Congressional Government

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. AYY says:

    Sorry, but I have to question much of what you wrote:

    “During the Bush Administration, there was a great deal of criticism about unaccountable executive power.”

    Okay, but was the criticism well-taken?

    “The result is an unusual amount of deference to Congress on issues such as the stimulus or health care.”

    Unusual compared to what? And what’s wrong with deferring to Congress as opposed to an individual committee chairman? Also we haven’t had this kind of a stimulus or health care reform before, so it might well be beyond Obama’s advisors to put it together, or to get it passed, without Congressional input.

    “Perhaps my assessment is premature, but that is not working out well for the reasons that Wilson described long ago”

    Not sure what you mean by not working well, but he got the stimulus bill passed. The problem with the stimulus and the health care bills are that the underlying ideas are flawed.

    “Members of Congress have a difficult time looking beyond the interests of their district, and without presidential leadership their legislation can become incoherent”

    They load up the bills with pork to avoid this problem. How can anyone tell if legislation is incoherent or reflects political compromise?

    “Obama was heralded for his oratory during the campaign.”

    That’s true. He was heralded on bended knee. But I seem to remember him putting his foot in his mouth a few times

    “…he’s done lots of other media, but none of it carries any punch that might put pressure on Congress from the voters. Presumably this is because Obama is trying to play nice in the hope that this will be more productive.”

    I doubt he’s playing nice. He hasn’t played “nice”. You may be letting the image get in the way of reality. The reason I suspect he hasn’t done the Oval Office Addresses is that he doesn’t know what’s in the health care bill, because no one knows what’s in the bill.

    The real problem with this post though is that you seem to think that the ideas are sound if they come from Obama but not from Congress, and so if he can’t get Congress to accept his legislation as he presents it, then it’s because there’s a public relations problem, not because his plans might not be very good. The problem might be more substantive than you make it out to be.

  2. A.W. says:

    mmm, yeah, the problem is we don’t see enough of Obama. ooookay.

    the problem couldn’t be the fact that the bill is mainly kept hidden and when we learn something about it, we become outraged.

    For instance, remember when Obama said (paraphrase) “if you like the coverage you got, nothing will change.”

    Well, it turns out he was pulling a clinton. Everyone thought this meant we could still have private insurance. but the actual bill says that you can keep what you currently have, but if you get new coverage, or change your coverage, you have to take the government’s coverage.

    Its deceitful. And all i can say is, wow, the dems better be damned sure this new healthcare bill is wonderful, because if it isn’t they will probably lose power for 40 years.

  3. Gerard N. Magliocca says:

    So if your choice is between letting Congress design a major new program or having the Executive Branch do it and then submit the plan, which would you pick? (I’m not clear on what you’re saying in your comments.) Is your view that it doesn’t matter?

  4. Howard Wasserman says:

    It seems that the press is less tolerant of the President getting airtime to speak to the public directly (as from the Oval Office) without having to run the gauntlet of media questions. So the chosen format–as we saw last night–is a press conference, in which the President gets to reach the country, but the media also gets a crack at him. And if that changes the headline–from “President pushes Congress on health care” to “President criticizes Cambridge cop in Gates arrest,” so be it.

  5. AYY says:

    Prof M., 7:10
    Not sure if your comment was directed to mine. But if it was, then it’s kind of funny that you would say you weren’t clear about what I was saying in the comments. I was going to say the same thing about your post. I assumed that you were trying to make more than a trivial point, but couldn’t quite tell what it was.

    One thing I was trying to say is that the Bush-Obama contrast in your post wasn’t fair. If Bush was criticized, he was also defended. If Obama was heralded, he was also criticized. Yet you refer only to the criticism of Bush and the heralding of Obama.

    And what criticism do you cite as to Bush? The very thing that you cite Wilson favorably for. So maybe you’re implying that the criticism was unjust. But I can’t really tell.

    As to your specific questions, you seem to imply that if legislation originates from the top down, it’s the product of an all knowing philosopher king. it’s not that way in practice. To illustrate why, I’ll follow up on one of your historical examples.

    Suppose Mr. Richardson or Mr. Murchison wanted to increase the oil depletion allowance because it was just too small. Why should they have had to call their buddy President Johnson, when all he would have done is to tell them he’d sign anything Sam Rayburn can get through Congress, when they could just as easily have called their buddy Sam Rayburn in the first place? My choice would be to have them call Sam Rayburn.

  6. “So if your choice is between letting Congress design a major new program or having the Executive Branch do it and then submit the plan, which would you pick? (I’m not clear on what you’re saying in your comments.) Is your view that it doesn’t matter?”

    In this instance,I would like the President to submit the Plan because then this President would have to design and defend it…which would kind of force him to deal in specifics and be associated with his choices. I believe this would then lead to my real preference – No Major New Program.