July 14, 2004

Mike Mills: He Lives on the West Coast

by Guest Contributor

First, let me say what an honor it is to be so loved hated by so many (3) of you. In my defense, I never claimed to be a poet, and it's not easy to write when naked and coated in peanut butter.

The recent discussion out of the Department of Homeland Security and on many, many blogs the past few days has been about what to do in the event of a terrorist attack shortly before or during an election. The Department of Homeland Security wants to ask Congress to grant it the power to change the dates under a serious threat. I'll let others discuss the wisdom of such a power shift and who Osama really wants you to vote for. What confuses me is why no one has asked whether Congress can even grant this power to anyone.

Occasionally, Congress abdicates certain parts of its powers to the Executive, for any number of sensible reasons. In this case, it makes sense that the Executive might want the power to make quick decisions about the timing of elections, given that Congress may be out of session for part of the few months leading up to the November election (I believe they finish this term at the beginning of October).

Inevitably, a number of these times Congress passes a law to abdicate its powers, the Supreme Court strikes down the law. For example, the Court voted 6-3 in Clinton, et al. v. New York City, et al. that the Line-Item Veto was an unconstitutional abdication of power. Numerous other issues have an almost unspoken agreement that their underlying laws should not go to the Court, lest it strike them down: the War Powers Act gives the President leeway to make war that the Constitution never granted, Fast-Track trade authority grants the President the power to negotiate trade deals and prevent Congress from changing the individual pieces of those deals.

On the other hand, there are a few cases in which the Court seems to be okay with Congressional delegation of authority. Precedence suggests that "So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" ( Mistretta v. United States, in which Congress creating a commission that changed sentencing guidelines)

It seems that if Congress genuinely wishes to accommodate the Department of Homeland Security's wish to possess powers to postpone elections, it needs to make its legislation very clear and very limited. Merely granting the Executive the power to change the time of the election would likely be seen as too broad and irresponsible. Were Congress to grant such powers such that they could be only exercised in very specifically defined circumstances (I would expect requirements to include Congress being out of session, and some guidelines as to what is defined as a terrorist attack), then and only then would the Court allow such delegation.

Then again, wouldn't it just be easier for Congress to state that in the event of a terrorist attack, elections be postponed until Congress can be called up by the President? The only drawback I see here is if such an attack is actually on members of Congress.

Will Congress ever pass this law? Doubtful. However, I believe that the constitutionality of it will be upheld, especially given the urgency of keeping the elections stable. The ability of citizens to vote is an issue of dire importance; the ability of the President to change the wording in a bill is not.

July 14, 2004 01:38 AM | TrackBack
Comments

Maybe you're not the best poet in the world (though personally I appreciated it) but you make some good points here. In all fairness, people should vote on the quality of posts in this round rather than carrying over their prior judgments.

I promise I'm not saying this just because you look sexy in peanut butter.

P.S. Osama really wants you to vote for Wings&Vodka.

Posted by: Lizard at July 14, 2004 02:24 AM

Fuck the naysayers, they don't mean a thing.

That is all.

Posted by: wingsandvodka at July 14, 2004 03:38 AM

A few responses. First, it would have been helpful if you had linked to some of these "many, many blogs." So, here are some from me: Jack Balkin has a nice post about some of the relevent constitutional issues, and Eugene Volokh has been his usual prolific self, see here and here and here and here and here.

Balkin does note that the Constitution leaves it to Congress to set the time for elections, and discusses the limits on that power. Your mention of "unspoken agreements" is really called the "political question doctrine": courts stay out of the issue because it is inherently suited to the political arena. In this case, however, I think the courts could step in because the many limits on Congressional power re: elections give the courts a hook for justiciability. There's also a huge federalism issue here, given that the state legislatures are responsible for selecting electors. Congress can't delegate to the Executive a power that rests with the States. Finally, I think that the reason so many people are viewing this suspiciously is because of this administration's overall demeanor of secrecy and "trust us" attitude. I think it's a good idea to have contingency plans, but we should have started drawing them up three years ago, not leave them until they would be seen as a mere politcal ploy.

Posted by: Milbarge at July 14, 2004 09:04 AM

Having come to the party late, I don't know why you have gotten on the love, but I think this is a well thought out post on an issue that I hadn't really thought about. Good job.

Posted by: Unreasonable Man at July 14, 2004 10:15 AM

Milbarge: Thanks for the links. I had meant to post several of them, and had forgotten as I was writing up my html tags. It seems almost unfair to let Professor Volokh be the entire discussion, so here are a few other parts of the discussion I like. (That last one especially on the conspiracy theories)

I'm not sure that changing the date of the election would actually infringe on the individual state powers to select electors. In fact, the relevant part of the Constitution (Article 1, Section 4) seems to let Congress have a bit of leeway over the states in the area of election law. Given that the current date for national elections is already set by Congress and not the states, I think at the least there is a good deal of tradition to stand on in locating this power.

Posted by: Mike Mills at July 14, 2004 10:37 AM

How devious, Milbarge. You've posted in the thread of the competitor that you seem to fear the least - helping ensure that they will make the next round and a more fearsome threat does not.

And then, even more subtle, by being so brazen, you tempt others (like myself) to call you on your strategy, ensuring its victory!

Posted by: Craig at July 14, 2004 10:47 AM

Craig,

How dare you suggest such a nefarious motive on the part of my co-blogger? I would never dream of Milbarge gaming the system.

I feel confident that he commented to this post because the topic is ripe for discussion.

Posted by: Fitz-Hume at July 14, 2004 10:52 AM

Craig,
Do people really do stuff like that on those reality shows? Hm. Interesting.

Posted by: Milbarge at July 14, 2004 01:07 PM

I think the idea of relinquishing that particular power is quite a bad idea, whether it is legally allowed or not. This particular president has shown his willingness and ability to get away with bending a lot of powers, and he definitely enjoys using the terrorist angle quite often. I could just see Tom Ridge coming out and giving another "We don't know what, we don't know when, we don't know how, but the terrorists are going to do something terrible" speech and the president then calling these new powers into effect. While I doubt such a ploy would work in the long-run, it would cause a lot of confusion and could in actuality bring quite a lot of damage.

Another fear of mine is that such a power, if not limited to this particular election, could be misused in the future. The problem with relinquishing powers like that is that it could come back to haunt the country in a new time and form. Who knows, that could be the first step in undermining our entire democratic system. It's not unprecedented for an increasingly strong centralized executive figure to eventually lead down the path of dictatorship.

If this doesn't make sense or you don't like the writing style, forgive me. I got four hours sleep, and I'm still commenting here. I think that's pretty ambitious :Ģ

Posted by: Quaternion at July 14, 2004 02:09 PM

Hmm... Tricky, tricky, tricky.

This is definitely a strategic vote, not for Mills but rather against Ichiban. Right now the former is barely 3 comments ahead of the latter, with mine it will be 4. Ichiban is dead last, which puts him nicely in line for elimination... bwahahahah! And yes, as one of the commenters above has suggested, I do believe you, Ichiban, are the bigger threat (go ahead, respond with a comment, I dare ya) ;)

Wings&Vodka's number one victory this round seems virtually assured, rendering my potential vote there apparently superfluous. While Milbarge seems to be modeling his tactics after the "Richard" of Survivor season one -- tsk, tsk, now everyone's on to you!

The only wild card in this scheme would be if someone was sneaky enough to have asked their friends to vote... ehrr.. I mean comment en masse right before the 10 a.m. deadline, taking advantage of the other readers'/contestants' complacency in their seemingly secure lead margins. I'm lookin' at you Wings&Vodka! Simon says, you better win this thing! :)

p.s. Lest the judges try to pull a Florida on this comment, I will opine on your post Mr. Mills: Good job, no, really, I mean it. But your prior "ode to Ted Olson" is unforgiven, and not because of its poetry or lack thereof. Besides, Wings&Vodka had my allegiance with, "Iíll gladly kick Scaliaís ass." That wasn't just poetry, that was music. ;)

Posted by: SimonSays at July 15, 2004 04:57 AM
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