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Matt's Five Points, May 24: Justin Amash is Not a Template Easily Copied

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Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s
 
May 23 · Issue #9 · View online
Matt's Five Points
Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s my regular newsletter that usually includes five points at the intersection of DC politics and political science, and often some links to interesting things I’ve been reading or listening to this week. 
In this issue, I discuss President Trump’s personnel problem, his weakness as a legislative negotiator, why Justin Amash is not a model of how to behave in Congress , the value of OLC memos , and the proprietary powers of Congress against the executive.
Feedback? Drop me a line or just respond to this email. And you can always catch up with me on Twitter.

Justin Amash is not a template easily copied.
And pleading that members ‘do the right thing’ is usually worthless.
Congressman Justin Amash (R-MI) made waves last weekend when he came out strongly against President Trump, tweeting that Trump had committed impeachable offenses and offering a scathing assessment of Trump’s partisan defenders. Amash is a rather unique figure; as I wrote on twitter, I’ve never met a member of Congress quite like him. He’s very conservative, very principled, and very much doesn’t care about partisan politics. He thinks very hard about every vote he castshe literally uses staff resources to ponder procedural committee votes, something I can’t even imagine another member doingand he routinely bucks his party in favor of core principles that he rarely diverges from.
In short, he’s a perfect model for everyone who believes in the fairy-tale vision of democracy.
The most common response I got to my tweet about Amash was something like “every member should be like him, doing the right thing for the country, not worrying about reelection. It shouldn’t be unique among members to be conscientious, principled, and non-partisan.”
The problem with this line of thinking is that it’s just not how democratic politics works, nor is it necessarily how we even want democratic politics to work. You can’t be a noble statesman if you can’t get elected and stay in office. Representatives have to, you know, represent actual people and win actual elections. It’s not like those noble statesmen types don’t existthey just all lost their elections and got run out of Washington because they didn’t listen to their party or their voters. Amash may suffer the same fate.
But what about men like Lincoln? Lincoln was indeed a statesman and a bold moral leader. But underneath that was an absolutely cutthroat, cunning, and strategic party politician, who was ruthless in his tactical politics, and, as David Donald memorably said, an “astute and dexterous operator of the political machine..a master wirepuller.” Lincoln’s genius as a statesman and moral leader was predicated on his skills as a top-flight fearsome party politican, in an age of fearsome parties and fearsome party politicians.
Last year, I wrote up the longer version of this argument in an op-ed. It’s worth considering in light of Amash.
People often urge members of Congress to take positions that reflect arguments for the public good without regard to electoral or party consequences. They point to so-called profiles in courage, like Edmund Ross, a Kansas Republican who cast the deciding vote to acquit President Andrew Johnson, a Democrat, in 1868, or Marjorie Margolies-Mezvinsky, a Democratic representative from a conservative district in Pennsylvania, who voted for the Clinton budget in 1993.
But those instances are rare. Most of the time, members of Congress do want to pass good public policy, but they also have two other important goals, re-election and increased power in the legislature. These goals offer a road map to the incentives that shape their decision making.
When the incentives don’t align, members face problems. In these cases, re-election usually wins out, not least because it is a prerequisite for any other goal. Indeed, profiles in courage are so rare because they routinely cost legislators: Both Edmund Ross and Marjorie Margolies-Mezvinsky lost their re-election bids.
Many argue, however, that members should be willing to risk their jobs for the public good, especially on matters of conscience or morality. Historically, some politicians have done this — perhaps most famously Sam Houston of Texas, when he refused to support slavery’s expansion or secession from the Union, which cost him first his Senate seat and then his governorship. But giving up one’s job for a public policy is tougher than it appears. Consider whether you would give up your current job — and likely any future in your current career field — to pass one specific public policy.
Still, some people might be willing to sacrifice their job for a policy. But even then, there’s a catch: Very few will be happy to lose their job to not get the policy. That is, members who sacrifice their seats to “do the right thing” might find that the policy is never enacted, or that they are replaced by someone who repeals the policy.
Members of Congress are also faced with lots of conflicting advice about what exactly constitutes the public good. Is it the national good? The good of your district? The long-term good? The short term good?
The tension between the public good and re-election also highlights the dual role of members of Congress: They are national policymakers but local representatives. When they are criticized for favoring re-election over the public good, it is often a criticism of putting local concerns over national ones.
Faced with a policy that helps the national economy but costs local jobs, many members will feel obligated to defend their constituents, and oppose the policy. Congressmen routinely oppose trade deals on these grounds, and some blue-state Republicans, in the debate on the recent tax bill, faced opposition at home to altering deductions for state and local taxes.
In practice, this local incentive tends to distort public policy toward parochialism and away from the national good. But this is neither irrational nor inherently bad. Even if you believe national interests should take priority, it doesn’t follow that local interests should be ignored.
Complicating this, most citizens do not have consistent opinions about when each role should take precedence. So asking members to “do the right thing” often means asking them to risk their job for an important policy, but just this once. Even worse, determining “the right thing” is largely subjective; in most cases, it just means “a position I feel strongly about.”
The other thing people forget is that, on at least one dimension, Amash has largely been a failure in the House; he doesn’t wield a lot of power, and he is something of an outcast in his own party, which isn’t much of a recipe for becoming a statesman-like leader.
The third goal of members — increasing their power within Congress — is intrinsically linked to partisanship. Power in both the House and Senate is structured along party lines, with party caucuses holding gatekeeping authority over committee seats, chairmanships and chamber leadership positions. Members can parlay skills like fund-raising prowess or issue expertise into increased power, but in most cases they need to please party leaders to improve their standing.
When all three of their incentives align, members have little to consider. If a position is strongly supported by constituents, pleases party leaders, and is judged by the member to be good public policy, then taking that position is a no-brainer.
The most difficult choices members make concern supporting the party position on issues that cut against the preferences of their constituents or district interests. This may take the form of voting with the party on high-profile legislation. For example, the Democrats in 2010 passed the Affordable Care Act even though it was obvious the votes were going to cost them seats in Congress.
Sometimes members judge that siding with the party and against their constituents actually best serves their district. If a member can gain a lot of favor with the leadership while mildly going against her district, his increased power will probably benefit the district in the long term.
It’s still not easy to go home and say, “No, I didn’t vote with you, but this is really going to line me up for a chairmanship, which will be great for us in five years.” This is why developing trust with constituents is so important. If constituents believe the member has their best interests at heart, they will give him the benefit of the doubt.
None of this is to say that Amash is making a bad choice. I applaud him for taking a stand here, and I basically agree with his assessment of the Mueller report and the president. But he may pay a stiff price for doing so, and it’s highly unrealistic to ask other members to follow along, given that they will probably have to buck their entire incentive structure, simply to appeal to your situational view of the public good.
Trump is a weak POTUS, part XXVII.
Personnel is a huge continuing problem for Trump.
I continue to believe Donald Trump is as weak president in danger of a failed one-term presidency. I subscribe to the general Neustadt argument on presidential power, and I’ve written about it plenty before: on Trump’s general Neustadtian weakness, his trouble managing the White House, his cheerleader role in congressional agenda-setting and legislation, and a host of tweetstorms about his various poor moves that have sapped his power.
Now, all presidents are powerful in an absolute sense, but we differentiate them by their ability to influence public policy outcomes. Presidents compete with lots of other actors in the government—elected members of Congress, appointed administration officials, civil servants, White House staffers—for influence over legislation and executive branch administration. Ultimately, a president’s success or failure rests on their ability to persuade others that the costs of opposing him are too high.
And, in this sense, Trump just looks supremely weak in DC. He can’t get the GOP to do anything legislatively that is on his agenda but not theirs. He constantly complains about his own cabinet officials, who appear to ignore him regularly. When he finally puts the hammer down and fires them, they often don’t go quietly, and his supposed allies blast him. Private sector “allies” loudly walk away from him the minute he crosses them. And he can’t even stop the record-setting departures and the legendary-level leaks at his own White House, where power-hungry staffers engage in endless intrigue, precisely because they know it is so easy to manipulate the president if you can get the face time.
On foreign affairs, Trump often loses the support of his own party. The GOP-controlled Senate has invoked the War Powers Resolution and voted to end Trump’s National Emergency, forcing the president to issue his first two vetoes. Numerous GOP Senators went apoplectic in response to Trump’s announcement about leaving Syria. Senate Finace Chair Chuck Grassley threatend Trump to end the steel tariffs or forget about the Senate approving his renegotiated NAFTA. So he did. Congress has still never taken up any Trump priorities in regard to immigration reform, trade, or infrastructure. His budget request for FY2020 was a dead-on-arrival as his previous two. Current and former military officials are blasting his plan to pardon war criminals.
This week, the White House looks as lost as ever. Part of the problem is personnel. This comes in a few flavors. First, Trump is having trouble controlling the executive agencies because he literally hasn’t filled the political slots that he is entitled to nominate people to. They are literally empty. Any president who wants to exert control over the bureaucracy needs to have loyalists in the key political positions. In many cases, Trump simply doesn’t. Earlier this week, we got the memorable headline “Trump questions his administration’s Venezuela strategy.”
Conversely, Trump has also settled on a policy of leaving acting officers in top positions. That’s an influence disaster. Trump may think that acting officials need to be more loyal to him, but in reality what you end up with is someone with no ability to control the people below them. It’s like having a substitute teacher. Why would a program manager be persuaded to start a project they didn’t like if the person asking isn’t going to be around in six months? Anyone who has ever worked in a government agency know exactly what happens when an acting supervisor takes over: the power flows downward.
Even worse for Trump, however, is that he doesn’t even really have the loyalty of his top appointments. He famously fought with Sessions and Tillerson. Mattis loved to ignore him. Nielsen was ultimately fired because she wouldn’t implement his illegal immigration plans, and then her allies immediately leaked the dirt. This week, it comes out that the White House is in a power struggle with acting DHS Secretary McAllenan, who has apprently won a battle with Stephen Miller over personnel control. McAllenan has been hostile, like Nielsen, to some of Trump’s crazier immigration plans.
The fight between McAleenan and Miller highlights another set if personnel problems Trump has: the White House is being run by something less than the A-team, and the weakness of the leadership structure there (starting with POTUS and Acting Chief of Staff Mulvaney.) Turnover continues to e high, the record-level leaking continues unabated. And the staffers continue to jockey for policy influence, knowing Trump is easy to manipulate.
The one obvious fix—bringing in a true heavyweight Chief of Staff to clean house, control access to POTUS, and impose sound policy development practices—isn’t going to happen. Kelly was probably as close as they’ll get, and he was never able to overcome Trump’s distaste for the features of a properly-run White House. Chaos will continue to reign.
Stephen Miller seems to be a classic eentrepreneuriall troublemaker, but another key player—Jared Kushner—just seems inept. He got a lot of praise for his shepherd work in making criminal justice reform happen in December, but that was really a policy change in development for years before he arrived. Much more relevant is the disastrous roll-out of his immigration plan.
You probably didn’t hear about it, because it landed with a complete thud on Capitol Hill. No one really knew it was coming; no support was lined up for it; and the administration didn’t even have a one-sheet set of talking points to hand out that members and staff could amplify, just a lame PowerPoint deck. When Kushner went back to try again, Republican Senators were flummoxed by his inabilty to answer basic questions.
Trump is a poor political negotiator.
If POTUS stopped negotiating legislation, would anyone even notice?
At a pre-planned theatrical walkout/tantrum yesterday afternoon, President Trump essentially blackmailed the House Democrats, saying he wouldn’t negotiate on an infrastructure package until the House investigations of him ended.
This makes very little sense.
As many people have pointed out, Trump is essentially saying he won’t do something that’s good for him (an infrastructure deal) until the Democrats stop doing something that’s bad for him (investigating his administration). It also marks a shift in tactics from the previous day, when Trump said that he wouldn’t sign-off on an infrastructure deal until the USMCA trade deal was approved, which is also something that he wants more than everyone else.
Trump’s argument is that Congress can’t simultaneously be investigating aginst him and legislating with him. Historically, of course, that’s nonsense; serious legislating took place in the midst of both the Clinton impeachment and throughout the Watergate investigations. If it was possible then, it’s surely possilble now.
But if Trump is serious about not being able to comfortably negotiate while under investigation, he’s essentially shutting off all policy negotiations for the rest of the Congress. At least negotiations that personally involve him. The investigations aren’t going to stop. Likewise, Congress is not going to stop working on policy. There are appropriations bills that have to move. The budget caps need to be raised. The debt limit needs to be raised. All of this is giong to happen, with or without Trump.
In all likelihood, this is just Trump blustering by the seat of his pants. He’ll be back at the table in short order, his threat forgotten except to the degree that it makes his adversaries (and allies) even more confident his word is worthless.
But it’s also emblematic of a deeper truth about Trump, that is becoming more and more visible every month: he’s not actually much interested in being a political negotiator over legislative policy, and he’s not very good at it when he does take part. He’s not really a policy guy, so he’s not super useful negotiating health care deals. He routinely makes offers that scare his allies and supporting interests, which he then has to walk back. His top-level opponents routinely box him in, as Schumer and Pelosi did on the shutdown and now on the $2 trillion infrastructure package.
When you actually look at his legislative record, he has tended to either get rolled by agenda setters (trade legislation, immigration legislation, infrastructure, tariffs) cheerlead for the GOP (ACA repeal, taxes), surrender (ex. FY2018 omnibus), or take a stand, dig in, and then cut a barely-face-saving deal (FY2019 shutdown).
His skill set is just much better suited to publicly-visible theatrics. And so that’s what he does. He yells at people in top-level meetings. He surprises people by having public meetings. He walks out in a big huff from meetings. He spends negotiating meetings talking about impeachment. And so on. What he doesn’t seem to do is influence legislative outcomes all that much.
We have another example of this today. The Senate is negotiating a disaster relief supplemental appropriations bill, about $19 billion for various disasters, including Puerto Rico. The White House has been urging the inclusion of billions of extra dollars for border security, which has hung the bill up in the Senate, as Democrats try to attach strings to the money. And now today we find out that the bill is going to go through the Senate clean, with no border money, and that the White House has signed off on it.
That’s not necessarily a bad result. But it doesn’t show off a lot of negotiating juice on Trump’s part. And honestly, I think the congressional Republicans would just prefer he stay away.
Congress is winning in the Courts.
Luckily, they are also successfully using thier proprietary powers.
Last week, I spent a significant portion of this newsletter discussing how the constitution sets up and normalizes significant power struggles between the branches, and that you should not panic when those disputes naturally arise, even while politicians have incentives to claim the disputes amount to constitutional crises. If you embrace the conflict and accept that political actors will be restrained in escalating the conflict because of their fear of losing in the public sphere, it’s actually very healthy for the branches to fight.
This week, we got several new developments. Most of the attention went to a couple of court decisions, in which federal judges essentially laughed the president out of the courtroom. The first decision rejected Trump’s attempt to quash a subpoena for third-party material about the president’s finances, and emphatically agreed with the House Oversight Committee that Congress’s power to legislate comes with an extremely broad power to investigate. A second federal judge, in a similar ruling, declined to block a congressional subpoena for Trump bank records.
These are unsurprising victories for Congress. None of the law here is particularly murky, and the briefs filed by the president were not really serious arguments. They were probably just attempts to delay and tie the issue up in the courts. That may still work, but the speed with which these federal district judges acted indicates it may not. There will be appeals to circuit courts, and those will take some time, but it’s unlikely the Supreme Court will be interested in reviewing such an open-and-shut case that really doesn’t raise any novel issues, and so the ultimate orders may come in months, not years.
Using the court system, of course, isn’t the only method Congress has of enforcing subpoenas and compelling documents or testimony from the administration. There has been a lot of talk of the other methods of enforcing subpoenas: referral to the justice department for executive enforcement (which is obviously more or less a non-starter when the subpoenas are aimed at POTUS or other executive-branch officials), or the much balley-hooed inherent contempt, in which Congress could exercise its own sovereign coercive power to either jail or fine people it finds in contempt.
But as I discussed last week, Congress has lots of tools at its disposal that can leverage to compel action from the executive branch in oversight or legislative matters. And usually these powers are preferable to resorting to reliance on the court system or reviving powers dormant for centuries. Last week, I discussed in detail the appropriations power, and the use of the House MilCon bill to bar funding for a border wall, effectively ending the national emergency if enacted as written.
The week, the House Democrats expanded their use of the appropriations power to combat the president. On Tuesday, the House Appropriations Commitee approved the FY2020 Defense Appropriations bill. The bill is chock full of clawbacks of executive power. It has standard language barring the use of funds to transfer Guantanamo prisoners. It would sunset the 2001 AUMF for the global war on terror; it would end U.S. involvement in Yemen, with similar language to that which passed earlier this year and Trump vetoed; and it would limit the transfer and reprogramming authority of DoD, down to $1.5B from the requested $9.5B, in response to “abuse of congressionally granted reprogramming privileges.” In other words, don’t move military money to the border wall.
Of course, these are basic policy riders and limitation provisions. If the House Democrats wanted to ramp up the pressure further, they could try to link limitation provisions on funding to contempt citations, potentially blocking salaries of officials (or funds for their departments) if they continued to not comply with subpoenas. Of course, these limitations would have to be approved by the Senate and signed into law by the president, making them little more than negotiating ploys, unless the House was willing to shut down the government. But the must-pass nature of appropriations means they cant simply be ignored. The negotiation must happen.
And, in general, that is the point of most of these tactics. All of the House’s proprietary powers (appropriations, subpoena, contempt, etc.) are tools used to ultimately bargain with the targets of their use. The executive branch may have reason to believe it would lose a public battle over many of these issues, or may fear escalating the battle by using their tools in response. And so they bargain. One successful case of bargaining occurred this week, as the Intel committee threatened to take “enforcement action” against DOJ and Attorney General Barr, causing DOJ to relent and provide additional classified documents related to the Mueller investigation.
And that’s ultimately a good outcome for Congress. Using their proprietary powers develops a fear in the executive branch that they will be used in the future, which in turn increases the possibility Congress can leverage good bargains and no resort to reliance on the courts. The courts are a useful tool when Congress can leverage them, but they are their own branch operating in part according to their own timing, outlook, and prerogatives.
Don't be fooled by OLC opinions or IRS memos.
They are (sometimes plausible) arguments, not binding rulings.
If you have been following the recent battles between Congress and the executive branch, you have undoubtedly happened upon an opinion from the Office of Legal Counsel in the Department of Justice. They have weighed in in recent years on McGahn’s potential testimony before Congress, the right of individual Members of Congress to perform oversight, the presidents appointments under the Vacancies Reform Act, the legality of Obama’s recess appointments. They have also famously opined on the ability of a sitting president to be indicted, and many other issues. Their opinions are only selectively released publicly, and so the full scope of them is not even known.
OLC, as it is known in Washington, provides legal advice to the president and executive branch agencies, drafts legal opinions of the Attorney General, reviews executive orders for the president, and serves a variety of other functions. It also sometimes settles legal disputes internal to the executive branch, where its decisions are considered binding absent contrary action from a court or other superseding authority.
OLC will also often provide opinions on separation of powers matters that implicate other branches of government. This is where a lot of confusion takes place. OLC opinions emphatically do not bind the actions of other branches of the government. In a separation of powers dispute, an OLC opinion is like the brief submitted to a court by one of the parties to the matter. It’s just an argument, and as often as not, it’s a losing one.
This matters because lots of people in Washington (to say nothing of the public) are under the impression that OLC opinions are somehow the equivalent of court decisions, or otherwise have the force of law. Journalists routinely refer to them as if they were something other than the position of one side in a dispute. Executive branch officials wave them around like they are court orders. And, in many cases, actors in the legislative branch and citizens in the public mistakenly treat them as authoritative.
Many times in my career at CRS, I got a panicked call from a staffer in a congressional office, worried that a piece of legislation her boss was moving in committee was “unconstitutional.” When I would inquire why they thought that, they’d relay that they got a call from someone at DOJ, who had told them their bill violated separation of powers, and subsequently provided thm with an old OLC opinion (often “Common Legislative Encroachments on Executive Branch Authority,” available here, pp. 248-257) showing this likely to be the case.
I’d then walk the staffer through the OLC opinion, and show them that it either had few citations, or tons of citations to … previous OLC opinions, but none to actual federal court cases. I always told my legislative branch clients it was appropriate to ignore OLC opinions, unless they were useful. In many cases, I’d just tell the staffer DOJ is protecting its prerogative to someday fight this issue in court while maintaining they consistently opposed the legislative action; but also that they would never take this to court, since they know they would lose.
This is one of the most insidious aspects of OLC opinions. They build upon and cite themselves over the years, until you have an entire body of precedent that is self-referential. “This is correct because we have been arguing that it is correct for 75 years. And we have a fancy typed-up opinion that has lots of citation to our old fancy typed-up opinions on the matter.” The minute a court got a hold of the argument—as with the ridiculous OLC argument about recess appointments—it would rule against them.
When reading OLC opinions, you should not lend a lot of deference to appeals to precedents from previous OLC opinions. It doesn’t matter how many times and for how many years the executive branch has claimed it has a power under the constitution; it’s just a claim. And Senate Legal Counsel or House General Counsel could just as easily churn out the opposite opinion ad nauseam, with equally little controlling power. This is not to say that previous claims of power aren’t important, they are. But they are simply not authoritative precedents. They are arguments.
Now, there’s nothing wrong with the opinions as arguments. They are certainly important documents to consider when thinking about the issues surrounding separation of powers, and many of them are both well-written and thoughtful. As a historical resource for guiding deliberations or informing us of past legal and executive branch thinking, they are useful. But they cannot be mistaken for court decisions on the constitutionality of the current issues. As they relate to the ultimate constitutionality of any given dispute, they are, at best, the foundation of the arguments that the executive branch would bring to court. And they should be treated as such: thoughtful opinions and memorandum, produced by the executive branch for use by the executive branch, with the full understanding that they were not written by, or for, the legislature.
Of course, this can work the other way, too. Many Democrats were pleased earlier this week when a draft advisory memo from the IRS general counsel appeared that seemed to argue that the IRS commissioner would have to turn over Trump’s tax returns in all but a very limited set of circumstances. The problem, again, is that such advisory memos from agency general counsel do not have the force of law. They are not statutes; they are not duly-issued regulations; they are not court orders. The principle officers of the United States have the discretion to ignore the advice, and that makes sense. Executive discretion is lodged in executive officials, not in their inferior advisory staff. If Commissioner Koskinen or Secretary Mnuchin or President Trump don’t agree with the advice of the IRS General Counsel, that’s their prerogative.
None of this is to say that OLC opinions or draft IRS advisory memos are unimportant in separation of powers politics. Arguments matter. They can sway courts. They can sway public opinion. They can influence the decisions of actors in the executive and legislative branches. But it’s important to think about them in the proper context; they are not the equivalent of a court order, and they emphatically do not have the ability to bind actors under the threat of coercive punishment. You should give them the deference they are due, and nothing more.
You should listen to our podcast.
We feed Congress experts beer and get them talking.
My colleagues at the Government Affairs Institute and I regularly talk congressional politics with Hill scholars, reporters, and other experts on our podcast, Congress, Two Beers In. And they’re always on their second beer when they start talking.
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Thanks!
Thanks for reading. I’ll be back again next week! In the meantime, follow me online or reach out via email. I’d love to hear from you!
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