic "for all time."  As long as 30 USC subchapter 25 exists substantially in its present form and as long as the CRA was used to overturn Obama's rules, it may not be enforced in the form provided by the Obama administration.

And you're right; the CRA is ridiculous.  Which is to say, a routine application of it in this way is ridiculous precisely because it is so uncommonly draconian.  It was meant to corral, in the most invasive and strong terms, an egregiously misbehaving executive.  It is meant as a measure of last resort, when all other methods that control the rulemaking power delegated to the executive have failed.  This is why it has only succeeded once before in its entire history, and only been attempted a handful of times.  And yes, there are other measure to revise and eliminate federal rules.  It happens all the time, but it is a rather tedious and onerous process because the public accountability fo repealing or revising a rule is and ought to be as careful as the process that established the rule in the first place.  The Republican party was unlikely to succeed in any short order at overturning the relevant rules by the accepted procedure.  Hence it employed its nuclear option.
« Last Edit: February 23, 2017, 12:28:11 PM by JayUtah »
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Offline JayUtah

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Re: The Trump Presidency
« Reply #121 on: February 23, 2017, 12:19:15 PM »
Side note, happy belated [birthday], Jay.  Are you not on Facebook anymore?

No, I no longer use Facebook, but thanks for the good wishes.
"Facts are stubborn things." --John Adams

Offline JayUtah

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Re: The Trump Presidency
« Reply #122 on: February 23, 2017, 12:50:19 PM »
Even the Constitution can be amended. This doesn't sound right. Do you mean those rules can't be introduced under the current law but Congress could pass a new law?

In short, yes.  Congress can pass a new law.  That law can either revisit the issue of surface mining and water cleanliness de novo, substantially revise the existing law, or -- as I write above -- dictate specifically that a certain rule rescinded under the Congressional Review Act of 1996 may be reinstated.  It just is very unlikely to do so.  The United States has its own version of the primacy of the legislative.  Nearly every restriction imposed on the other branches may be excused by an act of Congress.  The much ballyhooed Emoluments Clause of the U.S. Constitution says the President can receive gifts from foreign powers if Congress approves.  So if Vladimir Putin wants to buy Donald Trump a vacation dacha on the Black Sea, Congress merely has to pass a resolution approving it.  It just doesn't do such things very often.

The power of the Code of Federal Regulations cannot be overestimated.  As I write above, it's our de facto law for most regulated activities.  As a maker of technology I'm subject to, for example, the body of Federal Aviation Regulations, title 14 of the CFR, and export restrictions, 15 CFR.  The U.S. Departments of Transportation and of Commerce, respectively, contain the offices that make and enforce those rules.  They receive their authority to do so from Congress, which exercises general control over them and passes general legislation both empowering and funding the activities of these offices and also laying down the general laws these offices are to give enforceable teeth to by their activities. To make an airworthy aircraft, I have to turn to various parts of 14 CFR that govern in precise terms what constitutes the concept of airworthiness.  These criteria change from time to time.  Congress doesn't have to act on each change; it is concerned only with the mandate that aircraft produced and flown in the United States be suitably airworthy.

The act of Congress in 1977 that mandated surface mining be conducted with proper care toward reclamation of the mining sites and preservation of the cleanliness of water created an office of the executive to make and enforce specific rules.   Since 1977 those rules have been revised many times, but most recently not since 2001.  In 2016 we have the power to revise what can be enforced as "feasible" or "adequate," since those depend on advances in technology which have come about since 2001.  Coal mining in the U.S. is held only to the standards of "adequate" and "feasible" that presumed 2001 levels of technology.  As we become more adept, we raise the bar for what constitutes responsible mineral extraction, just as we revise what constitutes "airworthy" based on what we can reasonably attain in the industry.

Congress largely doesn't care about these things.  It writes laws generally so that only minimal revision are necessary and the day-to-day revisions are handled in the executive through hearings, petitions, and votes in executive commissions.  Congress, in delegating this power to the executive offices, mandates in each case what accountability each office must have to the public and what sorts of procedures it must follow when making rules.
« Last Edit: February 23, 2017, 01:16:33 PM by JayUtah »
"Facts are stubborn things." --John Adams

Offline JayUtah

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Re: The Trump Presidency
« Reply #123 on: February 23, 2017, 01:13:46 PM »
I've been watching the news reports of the anger being expressed at GOP town halls, and it is reassuring to me that people are speaking up and resisting. But I do worry that it will lose steam before the next election.

It didn't quell the Tea Party uprising that continued until the 2010 elections in which a number of well-seated Democrats lost.  The Tea Party movement began precisely as a grass-roots opposition to the situation after the 2008 election.  And we remember town-hall meetings held by Democratic incumbents that were every bit as raucous as these today, largely due to Tea Party involvement.  I think in the next two years we're going to see something in the Democratic party similar to the Tea Party -- some sort of grass-roots backlash against the party establishment that will affect the 2018 midterm elections and may affect both major parties.

I have to say it's disappointing that the widespread and vocal opposition to so many GOP officials in their constituencies is being dismissed as mercenary opposition rather than genuine feelings.  Leave it to that party to foment conspiracy theories to explain away opposition.

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The "party first, country second" attitude is so frustrating to me. It's not just limited to the Republicans, or even the United States...

Agreed.  While we can cite egregious examples in both parties, this is an increasingly frustrating problem all around.  And it results in ineffective government.  I can remember when partisanship was still a thing, but the overriding need was to progress with good government.  The Tea Party seems to have removed the aspect of government in which compromises were reached across party lines.  Today there is simply no effective bipartisanship.

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I was skeptical that the "checks and balances" were going to be effective when Republicans  basically control everything, so it was reassuring that the courts blocked the travel ban.

Indeed, and it's not as if the Republicans didn't take the Democrat executive to court in order to seek to have its executive orders overturned.  They were even successful a few times.  So complaining that the executive is reactionary or that the President's decrees are unreviewable is disingenuous.

As to checks and balances, they were formulated long before the two-party situation developed.  The Framers consider partisanship, but envisioned that no party would be able to gain ascendency and that the normal checks and balances would suffice.  Nor did they foresee a system in which two parties, together holding near unanimous constituency, would be able to so effectively wield government power against each other in a partisan way.  They envisioned a system more akin to the coalitions in some of the modern European democracies.  The checks and balances simply can't cope with a two-party stronghold unless the parties agree that government is more important.

But it looks like Chaffetz may be in real danger of losing his seat.  So we may see some movement.

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The only way a GOP Congress would impeach President Trump is if he were to do something so treasonous as to make it inevitable political suicide to continue to support him.

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It sure sounds like if the intelligence agencies keep digging they will find something treasonous.

That's one thing we hear from former administration officials of both parties:  don't cross the intelligence community.  Apparently everyone there is a little bit J. Edgar Hoover at heart.  That's given rise to Deep State conspiracy theories, of course.  Most other occupants of the White House seem to have enough political savvy to at least gently disagree with the intelligence-gatherers when they disagree.  But Trump seems to be a bull in a china shop, and he might be making the sort of enemy he's not accustomed to dealing with.
"Facts are stubborn things." --John Adams

Offline Glom

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Re: The Trump Presidency
« Reply #124 on: February 24, 2017, 05:13:15 AM »
Side note, happy belated [birthday], Jay.  Are you not on Facebook anymore?

No, I no longer use Facebook, but thanks for the good wishes.
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Offline Glom

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Re: The Trump Presidency
« Reply #125 on: February 25, 2017, 09:08:23 AM »
Not heard back from FCO yet. Really. If you can't rely on Boris Johnson, who can you rely on?

Offline ka9q

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Re: The Trump Presidency
« Reply #126 on: March 01, 2017, 04:05:40 AM »
As to checks and balances, they were formulated long before the two-party situation developed.
I wouldn't say "long before"; it was just a few years before the "factionalism" that Washington warned about in his farewell address was firmly established. It's the reason for the 12th Amendment, ratified in 1803, that revised the procedures for electing the President and Vice President.

If not for the 12th Amendment, Hillary Clinton would be Vice President today, as she got the second largest number of electoral votes in the 2016 election. The 12th Amendment established the "party slate" system we have today.

Offline Zakalwe

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Offline Glom

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Re: The Trump Presidency
« Reply #128 on: March 01, 2017, 07:26:32 AM »
The media is out of control? Isn't that what the first amendment is supposed to achieve, keeping the media out of control?

Offline Glom

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Re: The Trump Presidency
« Reply #129 on: March 02, 2017, 04:10:02 PM »
FCO is no help. Just say contact the Americans about it. But they're far too scary.  I'm only going on this trip because it was arranged back in September and wasn't even my idea.

There have been stories about how visitor numbers are down on the back of fears about ott immigration.

Offline gillianren

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Re: The Trump Presidency
« Reply #130 on: March 02, 2017, 11:53:38 PM »
I've read that tourism as an industry is taking a serious hit.
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Offline Zakalwe

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Re: The Trump Presidency
« Reply #131 on: March 03, 2017, 05:51:21 AM »
So, Trump's administration still running like a finely tuned machine now that Sessions has been caught being, ahem, economical with the truth....
And Pence has now been caught using an AOL email address for years. From the mid 1990s right up to 2016, including use after the account had been hacked and compromised.
http://www.indystar.com/story/news/politics/2017/03/02/pence-used-personal-email-state-business----and-hacked/98604904/
https://arstechnica.co.uk/security/2017/03/mike-pence-used-an-aol-e-mail-account-for-state-business-and-it-got-hacked/?comments=1

No doubt we'll hear the Republicans demanding that pence undergoes a FBI investigation and cries of "Lock him up!".  :o ::) ::) ::)
« Last Edit: March 03, 2017, 05:54:11 AM by Zakalwe »
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Offline Glom

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Re: The Trump Presidency
« Reply #132 on: March 03, 2017, 07:54:12 AM »
There's an old Vulcan proverb: Only Nixon can go to China.

But there's a reverse of that. Where some people can't say things or do things because their behaviour adds a sinister tone to such things.

Take the border wall. Stopping undocumented movement across the Mexican border is the policy of at least the last two administrations. So Trump pressing the issue is not in of itself something to be all horrified about. But it's the tone he adopts that puts it in a context that makes even those who do want to control immigration uneasy.

Or the media. In other times, many would agree you shouldn't trust much of what you read and hear in the press. But when a POTUS makes such persistent and vitriolic attacks on the media, it has unsettling connotations.

Offline JayUtah

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Re: The Trump Presidency
« Reply #133 on: March 03, 2017, 12:21:58 PM »
I wouldn't say "long before"; it was just a few years before the "factionalism" that Washington warned about in his farewell address was firmly established. It's the reason for the 12th Amendment...

Yes, you make a good point.  I had it in my mind that the reforms for electing the executive came later than 1803, i.e., after the generation who weren't founding fathers came to power.  Clearly partisanship took an early foothold.  But I don't think it was sufficiently considered when the checks and balances were first formulated.  Even with the coherently elected executive, I reckon they thought partisanship in Congress wouldn't reach a point where they'd refuse to impeach an errant president of the same party.
"Facts are stubborn things." --John Adams

Offline gillianren

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Re: The Trump Presidency
« Reply #134 on: March 03, 2017, 12:24:33 PM »
I got accused of being hypocritical for criticizing the fact that the Yemen raid got people killed and doesn't seem to have produced any useful intelligence, given that the intelligence the administration hyped as proving that the whole thing was "worth it" had been available online for years.  And that there was no investigation suggested by the Republican leadership to look into its failures.  Was that actually hypocritical?
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