History, Law, Media Criticism, Political Commentary

Powers And Duties

25 Comments

Does the president have a “duty” to put forth a nominee? Does the Senate have a “duty” to consider him or her? No.

I’ve been meaning to write about this but, as noted there, “shall” does not necessary mean that it is a mandatory act, and there is no time limit on it. The president has the power to nominate, and the Senate has the power to advise and consent, but it is not incumbent upon either to do so. The Framers intent was not to insure that appointees were appointed, but that it not be done unilaterally by a single branch. In their desire to limit government powers, they made appointments, as with much else, difficult, and I doubt they’d be displeased by either the “Biden rule” or the current Republican stance.

The only real duties that either branch has are to “establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” It is ultimately up to the people to decide if they are doing so, and to rectify the situation if not.

If the president chooses not to nominate, he will be judged in the next election. If the Senate advises and consents by advising the president that they will not consent, they too will be judged in the next election, or at least a third of them will be (as it happens, the Republicans have 24 seats at risk in the fall). But the Senate is doing nothing unconstitutional in deciding to let the people decide.

[Update a while later]

Welp, Kasich said today that he might nominate Garland. So we have that going for us. #RINO

25 thoughts on “Powers And Duties”

  2. [sic] for defence is inappropriate. “Defence” with a “c” was the proper spelling in the U.S. circa 1787, and it remains the proper spelling in Old Blighty and Ireland and many other places.

    Still, I appreciate the link. Thanks.

    Seth

    1. I’m pretty sure Hillary wants to defence the southern border.

      defence: (v) To remove a fence.

  3. Aside from that, we could make the argument that only 22.7% of Americans are Catholic or Jewish, yet Garland’s confirmation would mean 100% of the Supreme Court justices are. The odds against that happening by chance are 600,000:1.

  4. Re: Kasich saying he might nominate Garland.

    The other day he said he’d pass amnesty in his first 100 days.

    I’m not sure what voters he’s targeting with those stances, but I’m pretty sure they’re not Republicans, excepting Republican members of the Chamber of Commerce who can afford their own private security detail.

    1. I find it highly suspicious that Kasich would flip on these issues now. It’s not primary voters he’s after with these positions, nor does it fit if he’s running for VP.

      What does fit though, is an overture to the establishment and their backers, on the way to a brokered convention (which is the only way Kasich can get the nomination – it’s impossible for him to reach 1237 delegates in the primaries now, there aren’t enough left even if he won them all.). And who will be chairman of the convention, and thus its presiding officer? Paul Ryan.

      This does not bode well.

    2. He is trying to pull a Trump and get the Democrat crossover vote but isn’t nearly as skilled at it.

  5. “Shall” in this case means it is a requirement that it the nominee go through the Senate, not that the Senate does anything. If any of the progressives want to argue otherwise, then there were decades of Democrat controlled Senates that broke the law by not “shall… confirm”.

  6. Kasich’s amnesty and Garland comments are just more signs that the GOP-as-we’ve-known-it will not survive this election cycle.

    It’s fascinating to watch the predictions from the hated Bell Curve book play out. The fracturing of the GOP is part of the division of society into an isolated technocratic/economic elite vs. the rest of us. The Dems are the party of those at peace with the division, the rulers and the happy serfs waiting for their table scraps. The GOP has the GOPe, who are not much different, as Kasich shows us, from the Dem masters; but those who are the base of the GOP don’t want to lick anybody’s boots.

    The GOP base doesn’t have a burning hatred of Dems as a group, because we’ve known what they are for a long time. But when you believe you’ve been sold out by the leaders of your own side, that provokes bitter hate. We don’t know how the endgame will play out, but the GOP will either get a new base who are happy for crumbs, get new leaders who faithfully represent their voters, or just fade away as a political force.

    1. +1

      I get in bitter debates with progressives and liberals on a daily basis, and though they call me a liar, and idiot, and a Nazi all the time, I don’t really even dislike any of them. They just have a horribly flawed and naive worldview. It’s kind of like dealing with junior high kids. It’s also fun to watch the ones who have an epiphany (one of Boyd’s destruction/creation events) and in a few months switch to demanding things like a halt to unchecked Muslim immigration.

      Anyway, I think there’s a disconnect opening even wider between the rank-and-file and the party elites on free trade, given the popularity of Trump’s “I will negotiate better deals” rhetoric and saying he’d slap tariffs on Chinese and Mexican products. Interviews with blue-collar Democrats in some areas show them switching parties because of Trump’s stance.

      It’s made me wonder if there’s a flaw in long accepted trade theory, because in that theory people shouldn’t have seen all the factories leaving and none opening up. The things that should have closed down are businesses where the US doesn’t have a competitive advantage (things we’re not good at), and the new jobs should have been from expansions of things we’re best at.

      So we apparently weren’t very good at making cars, electronics, appliances, heavy equipment, toys, tools, or consumer goods.

      Wait, we owned those markets. We invented most of those products. We developed the tooling and assembly lines to make them. We had a century of industrial engineers doing time and motion studies to optimize how we make them. We wrote lengthy training manuals and procedures and developed computer programs and test equipment to refine and test every step of the process. That was our competitive advantage in product X. Let’s call that competitive advantage X’, and note that X’ can be boxed up and exported just like we used to export X. For the owners of the company, exporting X’ instead of just X can be extremely lucrative because it let’s them produce X in a country with lower wages and sell back into the same markets.

      They saw the expanding markets in China and were desperate to enter it, while the Chinese saw that it was much better to import X’ than X. They didn’t want our manufactured products, they wanted our manufacturing base. And they got it.

      And as free trade theory says, everybody ended up with cheaper X, but our workers no longer work at a union job in a heavy equipment factory, they work at Pizza Hut. But that was okay because the software/IT industry was booming. But that boom is the result of the US and English children learning computers far earlier that kids in other countries – because we’d developed those technologies sooner, in part thanks to the US being the richest and most technologically advanced nation after WW-II and facing an existential threat from the Soviet Union which we needed to offset with more advanced electronics.

      But now children in other countries are growing up writing code, and it’s far, far easier to download a suite of software development tools and all our programming books than it is to box up and ship an entire assembly plant.

      The time is already here when it’s cheaper to develop software in Mumbai, and the time will come when that software is better and cheaper than what we produce domestically. And then there goes the market share and a ton West Coast tech jobs. In many cases the owners of our software firms will still make out like bandits, they’ll just have offices overseas where their programmers live. So the stocks boom and the stockholders do well, but the workers don’t.

      The workers seem to sense what’s going on – where exporting our largest competitive advantages instead of using our competitive advantages to increase our exports. And they seem to be pretty upset about it. Trump may have no deep understanding of where we screwed up, but he does note that we did and we’re getting screwed. The other Republican candidates just defend conventional trade theory and echo the US chamber of commerce, as do the Democrat candidates (aside from Bernie, who can’t figure out why we need more than one brand of toothpaste).

      Maybe Trump read Neal Stevenson’s Snow Crash about the post-globalization world where the US only excels at microcode, entertainment, and fast pizza delivery, or maybe he’s seen what kind of choices he’s forced to make by US trade policy, but it’s certainly resonating with a large sector of the electorate. It’s probably going to have more resonance than the idea that the way to fix the trade imbalance is to go back to founding principles with much more Jesus (Cruz), or to grant amnesty and listen to the Chamber of Commerce (Kasich), or to look to Hugo Chavez for inspiration (Sanders), or to give Hillary more bribes and kickbacks from Wall Street.

        2. Or what is bad about American companies going out into the world and competing in foreign markets? How come taking money from other markets and bringing to the USA isn’t as beneficial as it should be?

          Throughout history, taking wealth from others and bringing it home has worked out well for the country bringing wealth in. Now, we don’t need wars or long boat raids. We just offer people products and services they want.

          Maybe allowing companies to repatriate profits would be beneficial. Then they could use that money to do more in the USA.

          1. Well, that’s part of the problem. If they make the product here they get heavily taxed, whereas if they make the product overseas and keep the profits overseas, they don’t.

            The distinction I’m drawing is between US companies going out into the world and competing in foreign markets, and US companies emigrating out into the world so they’re actually competing as foreign companies as far as labor and capital is concerned.

            For a long time we were the receiving end of such flows. Skilled Germans would wake up one morning and say “Honey, I’m moving the brewery/sausage/machine tool business to Pittsburgh/Chicago/Milwaukee where there’s better market opportunities, lower taxes, and less regulation!”

            Well now there are incentives to pick up stakes and open shop in China or Mexico because we’ve made this place relatively less attractive for business.

            To put this in a Transterrestrial perspective, what if we didn’t have all the onerous military export issues with what SpaceX makes, and as the company grows Elon decides that it would be a lot cheaper to make his rockets across the border in Mexico or China where labor is much cheaper? Why wouldn’t he? The Chinese would throw tons of incentives at him and we’d end up launching our satellites on his Chinese-made rockets. They would own the launch business because we sold it to them. Meanwhile SpaceX’s old employees would go to work at Starbucks.

            Decades ago US companies didn’t do that because the situation here wasn’t as bound up in expenses brought on by red tape and an expansive social welfare system, and many of the places with cheap labor were so backwards that a company would have to build the infrastructure practically from scratch, including a power and transportation grid. As we export more and more of our manufacturing technology, those barriers are falling.

        3. Wodun, if you adjust that graph to per capita employment and output it doesn’t look quite the same. The US population in 1975 was 221 million. Now it’s 320 million. So manufacturing employment per capita has dropped more than half while the value of manufacturing output has only risen 42%, or about 1% per year, much slower than the overall growth rate.

          1. That’s a good way to look at it but it still shows an increase in manufacturing and more efficient production. Jobs are important but so are innovations in manufacturing processes. It says something that manufacturing was still increasing while competing against extremely cheap labor. But, I think you hit on something with this;

            so backwards that a company would have to build the infrastructure practically from scratch, including a power and transportation grid. As we export more and more of our manufacturing technology, those barriers are falling.

            Our manufacturing sector competed through innovation based on industry knowledge but there isn’t anything magical preventing other countries from doing the same. We have been seeing this transition in China and other countries. Industry knowledge in developing countries is leading to innovation and increased quality and manufacturing processes requiring cheap labor shift to other countries.

            I’d much prefer our companies made as much as makes sense here but regardless would return all of their profits to the USA. I don’t think the government really needs to worry about taxing it as the money will be taxed many times over as it changes hands.

        4. What is it that drives production out of country? Wages, taxes, regulations, workforce skills, or other things?

          By and large, US labor costs are higher than most places overseas. That makes it reasonable to invest in technology to increase productivity. However, as the cost of the technology has decreased, it’s easier to put productivity-increasing tools in places with cheaper labor costs. Advantage: Overseas

          The US has some of the highest corporate taxes in the world. We’re either #1 or #2 in that dubious category. Advantage: Overseas

          The US government levies thousands of new regulations every year (some 80,000 pages worth in 2014 alone). Not every regulation applies to every industry but taken as a whole. regulatory compliance makes it more expensive to do business here. These regulations impact labor costs (ObamaCare being but one example) as well as the cost of doing business (e.g. EPA and OSHA regulations. Obama said in 2008 that “under my plan, the cost of energy will skyrocket.” He was talking primarily about electricity production, something that industry depends upon quite heavily. Advantage: Overseas

          The US government has been doing things that drive up the cost of doing business here for decades. A lot of manufacturing jobs have been lost as a result. While economists like to say that new jobs have been created (true to a degree), a lot of the displaced workers aren’t suitable for doing those new jobs. A person whose job was building widgets on an assembly line may not have the training or intelligence to work on the robots that took his job. We have over 90 million working age Americans who aren’t working. These things are a big reason why.

      2. Free trade in a commodities- and raw-materials-based world, when the factories and workers stayed in their countries of origin, would perhaps have been fine. However, it doesn’t work when factories and workers are fungible objects. In the Holy Search for Increased Shareholder Value, our “good American companies” have gutted our manufacturing base. Look at what Carrier just did. Poof, jobs gone to Mexico or wherever, where the workers work for $20/day not $20/hour. Look at what Disney did, canning all their American IT people to replace them with ones flown in from India.

        And the elites wonder why more and more working-class people detest them now.

        1. Another new factor is that we invented great ways to control overseas factories from New York and LA. Decades ago moving production to China or Mexico would mean that a lot of top management people would have to move to China or Mexico because trying to run a complex operation over the telephone to a person speaking broken English is a non-starter.

          So one thing that limited the outflow was that the Harvard CEO couldn’t easily sell his Ivy League managers on the idea by saying “We’re all moving to a third world hell hole to improve the bottom line!” But now we all see ads from IBM, Fed Ex, UPS, and a slew of other tech companies that say they’ll manage our international supply chains for us, with pictures of the factory in China or Taiwan fulfilling orders coming in over the Internet.

          We’ve not only figured out how to box up and ship our competitive advantage overseas, as if it was a product, industries have sprung up to treat the export of our competitive advantages as a market in itself. It’s globalization. It’s great for world trade, but not so great for people who remember the days when they drove past their boss’s house on the way to work.

    2. We don’t know how the endgame will play out, but the GOP will either get a new base who are happy for crumbs, get new leaders who faithfully represent their voters, or just fade away as a political force farce.

      FTFY

  7. Meanwhile they’ve destroyed time value of money so saving makes little sense. With an artificial low interest rate you can’t save for retirement. A nest egg that doesn’t generate income is no egg.

    1. Ken, Ken… It’s a feature, not a bug! If you can’t take care of yourself, where ya gonna go for help? Big Government!

      1. Extremely low interest rates benefit debtors and punish savers. Guess who the biggest debtor is?

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