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?