mdsinclair

After last Monday’s session ended, I suggested to Scott that we discuss the proper purposes of the federal government. An opinion piece in today’s New York Times (https://www.nytimes.com/2024/12/27/opinion/elon-musk-industrial-policy.html?unlocked_article_code=1.kk4.vx7n.2Ag_Jo35qjd5&smid=url-share) made me think we could address a.narrow slice of that question:

Does (and should) the federal government make “investments”?

I won’t be there on 30 December since I’ll be helping to make soup for the Simmering Pot that morning, so maybe we could discuss this topic on 6 January.

To answer these questions, I think we’d need to address other questions, including the following:

What is an “investment”? Is the definition the same for the federal government as it is for the private sector? If not, how do the definitions vary, and why?

Have some federal government expenditures in the past been “investments” ( e.g., the Louisiana Purchase; the purchase of Alaska; the Erie Canal; the Panama Canal; the space program, to the extent it generated spin-offs like communications, weather, GPS, and other satellite programs; funding for medical research or development of the internet; the national highway program; the air traffic control system; military spending on drones, radar, and other technologies; tax subsidies and credits to mitigate climate change; funding for social safety net programs like food stamps; etc.). If some of these have not been “investments, why not and what were they?

What recent federal government expenditures that were labeled as “investments” were actually not investments? If not, why not and what were they?

Should the federal government articulate an “investment” policy? If so, what should it be?

Should the federal government only make “investments” that the private sector would not make on its own? How should that determination (a “but for” test) be made?

How should the federal government determine whether its “investments” have been “successful”?

Last Monday, we discussed this as a possible topic for the next meeting on 25 November. As it happens, a couple of recent E-Mail messages from Richard Cohen addressed this topic. Rick is a retired New Jersey state appellate court judge who now lives on MDI and has led numerous Acadia Senior College classes on Contitutional issues.

Rick’s most recent E-Mail messages dealt with the legal basis for recess appointments.

Here’s the text of the first of those E-Mail messages:

Dear All,         

Two short ones today. [I’ve omitted the first part of the E-Mail message, which deals with an unrelated issue.]

The other quickie for today is the matter of recess appointments. Ordinarily the scheduling of legislative recesses is up to the houses of Congress (possibly their favorite subject), and rarely presents problems resulting from disagreements. The media speculate, probably accurately, that the new administration is going to try to seat its controversial appointees without hazarding the Senate’s advice and consent process, by making recess appointments.  Recess appointments are good until the end of the current congressional session. So, if Trump makes recess appointments on January 20, 2025, they are good until January 3, 2027.         

Aticle I, Sec. 5, of the Constitution says, “Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, .   .   .”  I’m not sure what evil that provision was intended to avoid, but both houses have adopted the dodge of leaving town for more than three days, leaving a junior member to show up in the Capitol in the morning to open a work day, all by himself, noting a lack of a forum, moving to adjourn for two days, and presumably voting for his own motion.  All this has been taken traditionally to avoid the Sec. 5 recess provision.

But wait, there’s more!  Article II, Sec. 3, describes a few of the powers of the president.  It includes the following unfamiliar provision: “he may, on extraordinary occasions, convene both houses, or either of them, and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;  .  .  .” If these two clauses are connected, then they apply only to an extraordinary session called by the president.  However, I am afraid this word salad may be held to cover two independent subjects, and will be read to say that, if one of the houses wants to adjourn and the other does not, the president can adjourn them both for as long as he “thinks proper”. The GOP will control both houses after January 3, so, if one of them decides to adjourn and the other says no (and that can certainly be arranged in the offices of Project 2025), Trump will, on January 20, adjourn them both “sine die”, and then appoint everybody.

I haven’t yet done any real study of this provision, either textually or historically, but neither has anyone else I have access electronic to. So keep tuned. This could be major litigation that lands in SCOTUS. It could be a “political question” that the Court won’t touch with a long stick. It could result in a presidential clown car with padded walls.                          

Rick

And here’s a follow-up from Rick:

After sending the email a few minutes ago, I found the following:     

https://constitution.congress.gov/browse/essay/artII-S2-C3-1/ALDE_00001144/
It does not sound promising at all.       
                          Rick

Of course, Rick’s discussion doesn’t address the politics affecting the Senate’s decision about whether to allow recess appointments, or whether Trump will appoint some of his nominees as “acting”, in order to avoid the political uncertainties of the Senate confirmation process and the political and legal uncertainties of recess appointments. “Acting” appointments, however, raise other uncertainties, including the extent of an acting appointee’s decision-making authority.

Unfortunately, I won’t be able to join next Monday’s meeting since I have a long-standing prior committment.