Author: Gerard Magliocca


Battle of the Riders — Part II

Last week I posted about the government shutdown fight between Congress and Rutherford B. Hayes.  I thought I would add some more detail about that debate.

In 1879, Congress passed the annual appropriation for the Army.  The Democratic majority in both chambers included provisions in that bill that repealed federal military or civil authority to protect the integrity of federal elections.  This was an obvious attempt to roll back African-American suffrage in the South in a way that would be hard to veto.

President Hayes did veto the bill, though, on procedural and substantive grounds. With respect to the procedure of tacking unrelated substantive legislation onto a revenue bill, he argued that this practice “did not prevail until more than forty years after the adoption of the Constitution.”  (I have no idea if this is true.)  He added that many States had rejected this tactic by providing in their constitutions that no law shall contain more than one subject.  (Is this still true?)  He also said that “[i]t is clearly the constitutional duty of the President to exercise his discretion and judgment upon all bills presented to him without constraint or duress from any other branch of the Government.”  (Definitely no longer true.)

Congress tested the President’s resolve by putting the same election law reforms into more appropriation bills, and Hayes continued to issue vetoes. Eventually, the Democrats backed down.  (The repeal of the voting provisions in question did not occur until the 1890s.)  Tacking, though, is still alive and well.

On an unrelated note (we might call that “post tacking”), I will probably be offline for the rest of the month, as I have two symposium papers to complete before the holidays.  We’ll see how long I can actually refrain from posting.


AALS Panel on Admiralty and Maritime Law

As the AALS Section Chair for Admiralty and Maritime Law, I am sorry to announce that our panel at the upcoming Annual Meeting is cancelled.  This was due to the illness of one of the panelists and the ongoing labor dispute at the hotels where the conference will be held.


Fashion Design Protection

On Wednesday, the Senate Judiciary Committee approved the “Innovative Design Protection and Piracy Prohibition Act,” which provides a limited form of copyright protection to fashion designs.  As I’ve said before and will keep saying until I’m blue in the face, this is a terrible proposal that would basically just line the pockets of a few New York fashion houses.  (That’s why Senator Schumer keeps pushing this idea ever year.)

No matter what you think about the legislation, I would hope that we can all agree that it should not be hustled through Congress during a lame-duck session (probably as an amendment to some sacred cow that would not be vetoed or rejected by the House).  We’ve survived somehow for two centuries without copyright protection for most clothing.  Surely we can manage until next year.


Battle of the Riders

“To say that a majority of either or both of the Houses of Congress may insist upon the approval of a bill under the penalty of stopping all of the operations of the Government for want of the necessary supplies is to deny to the Executive that share of the legislative power which is plainly conferred by the [Constitution].”

Rutherford B. Hayes, Apr. 29, 1879 (vetoing an appropriations bill)

There have been three major attempts at a government shutdown in our history. The one most people know about is the 1995 fight between Bill Clinton and Newt Gingrich.  In my first book, I talked about the one that occurred in 1842, as congressional Whigs sought to force President John Tyler to enact their program.  In both cases, the President prevailed.

The other one happened in 1879 between congressional Democrats and President Hayes.  This so-called “Battle of the Riders” involved civil rights, as Congress sought to use the shutdown threat to repeal various Reconstruction statutes concerning voting African-American suffrage.  Hayes rejected these efforts and both sides engaged in a robust discussion of how separation-of-powers should work when it came to appropriations and omnibus bills.  Like Clinton and Tyler, Hayes ended up on top.

Since there is a possibility that Congress and White House may reach a budget impasse next year, I’m going to blog about this 1879 episode some more over the coming weeks.  Much to my surprise (and, OK, delight), I see that nobody has really written about this before.


Entrenchment and the Bank of the United States

One issue that has received a healthy amount of academic attention in recent years is whether Congress can “entrench” certain policies against repeal by a subsequent Congress.  For instance, suppose Congress enacts the Budget Reform Act of 2011, which provides that “taxes may only be raised by a three-fifths or greater vote.”  Is that unconstitutional because one Congress cannot bind another with a simple statute?

For those of know more about this debate than I do, I’m curious what you think of the precedent set by the Bank of the United States (from 1791-1811 and from 1816-1836).  The Bank was established with a twenty-year charter.  What did this mean?  One view is that it was a sunset provision–after 20 years Congress had to reaffirm the charter for the Bank to continue.  The other is that the charter was a guarantee that the Bank would exist for 20 years.  The latter interpretation, of course, would be an entrenchment.  When President Jackson tried to dismantle the Bank unilaterally, he argued that it was unconstitutional for this reason (and several others).  Was his entrenchment reading correct, or was he just trying to score political points by distorting the meaning of the charter?


The Irish Bailout

AP — November 22, 2010

Hundreds of leprechauns gathered in front of the Irish Parliament today to demand a share of the IMF bailout currently being negotiated by the Government. Under a rainbow sky, they told a crowd of supporters that without more pots and gold, they would have to leave the country to seek greener pastures.

“We’re Ireland’s most important cultural export,” said Tip Erary, one of the wee leaders of the protest.  “We make shoes, grant wishes, and appear in a movie with Jennifer Aniston.  Who deserves a rescue package more than us?”

Economists and pundits are divided over the LARP proposal.  Paul Krugman argued on his blog that “Keynes would approve of taking leprechaun gold and burying it to create jobs for treasure hunters.  We really should be nationalizing these monsters, not giving them a handout.” Glenn Beck countered that they are “hoarding the gold that I told you to buy” and called for an investigation into Woodrow Wilson’s policy on leprechauns.  Finally, Larry Kudlow said that only a tax cut would get these folks to shift from shoe production into more productive investment.