Editorial July 25, 2014

TheWeekinCongress.com

Editorial

“human trafficking does occur in the US and because of that Congress is not following the Constitution by not legislating to stop it.”

As we watch Speaker John Boehner’s efforts to sue the President for the one year waiver of the employer mandate to the Affordable Care Act asserting that he is violating the Constitutional directive that he implement laws, it might be a good time to look at Congress as a whole and its relationship to the Constitution.

We only look back three years when House Leadership required Members to include a constitutional authority statement authorizing the legislation. A year later the Republican study group concluded that 72% of the time Members cited the wrong part of the Constitution.

So much for awareness of the Constitution as the guide to all thing legislative. The situation tends to make Boehner’s lawsuit a bit two-faced. A pot calling the kettle black sort of thing.

What raises an eyebrow this week, at least in the area of the Constitution, is the eight bills addressing human trafficking. Human trafficking is not news; the CIA evaluates each country in terms of such behaviors and applies a three tier measurement. Tier 1 is blatant disregard for for the matter, tier 2 is an awareness of the problem and a willingness to deal with it, and Tier 3 reflects positive success in overcoming the problem. While the Agency doesn’t rate the US, rhetoric surrounding and content of those eight bills points to the fact that human trafficking does occur in the US and because of that Congress is not following the Constitution by not legislating to stop it. Until now.

If you consider human trafficking slavery, or at least a way in which persons are led to slavery then the country is in violation of Amendment XIII that reads, “”Neither slavery nor involuntary servitude…shall exist within the US, or any place subject to their jurisdiction. Section 2 adds that Congress shall have power to enforce this article by appropriate legislation.

‘Shall’ is a word frequently used in legislation such as “The president shall…” and its intent is a firm directive, not an option or a mandate. So, when the Constitution says “Neither slavery nor involuntary servitude…shall not exist in the US” you get the impression that the Constitution is giving a clear directive to Congress when the 2nd section gives Congress the power to enforce the Article with appropriate legislation.

 

President’s Death Eases Senate Deadlock

“As Republicans then moved to appoint Senate officers, Democrats balked. They employed various parliamentary tactics that brought the Senate to a standstill and blocked a long list of Republican executive nominees.”

September 19, 1881

MahoneWilliam

William Mahone

Rarely in its history has the Senate been evenly divided between the two major political parties. When the Senate of the 47th Congress convened on March 4, 1881, its membership stood at 37 Democrats, 37 Republicans, and 2 Independents. One of the Independents agreed to vote with the Democrats on such organizational matters as appointment of committees and selection of Senate officers. The other Independent, William Mahone of Virginia, owed his election to a breakaway faction within his state’s Democratic Party. Senate Democrats optimistically believed they could count on him in their bid to control the Senate’s committee chairmanships and staff appointments.

The Republicans had come too close to give up without a stiff fight. If they could capture Mahone, the balance would be 38 to 38 and allow Republican Vice President Chester Arthur to provide the tie-breaking vote for his party.

Mahone, a freshman, exacted a high price from the Senate’s Republicans. It included the chairmanship of the influential Agriculture Committee and the right to select the Senate’s Secretary and Sergeant at Arms, both of whom controlled extensive patronage appointments. President James Garfield also reluctantly handed him control of Virginia’s federal patronage. The day after Mahone’s vote allowed the Republicans to organize the Senate’s committees, a large basket of flowers from the White House conservatory appeared on his chamber desk.

As Republicans then moved to appoint Senate officers, Democrats balked. They employed various parliamentary tactics that brought the Senate to a standstill and blocked a long list of Republican executive nominees. To honor their promise to Mahone, Republicans threatened to “fight it out if it takes all summer.”

That fight ended on September 19, 1881, when President Garfield died of wounds from an assassin’s bullet. This removed Vice President Chester Arthur and his tie-breaking vote from the Senate and caused the parties to declare a truce. For the balance of that Congress, Republicans controlled the committees and Democrats managed the patronage.

Reference Items:

Blake, Nelson Morehouse.  William Mahone of Virginia: Soldier and Political Insurgent.  Richmond: Garrett and Massie, 1935.

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Henry B. Anthony, “Father of the Senate”

September 2, 1884

“the “Anthony Rule” attempted to limit floor debate by allowing senators to speak no more than five minutes on certain measures before voting.”

Henry B Anthony

Henry B Anthony

At the height of his career, Rhode Island Republican Senator Henry B. Anthony was known to his colleagues as the “Father of the Senate”—the longest-serving member among them—a source of wisdom and stability in unsettled times.

In 1868, when the chief justice of the United States directed the Senate clerk to call the roll at the climactic moment of President Andrew Johnson’s impeachment trial, Anthony’s name stood at the head of the alphabet.  “Mr. Senator Anthony,” the chief justice intoned, “How say you?  Is the respondent, Andrew Johnson, president of the United States, guilty or not guilty . . . ?”  Anthony’s response—meaningful because it was the first to be given and because he was known to be a supporter of Johnson—echoed like a thunder clap across the tense chamber: “Guilty!”

A rough-and-tumble old-time politician, Anthony did not hesitate—in the words of one modern writer—to employ “political legerdemain and bribery” to gain his objectives.  His break with Andrew Johnson came after the president began directing Rhode Island patronage appointments to Anthony’s political adversaries.

On September 2, 1884, Anthony died at age 69.  This politically adroit former newspaper editor and state governor had served continuously in the Senate for the 25 years since 1859.  Only two others in Senate history to that time had held longer terms.

In an era when the Senate selected its president pro tempore more for popularity than seniority, and made that choice each time the vice president was away from the Senate Chamber, members picked “Father” Anthony a record-setting 17 times.

Americans of his day knew Anthony as a powerful orator, who delivered famous funeral orations for notable senators including Stephen Douglas and Charles Sumner.  Today, Anthony’s name is known only to a few for its association with a Senate rule designed to keep measures that have been cleared for floor action from being bottled up on the Senate calendar.

Long before the Senate developed the position of majority leader to decide which items on its calendar would be given priority consideration, the “Anthony Rule” attempted to limit floor debate by allowing senators to speak no more than five minutes on certain measures before voting.  It has since fallen into disuse, perhaps underscoring a biographer’s assessment that Anthony was “one of the type of senators whose services lie rather in the exercise of judgment and practical wisdom than in any [lasting] contribution to law or practice.”

Reference Items:

Dove, Robert B.  “Anthony Rule.”  Included in Bacon, Donald E., et al, eds.  The Encyclopedia of the United States Congress.  New York: Simon & Schuster, 1995.