Have a drink with: John Tyler
Ask him about: Sick of that song yet?
In the anonymous New York Times opinion essay about staff dissent within the White House published earlier this month, the author mentioned (among many other things) deliberation over use of the 25th Amendment in response to perceived presidential instability.
To be fair, this is not a new topic: the the 25th Amendment has been a common topic in shouts and whispers over the past two years as pundits consider whether its terms would or wouldn’t realistically attach to the current occupant of the White House.
The 25th Amendment to the Constitution was passed in 1967 in direct response to the assassination of John F. Kennedy, and the questions involved had well predated the 25th Amendment even if they had not been presented so directly: what to do when the Presidency changes fundamentally and irrevocably, due to death, removal, resignation, or disability?
Dealing with matters of succession and power transfer, the 25th was invoked in the 1970s around the Nixon administration, and is occasionally put into action when a sitting President is temporarily incapacitated (despite the promise of intrigue and drama inherent in the amendment, in reality it’s been used, for example, to cover the duration of each of the Bush presidents’ colonoscopies).
But for the first word on the matter of presidential succession, you’ll need to go back to 1840 and then-Vice President John Tyler, who set up a century-long American precedent on succession that boils down to a very Trumpy word: MINE.
Have a drink with: The Committee of the Proprietors of Common and Undivided Lands at New Haven
Say that one five times fast.
Ask them about: Food trucks, church buildings and underground parking structures
There are situations in which you are pleased to find your hometown has made national news. A horrific instance of mass overdose is emphatically not one of them. And as news coverage has attempted to understand and respond to a public health crisis of this particular impact, all but the most local coverage has overlooked one idiosyncratic fact about the administration of the space in question: the city of New Haven, Connecticut is not the owner of the New Haven Green.
Have a drink with: George Logan
Officious intermeddler, or really nice Quaker?
Ask him about: Working vacation in Paris
As the public becomes suddenly, intensely interested in any shred of previously-confined-to-textbooks arcana that might be dragged out of the law closet to explain or mitigate the current Presidential administration, this is a bizarrely entertaining time for legal scholars. (Faithless electors! Emoluments! The 25th Amendment!)
The latest of these, invoked around the supposition of Trump associates conducting conversation with Russian government officials, is the 1799 Logan Act. To be fair, this is not a new issue: the Logan Act has been dragged out as a possible remedy by nearly any disgruntled partisan over the years to object to the conduct of some politician or activist they don’t like (don’t believe me? Just ask Jimmy Carter, Obama, Trump, Jesse Jackson, Jane Fonda and Ross Perot).
The Logan Act has a simple message. In short: “Hey, you! Yes, you. Are you part of the executive branch? No? Then don’t negotiate with foreign governments.”
Have a drink with: The Mainstream Media
Fake news. Sad!
Ask them about: thin-skinned Federalists
Today I’m over at the wonderful Historista blog with an essay on how the Trump administration’s efforts to control news media echo the 1798 Sedition Act.
Go check it out!
Have a drink with: The Electoral College
Neither elected, nor a college. Discuss.
Ask them about: Any December plans?
Most people hadn’t though much of the Electoral College before the contested Bush-Gore election in 2000, and many assumed that up to that point in American history it had mostly been a smooth, rubber-stamp affair. In truth, before 2000, seventeen elections ended in Presidents elected without a majority of the popular vote, and some scholars have figured out that minor vote shifts – a matter of 75,000 votes or fewer – could have changed the result in half of the elections for which data is available. (see detail here and here)*
So what did the founders mean when they set up this odd institution to elect the President? The Electoral College emerged from the Constitutional Convention of 1787, during which the founders were justifiably pissed off at having to spend their entire summer indoors in Philadelphia.
After long weeks of gridlock and argument over the structure of the Congress for our not-yet-unwrapped nation, there was no break in the fighting between small states and large. The Virginia Plan based the structure of Congress on state population, while the New Jersey Plan insisted each state have equal representation in the legislature. The Connecticut Plan won the day with the suggestion that one house be based on population and the other on equal allocation across states.
Then someone broke the news that they had to figure out how to elect the President, and it was late August by this point. Everyone could agree on one thing: we don’t want to repeat THAT whole mess again, plus we are running out of states after which to name proposals. Can we make the president thing easier? Yes.
Have a drink with: The Twelfth Amendment
Ask it about: Can it get us tickets to Hamilton?
Last week former New York mayor Michael Bloomberg wrote a public letter explaining his considered refusal to declare candidacy in the presidential election. Bloomberg described the election thus far as “doubling down on dysfunction,” and you can’t exactly blame him for that since the delegate situation is a mess, conservatives are allegedly calling for a convention brawl, the Simpsons predicted President Trump back in 2000, and third-party candidacy is suddenly a hot topic).
Bloomberg, though, tucked a little something else in there:
“In a three-way race, it’s unlikely any candidate would win a majority of electoral votes, and then the power to choose the president would be taken out of the hands of the American people and thrown to Congress.”
This is not made up. It’s the Twelfth Amendment, and I can explain it to you. With musicals!
Have a drink with: The All Writs Act
Ain’t no party like a statutory party, because a statutory party
is subject to judicial review.
Don’t give it: your iPhone passcode
Beginning with the iOS8 version of its operating system, Apple has used encryption that makes it impossible for anyone but the user to access the passcode-protected information on their iPhone. Yesterday, a California district court issued an order asking Apple to create a bypass by which the FBI could access information on a recovered iPhone linked to the December shootings in San Bernardino, citing the All Writs Act – a piece of legislation derived from the Judiciary Act of 1789 – as legal basis.
In an open letter Apple has opposed the order, citing the integrity of its customer relationships and the sanctity of customer information.
This is fascinating, and on the bleeding edge of technology, privacy, law and communication as they intersect in the 21st century. But in the meantime, wait: did that say 1789? Are we really going after an iPhone with a muzzle-loader?