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Presidential Election: 11/3/20 ---Now the President Elect Joe Biden Thread


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5 minutes ago, Larry said:


This law you're describing has to be signed by POTUS, to pass. 
 

Although a GOP-controlled Senate would likely be perfectly happy to pass a law that doesn't apply to the Trump admin, but would, to Biden. 

 

Would it have to actually be new legislation though? IIRC the current rules/laws do allow people to be arrested for refusing to comply with lawful Congressional subpoenas. It's just something that hasn't been enforced for a long time (generally because it hasn't been needed). It would just be enforcing what's already in the rulebook and re-opening a jail to accommodate it.

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44 minutes ago, mistertim said:

 

My understanding is that the law says "Shall certify" not "Might certify".

I'd be careful reading it this way.  Otherwise, "shall advise and consent" regarding appointments can be read as "they must consent no matter if they agree or not."  

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1 hour ago, mistertim said:

POTUS doesn't really have any power to give teeth to Congressional subpoenas. But one of the FIRST things that the new Congress should do IMO is re-open the jail cell they used to have but which was shut down some time ago, and enact rules that allow them to send the Sergeant at Arms of the House to arrest and incarcerate people who refuse to comply with lawful Congressional subpoenas. 

 

This bull**** can't be allowed to stand. I don't give two flying ****s which party is in the WH.

I have no idea how they could do this, but what needs to be done is forbid the executive from denying witnesses and documents to congress.  We’ve seen it before Trumps administration but this admin made it clear checks and balances can’t work if the executive branch is allowed to fight each request individually in court and drag them out.  I don’t know what compromises need to be made or if a special court needs to be created to expedite challenges, but what we saw in the last four years is absurd.  There is no oversight possible if the people being overseen can simply refuse to cooperate whenever they want. 

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15 minutes ago, TheGreatBuzz said:

I'd be careful reading it this way.  Otherwise, "shall advise and consent" regarding appointments can be read as "they must consent no matter if they agree or not."  


Which tbh may be the actual original intent... I don’t think the Founders envisioned the Senate having near-unilateral control over Supreme Court nominees. If they did they could have just had the Senate appoint them. 
 

I’d be curious to learn more about the history of SCOTUS nominations, when they started doing confirmation votes, when those votes stopped being near-unanimous, etc.  

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8 minutes ago, Destino said:

I have no idea how they could do this, but what needs to be done is forbid the executive from denying witnesses and documents to congress.  We’ve seen it before Trumps administration but this admin made it clear checks and balances can’t work if the executive branch is allowed to fight each request individually in court and drag them out.  I don’t know what compromises need to be made or if a special court needs to be created to expedite challenges, but what we saw in the last four years is absurd.  There is no oversight possible if the people being overseen can simply refuse to cooperate whenever they want. 

 

Yeah I was thinking about this too. But you'd also need to make sure it wasn't there simply to act as a tool for abuse so if the opposition party is in power in Congress they can just vote to subpoena anything and everything for every reason and have people come testify about what they had for lunch the other day.

 

Maybe have something like FISA set up (but not super secret) where a panel of judges appointed equally by Rs and Ds have to sign off on subpoenas and say that they're legit and should move forward before they actually have teeth and could compel admin officials to testify or go to jail.

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50 minutes ago, TheGreatBuzz said:

I'd be careful reading it this way.  Otherwise, "shall advise and consent" regarding appointments can be read as "they must consent no matter if they agree or not."  

Shall in government contract language means must. It’s not optional. Interesting it wouldn’t be read that way across the board. 

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1 hour ago, TheGreatBuzz said:

I'd be careful reading it this way.  Otherwise, "shall advise and consent" regarding appointments can be read as "they must consent no matter if they agree or not."  

 

Shall in article 2 attaches to President's power to nominate, not Senate's advise and consent.  It says President shall have the power to nominate with Senate's advise and consent.

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Hi all.  New to the board.  Read a lot in this tailgate area since the election and a lot of your commentary has been simultaneously insightful and hilarious.

 

Been watching the Michigan board meeting on CSPAN.  It's kind of fascinating that the republican Van Langevelde might actually vote to certify for what I would consider purely republican reasons.  Seems like he is a strict constructionist: so if the law does not explicitly give him the power to delay or ask for an audit, he feels like he can't read into it.  Another lawyer gave testimony and pointed out that the law didn't say he couldn't ask for an audit and you could read into the section that says the board has to determine the accuracy of the canvas.  But Langevelde stuck to his guns and said if the law didn't give him the power, he couldn't just read into it and make up a power.

 

Kind of interesting.

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1 hour ago, TheGreatBuzz said:

I'd be careful reading it this way.  Otherwise, "shall advise and consent" regarding appointments can be read as "they must consent no matter if they agree or not."  

 

Shall means will/must in that context too. The phrasing isn't quite what you are writing, though, so there's no problem there either.

 

https://www.senate.gov/artandhistory/history/common/generic/Origins_AdviceConsent.htm

 

"The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…"

 

More analysis follows, including an amusing anecdote about Washington getting annoyed with Congress when he tried to get said advice and consent on a treaty.

 

Also from what I've read there was a much more obscure case in 2005 where a board failed to certify a ballot measure and the courts ruled that they didn't have a choice, i.e., shall means must.

 

Meanwhile, the clown car continues to amuse legal twitter...

 

Edited by techboy
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19 minutes ago, Jabbyrwock said:

Hi all.  New to the board.  Read a lot in this tailgate area since the election and a lot of your commentary has been simultaneously insightful and hilarious.

 

Been watching the Michigan board meeting on CSPAN.  It's kind of fascinating that the republican Van Langevelde might actually vote to certify for what I would consider purely republican reasons.  Seems like he is a strict constructionist: so if the law does not explicitly give him the power to delay or ask for an audit, he feels like he can't read into it.  Another lawyer gave testimony and pointed out that the law didn't say he couldn't ask for an audit and you could read into the section that says the board has to determine the accuracy of the canvas.  But Langevelde stuck to his guns and said if the law didn't give him the power, he couldn't just read into it and make up a power.

 

Kind of interesting.

 

Welcome to the board!  Hope you know what you are getting yourself into.. 🙂  

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1 hour ago, Destino said:

I have no idea how they could do this, but what needs to be done is forbid the executive from denying witnesses and documents to congress.  We’ve seen it before Trumps administration but this admin made it clear checks and balances can’t work if the executive branch is allowed to fight each request individually in court and drag them out.  I don’t know what compromises need to be made or if a special court needs to be created to expedite challenges, but what we saw in the last four years is absurd.  There is no oversight possible if the people being overseen can simply refuse to cooperate whenever they want. 

 

I'm thinking in terms of including language in the budget of every federal agency.  Something along the lines of:  

 

If:  

1)  A Congressional committee issues a subpoena, for witnesses or information.

2)  Said subpoena has not been complied with, within 30 days.  

3)  Said committee fotes to refer said lack of compliance to the full house/senate.  

4)  And the House/Senate votes that said agency/officer is defying said subpoena.

 

Then all funds for said agency are immediately cut off, for all purposes other than complying with said subpoena.  (Said house/senate may choose to specifically exempt some parts of said agency from having funds cut off, if they choose.)  

 

Put it in their budgets.  You will comply with congressional oversight, or your agency doesn't get funded.  

Edited by Larry
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47 minutes ago, GoSkinsGo said:

Shall in government contract language means must. It’s not optional. Interesting it wouldn’t be read that way across the board. 

 

So you would be fine if President Trump nominated Rush Limbaugh to the SC, saying that a Dem-majority Senate MUST consent to that nomination?  Just making sure I am understanding you correctly.

 

34 minutes ago, bearrock said:

 

Shall in article 2 attaches to President's power to nominate, not Senate's advise and consent.  It says President shall have the power to nominate with Senate's advise and consent.

 

Techboy has the exact text, I’ll respond to this below.

 

27 minutes ago, techboy said:

 

Shall means will/must in that context too. The phrasing isn't quite what you are writing, though, so there's no problem there either.

 

https://www.senate.gov/artandhistory/history/common/generic/Origins_AdviceConsent.htm

 

"The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…"

 

 

I was paraphrasing because I don’t see much of a difference in the actual text.  It doesn’t say “if the Senate provides their consent”.   

 

We could argue about the exact meaning and intent of a comma much like is attempted with the 2nd amendment.  But I think a solid argument could be made either way.  Point being that you have to be careful with interpreting text because it can affect things in other areas.  In my job (military), we often deal with “should”, “shall”, “may”, etc and how it has to be interpreted.  It is frustrating there times at also.

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10 minutes ago, spjunkies said:

 

 

If fairness to the legal team, Trump's tasked them with an utterly ridiculous mission.  It's like asking Nic Cage to hold a press conference to announce to everyone he's going to steal the Declaration of Independence while wearing nothing but a thong and having his hair set on fire...and then actually trying to do it.  

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35 minutes ago, goskins10 said:

Welcome to the board!  Hope you know what you are getting yourself into.. 🙂  

I hope I do as well.  I lurked for a little while and think I have it boiled down to "Follow the rules less Jumbo smite you with his holy ban hammer" (I'm pretty sure this observation doesn't violate rule 12).

 

The public comment phase is happening in the Michigan Board meeting.  A lot of poll watchers are calling in (lots of "non-affiliated poll watchers") with a very similar story: they saw no fraud and, generally speaking, republican poll watchers were disruptive and generally poorly behaved.  After some of the testimony describing the inappropriate questioning and what not by poll watchers to poll workers it makes me wonder who would ever volunteer to work at a poll.  Its yet another job where you never hear from anyone unless they are unhappy with what you've done.

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17 minutes ago, TheGreatBuzz said:

 

So you would be fine if President Trump nominated Rush Limbaugh to the SC, saying that a Dem-majority Senate MUST consent to that nomination?  Just making sure I am understanding you correctly.

I’m not saying that I agree with it, just in my line of work shall means something is not optional or open to interpretation. I’ve never thought of it in relationship to other items specifically policy items. 
 

For me, professionally, personnel is separated into labor categories and have defined qualifications and experience outlined in different places. I’m fairly confident in saying Rush wouldn’t meet the qualifications, but I gather your point. In a perfect world people are appointed based on their quality and not particularly political beliefs, but I digress. 

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