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Wednesday, November 6, 2024

Presidential Transition Act

 CRS:

The PTA authorizes the GSA administrator to provide each apparent successful candidate with certain facilities, funds, and services to prepare for future duties, including those that were available to them as eligible candidates.

Additional resources available after the election include, for example: • payment of transition office staff, • payment for services of experts or consultants, • payment of certain travel expenses and subsistence allowances, and • the use of government aircraft for transition purposes on a reimbursable basis. The PTA authorizes the funding for incoming orientation activities for intended nominees for department heads and other key leadership positions. It also provides for preparation of a detailed classified, compartmented summary of national security threats, major military or covert operations, and pending decisions on possible uses of military force. This summary is to be conveyed to the apparent successful candidate for President as soon as possible after the general election

Tuesday, November 5, 2024

"Democracy is a system in which parties lose elections."

Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America

In his opening speech to the Constituent Assembly, Adolfo Suárez, the prime minister of the Spanish transition to democracy, announced that henceforth “the future is not written, because only the people can write it” (Verou 1976). Heralding this plunge into the unknown, he caught two quintessential features of democracy: Outcomes of the democratic process are uncertain, indeterminate ex ante; and it is “the people,” political forces competing to promote their interests and values, who determine what these outcomes will be.

Democracy is a system in which parties lose elections. There are parties: divisions of interests, values, and opinions. There is competition, organized by rules. And there are periodic winners and losers. Obviously not all democracies are the same; one can list innumerable variations and distinguish several types of democratic institutions. Yet beneath all the institutional diversity, one elementary feature – contestation open to participation (Dahl 1971) – is sufficient to identify a political system as democratic.

Democracy is, as Linz (1984) put it, government pro tempore. Conflicts are regularly terminated under established rules. They are “terminated” (Coser 1959), temporarily suspended, rather than resolved definitively. Elections fill offices, legislatures establish rules, bureaucracies issue decisions, associations arrive at agreements, courts adjudicate conflicts, and these outcomes are binding until and unless they are altered according to rules. At the same time, all such outcomes are temporary, since losers do not forfeit the right to compete in elections, negotiate again, influence legislation, pressure the bureaucracy, or seek recourse to courts.

Monday, November 4, 2024

Electoral Count Act

 Many posts have discussed the legal aspects of elections.

From CRS:

The Electors Clause of the Constitution (Article II, Section 1, clause 2) provides that “[e]ach state shall appoint” presidential and vice presidential electors in the manner “as the Legislature thereof may direct.” Article II, Section 1, clause 4, further provides Congress with power to determine when the states choose their electors or “the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Accordingly, Congress enacted a federal statute establishing Election Day for presidential and vice presidential electors as the first Tuesday after the first Monday in November every four years. Federal law further provides that whenever a state holds an election for presidential electors “and has failed to make a choice on the day prescribed by law,” electors can be appointed on a later date “in such a manner as the legislature of such State may direct.

The ECA requires that “the executive of each State” send to the Archivist of the United States (Archivist), by registered mail and under state seal, “a certificate of such ascertainment of the electors appointed,” including the name of, and number of votes cast for, each elector. Further, the ECA commands that such certificates of ascertainment be sent “as soon as practicable” after the “final ascertainment” of the appointment of the electors or “as soon as practicable” after the “final determination of any [election] controversy or contest” that was resolved under the state’s statutory procedure for election contests. 

 On or before the electors meet to cast their votes, the ECA directs “the executive of each State” to deliver to the electors of the state, under state seal, “six duplicate-originals of the same certificate” of ascertainment that were sent to the Archivist. At the first meeting of Congress following the appointment of the presidential electors, the ECA requires the Archivist to transmit “copies in full of each and every” certificate of ascertainment to the two houses of Congress. 

 The ECA specifies that if a state, under laws enacted before Election Day and “by judicial or other methods,” has made a “final determination of any controversy or contest” regarding the appointment of electors in the state, and if that determination is made at least six days prior to the day that the electors are to meet to cast their votes, such determination “shall be conclusive, and shall govern in the counting of the electoral votes.” Known as the “safe harbor” provision, this clause seeks to “assure finality of the State’s determination” in resolving a presidential election contest (Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring).


Sunday, November 3, 2024

Presidential Tariff Power

 Sandler, Travis & Rosenberg, P.A:

A new report from the Cato Institute argues that several laws authorize the president to impose tariffs on a wide range of imported goods without substantial procedural or institutional safeguards. 

...
The report explains that several laws provide the president with “vast and discretionary authority to unilaterally impose sweeping trade restrictions.” Some of these are familiar to the trade community because of their recent use. Section 232 of the Trade Expansion Act of 1962 allows the president to restrict imports determined by the Bureau of Industry to represent a threat to national security, though the only time this law has been used to impose tariffs is when Trump targeted steel and aluminum imports in 2017. Section 301 of the Trade Act of 1974 allows the imposition of tariffs or other trade restrictions on a wide set of products imported from a targeted country or countries to address harmful foreign economic policies. This law was heavily used in the 1980s but was largely dormant after that until Trump used it to levy tariffs on imports from China.


Other laws include tariff authorities as well, even though none of them has ever been used in this manner. The International Emergency Economic Powers Act of 1977 grants the president wide discretionary authority to address threats to national security, foreign policy, or the domestic economy from a source outside the U.S. Section 338 of the 1930 Tariff Act authorizes new or additional tariffs of up to 50 percent on imports from countries that have discriminated against U.S. commerce, and if the discrimination continues the president may block such imports entirely or expand the trade restrictions to third-party countries that benefit from the discriminatory conduct. Section 122 of the 1974 Trade Act could be used to unilaterally implement a 15 percent global tariff for 150 days to address “large and serious” balance-of-payments deficits.

Saturday, November 2, 2024

Madison and Virtue

 Many posts have discussed civic virtue.

James Madison, June 20, 1788

 But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

Friday, November 1, 2024

The Alien Enemies Act, Explained

Don Wolfensberger at The Hill:
Two things should be understood about the Alien Enemies Act. First, it can only be operable when there is a “declared war between the United States and any foreign nation or government.” The act was not triggered when enacted because the U.S. maintained its neutrality throughout the war between Britain and France.

Second, the legislation authorized the president to “make public proclamation” of his intent to apprehend, restrain, secure and remove foreign male nationals aged 14 and over (since amended in 1918 to include women) as enemy aliens, whether or not they were present in the U.S. legally.

The act has been invoked only three times over the last two- and a quarter centuries: in the War of 1812 against Britain, in World War I and in World War II — the latter being the last war declared by Congress.

The Alien Enemies Act was used to during World War II to arrest and detain in internment camps or military facilities more than 30,000 suspected enemy aliens in the U.S. from Italy and Nazi Germany. The more outrageous occurrence was the internment of over 100,000 ethnic Japanese. But approximately two-thirds of these were U.S. citizens, who therefore had to be detained under different legal authorities than the Alien Enemies Act.

Even if Trump’s threat to utilize the 1798 law to round-up and either detain or deport immigrants, the task would be a hugely costly, litigious and prolonged. Moreover, he would be challenged in the courts that the U.S. is not now engaged in a declared war and the president has no authority under the Constitution to unilaterally declare war on other nations.
 
Several experts have pointed out that the president already has authority to expel undocumented aliens, war or no war, and need not invoke the Alien Enemies Act. So why would he want to jump through all the extra hoops? And even then, it still comes down to the bottom-line question: “Where’s the money?”


Wednesday, October 30, 2024

Viewing With Alarm

 J. Andrew Sinclair and Kenneth Miller report on the new Rose Institute poll:

American voters view the upcoming election with alarm. Nearly half of registered voters (47%) view the election of former President Trump as a threat to democracy, while 38% view Harris the same way–with fears mostly dividing along partisan lines. Voters who see both candidates as a threat to democracy (5%) tend to prefer third-party candidates or remain undecided. 

Only 10% of respondents view neither candidate as a threat to democracy. This view is more common among Trump supporters than Harris supporters, and partly explains the difference between responses to this question and the question on candidate preference.

 Overall, one thing most voters can agree on is that the stakes in this election are high.