A few weeks ago, in response to this blog post, Jamelle Bouie asked me a question: why do I consider myself a libertarian, rather than a straightforward liberal?

That’s a great question! And I’m spending this week answering it. Previous entries in the series:

Part Zero: Building a deck in Fairfax county, VA (1/30/2012)

Consenting Adults

Pretty much any libertarian theory must start with the some variant on the basic ideas of the autonomous individual and the harm principle. Now, as you may already know or may come to find out, I’m a pretty pragmatic libertarian, but I do certainly believe in these two concepts. Simply stated, every individual exists prior to their interaction with other individuals or the State, and no individuals’ behavior should be restricted by others or by the State unless it is causing harm to others. There can (and should) be an ongoing debate over what constitutes “harm,” but there can be no doubt that if the actions of an autonomous individual can be agreed to be not causing  harm to others, then it’s really none of our business what he or she is doing.

And so we must arrive at the conclusions that when an adult is not harming others, he is free to pursue his own happiness unencumbered by other individuals or by the State. And therefore, it is none of your business and none of the States business as to which cereal I eat for breakfast, what kinds of clothes I wear, which books I want to read in my free time, or what solitaire game I play with my deck of cards. Now, you can argue that I can harm you (or the State) simply by not maximizing my industry or health or economic output, and therefore everything I don’t do that I should do is a harm to others (or the State). But that’s a theory of fascism, best I can tell. And I doubt anyone wants to object to my theory by promoting fascism.

Following from this, as well as from human nature, we must also thus accept that individuals will have different conceptions of happiness and thus different private strategies for pursuing that happiness, and none of it is of any concern to the rest of us. I might enjoy playing my piano in all my free time. You might enjoy reading books. Someone else might enjoy growing vegetables in a garden to make snacks. And someone else might enjoy growing pot to smoke.  People will lead different lives. We are free, of course, to negatively judge people for how they choose to spend their autonomous non-harming time, but we are not allowed to restrict them from choosing how to spend it. Not as individuals and not collectively as the State.

Following from this, quite naturally, is the first principle of the State: whatever else the State may do, it should not be in the business of promoting or discouraging any particular conception of happiness, or any particular choices a non-harming autonomous adult might make in pursuit of that happiness. And this brings us to a first political principle: all State bans on the private non-harming activities of the individual are presumptively illegitimate. In particular, all “for your own good” bans are obnoxious to libertarianism. If someone want to spend their free time smoking cigarettes all day in their own backyard, or eating ridiculously fatty foods, or drinking absinthe until they pass out, those all seem like pretty silly ideas to me. But who are we to judge? And so the State’s role in a non-role: there should be no restriction under law.

Nor should there be any discouragement. If the State cannot choose between competing conceptions of happiness or the good life, it follows that it should not discourage or encourage any particular conception of the good life for the non-harming autonomous individual. I don’t doubt the success of public health campaigns — particularly the anti-smoking campaign — in the second half of the 20th century in America. It isn’t a question of whether the government can influence the non-harming behavior of adults; it can. But that is precisely the problem. Handing the keys to private happiness to the will of the collective majority is wr0ng. But public health is at least plausibly defensible; perhaps adults should know about the dangers of tobacco so they can make informed decisions about their private activities. What is not defensible is the next step: manipulating the taxation system to preference one conception of the good life over another. As much as it makes me sick to think about smoking cigarettes, excise taxes employed to reduce consumption of so-called “vice” products are indefensible. And so are, obviously, outright bans.

Why, you might ask, should the State not take a position when there are competing conceptions of happiness? I would say for at least three reasons. First, the distinction between “taking a position” and promoting/discouraging and banning are not very clear. And the latter is clearly not acceptable. Second, the state taking a position on such an issue is itself a harm; to burden me with additional obligations in order to enjoy my autonomous non-harming activity is wrong. Finally, the State is supported by collective taxation; it should not be discriminating among competing conceptions of the good in order to spend collective money promoting one or the other.

Naturally, it follows that if one autonomous individual can undertake any non-harming activity he wishes, then two autonomous individuals may undertake any activities they mutually desire, so long as they do not harm anyone else. This is where, as a policy matter, I completely diverge from the conservatives, and the basis of why I do not think of myself as a conservative. It strikes me that Lawrence v. Texas is the most important libertarian SCOTUS decision of our age; if the State were allowed to regulate the non-commerical sexual habits of consenting adults, then it would seemingly follow that the State could regulate a good deal of the private habits of the non-harming individual. And that would be horrible.

Which brings us to gay marriage. I don’t think there’s an issue out there that so clearly illustrates why I’m a libertarian rather than a liberal or a conservative. In a nutshell, conservatives are wrong because there should be no State restrictions on intimate human relationships between consenting adults. But liberals are also wrong, because the solution to the situation is not to allow homosexuals to obtain the State preferences afforded heterosexuals, but instead to get the State completely out of the business of granting preference to any arrangement(s) of human intimacy over any other. Anything short of that commits the State to promoting a particular conception of the good life, or to discouraging other conceptions.

Let me explain.

I. How gay marriage gets misunderstood

It’s easy to get lost in the all the high-minded talk about marriage from both the pro-gay marriage crowd and the anti-gay-marriage crowd. Most of the rhetoric is wrapped up in things like love, tradition, equality, western civilization, freedom, and the such. That’s understandable from a political lobbying point of view, but it’s not really a good way to think about what is actually at stake here: selective government benefits.

Right now, anyone who is legally married (whether straight or gay) in the United States has access to a myriad of public benefits from their home state. Here’s a list of several dozen:  tax breaks, estate planning benefits, sick days from work to care for your spouse benefits, medical benefits, consumer benefits, etc. Etc. Etc. The list goes on and on. In addition to these state level benefits, straight couples legally married in the United States can get similar benefits from the federal government (such as social security, tax breaks, etc.)

Since only a handful of states have gay marriage (or civil unions that are identical to gay marriage) and the federal government does not recognize gay marriage at all, gay couples do not have the same access to these benefits that married straight couples can receive. Thus the claim of inequality.

What is emphatically not at stake here is the right to live a married life. Ever since Lawrence v. Texas was decided by the Supreme Court, it is not possible for a state or the federal government to punish someone for homosexual conduct. Thank God. Short of the selective government benefits, gay couples may mimic the lifestyle of any straight couple without any worry about public repercussions: they can have a public wedding ceremony, put rings on their fingers, cohabitate, and even bicker with each other over who should take out the garbage. In essence, gay couples have complete and total access to marriage as it exists outside the sphere of the state. Prior to Lawrence v. Texas, this was not the case. But it is now. No government in our nation can punish you for living a married, homosexual lifestyle. All they can do is deny you the selective benefits.

So the cause of action here is simple: one group of people (heterosexuals who declare themselves married)  can get a set of selective benefit from the state if they sign some forms. Another (homosexuals who declare themselves married) cannot. The latter group would like the selective benefits of the former group. In effect, they want in on the party. It can be cloaked in as soaring rhetoric as you would like but, in the end, what we are talking about here is tax breaks and visitation rights. Nothing more, nothing less.

II. The relationship between marriage and the State

But this raises a fundamental libertarian question: why do these selective benefits exist at all? And what about the heterosexual (or homosexual) couples that would like to live a so-called traditional married lifestyle (i.e. long-term monogamous cohabitation) but don’t really feel like signing up with the state? Where are their benefits? Even more to the point, what about heterosexual (or homosexual) couples who don’t want to agree to one of those three pieces (long-term, or monogamy, or cohabitation), but would surely like them some visitation rights at the hospital?

Or even more to the point, this: why should the government let my wife visit me 24 hours a day at the hospital, while my unmarried friend cannot have anyone visit him 24 hours a day? It’s nonsensical. And it can be dressed up in any of the lingo currently being tossed around in favor of gay marriage: is someone less deserving of love and companionship when they are sick, simply because they aren’t married? Should they really have to go it alone at 3am at the hospital because they don’t have a husband?

So the question becomes this: what should the relationship be between the state and marriage? State and federal law says “lots and lots of selective benefits.” I say ” nothing.”  Marriage is fundamentally not a government institution. It existed prior to government selective benefits for married couples, and it will exist long after we do away with those selective benefits. What marriage is is this: a private arrangement between private citizens. Some people think it’s a religious arrangement, others just a contract between consenting adults. But whatever it is, it can be achieved without the existence of the selective benefits.

And note that this is historically true. Selective government benefits for married couples are a (relatively) new phenomenon. Five hundred years ago, this isn’t how it was done. And 500 years isn’t all that long when you are talking about an institution that pervades a decent chunk of human history

III. The advantage of removing the state from heterosexual marriage

None of this would be all that important if there weren’t one fundamental wrinkle: the development of the selective government benefits is having a corrosive effect on marriage and human relationships. This falls into two general categories:

1) The state has a monopoly on the marriage contract. Right now, if you want to get married in the state of Virginia and get your hands on those selective government benefits, you have to play by the state’s rules. One of those rules is “no gays need apply.” But there are tons of other rules, mostly regarding how the marriage might legally end and what happens to the joint possessions of the parties when it does. Once upon a time there were other rules (i.e. husbands could not be charged with raping their wives, etc.), but many of them are gone. Some remain: those regarding debt, pre-marriage property, liability, etc. And, of course, the most important one: adultery is a criminal offense in Virginia if you are married.  In any event, your marriage in the state of Virginia will be just like mine. One size fits all.

But what’s the point of that? Why can’t my wife and I have a different marriage contract than you? Why does the public get to set the terms of any dissolution of my marriage? And why does it have to be uniform? In effect, what is going on here is that the government is saying the following: if you want our selective benefits, you have to play exactly by our rules. This is not only a bar on gay or polygamous relationship, but it’s a bribe on heterosexual relationships: go with our marriage contract or be denied the benefits. Thanks, but I’d much rather write my terms of life with my wife.

So here’s a trade I propose: the state drops all selective benefits, and we’ll all write our own contracts. And just like the state of Viriginia will enforce a premarital financial contract (i.e. a prenup), they can enforce our marriage contracts. And then, without the bribe of the selective benefits to straights or the bar against non-traditional marraiges, we’ll let a thousand flowers bloom: gays can write up their contracts, polygamists can write up theirs, and I’ll write up mine. Maybe you’ll put in a bar on adultry, maybe I wont. Maybe your wife will change her last name. Maybe I’ll change mine ( can’t do that in VA right now! Go cavaliers!).

2) People (especially homosexuals) have come to equate marriage with state recognition. Nothing makes me sadder than to see a gay couple on TV crying because they “can’t get married.” Why? Because it’s obvious that they aren’t crying because they can’t get at those selective government benefits. They’re crying because they don’t feel that their marriage is valid if the state won’t approve it. This, of course, is complete pap. Their marriage is perfectly valid the minute they proverbially stick some rings on their fingers and begin living the lifestyle of whatever they believe “marraige” means. But that’s an intellectual take on what is obviously a highly emotional thing. And I hold the government responsible: the public through its elected officials has created a situation in which two people, engaged in an utterly non-governmental insitution, are made to feel excluded by the fucking government. As if anyone needs the government to bless their marriage. It’s heartbreaking. But it’s real. Your fault, big brother.

IV. Addressing conservative objections

So, everyone right-wing ideologue and his brother are reading this and having the same thought: wait, Matt, the state has an important role to play in all this, because marriage is a positive for society and the state has a vested interested in promoting things that are positive for society. If we encourage marriage, it will be for the benefit of all.

Leave aside that it’s an odd thought for a conservative to be arguing the positive role of government. I take issue with each clause of the above statement. Let’s start with the first one: marriage is a positive for society. Two objections: what’s your proof and, more importantly, who cares?

On the proof question, conservatives love to raise all sorts of stats about how children do better in school or are happier or whatever in a two-parent household. Probably true, but it’s not good enough proof, because the comparison that is most important isn’t how kids with married parents do vs. how kids with single parents do. Undoubtedly, the former do better. The true comparison is how kids of married parents do vs. kids of unmarried-but-cohabitating parents do. Because as we’ve shown above, state marraige is nothing but a set of selective benefits. But conservatives want to make the case that marriage — private marriage prior to those benefits — is worth promoting. And so an apples to apples comparison would be that marriage itself, not two-parent households, is the key. And if the key is two-parent households, then the state should, on its own terms, be promoting co-habitation, not marriage. Or else conservative defenders have to address the causation issue (more on this below). (Also note that the comparison should be betweeen (married parents minus the selective benefits) and cohabitating parents, since that would be a true prior-to-government proof of the benefit of marriage).

But let’s assume the conservatives are right that marriage is a positive for society. Who cares? There are a million things that would be positive for society that we wouldn’t dare directly incentivize: brushing your teeth, not eating ice cream, running a few miles a day, getting enough sleep. Why? Because these are all in the domain of stay the fuck out of my life. Whatever the benefits of marriage might be for society — and I’m skeptical they amount to much if anything — they need not take precedence over any other potential benefit.

Why? Because of the second clause: the state has a vested interest in promoting things that are positive for society. In a word: No. The state has a vested interest only in collective action of what individuals would collectively like to achieve but cannot, or will not, do privately together. The state has a vested interest in national defense. In policing crime. In building roads. In ensuring universal access to the democratic process.  Plausibly in regulating national economic affairs.  But in promoting marriage? Please. I’d write more, but you can go look up your favorite libertarian theorist at this point. If you disagree, little will convince on this point, but maybe…

…a eureka moment is possible on the third clause: If we encourage marriage, it will be for the benefit of all. Again, in a word: No. It will be for the benefit of those who get the selective benefits and would have chosen the exact same marriage arrangement if the benefits had not existed. Everyone else — everyone else — will pay a price, either in benefits or freedom. Single people will not benefit. Gays will not benefit. Polygamists will not benefit. Straights who wanted a different marriage contract will not benefit. And you can sure as hell believe that some of the people who would not have otherwise gotten married will not benefit.

This is the crucial point. Whether or not we incentivize marriage, a hell of a lot of people are still going to get married. The only place we can make a difference is on the margins: for the conservatives who want to make the good-for-soceity argument, the marginal marriages have to either (a) benefit those who got married on the margins, or (b) benefit society as a whole. I doubt either is the case. My guess is that people who get married for the selective benefits who otherwise would not have gotten married have massive rates of divorce.  That’s clearly not good for them. And that’s probably not good for society (and, at least, a deadweight cost in the size of the legal fees). In addition, you have to guess at how many people get married on the margins: it can’t be many. It should be none.

A better world is one in which intimate human relationships are defined and executed not by the government, but by the parties involved. That’s called freedom. It’s not a world where someone takes your one-size-fits-all marraige contract and submits to it because they want to go visit their boyfirend at the hopsital when it’s not visiting hours. That’s called cruelty.

V. Addressing liberal objections

The liberal objection to my idea goes something like this: getting the state out of heterosexual marriage won’t provide real equality for gays, because the inequality is prior to the state. State recognition would legitimate homosexuality as “normal” and would promote tolerance in private society as it enforced it in public society. Decoupling marriage and the state would be like decoupling education and the state in the south after Brown v. The Board of Education; it would be equality on paper, but nothing else.

For me, the short (and callous) argument is: too bad. I’m sympathetic to the Brown comparison (which is closer to reality than you might think; South Carolina and other states flirted with abolishing or defunding all public schooling as a way to avoid integration), but both not convinced and unconcerned even if convinced. It’s just a bridge too far: legal equality exists under law; not in people’s heads. I concede that law can change attitudes; I’m not such a libertarian as to think that anti-segregation laws did not improve private race relations, or that Lawrence v. Texas didn’t improve attitudes about homosexuals. But I also believe that equality can run both ways. If the state is handing out benefits, then equality can be achieved by equalizing the benefits, even if its a downward equalization.

But, in reality, these liberal arguments are too clever by half. True equality would mean equality for the cohabitating, for the polygamists, and for those who are single who just want someone to sit by them at the hospital at 3am. Recognizing gay marriages does nothing for these equalities. In the end, it’s still just selective benefits for a few more selected people.

VI. Addressing the conservative-gay objections

My favorite objections to my position is the Andrew-Sullivan-esque critique: that marriage is a wonderful institution, should be promoted by society, and that getting gays to marry is a conservative victory: more good-for-society marriages! Most of my responses to this are above in my thoughts on the general conservative objection. But I also do not think any political resolution of gay marriage will be legitimate unless polygamy and other non-heterosexual relationships are legalized.

Many people — including Sullivan himself — bristle at this. Especially liberals, because they fear that equating gay marriage with polygamy means political death for gay marriage. That may be reality right now, but in the long run it’s not the correct course of human freedom to continue to insist that traditional marriage was wrong about its gender specificity, but correct about it it’s monogamy component. Easing the transition of thought necessary to make the leap to a true freedom of intimate human relations could be jumpstarted by abolishing the selective benefits. I presume it’s a lot less scary for everyone if they know that the polygamist at least won’t have some special benefits that single people don’t have.

If human beings want to construct personal relationships, I see little reason to tell them they can only do so with one other person. I personally don’t think polygamy works that well in practice, but who am I to judge. The stereotypical negative vision of polygamy is a bunch of teenage girls in Utah forced into a marriage they don’t want. But those marriages were underwritten and protected by a territorial government itself promoting polygamy; under a private contract world of marriage, children would be ineligible to create legal marriages.

We can’t stop polygamous relationsihps from existing in private right now. If we just kill off state marriage, we won’t even have to do anything to bring equality to polygamy. It will just be so.

VII. Implementing the idea

So what is to be done? Here’s my three-step plan:

1) Repeal all selective government benefits for married couples. Abolish state marriage licenses. This means everything: no tax breaks, no special hospital visitation rights, no more social security benefits for widows. No more power of attorney. None of it.  Abolish the very definition of state marriage.

2)Arrange for the government to enforce all otherwise-legal marriage contracts. Write statutes directing the courts to enforce all legally-written marriage contracts. Straight? Of course. Gay? Sure. Polygamy? Bring it on. The only exception I would make would be that  no one could write a contract that violated other laws (i.e. husband can beat wife without recourse). A tough call would be contracts that called for perpetual marriage with no exit. But I’d be inclined to allow them. And other things that make people squirm — contracts that allowed one partner to practice adultry but not the other; contracts that put all marriage property into one partner’s name or gave one partner all property upon dissolution — I would be fine with. Welcome to the world of freedom. A contract is a serious piece of business.

3) Continue to allow private marriage discrimination. Should private entities be allowed to offer selective benefits to married people under their own definition of marriage? I say, with a lot of reservations, yes. Could a university that received federal funds define marriage its own way and provide married student hosing only to those who fit the definition? It’s a tough call, but I’m persuaded that it’s the right one right now. But I’m open to being convinced otherwise.

There’s been quite a lot of debate lately about the Constitutional definition of a “recess.” This has brought on even more confusion over a already often-confusion question of Senate procedure, because a “recess” is also a legislative term under Senate rules. While the Constitutional “recess” is contemplating a break in Senate session generally, a “recess” under Senate rules is a more narrow idea.

So bearing in mind that this discussion has nothing to do with recess appointments under the Constitution, here’s a question I often get asked:

At the end of a day, why does the Senate sometimes adjourn and sometimes recess?

The answer is that there are different procedural consequences to doing one or the other, and thus strategic reasons for the majority to prefer one to the other.

First, a little background. What is a recess and what is an adjournment?

A recess is simply a temporary halt to activity on the floor. Everything stops, and when the recess ends, the Senate resumes from where it left off. A recess might last 10 minutes or it might last days. The length of time does not matter.

An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off.  Regardless of whether the adjournment is for 1 minute or for three weeks. Instead, a new legislative day is created.

Wait, what’s a legislative day?

There are two types of “days” in Congress: calendar days and legislative days. A calendar day is exactly what is sounds like: one day of the year, as we normally think of it. So if today is January 27, in two calendar days it will be January 29.

A legislative day, however, is different. A new legislative day begins only when the chamber returns from an adjournment. And at the beginning of a new legislative day, there are certain things that  happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc. But there are also consequential things: for instance, in the Senate, for the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.

So a successful motion to adjourn creates a new legislative day, while a successful motion to recess does not. Consequently, if the Senate continually recesses instead of adjourning at the end of business each calendar day (which is quite common), it might be January 27, but legislative day January 5. (The House routinely adjourns at the end of a day’s proceedings. As a result, the House’s calendar days and legislative days are almost always the same.)

This can have certain consequences. Some procedural events are triggered by calendar days. For example, a cloture motion must lie over two calendar before a vote can be taken on it. So if you introduce a cloture motion on Tuesday, it cannot be voted on until Thursday. However, some procedures are based on legislative days. For example, under rule XIX, no Senator can speak more than twice on any one question on the same legislative day.

So back to the original question: why choose recess over adjourn, or vice versa?

Well, as the previous paragraph indicates, one reason to choose a recess would be to try and smoke out a small group of Senators filibustering via floor monopoly. If the Senate doesn’t adjourn, then each Senator could only speak on the motion to proceed twice, meaning they would have a limited number of opportunities for breaks. (This is actually a poor tactic to break a filibuster). But that’s a rare situation. More common is that the majority leader might prefer to recess to avoid the routine business required on new legislative days, if he just wants to pick up where things left off, or if he fears that hostile Senators might use the business for purposes of delay.

On the other hand, there are procedural advantages for the Majority Leader to create a new legislative day by adjourning. If he wants to skip a lengthy debate on the motion to proceed, he can adjourn, create a new legislative day, and then call up a bill under the provisions that make the motion to proceed non-debatable during the first few hours of a new day. This is a dangerous maneuver, however, since opposition Senators could then object to consent requests and force the reading of the journal and the other pieces of routine business normally dispensed with, in an effort to eat of the two hours before the motion to proceed could be given and voted upon.

The majority leader can also use adjournment to regain control of the floor if he has lost it for any reason. This famously happened to Senator Byrd when he was majority leader in the 1970s. He lost control of the floor to opposition Senators, who were bent on wrecking his plans for the day by moving to other business. Byrd made a motion to adjourn (which is non-debatable and takes priority over virtually all other things) for one minute. Backed by the majority party, he won the vote. The Senate adjourned for one minute. A new legislative day was created, and as majority leader, Byrd was entitled to priority of recognition from the chair, which he accepted and then went on with his business.

Newt Gingrich, yesterday, made some news while speaking near Kennedy Space Center in Florida:

“By the end of my second term,” Gingrich promised if elected, “we will have the first permanent base on the moon and it will be American.”

Of course, this is not just primary season retail politics for Gingrich; he’s been interested in a permanent moon colony since at least 1981, when he introduced H.R. 4286, the National Space and Aeronautics Policy Act, in the House, which among other things, set forth provisions for the governing of space territories, constitutional protections for space colonists, and a statehood process for space territories. You can read the full bill here (the portions regarding space territories and statehood are on the last page, but the whole thing is a good read).

Now, I wrote my doctoral thesis on the institutional structure of the statehood process and the political construction of western states in the 19th century, so I have a strong natural interest in this kind of thing. And that sucker clocked in at almost 700 pages, so I’m not exactly searching for things to say about all this. But let me start with one meta-comment: I’ve spent more time than anyone in their right mind thinking about the formation and division of territories,  the relationship between provincial statehood movements and the Senate Committee on the Territories, the politics of partial territorial admission, and the relationship between the flawed Constitutional statehood process, the desperate attempts to fix it, and the tragic politics of the 1850’s. I really thought I’d considered statehood politics from every conceivable reasonable angle.

But I swear, in all those years, I never once thought about the moon.

So my first question about Gingrich’s “Northwest Ordinance for Space” is whether its internal process for producing new states is any good. But before I get to that, a little background is necessary.

One of the conclusions of my dissertation is that the Founders made a pretty serious error in drafting the statehood clause of the Constitution. Various proposed plans had been suggested between 1776 and 1787 for how best to add the inevitable new western States to the federal union, and there were three key questions any such plan had to answer. Two were substantive —

• Q1: What are the new territories/states going to look like geographically (i.e. size, shape, location)?
• Q2: Is there a required population for admission? If so, what is it?

— and one was procedural:

• Q3: How much ad hoc legislative discretion should there be over the answer to questions #1 and #2? (i.e. Are the terms of the process locked in the Constitution, or left to Congress? If there’s a required population for admission, is statehood automatic upon reaching it, or does Congress have to vote on it?)

The scatterplot below plots six major proposed statehood plans on two dimensions: how much discretion Congress has over the size/shape of new Sates, and how much discretion Congress has over admission in relation to the population of the would-be State.

This table describes the basics of each proposed plan:

As can be seen, the actual plan adopted in the Constitution is the most radical of all the plans, giving Congress complete discretion over admission, with no Constitutional minimum requirements for size and/or population requirements for new states, or any guarantee of statehood for a territory regardless of how large the territorial population became.

This arrangement caused significant tensions in the 19th century. The rapid expansion of the country, combined with the discretion handed to Congress over state admissions, created a massive political football out of statehood.  For example, consider the period from 1812-1821. The United States went from a 17-state union to a 24 state union in just nine years. The incorporation of these new political communities radically altered the balance of power in the national government, without there ever necessarily being a shift in political ideology or allegiance among the citizens of the existing states. Few, if any, individual elections in American history have had such a profound effect on the ideological composition of the national government. Can you imagine if 9 years from now we had 40 new Senators? Almost unthinkable. But utterly normal during the first half of the 19th century. And thus the intense concern about statehood from all existing interests.

The plan in the Constitution was also seen by many as hopelessly broken. Throughout the antebellum era, there were calls for Constitutional amendments to alter the statehood clause and remove the ad hoc discretion of Congress over admission. The most famous proposals for this were the Crittendon and Douglas plans on the eve of the war. Most people know these proposals because they added Constitutional guarantees to protect slavery where it already existed, as a means of appeasing a South teetering on the brink of secession. But the plans also radically reshaped the statehood process, a reflection of the trouble that the issue of slavery in the western territories had caused between 1848 and 1860. Both the Douglas and Crittendon plans took away all congressional discretion over admission; specific sizes were proscribed for territories, and as soon as those territories reached the federal ratio of representation (i.e. U.S. population divided by current number of Representatives), they would become States.

Of course, the Founders almost certainly did not expect Congress to have so much discretion. Every other plan proposed prior to the Constitution provided for either specific population thresholds for admission,  specific geographic requirements for the size and/or shape of the new states, or both. Under some of the plans, as soon as a territory had the requisite population, it simply became a state, no vote necessary. And therefore, much less political manipulation of the process.

But the Founders made a fatal mistake. There was indeed a specific plan all set to go in 1787 — the Northwest Ordinance — that proscribes a quite regulated statehood process for the old northwest. Under the Ordinance, precise fixed boundaries were drawn up for three territories, with Congress have the discretion to add up to two more. Each territory would be eligible for statehood upon reaching a precise absolute population, 60,000. Neat and clean.

The problem was that the Northwest Ordinance wasn’t made part of the Constitution, nor was any specification of the statehood process. Instead, Article 4, section 3, simply states:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

The entire process — so carefully thought out and specified in previous proposals — was reduced simply to a grant of power to Congress. Now Congress did pass the Northwest Ordinance as federal law as one of the first official Acts of the new government in 1789, but that was soon proven to be a worthless solution, because no federal law can constrain the terms of  a future federal law. Laws that admitted a state or otherwise structured the territories in ways that would have violated the terms of the Ordinance had it been a constitutional provision were perfectly fine, because each individual law superseded the Ordinance.

And so the statehood process throughout the 19th century was constrained only by norms, and those norms were routinely broken; states were admitted with tiny populations (Nevada), states far greater in size than had ever been imagined were admitted (most of the west); states were admitted without ever having been territories (California); territories were divided just prior to admission, leaving part of the territory a non-state (Michigan, Minnesota, many others); and seemingly obvious candidates for statehood were delayed for political reasons (Utah, many others).

Which brings us to the Gingrich Plan. The terms regarding statehood are as follows:

Whenever any such [space community] shall have acquired twenty thousand inhabitants, on giving due proof thereof to Congress, they shall receive from Congress authority with appointment of time and place to call a convention of representatives to establish a permanent constitution and government for themselves.

Whenever any such community shall have as many inhabitants as shall be in any one of the least numerous of the United States such community shall be admitted as a State into the Congress of the United States on an equal footing with the original States.

There are four quick points I’d make about this plan.

1. It suffers from the same problem as the Northwest Ordinance vis a vis the Constitution. As a piece of federal law, it would hold very little weight, as Congress would still have full discretion under the Constitution to simply write new laws on an ad hoc basis to alter its terms.

2. It does not specify a boundary requirement for the space territory. In fact, it doesn’t even presume the space territory is on physical land; perhaps a space station with 20,000 residents could apply to be a territory! Again, Congress could easily write another law creating multiple territories and overriding this, but theoretically under the Gingrich Plan, as soon as 20,000 people were residing in space, they could form a territory.

3. The population threshold is based on the Jefferson Plan of 1784. Four population thresholds have been proposed in the past: no population requirement (Constitution, Continental Congress plan); a fixed absolute number (Northwest Ordinance, Bland Plan); the federal ratio of representation (Douglas plan); or the population of the least populous state, as proposed in the Jefferson Plan.

4. It does not give Congress discretion over the admission. Once the population threshold is reached,  “such a community shall be admitted” — but that, again, that’s not a Constitutional provision, just a federal law, so it could be overwritten easily by a new statute.

So overall, I’m not a big fan of this arrangement of a statehood process. If these terms were put into the Constitution as an amendment, it’d be better, but even then I’m not crazy about it. I’d like to see the geographic issue constrained at least a bit, or perhaps completely rethought given that this is space we’re talking about.

Ok, I’ll shut up for now. Perhaps tomorrow we’ll get into territorial politics and how that would shake out in space.

With a tear-filled goodbye, Representative Giffords resigned from the House this morning. Which raises the question, how do you resign from the House?

Under modern House practice and precedent, you write a letter to the executive of your State indicating your intention to resign, and you submit to the House, also by letter, notification that you have sent such a letter, as well as a copy of the resignation letter. You can see copies of Representative Giffords’ letters to Governor Brewer and Speaker Boehner here. Under the terms of Giffords’ letter, her resignation will be effective at the end of the day.

Given the particular circumstances of Rep. Giffords’ resignation, other floor activity also took place today. Several speeches were given on the House floor this morning — procedurally accomplished by Representative Pelosi seeking unanimous consent to speak out of order, and then yielding to Majority Leader Cantor, Minority Whip Hoyer, and Representative Wasserman-Schultz —culminating in Rep. Wasserman-Schultz reading Giffords’ resignation letter in the well, after which Giffords personally delivered the letter to Speaker Boehner, who was presiding in the chair. About 10 minutes later, the letter was official laid before the House, and read once again by the Clerk.

Why does the resignation procedure matter? A few reasons. First and most importantly, the Constitution provides for the filling of vacancies in the House, which can occur by death, resignation, expulsion, declination, or the House declaring a vacancy. Without a formal resignation, the state of Arizona cannot issues writs of election to fill Representative Giffords’ seat, and without a vacancy the House cannot seat a new Representative. Second, the resignation of a Member triggers clause 5(d) of House Rule XX, which instructs the Speaker to announce that the whole number of the House has been adjusted. This is important for determining any numerical threshold that relies on a fraction of the total Membership of the House, such as the Constitutional quorum to do business. Since August 3, the House has had a whole number of 434 (due to the vacancy of the 1st district of Oregon). Upon the execution of Rep. Giffords’ resignation at the end of the day, the number will be reduced to 433.

As many very smart people will undoubtedly tell you today, the State of the Union address doesn’t really matter much. Brendan Nyhan reminded us last year that the instant polling is worthless, that that President doesn’t actually often get an approval bounce, and that unlike a debate there’s no chance of an unscripted moment. John Sides reminded us that any policy or agenda effects from the speech are small at best. And Ezra Klein notes today that the one dimension on which the address may have a strong impact — laying out the President’s policy agenda — is basically a non-issue in an election year with a divided Congress. In short, there’s very little reason to believe that a single speech given by the President should draw even a fraction of the attention that the State of the Union address does; it’s the over-hyped political event of the year.

Let me tell you why the State of the Union address does matter.

It matters because of what it symbolizes. The State of the Union address is the only regular non-electoral event on the American political calendar that brings our democratic government together as a whole. In a system of separate institutions sharing power, in which the ambitions of men are pitted against each other in hopes of producing a common good, the SOTU reminds us that fundamentally we are not a nation of competing political parties, or of divergent ideologies, or of irreconcilable  interests. At our core we are a unified republic, a collection of people who quite naturally disagree about policy but concur that the best way to resolve those disagreements is through a republican government elected by a democratic vote of the citizenry, under a constitutional system that balances the capacity of government with limits that protect the liberty of the people to seek their own happiness.

When the President slowly walks down the aisle, shaking hands with Representatives and Senators as the entire House chamber stands in applause, some people choose to cynically see it as a facade, a kabuki theater in which animosity is suppressed in service of outward appearances. I choose to see it differently; this is the power of the democratic system of government on full display. For it matters not why they are all clapping, only that they are, indeed, all clapping. The ties that bind us are not on display often in politics but, when they are, they time and again prove that our republic is not a government of men, but one of ideas and institutions and, most importantly, laws. They clap not only for the man who must shoulder the burdens of the nation in a lonely office down the street, but for the office itself, and for the powers we have chosen as a republic to place in it, long ago in the 18th century and still today.

This is, in part, why it shook so many people — both inside and outside of Congress — when Representative Wilson interrupted the presidential address to Congress in September 2009. The concern was not fundamentally about what was said or the effect it had on the delivery of a speech; it was over and done in mere seconds. The issue was that a very small hole, but a very real hole, had been punctured in the unity — and in the power of that unity — that the joint session presidential address symbolizes for our nation. The trivial interruption became acutely important because of what it symbolized, and because of the way it struck at the greater symbolism of the address itself. Anyone who says that Members are polite at the State of the Union because it is politically disadvantageous not to be are missing the point; while that’s probably true,  it’s not the potential partisan reaction of the citizenry that inspires the civility. If those were the concerns, I think you would actually see more  incivility, since someone would probably stand to profit;  instead, the civility is inspired by the systemic concerns of a fragile republic, concerns that do not divide, but actually unite, virtually all citizens.

It matters because of the way it reflects our system of government. The other event that brings the entire government together as a whole is the quadrennial inauguration of the President, which inevitably becomes a celebration of the Presidency. Despite taking place at the Capitol, there’s no way around the fact that the modern inaugural suggests a presidency far out of line with the actual powers of the office under the Constitution. In some ways, it feels more like the coronation of a new king than the implementation of an election. Now, don’t get me wrong. I love inauguration; the pageantry and the symbolism of it are striking, beautiful, and full of many of the same republic-reinforcing features as the State of the Union address. It’s a wonderful event. But, to me, it’s like Christmas to the State of the Union’s Easter; more important in popular practice, but not nearly as important philosophically.

The State of the Union address, on the other hand, portrays a more basic and correct understanding of the foundations of our republic. The executive is invited to come to Congress by the leadership of the legislature, at a time satisfactory to them. If he accepts, he leaves his residence and comes to the institutional heart of the republic, the chamber of the House of Representatives. He then waits at the door of the chamber until he is introduced by the agents of the legislature, who then lead him down the aisle, where he is received by the elected Representatives of the people and the States. He passes by the Justices of the Court, members of his government, and finally he ascends onto the House dais, where he is again introduced and received by the legislature.

He then begins to talk. What he says may or may not matter, but the way in which he says it sure does. He does not tell the legislature what he is going to do in the following year, for there is very little he can do. He tells the legislature what he believes needs to be done, and then he asks the legislature to do it. In the endless string of presidential debates it can often feel like the President has the ability to wave his hand and enact a policy. But the State of the Union Address reminds everyone that the President of the United States can no more make a law than he can walk on water; never is it more evident how our system of government works. The President comes and visits the Representatives of the people, and he pleads with them to do what he thinks is right for the country.

 It matters because of how it makes you feel. There are people out there who won’t watch the address tonight because of reasons like “it’s boring” or “I don’t follow politics.” This is totally reasonable on one level, but it also makes me sad, because none of things worth watching in the State of the Union address are  related to contemporary partisan politics. And if you watch it for the right reasons, the non-partisan reasons, you should get chills up and down your spine if our republic is doing well in cultivating its democratic citizenry. Now, take this with a grain of salt; I’m a hopeless romantic sucker for political pageantry. But this isn’t the mundane cerebral pageantry of going to vote. This is the mighty chorus of a republic in action. Do not underestimate its ability to play with your heartstrings.

The State of the Union evokes many emotionally responses, which are as varied as the sensory stimuli that produce them. And it’s those sensations that stick with us. There’s the oozing of power that you can almost feel through your TV as the camera surveys the House chamber. There’s the massive flag hanging vertically behind the dais. There’s the absolutely thundering sound that mass applause makes in that room. There’s the visible security everywhere, and the often-repeated reminder that the a Cabinet official is not present, because someone must think about the unthinkable. There’s the packed feeling of the House chamber, which is obvious even when accounting for the fact that it looks much bigger on TV than it actually is in reality. There’s the inspiring visual of all the Representatives standing in applause at once. There’s the striking visual of half the Representatives doing so while the other half sit stony-faced. And then there’s the President, standing alone at the podium, fulfilling a Constitutional duty as old as the republic itself.

I’ve never been in the House chamber for a joint session presidential address. The closest I came was several years ago, when I had an office in the Capitol and could therefore gain access to the House wing after it was closed off to everyone but ticketholders and those with a local office (which today will occur at either 5:30pm or whenever the House recesses, whichever is later). My office was only about a 15 second walk from the House floor, and after milling around a bit in the hallway as Members and ticketholders came to the floor, we sat in the office and watched the address on TV. Most of the time, you couldn’t tell it was taking place just around the corner. But when the full force of chamber-wide applause was unleashed, it felt  like a cannon exploding in the near-distance, powered by the all the energy of the republic. Over and over again. I don’t remember much from that speech, but I remember exactly what it felt like to listen to it.

It made me proud. And hopeful. But mostly it made me thankful. Because the thunderous and genuine applause of a semi-sovereign republican legislature is not a sound that many in human history have ever heard. Nor is it one that many humans are allowed to hear in the modern world. But to those who have heard it — in person or on TV — it is the most basic reminder that fortune has bestowed upon you a great gift, in the form of a government worthy of genuine celebration.

It doesn’t matter what Obama says tonight. You don’t even have to listen.

But watch the State of the Union address. It’s important.

Four things I wanted to write about in-depth today, but didn’t have the time.

1. I continue to believe that the Gingrich rise is a mirage. As I suggested on Twitter Saturday, buying up Romney on Intrade right now at 70% to win is not a sound investment. It’s a freakin’ gold mine, a license to print money.  And virtually nothing that happens in Florida would convince me otherwise. The only question I have is how big the bubble inflates before Gingrich pops; you might be better waiting until you can get Romney for 50 cents on the dollar! For good reads today on the surrounding issues, check out Jon Bernstein here and Seth Masket here and Nate Silver here and John Sides here.

2. The Civil War and Compensated Emancipation. In response to some comments by Representative Paul, Ta-Nehisi Coates is blogging about whether the civil war could have been averted by compensated emancipation. Coates asks:

3. Here’s my quick (but completely impractical) Super Bowl fix: stop having the game at a neutral site. I’m a big Giants fan, and I think it’s just such a travesty that the game in two weeks is going to be indoors among a bunch of neutral fans that bought tickets a year ago. How much better would it be — and again, I say this as a Giants fan — if the game was going to be in New England, with all the New England season-ticket holders there, and with the distinct possibility of a blizzard. The “we can’t play in cold weather” defense has been out the window ever since they awarded the game to Giants stadium for 2014, so I don’t want to hear that. And regardless of any theorizing to the contrary, nothing draws bigger ratings than a playoff game in terrible weather conditions. Some people think it’d be unfair to give homefield to the team with the better record, because the conferences don’t have balanced schedules. But that was the argument in the 70s for not giving the better team homefield in the conference championship games (remember, the ’72 Dolphins played the AFC title game on the road), and that has seemed fine every since they switched it to a better-record situation.

Now, of course I know the economics of the Super Bowl seem to make it impossible if you want to keep the same revenue, but it would make for such a better football game, and I think that might increase the TV ratings.  What we’re talking about here is a vestige of the early days of the NFL-AFL merger that has grown into a mega-cash cow. But even that seems like a mirage. Maybe the TV ratings would suffer, but I doubt it; the real issue here is that you can’t have all the Super Bowl parties and all the other events setup in town if you only have two weeks notice on location, and you can’t get all the hotels for all the people coming in to sit in the expensive seats. But the TV ratings are what really dive the money, and I think the feel of the home crowd — not to mention the possibility of absolutely awful weather — would entice viewers. There’s a reason that the conference championship games are often much more compelling than the Super Bowl. It’s not rocket science.

4. The GOP in Florida. I’ll be live-tweeting the debate again tonight. Come follow me at @mattglassman312 to join the fun!

Presidential candidates like to talk about what they will do on their first day in office. Here’s Newt Gingrich, from last night’s debate:

John, I just think if you’re going to raise immigration, I want to make the point that on the very first day that I’m inaugurated, I will issue an executive order to the Justice Department to drop the lawsuits against South Carolina, Alabama and Arizona.

Here’s Mitt Romney, from the 10/11 New Hampshire debate:

And on day one, I have indicated, day one, I will issue an executive order identifying China as a currency manipulator.

And here’s Romney’s website:

On Inauguration Day, he will submit a jobs package to Congress consisting of at least five major proposals and will demand that Congress act on the package within 30 days, using every power at his disposal to ensure its passage. He will also take immediate and specific steps within his sole authority as president by issuing a series of executive orders that gets the U.S. government out of the economy’s way.

Seeing as day one is exactly one year from today, it’s worth pointing out that there might be something of a messaging problem with all these Day One actions next year: January 20th, 2013 is a Sunday. And by tradition, America does not hold public Presidential inaugurations on Sundays.

So whoever is President next year will almost certainly be sworn in privately on January 20th, but will not take the oath of office publicly on the west front of the Capitol until Monday, their second day in office. Which raises the question: if you want to do something on your “first day” next year, do you do it Sunday afternoon or Monday afternoon?

If you do it Sunday, then you are definitely doing it on your first day. But it would be quite awkward to have a big signing ceremony or other publicity event (which the new President would almost assuredly like to do for something like an executive order stripping away parts of the ACA), when you haven’t taken the public oath, and many in the public might not realize you are even President. On the other hand, doing it on Monday would you mean you weren’t really doing it on the first day, giving the partisan press a nice opportunity to mock you out of the gate.

Obviously, this is not a big deal, but I think it’s kind of an interesting historical aside. So, now, how about that history. Where did this all come from?

The first time an inauguration day fell on a Sunday was in March 1821, when President Monroe was to begin his second term. He consulted Chief Justice Marshall on whether the inauguration should be pushed off to Monday, to account for the Christian Sabbath. Prior to the 20th amendment, it was an open question as to whether the term of the president ended at noon on March 4th or at the stroke of midnight at the conclusion of March 3rd.

That may seem like an odd unknown now, but it did not particularly bother the antebellum political class. But it did bear directly on the Sunday inaugural issue, as it provided a logic for the delay of an inauguration. Marshall’s reading was that the term technically started at midnight, and thus advised in a letter to Secretary of State Adams that while a President might in an emergency situation take the oath right at the stroke of midnight on the 4th, the usual practice was to take it around noon on the 4th, meaning there had traditionally been a 12 hour window with no one able to legally execute the office.

Marshall further argued that the Constitution only says that the President must take his oath before he “enters on the execution of his office,” and so a delay is not fundamentally improper. He also noted that an interval of several hours or even a few days without an executive authority would not be problematic, although it would be preferable to take the oath as soon as conveniently possible.  And so, Marshall’s bottom line was in favor of waiting until Monday, unless some official duty should require Sunday. Monroe accepted this advice, and was sworn in for his second term on Monday, March 5.

Of far greater potential concern were the two following cases (1849 and 1877) in which the Sunday inaugural fell upon a President-elect, rather than upon a sitting President commencing his second term. In 1849, outgoing President Polk was waiting at the Capitol to sign bills on the night of March 3rd. House and Senate action continued past midnight, but Polk signed the legislation at 6am on March 4, under the constitutional theory that he had taken the oath around noon in 1845, and thus his four-year term did not expire until the same time on March 4, 1849.

The only problem with this theory is that it places the term with the oath, meaning that when Taylor did not take the oath until noon on March 5, he might argue his term would last until March 5, 1853. Congressional leaders dismissed this theory, arguing that Taylor could have taken the oath any time after noon on the 4th, when his term — but not his ability to execute his office — officially began. These events locked-in the “noon on the 4th” reading of when the terms began and ended under the old calendar.

In 1877, the winner of the disputed election was not even known until March 2, and even then there was much continued dispute over whether Hayes was the rightfully winner. The Sunday inaugural complicated this — if Grant’s term ended at noon on March 4 but Hayes did not take the oath until March 5, GOP leaders worried that the gap might give the Tilden supporters room to make some monkey business. Out of an abundance of caution, the private Hayes oath was administered on Saturday night, March 3.

Since 1877, Sunday inaugurations have only fallen on second-term Presidents, and public inaugurations were held on Monday, for Wilson (1917), Eisenhower (1957),  and Reagan (1985). In each of those cases, the President took a private oath on Sunday, and then participated in the public (but technically unnecessary) ceremony on Monday. Wilson was conducting diplomatic business on Sunday — the Zimmerman telegram had been revealed three days earlier — and chose to leave no doubt in anyone’s mind that he could lawfully discharge the office int the afternoon, despite the opinion of the State Department that he could conduct his business while putting the oath off until the Monday public ceremony. Eisenhower and Regan followed suit, in precaution of anyone questioning their competence to discharge the office on Sunday.

It, of course, remains to be seen if we will have a first or second-term president next year. In either case, it seems an iron-clad lock that the oath will be administered prior to noon on Sunday, so there is absolutely no disruption in the ability to execute the office. Now that the 20th amendment begins and ends the terms precisely at noon, there’s no gray area; if the President is not sworn in prior to noon, no one can execute the office at 12:01. For instance, the Obama inaugural ran a bit late, so he didn’t take the oath until 12:06.  And so even for public inaugurals on the 20th,  the President-elect may choose to take the oath prior to noon in private, such that there were be a legal President at exactly noon if the public ceremony does not run right on time. (Of course, absent such a move, the president-elect could always quickly take the oath if an action had to be made while the band was playing or whatever was going on that ran through 12pm).

Poor South Carolina. Too small to be a nation, and too large to be an insane asylum.

-varously attributed (often to James Petigru or Andrew Jackson)

My wife is going out with some friends tonight, and assuming (god willing) that the girls go to sleep fine, at home it’s just going to be me, the GOP debate, and my liquor cabinet. I don’t know any drinks that are particular to South Carolina, but down Dixie way you have to assume bourbon is involved. So maybe an Old Fashioned is in order, or perhaps a Bourbon Stone Sour.

I’ll probably just be drinking straight from the bottle by the time they are finished with the questions on executive power. We could call that drink a Modern Whig: chug bourbon, smash bottle, use glass to slit wrists. Cheers!

At any rate, I’m going to live-tweet this thing at @MattGlassman312, so check it out. And enjoy the debate.

And anyone local to me, c’mon over. I’ve got plenty of liquor.

So Rick Perry is officially out. We hardly knew ya (venn diagram aside).

The conventional wisdom outside of Capitol South metro station, where I learned of the news, was that this is bad for Romney. I don’t buy it. Mostly because I’m 99.44% confident the race is already over regardless of what happens in South Carolina. But also because I don’t think former Perry supporters in South Carolina or Florida are going to break in a way that can possible hurt Romney; for this to have an affect on the outcome, you have to either believe that Gingrich is a viable candidate to defeat Mitt, or that Santorum is going to siphon off the vast, vast majority of Perry voters. I do not think either is even remotely realistic. As John Sides has pointed out, and as Nate Sliver wrote several days ago and further explicated today, the conservatives just aren’t all that anti-Romney, nor are they united in support of the anti-Romney idea; Romney is actually the second choice of a great many of them.

More interesting to me is the timing of Perry’s drop-out, and the timing and choice to endorse of Gingrich. As I wrote last week, the decisions of political actors are often strategic rather than sincere, in the sense that they are not undertaken for the most plainly obvious reason. That is to say, the timing of Perry’s dropping out and his decision to immediately endorse, and immediately endorse Gingrich, were almost certainly strategic decisions designed to maximize Perry’s utility across his various goals (or more precisely, Perry’s beliefs about what will maximize his utility across his goals), rather than a reflection of the fact that he just realized he can’t win and that he thinks Newt would be the best President and he just feels like saying that right now. Although we think of dropping out as an endpoint, it is in fact just another decision within the context of a career for a political actor, one which needs to be carefully considered if the actor wants to maximize his future political opportunities, value, and influence as a policymaker, candidate, party member, or entrepreneur.

We can never know precisely what Perry’s goals or utility function are, but we can makes some educated guesses: he’d probably like to influence national politics toward his preferred policy outcomes, whether it be by influencing the outcome of the nomination race or by influencing a future presidential administration; he’d probably like to enhance (or at least not devalue) his future influence and/or political prospects; he’d probably like to enhance (or at least not devalue) his future private sector financial opportunities; and he’d probably like to enhance his personal and professional reputation. None of these goals are unique to Perry; in fact, they are pretty standard political goals. Of course, this is not an exhaustive list; there are almost certainly personal or otherwise idiosyncratic goals of Perry’s that we simply cannot identify.

These goals, regardless of what they are, severely constrain a political actors choices of action, since maximizing many of them depend on external factors. For instance, once conservative party insiders and outsiders started calling on Perry to drop out, staying in the race began to hurt Perry’s standing among them and thus hamper a variety of his future goals. This is no different than the internal mechanisms of the legislature that constrain Senator behavior; it is rare indeed for individual Senators to hold up the floor of the Senate with endless objections to unanimous consent requests. This is because their available actions (as dictated by the institutional rules) are constrained by exogenous factors like leadership, which can reward or punish behavior. So Perry’s strategic decisions today are not only likely to be maximizations of his own utility for achieving his own goals, but also strongly influenced by the changing motivations, goals, and actions of other actors.

Which brings us back to the three basic questions: why did Perry drop out today? Why did he endorse Gingrich? And why did he endorse Gingrich immediately? I don’t have any insider information to answer any of these questions, but we can make some conservative deductions about all of them. All three decisions are, of course, connected in some ways, but for ease of argument, let’s discuss them separately. First, why drop out today? Note that this is actually a biased way to think about the decision. Once it’s more or less clear you can’t win (and thus your decision over the timing of dropping-out becomes purely strategic), every day that you don’t drop out is actually a decision to stay in. It’s naive to think that the Perry campaign was not in negotiations with the Romney, Gingrich, and Santorum campaign regarding his decisions, and while we can’t know the exact motivations of any of the campaigns, my guess would be that the Romney camp wanted him to stay in (or perhaps an unlikely drop out and endorse Romney), while the other two camps wanted him out and endorsing them as first preference, followed by out without an endorsement, and followed in some order by staying in and getting out to endorse the other guy.

From Perry’s perspective then, he wants maximize the credible influence his dropping out or staying in has on the nomination regardless of direction, plus maximize the influence he has in pulling the nomination or nominee toward his policy preferences, plus maximize the immediate or future consideration he can get from the other candidates, while minimizing the animosity he might get from party members for staying in. By dropping out today, Perry has theoretically influenced the South Carolina primary. This might have been done specifically in service to Gingrich, or perhaps in service against Romney; we don’t know. It is likely, however, that Perry was running out of time for his dropping out and/or endorsement to be influential at all; once Romney clearly locks things up, none of the other candidates would have any reason to offer Perry and immediate or future consideration for dropping out (although Romney could clearly have benefited from a deal with Perry not to drop out). So I would guess that Perry’s decision to drop out now is an attempt to influence South Carolina, likely arranged with the Gingrich campaign, and perhaps horse-traded for future consideration that was perhaps bid up by offers from Romney to stay in, or from Santorum to get out in his favor.

Second, why did he endorse Gingrich? As with dropping out, strategic endorsement decisions are often  a mix of  factors: ideological preferences, potential political influence with the candidate down the road, specifically bargained horse-trading, and personal relationships and loyalty. (See Matthew Green’s fine paper on endorsements in House leadership races for more on some of these dynamics). It’s quite possible that Perry has a personal relationship with Gingrich that made the endorsement choice a no-brainer; likewise, he could very well believe that Gingrich maximizes some combination of policy preferences and ability to win the general election that maximize Perry’s future national policy utility function. Also possible is that Gingrich simply offered a better deal to Perry; perhaps Perry would like to be get out of electoral politics and be Interior Secretary or the head of DHS, and Gingrich made a private commitment to such in exchange for an endorsement. At any rate, don’t assume that Perry simply finds Gingrich’s policies closest to his; that’s certainly important, but it’s only one factor of many that go into these sorts decisions.

Finally, why endorse Gingrich now? The first thing to remember is that Perry probably didn’t just arrive at the endorsement decision this morning. The timing of the endorsement has little or nothing to do with that; the Perry and Gingrich campaigns could have had cross-endorsement deals worked out for weeks or months now. The key to the timing for Perry is twofold; first, maximize the impact of the endorsement and, flowing from that, maximize the return benefit, because this is Perry’s last real opportunity to affect the nomination race itself. The timing was up against the same hard-wall as the dropout — Romney was going to credibly sew this thing up soon, and Gingrich and Santorum were only going to trade top-value for it when their own goals could still be maximized, and whether those are winning the White House or something else, it obviously meant prior to Romney locking things up.  But the Gingrich campaign had two important developments this week: an apparent mini-surge in South Carolina, and the potentially harmful interview with Gingrich’s ex-wife on TV tonight. Both point toward getting a large piece of good news out ASAP.  If Gingrich thought he had no chance in South Carolina, he might have held back a Perry nomination until Florida, for example. The debate may also have been a factor; if Perry gets out now, that’s more airtime for Gingrich in the medium he (at least believes he) has a relative comparative advantage.

Having said all this, we don’t know when Perry sincerely decided to give up the campaign, and that would be a helpful piece of information in teasing out these strategic possibilities. If he figured it out this week, then whatever moves he is making are probably not as sound (from his point of view) as if he has been acting strategically since just after New Hampshire. But I would reiterate that that decisions about dropping out and endorsing are often highly strategic decisions. Yes, it’s very personal for a candidate to end a campaign — I’ve sat through any number of concession speeches where candidates were virtually crying, and they sure as hell weren’t running for President — but political actors at the national level are very good politicians, and they did not get where they are by wasting a lot of opportunities. And the decision to drop out and endorse is a very good opportunity to get some big-picture political benefit out of what is so obviously a short-term failure. When Perry said in his speech that he was making a “strategic retreat,” I assure you, he wasn’t kidding.

In protest of SOPA and other pending legislation seen (quite rightly) as detrimental to Internet freedom, a number of prominent websites — including Wikipedia, Tumblr, WordPress, and Craigslist — are going dark today (the wikipedia pages on SOPA and the politics of it are one exception; they remain available today). On the merits of the legislation, I completely agree with the concerns of the websites (see this Sullivan post for some entry points to relevant writing). On the merits of going dark for a day, I’m much more torn. In fact, I think it’s probably a bad idea in the long run.

On the one hand, it seems like the perfect protest maneuver: lots and lots of people use Wikipedia on a daily basis, and when they try to access it today and instead get a blank screen and a message to call their Representatives , I would imagine that quite a few phones are going to be ringing on the Hill. And that’s just Wikipedia and some other huge but not enormous sites. Imagine if Google decided to take part? The potential leverage seems incredible. So in the immediate sense, this is direct action at its finest, and even raises the spectre of the long-mythologized general strike. I don’t think it’s an exaggeration to say that the participation of Google and Facebook and Amazon in something like this could actually credibly threaten to hinder the U.S. economy.

But that’s kind of the problem. Everyone sort of understands that the Internet is a game-changing technology, and that those with a lot of clout on the Internet have quite a bit of latent political power in their hands. But that’s the key: so far the power has really been latent; the main political uses of the Internet to date have been to lower transaction costs for private political organizing — like-minded people using it to find each other and discuss politics, political parties and candidates using it to raise money and get their message out, and government and private groups using it to disseminate information about policies, pending legislation, and political news. In other words, right now the Internet is serving only as a passive conduit for political, as well as commercial and social activity. It is a stable platform on which people engage in other activities; a playing surface on which to perform or a canvas upon which to create. It is a wonderful tool of politics and commerce, but it’s core state of being has, thus far, not in and of itself been recognized as political.

That is to say, what has not yet happened to a significant degree  is the use of the Internet itself as a political or commercial weapon. Until today. The problem I foresee is that direct action of this type by major websites is almost inexorably going to start us down the road toward government regulation of the core Internet sites as public utilities. In fact, it’s almost baked into the cake: if there’s any political value in Wikipedia going dark for a day, it’s directly correlated to how vital Wikipedia is to our daily existence as a nation. But that very vital-ness will be the basic argument for significant public regulation of the sites. In fact, I would suspect that this might be one reason Google is not participating; a day without Google would almost surely upend the Internet enough to get the attention of Congress; unfortunately, I don’t think the only, or even most likely, congressional response would be to bag SOPA. Instead, what I think you are likely to see is calls for public control over the core functions of the Internet, beginning with the very idea of search, with all the calcifying and anti-entrepreneurial effects that flow from the bureaucratization of a previously organic ecosystem.

I also think the major websites are deluding themselves if they think they will automatically hold the high road in a political fight after they begin down the direct action road. I don’t think a battle between the websites and the government will come off as a worker – management dispute; the labor strike is a bad analogy. One might try to analogize today to the early railroad workers’ strikes in the 19th century. But the workers aren’t on strike; this is more like if  the railroads themselves went on strike. The correct analogy is probably J.P. Morgan or other financiers bargaining hard with the government over bailouts in the late 19th century. That’s type of power play is not something that particularly bothers me — in fact, I think this move by the websites is a brilliant tactic in the short-term. But I know that it will bother a heck of a lot of people, and I can relate to the fear it presents; there’s something slightly unsettling to the idea that a handful of companies hold the keys to the smooth flow of internet commerce. And I don’t think it’s much of a limb to go out on to say that there’s no lack of a potential audience for a political movement against powerful evil companies. And make no mistake: when the regulations come, that is exactly how it will be portrayed.

And look, I’m a libertarian. I want the Internet to remain as free and private and as far outside the reach of public regulation as possible, forever. Part of doing that is stopping SOPA. But part of doing that is also being careful about exposing the political power that resides with the major Internet players. Taking down websites is certainly the right of any website owner, and I’m 100% against anyone who claims they do not have the right to do so. But just because you have the right to do something does not make it a wise thing to do. One the veil is removed and you are recognized as a political actor, you are likely to be treated like one. And I’m very concerned that whatever victory is earned today will be Pyrrhic; the dawning of the political power of the Internet is going to bring a governmental response, one way or another. And that is almost certainly a negative for the future development of the Internet.

When you get off the DC subway at the Capitol South metro stop and head up the escalator, you never really know what you are going to encounter at the top. Some days, it’s the pro-life protesters. Other days it’s the Lyndon Larouche crowd. Sometimes it’s religious proselytizers. Or a worker’s union. Or a conspiracy theory group. Occasionally it’s a charity raising money. And now and again it’s a protest or other group that you can’t even really discern. But there’s really never a week that goes by without some sort of organized group  at the top of the Capitol South escalator, and in the nice weather it can be day after day with no perceivable end. It’s undoubtedly the most popular metro station at which to hold a political protest or conduct grassroots lobbying efforts.

The reason it’s so popular is pretty simple: location. Capitol South’s placement on 1st street SE between C street and D street is extremely close in proximity (less than 50 yards) to the three House Office Buildings, and not far at all from the Capitol Building. In addition, the station is directly across the street from the Republican National Committee headquarters and the National Republican Club.  For comparison purposes,  Union Station  — which is the closest metro stop to the Senate side of the Capitol — is almost a quarter-mile from the Senate Office Buildings.

Consequently, three groups of attractive protest targets are heavy users of Capitol South and the surrounding 1st Street area. First, a large number of House staffers use the station as part of their daily commute. Second, GOP Members and party-related staff are constantly moving between the Hill and the RNC/NRC, as well as often congregating on the sidewalks out front of the NRC. Finally, a large number of tourists pass through Capitol South directly prior to going into one of the House Office Buildings to pay a visit to the office of their Representative in Congress.

Beyond proximity to the Hill, Capitol South has some unique features that make it even more  advantageous as a spot to convey information. First, there’s a great signal-to-noise ratio; the vast majority of all the traffic coming up the escalator at Capitol South is heading toward the Hill for one reason or another, and there’s almost no reason to be a pedestrian on that block of 1st street if you aren’t going or coming from the Hill. Compare this to Union Station, where the vast majority of people passing through are not going to the Hill. Second, Capitol South only has one real exit (again, unlike Union Station); if you set your protest up at the top of the escalator, it’s basically impossible for anyone to get on or off the subway without receiving your message. Just about the only disadvantage of Capitol South (from the protestor point of view) is that it’s not a physically big area; you can’t fit more than a few dozen protestors in there before it becomes a complete mess.

All of this make the top of the Capitol South escalator a fine place to try to get your political message to people who might be in a direct position to influence political outcomes on the Hill: House staffers heading to work, party people heading from the Hill to the RNC, tourists who are about to go stop in at a Representative’s office, and so on.  The causal mechanism isn’t rocket science: grassroots lobbying and protests need to be visible to policymakers and to those who can influence policy makers. Many groups are reliant on free media to cover their protests as a middleman, but one way to be visible is to skip the media and try to directly prime, either consciously or subconsciously, the policymakers  and influencers themselves, on their way to the Hill. There’s no question that this is the strategy.

What is a question is how well this works? I often wonder coming out of Capitol South, do these protests actually influence staffers, or are the protestors just wasting their time? I go back and forth on the answer to that, and I think it probably has some effect. But even if you could say for sure, getting a firm grip on the magnitude of the effect is almost impossible: lobbying effectiveness in general is really difficult to measure, in part because we can’t ever use random-assignment to isolate the variable, but also because there’s no clear definition of what success means. It’s not like product advertising, where you have a bottom line of sales revenue for each product. In the world of Hill lobbying, you are almost always competing against an amorphous counterfactual, and therefore it’s never clear whether the claims made by any lobbying group are actual effectiveness or just goalpost-moving of the imagined alternative outcome.

On the other hand, it’s pretty obvious that those doing the protesting/lobbying outside of Capitol South believe that they are being effective. And there’s a neat little indirect way to (very roughly) ballpark some concrete numbers associated with those beliefs: the cost of advertising inside the Capitol South station. The DC Metro contracts with CBS Outdoors to sell advertising in all Metro subway stations. As described in their DC media kit and rate book, you can buy a variety of different kinds of subway advertising, including individual platform ads such as banners, posters, or floor graphics; rail car advertising such as interior posters or exterior branded cars, or packages that place your platform or rail advertising into many stations or whole fleets of rail cars. This should be familiar to anyone who has ridden the DC Metro, or any other metropolitan subway.

One other thing you can do is something called “station domination,” which allows you to buy up every single advertising spot in a given Metro station. A full station domination package is currently offered at ten DC stations: Capitol South, Metro Center, Convention Center-Mt Vernon, L-Enfant Plaza, Farragut North, Navy Yard, Pentagon, Regan Airport, Union Station, Federal Triangle, and Gallery Place. Looking at the Capitol South Station Domination factsheet, you can get a sense of how it works: you get a total of 45 advertisements, including two massive floor graphics, huge Pylon faces, dozens of monster-sized banners and platform ads, and a bunch of other stuff. As described by CBS Outdoor, the goal is “total station saturation. Creation of a total “experience” incorporating traditional media and non-traditional displays.” Station domination buys are offered in 4-week blocks.

Here’s the thing: station domination is ridiculously popular at Capitol South. Anyone who commutes through there will instantly recognize what I’m talking about: one day you get off the Metro, and every single sign is for the same defense contractor; a few weeks later, you come down the escalator and every single sign is for a green energy group. Most recently, I got off the subway car, and it was vote4energy.org that had decided to dominate the station. It really does dominate the station; these ads are huge. And they are everywhere. Here are some photos I took of the advertising:

A floor display

A typical pylon ad

But the most interesting thing is the relative cost of the ads at various different stations. A four-week buy of station domination ranges in cost from $30,000 at Navy Yard and Reagan airport up to $130,000 at Metro Center and $150,000 at Pentagon. Capitol South costs $125,000. But, of course, this doesn’t take into account traffic at the various stations; Metro Center is a hell of a lot busier than Capitol South. Thankfully, CBS Outdoors not only provides the rate information in their media kit, but they also provide an estimate of the traffic circulation at 9 of the 11 stations where station domination is offered. The chart below reports the relative costs of station domination at the seven regular stops, with the figures reported normalized into cost/1000 daily circulation, based on a 4-week buy and not including production costs. (Navy Yard and Mt. Vernon Sq. are excluded because their traffic varies significantly based on Nats’ games and conventions. Neither is particularly expensive).

I think this chart is pretty remarkable. At five of the stations, the normalized cost is almost identical. But then the cost at Pentagon is more than 2.5 times the cost at the “regular” stations, and the cost at Capitol South is more than 4 times as much as the regular stations. Now, there aren’t a ton of conclusions you can be certain about with just this data, but it seems like a pretty strong inference that advertisers are willing to pay an enormous premium to advertise at the two places where you might get a very large political bang for your buck: Congress and the Defense Department. What further inferences flow from that? Probably all the usual suspects, depending on your point of view about the positives and negatives of lobbying.

One thing is worth reiterating: as mentioned above, none of this proves anything about the effectiveness of conducting lobbying or protest activities at Capitol South; at most it indicates that lobbying and protest groups believe there is strong value to conducting their activities there. But we kinda already knew that, intuitively. On the other hand, it’s quite striking to see the premium attached to the ad buys at Pentagon and Capitol South, relatively to the amazingly stable baseline cost at other major subway stops.

[update to clarify, based on Tom’s first comment]

Happy Martin Luther King Jr. day to all!

Like many people, I believe the true greatness of America can be found in its ability to wring moral justness, albeit slowly, from a system of government that, ex ante, preferences neither the good nor the right, but instead just the popular. And I also believe, like many, that this greatness has had no better expression than in the twin battles to secure the basic liberal rights of African Americans: the multi-generational crusade against slavery in the 19th century, and then the century-long battle that followed, for universal civil rights and against the segregation of the races. There are no greater products of America and American democracy than the abolitionists and the civil rights protesters, many of whom faced grim danger and horrific opposition, often with nothing to personally gain but the peace of heart that comes with a morally just society. Those movements are also a testament to the wonders of democratic government; ideas — no matter how unpopular at first — can and do matter.

Unfortunately, as a libertarian I end up having to defend myself for these beliefs not only to people who want to poke holes in libertarianism as an ideology (You’re a libertarian? If you were in charge we never would have ended slavery!), but also from libertarians themselves, many of whom seem to have a misguided understanding of why having a limited government is valuable in a capitalist democracy. The basic economic role of government in a libertarian society is to ensure the proper functioning of a free market, which includes, by definition, equal opportunity and access for those who wish to participate in the market. Even the crazy radical libertarians understand that government is necessary at some basic level, for instance to enforce private contracts and suppress violence in defense of private property; without those two things, it’s obvious that a market society won’t function.

And it should be equally obvious that the market can’t function efficiently if entrepreneurs cannot get a hotel room or a meal while traveling on business because of the freaking color of their skin. So even setting aside all sense of moral right and wrong and prioritizing absolutely no vision of the good life, any libertarian opposition to civil rights laws is deeply flawed, on market terms alone. If you disagree with this, I don’t think you’re a libertarian; you’re probably an anarchist. (None of this is to discount the moral arguments against slavery or segregation; I happen to think those are stronger than the market arguments. But I think it’s important for the purpose of diffusing radical libertarianism to show that for market reasons alone, civil rights are necessary.)

But what about the heavy-handedness of government, you say? Shouldn’t libertarians oppose laws that force people to provide commercial goods on a non-discriminatory basis? Isn’t that anti-liberty? To which I’d say a few things. First, the state was deeply involved in segregation; even if you somehow believe that private discrimination in public accommodations is an unfortunate price to pay for a society of liberty, there is absolutely no way that any libertarian can justify the use of the state governments in the 20th century to actively promote Jim Crow laws. Remember, it was the state of Louisiana, not the railroads, that wanted segregation in Plessy; it was the southern states that mandated the schools and the drinking fountains be segregated; and it was the states that classified people based on their race, not the market actors. That’s the state being heavy-handed. Requiring the opposite — non-discriminatory business practices — pales in comparison, mostly because the natural market is non-discriminatory to begin with; you’re swimming with the tide, rather than against it. Stripping the states of the power to enforce racial discrimination isn’t an anti-libertarian move; much to the contrary, it was the essence of libertarianism — the individual was unleashed from the enforced discrimination of the state. If you disagree with this, I don’t think you’re a libertarian; you’re probably just an ardent federalist, which I suppose is a common conflation.

But what about the private restaurants and hotels, you say? Shouldn’t they have been able to continue on discriminating in their clientele? For sure this was not the simple decision that ending state discrimination was, but it’s hardly any less of a no-brainer. As said above, the state has a positive role to play in the market, be it in enforcing contracts or preventing violence. Entrenched irrational racism is most emphatically a market distortion, if not an outright market failure, and a universal solution to the distortion — via positive federal law — also helps break the collective action problem for businesses, many (or most) of which would prefer to serve all possible customers, but must individually fear boycotts of the majority if they are the only ones who dare privately break from the cultural racial code. Again, all of this is to say nothing of the basic moral justness argument; but that argument need not be raised if anti-civil rights libertarianism can be defeated on its own terms.

Now, I’m a pretty pragmatic libertarian. I happen to believe that the state has an important secondary role in a capital society — buffering the pain of the natural market losers. A free market inherently creates winners and losers via the risk/reward system, and while that’s a necessary consequence of a dynamic market economy, it seems quite obvious to me that such a market can be only be optimized in a civilized democracy if the community is prepared to collectively provide a minimal standard of living to those who do not fair well in the market. By this, I do not mean corporate bailouts or massive redistribution of wealth. I simply mean that a wealthy society has a minimum responsibility to care for its poor such that they do not become permanent non-participators in the market. Unemployment insurance, food stamps, child health care, and free basic public education all fall into this rubric. I don’t like minimum wage laws, but only because I think government should provide those benefits directly; rather than force employers to pay certain wages, just let the market pay what it will, and use the government to directly support the poor when necessary. Same thing with housing vouchers and such nonsense; just give the poor money directly, they can make market-decisions about its best use, certainly better than the government can.

At any rate, the point here is that pretty straightforward: the civil rights movements of the 19th and 20th century were unabashedly victories for liberty, and those who complain otherwise are probably not libertarians; I would guess that they are actually reactionary conservatives, seeking cover for their crazy ideas. You see this on many of the contemporary libertarian fronts that intersect with racial injustice, such as police misconduct toward racial minorities or any of the many flavors of racial nonsense that intersect with our crazy drug laws. At the root of these issues are a basic confrontation between liberty and conservatism; libertarians know that the level of arbitrary power handed to the state cannot possibly justify whatever minor benefits (if any) flow from the war on drugs; conservatives dismiss such things with nonsense appeals to law and order and cultural decay and all that pap. To confuse or conflate the two may be politically helpful to liberals, but it is dangerous for libertarians.

Some things I enjoyed reading this week:

All about what would happen if you fell onto a  lava pool (hint: you wouldn’t sink). Follow-up here.

Pizza and subway fares in New York rise in price together.

Kevin Drum on file-sharing and theft, with good follow-up by Megan McCardle.

I liked this Jon Bernstein post on different ways of “knowing” things.

Seth Masket nails the correct response to the Hillary-replace-Biden meme: who the hell wants to b Vice President?

Andrew Rudalevige had a nice post on the 75th anniversary of the Brownlow Commission report.

Brendan Nyhan on media and expectations in the primaries.

I don’t know why I was captivated by this slate.com piece on Rick Ross and faux-gangster-ism in rap. But I was.

Turns out the red-wine-is-good-for-you studies were faked. Why am I not surprised.

I’ve been thinking a lot about the recess appointments since the OLC opinion was released yesterday. (Not that I wasn’t thinking about it a lot before; for past posts of mine on the topic, see here, and here, and here, and here). I’ve been reading a lot on the internet. I’ve talked to a bunch of people. I even forced myself to listen to some talk radio, because I wanted to see what the far right’s reaction was to the opinion. What I came away with was a sense that some perspective is needed, all-around. As much as I’m whig-ging out about this, there are reasons to believe it’s not as consequential as some think. To wit, three points:

1. The current political-institutional situation is quite rare. We are in a very rare form of divided government right now. There have only been three instances since world war 2 in which one party has controlled the Senate and the other party has controlled the House: the 107th Congress after Jeffords switched parties (2001-2002); the first three Congresses of the Reagan presidency (97th-99th Congresses, 1981-1986); and the famous “do-nothing” 80th Congress (1947-1948). If the Democrats controlled the House right now, the Senate would have had a traditional adjournment for about a month right now, making a recess appointment obviously constitutional, if not loved, to everyone.

If the Republicans controlled the Senate, the Cordray nomination may very well have been outright rejected already in an up/down vote. Even if that was the GOP playing hardball and rejecting all nominees, you’d have a much more clear-cut institutional standoff. Instead, we have the awkward situation where it appears that the bare majority of the Senate probably wants the nominee approved, but can’t adjourn to allow for a standard recess appointment, and thus the majority of the Senate is trapped in a classic position of having to suppress their institutional prerogatives in order to get their desired policy outcome. That’s more or less the blueprint for how the President sucks power away from the legislature. But, as I said, the good news is that it’s a pretty rare structural situation that we are in.

2. Another thing that makes this a rare situation is that the CFPB is a new entity. Somehow in discussion of all of this, it has been lost that recess appointments aren’t necessary to temporarily fill a huge number of executive branch positions. The Vacancies Act allows the President to fill a large number of vacant PAS (i.e. Senate confirmed) positions with “acting” officers, who can serve in the position (in most cases) for up to 210 days. One of the exceptions to the Vacancies Act is that it doesn’t apply to new positions, which means that the President can’t fill the CFPB via the Act. It also doesn’t apply to judicial nominations. And while the Vacancies Act has its own problems and constitutional concerns, it has the virtue of being congress-approved law that the President can use to fill vacancies even when efforts to thwart recess-appointments are in place.

3. Recess appointments aren’t as great of a presidential weapon as some say. Jonathan Bernstein wrote a thoughtful post yesterday about the OLC memo, and his most important point was that recess appointments have limitations. He writes:

I don’t think that recess appointments are much of a threat to the Senate’s role. As a presidential weapon, they lack punch. On judicial nominations, recess appointments are massive surrenders for the president since they involve trading a lifetime slot for a short-term one. And even in the executive branch, recess appointments have real disadvantages over regular confirmed nominations.  Recess appointments at best are a weapon for presidents to use in negotiating with the Senate, not a potential replacement for it.

I’m more concerned than he is (but there aren’t a ton of people as whiggish as me), but the point about the judicial appointments is excellent and very important. That judicial appointment power of the presidency is a long-term power, and using recess appointments to appoint federal judges, while a nice solution to all the vacancies and thus the caseload issue in the federal courts, does not enhance the president’s power all that much.

And now one thing I have to get off my chest [warning: cranky whig-blogging ahead].

4. I am not a big fan of reading into what the majority of the Senate wants. I disagree with Bernstein (and the OLC, and many others) when he says this:

[M]y sense is that it’s a close call if the majority of the Senate insists that they are not in recess while the president believes that they are for all practical purposes, but that it’s a much less close case when the majority of the Senate agrees with the president and only the House (and the Senate minority) disagree.

I certainly understand the logical case for this — the House is not contemplated as having a role in nominations, and therefore shouldn’t be able to prevent recess appointments by forcing the Senate into staying in session after the Senate minority has filibustered the bare majority’s desire to have a nominee confirmed — but I’m not willing to give up on the idea that the House and Senate rules are exclusively a matter for the House and Senate, and that the Constitution is plainly clear on this point. So what if a majority of Senators want to go home? The Constitution says that cannot do that if the House does not agree, and it matters not why the House does not agree and it matters not why they want to go home. The House can force them to stay there, and while they are there, they are in session. (Now, maybe the argument that the House is in pro forma session would be strong, but I think most people want to make the case that even if the House was passing legislation and was there around the clock, that wouldn’t legitimate a pro forma Senate session as a real session.)

And so what if they aren’t conducting any business? God knows there’s no rule in the Constitution that says things have to be accomplished during a session of Congress for it to actually be a session. How many days go by where the Senate floor is merely the host to speeches, punctuated by endless and lengthy quorum calls, with the actual movement of legislation tied up in negotiations. The argument seems to be that during a pro forma session held together by a UC, the Senate can’t possibly get itself into executive session to advise and consent, and therefore it’s not in session. I think that’s false: there’s nothing in any UC that can’t be broken by a subsequent UC; if a second Senator shows up to the pro forma session, he can theoretically move a new UC to go immediately into executive session and consider the nomination. Instantly. Which is emphatically NOT the case, for instance, if the Senate has adjourned sine die for the session.

But more importantly, the only judge of the contents of a UC, or the existence of the UC, or anything else related to the session should be the Senate itself. Article I, section V. If the Senate wants to pass a resolution saying that pro forma sessions aren’t actual sessions under the constitution for the purpose of recess appointments, well fine. And I get the idea that the President is not without basis for judging what is an isn’t a constitutional recess. And this current case is certainly the maximal test: the majority doesn’t even want to be in session. But even in the maximal situation, we create an odd constitutional situation if we say some Senate sessions aren’t actual Senate sessions: the Senate would currently not be in session under the recess clause, but it would be in session for the “can’t adjourn” clause. That’s a weird gray area being occupied. Did we inadvertently just destroy the “can’t adjourn” clause? I don’t know, and I don’t know if that even matters in practice. But we should figure it out.

Still, there’s a lot of worries to come still, down the road. What happens when the Senate and President are in true conflict, as the undoubtedly will be over this, as soon as one party controls the Presidency and the other controls the Senate. Who can and/or will say what the limiting principle is: what if the Senate shows up for half an hour and receives communications? What if they show up for an hour and pass a resolution? At some point, in order to continue this recess appointment game, the President is going to need to claim that he is the primary judge of whether the Senate is in session or not. And that will be patently absurd under the Constitution.

So to me, even in the maximal case we are currently in, the Senate needs to be considered in session when it says it’s in session. And the UC plainly says it is in session. Again, if the Senate wants to declare itself not in session for the purposes of the recess clause but in pro forma session for the purposes of the “can’t adjourn” clause, I would be willing to accept that. But this has to be a formal decision of the Senate. Not the majority leader’s stated preferences in news conferences; the actual preferences of the Senate. Right now, the Senate has officially declared itself in session. And therefore, I would defer to that reading, even if the President and 53 Senators are saying otherwise. I know the majority wants out, but again, they don’t want out bad enough to undue the filibuster. And therefore, they should have to live under the rules as applied.

Besides, there are plenty of other options available to the pro-appointment actors that do not require new readings of the Constitution. For one, if the majority of the Senate wants this nomination so badly, they are free to try to change the Senate rules and eliminate the filibuster. But they have not even tried that, probably because the majority of the Senate prefers to have the filibuster than to have the Cordray nomination. Given that, it seems to me that the majority wants to have its cake and eat it too; they want to preserve the filibuster, but they also want the Cordray nomination. And thus the resorting to the recess appointments.

But set that aside too. The president has the authority under Article II to break a deadlock between the chambers over adjournment. I honestly have no idea how that works — I don’t even know if the clause has ever been used — but its existence suggests that there’s a constitutional mechanism for dealing with the current situation that doesn’t include setting a precedent of allowing the President to judge the importance of the business being conducted in the Senate.

The Office of Legal Counsel at the Justice Department has released the recess appointment opinion that it produced for President Obama. First off, good for them. Those opinions aren’t inherently public, but in a matter such as this, it’s definitely to everyone’s benefit for the President’s cards to be laid on the table.

As most observers (including me) expected, the argument put forth is not that the President can make recess appointments during recesses shorter than three days; instead, they argue that pro forma sessions of Congress are not valid interruptions of intra-session recesses for the purposes of the Constitution’s recess appointment clause. Consequently, the recent appointments actually occurred during a 20-day intra-session recess, which they argue is plainly long enough of a recess under the constitution as previously interpreted by federal court rulings.

I highly recommend reading it if you are interested in the current debate. It’s a clear and well-written opinion, and not too long (23 pages). Although I disagree with their conclusion regarding the nature of the pro-forma Senate sessions, it’s not an implausible argument; this is a vague Constitutional issue with little court guidance, and there is plenty of room for competing interpretations. One thing that I would stress, as I wrote last week, is that OLC opinions on inter-branch constitutional disputes are emphatically not like court rulings written by judges that have the force of law; they are more like briefs written by attorneys for one of the parties to the matter.

In particular, when reading OLC opinions, you should not lend a lot of deference to appeals to precedents from previous OLC opinions, which this opinion has in spades. It doesn’t matter how many times and for how many years the executive branch has claimed it has a power under the constitution; it’s just a claim. And Senate Legal Counsel could just as easily churn out the opposite opinion ad nauseum, with equally little controlling power. This is not to say that previous claims of power aren’t important, they are. But they are simply not authoritative precedents. They are arguments. To its credit, the OLC recognizes this (pg. 4), noting that the question at hand is a novel one, and that there are substantial arguments on both sides that may eventually result in litigation over the appointments.

As a substantive matter, I don’t think the President should be deciding whether a gavel-struck session of the Senate is real or not.  But my larger concern is that there’s no limiting principle articulated. At some point, a future Senate may decide to further up the gamesmanship, say, by leaving the Senate in one massive quorum call every time they break from conducting business, whether it be overnight or for three weeks.  What then? I’ve said it jokingly several times, but maybe it’s only a half-joke: if this were a farcical comedy, the end result would be a partisan Supreme Court decision upholding a partisan Supreme Court recess appointment that took place during a quorum call.

I guess my point is that everyone is already playing hardball with recess appointments. The Senate has plainly been playing strategic hardball with the pro forma sessions for the past several Congresses. And now the House is playing hardball by not agreeing to adjourn, and thus forcing the Senate to hold the pro forma sessions. But I think it’s a little rich for OLC to be calling out the House and the Senate  for coming up with a innovative hardball maneuver, and then declaring it out-of-bounds; everyone has been playing hardball on this for quite some time. Presidents have been using recess appointments strategically for 200 years; there’s very little normative need to fill those jobs during a 20 day recess, especially when you consider these offices routinely sit unfilled for weeks during the normal confirmation process. The Cordray nomination was being processed in the Senate for five months. It can’t wait another two weeks? Of course it could. But this is hardball, and I don’t begrudge the players. But let’s not pretend these recess appointments aren’t strategic.

So it’s not obvious to me that the President upping the hardball ante is going to result in anything except further hardball from Congress at some point down the road. And while that’s perfectly legitimate for both sides to do, it can have wide ramifications. As we drift further and further from any defensible normative arrangement of the recess appointment power, the arguments and actions of the political actors will probably tend to become more and more about raw power and raw interests. Again, there’s nothing inherently wrong with that, but when the actors seek short term advantage by undermining previous norms, such practices can have negative-sum effects on the institution if universalized. And they can also have spill-over effects to other issues or practices. As I’ve said, this may be a fight that ultimately brings on reform of the confirmation process that is satisfactory to all parties, but I worry that it may be just another step in the breakdown of the norms in favor of institutional hardball.

Last week, Nate Silver ran a nice piece on Rick Perry not dropping out of the GOP nomination race, examining whether Perry’s decision was personal/emotional or strategic, and discussing the consequences of each possibility. Jonathan Bernstein distilled and augmented the argument, helpfully framing Perry’s motivation as either personal, strategic but wrong (i.e. thinks he can still win but can’t), or strategically sound. I don’t really disagree with anything in either post, but I think there is some value in taking a wider view of these sorts of political choices; both Nate’s and Jonathan’s analysis implicitly convey that Perry’s strategic reason to stay in was “winning the nomination.”  This, I would suggest, artificially constrains how we should think about political goals, institutional incentives, and strategic choices made by political actors.

First, some theoretical considerations. A large proportion of political actions — perhaps all — can be made either sincerely or strategically. A sincere political action can be thought of as one which is undertaken to achieve the plainly obvious outcome: a citizen stands for election because he wants to win the office, a voter pulls the lever for the candidate because he wants him to hold the office, a legislator introduces a bill because he wants it to become a law, a committee holds a hearing on the bill to gather information about it, a majority party brings the bill to the floor because they want to enact it, another legislator offers an amendment to the bill because he wants to improve the legislation, a Senator speaks at length on the measure in order to articulate his position and win some converts to it, the President issues a veto threat because he doesn’t like the legislation, and 240 legislators vote in favor and 195 vote against it because the policy is either good or bad for their constituents.

Strategic political actions, on the other hand, make use of sincere mechanisms in order to achieve alternative ends: a citizen stands for election because he wants to raise his business’ profile in the community, a voter pulls the lever for the candidate because he wants to send a signal to a misbehaving dominant party, a legislator introduces a bill in order to lay down a position marker on an important policy, a committee holds a hearing in order to garner publicity for a policy position, a majority party brings a bill to the floor in order to force a difficult vote upon the minority, a legislator offers an amendment in order to make a bill unpalatable to current supporters, a Senator speaks at length on the measure in order to prevent a final vote, the President issues a veto threat to enhance his bargaining leverage over parts of the bill, and numerous legislators vote for or against a bill in order to win leadership or other support for their own legislative priorities.

There are those — particularly novice political observers — who bristle at strategic use of the institutional rules of the political system, but there’s no reason to be alarmed about it. Democratic systems of government are in the business of harnessing self-interest for the common good, and self-interest on the part of voters and elected officials who represent those voters implies taking maximum advantage of the available choices.  To do anything less as a voter would be sub-optimal for your interests; to do anything less as a legislator would be sub-optimal representation for your constituents. Besides, there’s no cure. Sincere and strategic actions look identical; no set of rules that govern political behavior can eliminate strategic action. Even if you could, removing those motivations would be akin to removing the profit motive from a market economy. If the preferences of the voters or legislators are resulting in sub-optimal policy outcomes, blaming political actors for strategic use of the institutional rules misses the point; it is the rules themselves that are the problem, not the actors.

While most of the above is more or less obvious, it is often disregarded when observers assess the political strategies of presidential primary candidates and offer advice on the same. Read enough political commentary and you start to get the sense that politicians simply aren’t very good at decision-making. Why did Tim Pawlenty drop out of the GOP race so early? He could be winning right now. What is Rick Perry still doing in the race? He has no chance. Why was Herman Cain campaigning in Alabama in November? He should have been setting up a field operation in Iowa. Why won’t anyone attack Romney on the issue of health care? It’s his Achilles heel. Why does Ron Paul have no presence in South Carolina? He can’t just skip early states. Such criticism is sometimes correct — politicians are human and make many errors — and sometimes wrong — commentators make lost of errors, too. And defaulting to incompetence is often a better bet than bestowing strategic brilliance.

Many times, however, the criticisms are not right or wrong; instead, they simply miss the mark because they aren’t aiming at the right target. A very simple theory of political action says that strategy is derived from goals, rules, and resources. Once you know the latter three things, you can rationally arrive at optimal strategy for any situation, at least in theory (and allowing for personal/emotional biases that often affect such decisions). The problem in the case of presidential primary nominations, however, is that a lot of critics assume the candidates are behaving sincerely with respect to the goal — i.e. trying to win the nomination — when in reality many candidates are behaving strategically in seeking the nomination, and are actually trying to achieve some other goal. Without knowing what those alternative goals are, it is very hard to both judge candidate choices, as well as offer advice.

The bottom line is there are lots of reasons to run for President of the United States, and only one of them is to become President of the United States. There’s a long list of alternative reasons: to get picked Vice President of the United States; to raise awareness for an issue; to represent a regional and/or radical ideology; to become a Secretary in the next President’s cabinet; to join the list of potential candidates four years later; to expand your network of fundraising; to challenge your party’s orthodoxy on one or more issue; to increase your private sector market value as a commentator or author. And so on and so forth.

People seem to intuitively understand this about certain candidates. Ron Paul, for example. While I’m sure Mr. Paul would love to be President, most people are in agreement that his current purpose is to influence the Republican party in a libertarian direction, and to raise awareness of particular libertarian issues. But people often understand this and still disregard the strategic implications: since Paul is not actually trying to win the Presidency, his decision-making calculus at any step in the process may result in radically different strategic choices, choices that may even look utterly absurd to an observer who naively assumes Paul is trying to win the nomination. Same thing with what Jonathan Chait calls the business-plan candidates: if you are primarily running for major party nomination as a way to enhance your private-sector ambitions, your campaign might, for example, take a national tact rather than one that reflect the serial calendar of primary states. Again, this may look strategically absurd to unaware observers.

People often make similar mistaken assumptions about the goals of candidates who are primarily running for the sincere reason of trying to win the nomination and the Presidency. A lot of strategic advice from observers tends to not only assume the sincere goal is the true goal, but also that the sincere goal is the only goal. And consequently, the criticism and advice offered to the candidates reflects a win-at-all-costs mentality that simply doesn’t exist among most candidates. Again, on one level most people intuitively understand this: candidates for primary nomination have at least one secondary goal in mind — winning the general election — that constrains their possible actions. And so people usually build that fact into their strategic advice. But as mentioned above, there are dozens of reasons to run for President, and all of those reasons can be fallback goals for people primarily trying to win the nomination. And therefore a lot of the no-holds-barred aggressive advice you hear (and this is applicable across many political situations) doesn’t compute: politics is a repeated game, and slash-and-burn techniques tend to work poorly in the long-run.

And so virtually all campaign decisions, from the macro (whether and when to drop out) to the most micro (how hard to attack the frontrunner during the foreign policy portion of the debate) are colored, at least in part, by goals that are not only unrelated to winning the nomination, but also are not known to the public. Which, in turn, makes it supremely difficult to judge the tactical choices being made by the candidates. Even when potential alternative goals are known, there’s no way to judge how candidates weigh them against each other. Ron Paul may run as a third-party candidate in order to achieve the goal of  influencing major party policy, but what if one of his goals is getting his son elected President someday? Does that affect his strategic calculation?  Maybe. Jon Huntsman may want to be President, but he may also like to serve in the Romney administration. Does that constrain his strategy in next week’s debate? Again, quite plausibly. Rick Perry almost certainly would like to be President, but he might also have policy preferences that can be advanced by either helping a particular candidate get elected, or by trading his influence to help any given candidate get elected.

And none of these thoughts are mutually exclusive. It’s not hard to imagine someone like Perry coming out of Iowa thinking well, it’s really long odds now, but that’s better than nothing, and definitely better than the embarrassment of dropping out.  And besides, if I stay in at least I might be able to prevent that pompous Gingrich from winning South Carolina. And that wouldn’t be the worst chit to have in my pocket during the Romney administration, especially if I can influence his immigration policies. In my personal experience, this sort of deep political strategizing is more common than most observers think. Candidates at all levels of politics can be romantics about their chances of winning far past the point of any viability; anyone who gets this far almost certainly feels like fate is on their side. But most candidates can also credit their career success to harnessing opportunities and salvaging victories even in defeat. And all of this serves to remind us how complicated political strategy can be, and how little we can sometimes say absent a full understanding of the goals of the actors.

Mock the results from Dixville Notch at your own peril. Statistics never lie:

 

When Huntsman shocks the world tonight with 30% of the vote, don’t say you weren’t warned.

The continuing public debate over the constitutionality and propriety of President Obama’s recess appointments last week is something that I think is quite healthy for a democracy. One of the few things we can say for certain about the issue is that the Constitution is vague on the matter, and therefore open to a variety of  interpretations that are equally plausible. Don’t listen to anyone to tries to convince you that this is a settled matter with a definitive answer. It’s not. Ditto for anyone who tries to tell you that it’s a prospectively easy court opinion to write; my inclination (against my normative wishes) is that the Obama recess appointments are constitutional, by one logic or another. But I think it’s far from an open-and-shut case, and I can easily imagine an opinion to the contrary.

In my mind, all of this means that optimal political and legal adjudication of both the immediate matter of the Cordray et. al nominations, as well as the use of recess appointments in the future, requires a full and vigorous debate over the normative, constitutional, institutional, and political issues surrounding the current appointments. Although I don’t think it’s true of all political debates, this is one in which I think having more voices and more opinions is an unqualified benefit; and so i applaud the volume and diversity of writing that has sprung up on the topic in both the popular press and the blogsphere.

That said, one thing that is bothering my whig antennae is the deference that opinions of the Attorney General, as well as the Office of the Legal Counsel at the Justice Department, are receiving among commentators. Here’s Lawrence Tribe, writing in the New York Times last Thursday:

Past practice also points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session […] Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.

Here’s Stephen Bradbury and John Elwood, writing in the Washington Post:

In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

Here’s Tim Noah, pushing back against the 1921 Daugherty opinion:

The problem is that although Daugherty broadened the definition of the term “recess,” he also affirmed … that he didn’t envision a recess lasting three days: “[A]n adjournment for five or even 10 days [cannot] be said to constitute the recess intended by the Constitution.” Daugherty’s caveat is also cited in [a] 1992 memoissued under Attorney General William P. Barr.

Here’s John Yoo, arguing against the constitutionality:

In the past, attorneys general and presidents have thought that an adjournment would have to be longer than at least ten days to become a “recess.”

Here’s Jonathan Bernstein, responding to Yoo on his blog:

As Yoo knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

But here’s the problem I see: none of these opinions of the Justice Department are in anyway binding on constitutional matters that affect the legislative branch as an institution (note that this is emphatically not the the case for constitutional questions strictly within the executive branch, where Justice Department opinions bind agencies absent court rulings otherwise). Bernstein very correctly points out that the Senate is not the sole arbiter of what constitutes a recess for the purposes of Article II of the Constitution. But by virtually identical logic, it should be obvious that the opinion of the Attorney General is hardly the last word either.

In fact, common sense tells us that the Justice Department is going to have a much strong pro-President opinion, on average, than any definitive Court ruling on the matter. The Attorney General works for the President! Even worse, most of the opinions and memorandums of the Justice Department rely strongly on previous opinions and memorandums of the Justice Department. It’s not a stretch to say that many or most of these citations to Justice Department opinions are simply reiterating Justice Department precedent stemming from the 1921 Daugherty opinion. So while many commentators are presenting these opinions as a long and continuous cannon of rulings on the matter, it could just as easily be described as a series of self-serving executive branch precedents, stacked up on top of each other.

Now, there’s nothing wrong with the opinions as arguments. They are certainly important documents to consider when thinking about the issues surrounding recess appointments, and many of them are both well-written and thoughtful. As a historical resource for guiding deliberations or informing us of past thinking, they are useful. But they cannot be mistaken for court decisions on the constitutionality of the current recess appointments. As they relate to the ultimate constitutionality of any given recess appointment, they are, at best, the foundation of the arguments that the executive branch would bring to court. And they should be treated as such: thoughtful opinions and memorandum, produced by the executive branch for use by the executive branch, with the full understanding that they were not written by, or for, the legislature.

But wait, you say,  hasn’t the Senate signed on to certain Attorney General opinions in the past or otherwise validated executive branch action, like int he 1905 Judiciary Committee Report on the TR appointments? To which I answer: sure. But the Senate can surely validate an action at one point in time and change it’s mind at another. It would be striking indeed to come up with a theory of recess appointments in which Senate precedent — which can be, and occasionally is, overturned by a bare majority of Senators — was binding not only on a future Senate, but also on questions of the constitutional powers of that future Senate. At the very least, a contemporary Senate can actively disagree with its own past precedent, even if inaction was interpreted as an endorsement of the precedent (which itself is not inherently true.)

But wait, you say, aren’t the terms of recess appointments, as pointed out by Noah and Akhil Amar, often negotiated by the Justice Department and the Senate? To which I say, again: sure. But while the Senate and President can come to agreements on recess appointments, nothing they do can violate or alter the Constitution, simply because they agree. Consider the legislative veto: numerous Presidents signed bills into law that put in place legislative vetos, but that did not alter their fundamentally unconstitutional character, as decided in Chada. Both the Senate and House agreed to the Line Item Veto Act in 1996, but that did not render it constitutional. The Senate cannot consent to violate the Constitution, even if that violation results in a disadvantage for the Senate. (Note that the Senate certainly can violate the constitution and choose not to attempt to enforce the constitution; but even in that case, any individual with standing could challenge the Senate’s selfless actions as unconstitutional.)

But wait, you say, don’t the federal courts rely on such opinions and memorandum when consider the constitutional questions involved? To which, I say, again: sure. But that still doesn’t make them any more authoritative than a good law review article on the topic. And to the degree to which the Courts are deferential to an OLC opinion in an inter-branch dispute, I think that’s an error. The existence of such Justice Department opinions is probably, at least in part, constitutive of any lawsuit that was filed against a recess appointment. That it would also become the reasoning for the court opinion on the matter would rest solely, in my mind, on the strength of its arguments, not the province of its origin.

And look, again, I’m not trying to say the Justice Department opinions and memos are worthless. Far from it. They are some of the best-informed legal writing we have on the subject, especially in the absence of a lot of competition or definitive court rulings. My point is that we shouldn’t give them, on their own, as much weight as many commentators have been giving them this week. And I don’t say this as a legislative branch patriot; the same logic would hold for opinions and memorandum of the Senate Legal Counsel (or House General Counsel, for matters in their purview). These are entities whose primary function and activities are to serve an individual branch of the government. In cases of inter-branch disputes, their opinions can be interesting, helpful, and ultimately persuasive. But we should not mistake them for controlling court decisions.

So there’s been a huge amount of writing about the recess appointments since I took it up from the Whig perspective on Wednesday. There appear to be four different playing fields on which this is being discussed/argued. To wit:

1) The Constitutional Question. Is the recess appointment of Cordray legal under Article II of the constitution?

2) The Normative Question. When should a recess appointment be available to the President?

3) The Institutional Questions. What caused this? How will it affect future inter-branch conflict over nominations and confirmations?

4) The Political Questions. Will the public legitimate this? Is this good strategy for Obama? How should the GOP respond? How will it affect domestic politics in 2012?

These are all excellent questions to ask, argue about, lobby the public over, and adjudicate.  But I see two problems with the current conversation. First, conclusively answering any one of the question doesn’t give you either the answer, or a solid argument, for any of the other question. Whether the recess appointments are judged legitimate by the public has little or nothing to do with whether they are constitutional, and whether they are constitutional has little or nothing to do with whether they are normatively desirable. And you can be damn sure that whether they are normatively desirable has nothing to do with whether it will be accepted as publicly legitimate. So don’t tell me it’s constitutional because the CFPB is popular, don’t tell me it’s a good idea because it’s  constitutional, and please don’t tell me the public won’t accept it because it’s a bad normative idea.

Second, and conversely, people seem to want to ignore some questions completely when they address others. And while the answers to some questions aren’t arguments for others, the fact is that all these issues are intertwined. For example, your answer to the normative question is at least partially dependent on your assessment of the institutional question; if the result of the current situation is that Presidents increasingly sidestep the Senate in making future appointments, that is almost certainly going to affect your normative view of Obama’s actions. Similarly, I don’t think the political questions and the institutional questions can be separated; as I wrote earlier in the week, institutional change is often driven (or not driven) by short-term politics. In the end, they are largely the same thing.

With all this in mind, I’ll make two quick points:

1. The normative question and the constitutional questions are inevitably in total conflict. I wrote this Wednesday, but I think it’s worth repeating given how the arguments have progressed: the  length of time under which the Senate needs to be in recess for a recess-appointment to be constitutional is already way shorter than any normative rationale can justify. The conflicting values here are congressional control of the executive branch and the judiciary vs. the smooth functioning of the government. Both are hugely important. But the span of court decisions flowing from the strategic use of recess appointments has whittled-down the time period needed for a recess to qualify to the point where the debate is over whether 3 days or a week is enough time under the constitution for a valid appointment.

But even if the constitutional minimum is a full week (and there’s good reason to believe it’s a lot shorter than that), I don’t think there’s a possible normative outlook that can justify that, or at least one that justifies that and doesn’t justify an even shorter time-period. The regular-order process of nomination and confirmation already takes longer than a week. If we had true normative concerns about executive branch officials being missing over a one-week period, we’d probably have temporary recess appointments for all regular nominations, so that the jobs could be stocked while the confirmation process took place in the Senate. But we don’t. Instead, we quickly confirm the very few key positions (like Secretary of State), and the rest sit and wait out the process.

What’s the upshot of this? I see two. First, as far as the constitution is concerned, and as much as it pains my Whig heart to say it, I think we pretty much have to concede that, realistically, the President has the authority to make a recess appointment whenever he wants. The legal issues have been completely divorced from the normative issues, and trying to read a normative position into the constitutional jurisprudence is a fool’s errand. Following that is a second point: we should  focus normative energy on the institutional questions. Just because something is constitutional doesn’t make it a good idea. And it also doesn’t make it inevitable that the actors who hold such constitutional powers will use them; political and institutional incentives can be arranged to constrain the constitutional actions of political actors. This is obvious and routine in politics, but something that people tend to forget in these sorts of constitutional stand-offs. But I think it’s especially important here, because…

2. The politics of this seem headed directly toward rearrangements of institutional power. I joked on Twitter this morning that the ultimate end of all of this is probably going to be a pro-president Supreme Court decisions that upholds a GOP recess appointment to the Supreme Court that was made during a Senate quorum call. That’s overblown humor, but I do think things are headed in a slippery direction here. Now that the precedent has been set to use recess appointments during periods of pro forma sessions of the Senate, the Senate’s available responses will be to either (a) accept the President’s ability to move recess appointments more or less at will; (b) stay in actual session for much tighter periods of time; or (c) find some political ways to constrain the President from using the recess appointments.

Obviously, choice C is preferable. But I don’t think we’re going to find out the true extent of this tit-for-tat game until the Senate and the Presidency are controlled by different parties. That may induce real fireworks. Right now, the co-partisanship of the two institutions is probably enough of a restraint on President Obama, but I don’t expect that to hold under an Obama second-term with a GOP Senate or under a GOP Presidency and a Democratic Senate. I would suspect in either of those cases, we will see a rise in recess appointments, to which the Senate may respond by freezing confirmations, to which the response may be more recess appointments. And while we don’t know where that would lead, it seems to me that the President would have the upper hand in the dispute.

But wait, you say, what about a solution in which the regular order nomination/confirmation process was reformed, such that the norms against filibustering nomination returned and recess appointments did not become any more common than they currently are? That would be an excellent outcome, of course, and it’s certainly a plausible solution. But it would also be a major reversal of course in what seems to be an ever-escalating game of constitutional hardball. And the Presidency is a real wildcard in any constitutional hardball game, I think. Internal congressional hardball can easily become a negative sum game for the institution after a series of small positive wins for individuals/parties, which might imply a leviathan-enforced type of internal reform bargain. But a Presidential-congressional battle would tend to be zero-sum game, and one that historically has not been won by the legislature.

So as a Whig, I’m worried. But as someone who studies the legislature institutionally, I’m getting the sense that this is a big enough disruption of the equilibrium to bring on some institutional change. There’s no solid way to predict, one way or another, if and when that will happen. But is certainly seems like all the ingredients are coming into place.

You know, when you write a blog you are just constantly surprised at what topics flop and what topics get people talking. Much to my surprise (but warming to my upstate heart), my post on favorite-longshot bias ignited a burst of interest in both the mighty Saratoga Race Course and what it was like to grow up in its shadow.

Luckily, I blogged a 6,000 word essay on all things Saratoga, on my old local upstate blog, Oh, SmAlbany!, back when I was a graduate student who didn’t feel like working on his dissertation. The essay is in three parts — one on the cultural relevance of the track to the local area, one on how to spend a day at the track, and one on how to enjoy downtown post-track. And it’s got a bunch of great pictures!

The entire thing appears below after the jump (click “read more” if you are on the main page)… Continue reading →