Thursday, June 28, 2007

S.1639 - Comprehensive Immigration Reform

S. 1639. A bill to provide for comprehensive immigration reform and for other purposes.

Links to Congressional Record for S.1348 provided here too, to facilitate any comprehensive review of the comprehensive immigration reform effort. See for my comments relating to action under S.1348, May 21, 2007 - Immigration, Gonzales, and Supplemental (May 21-31), and Immigration Redux, continued - S.Amdt.1150 ... (June 4-15).

I composed some explanations of the parliamentary process - while it's been an strange trip, the upshot is that this is merely another example of objecting to amendments and use of cloture to shut off public debate in legislative chambers.

June 19: On filling the amendment tree with a "clay pigeon" (divisible) amendment
June 23: Clay Pigeon 101
June 26: The clay pigeon is stalled
June 28: The real stinker is the cloture motion

Rather than filling the tree, Senator Reid offered only the Kennedy, Specter S.Amdt.1934 as a first degree amendment, and did not "fill the tree" with a do-nothing second degree amendment. Filling the tree up front wasn't necessary to tie up the parliamentary works for the planned duration of debate, the tree was filled as needed, as each division of the clay pigeon became pending, for example Kennedy's S.Amdt.1978.

My June 28 review of the June 26 and 27 Record - how the "clay pigeon" unfolded in fact. The short version is that a cloture motion on the bill was filed before any amendment was offered. And as I predicted, people are so awed by the divisible amendment that they just plain forgot the better object of anger is the instant filing of a cloture motion.

Text of S.Amdt.1150 to S.1348
S.1348 Summary of Action

May 21, 2007: S.Amdts. 1146 - 1150
S.Amdt.1150 (printed in May 24 Record)
May 22, 2007: S.Amdts. 1151 - 1165
May 23, 2007: S.Amdts. 1166 - 1189
May 24, 2007: S.Amdts. 1190 - 1254
May 25, 2007: S.Amdt. 1255
June 4, 2007: S.Amdts. 1257 - 1281
June 5, 2007: S.Amdts. 1282 - 1333
June 6, 2007: S.Amdts. 1334 - 1475
June 7, 2007: S.Amdts. 1476 - 1499

Text of S.1639 (pdf with page numbering)
S. 1639 Summary of Action

June 19, 2007: S.Amdt. 1701
June 20, 2007: S.Amdts. 1805 - 1816
June 21, 2007: S.Amdts. 1844-55, 1862-66
June 22, 2007: S.Amdts. 1868 - 1870
June 25, 2007: S.Amdts. 1871 - 1902
June 26, 2007: S.Amdts. 1903 - 1946
June 27, 2007: S.Amdts. 1948 - 1978
June 28, 2007: S.Amdts. 1979 - 1999

Debate of May 21, 2007: Part I - Part II - Part III
Debate of May 22, 2007: Part I - Part II
Debate of May 23, 2007: Part I - Part II - Part III
Debate of May 24, 2007: Part I - Part II - Part III
Debate of May 25, 2007: Part I
Debate of June 4, 2007: Part I - Part II - Part III
Debate of June 6, 2007: Part I - Part II - Part III - Part IV
Debate of June 7, 2007: Part I - Part II (S.1348 taken off floor)
Debate of June 11, 2007: Parts I & II
Debate of June 15, 2007: Part I (Reid/SCHEDULE) - Part II (Dorgan)


Debate of June 18, 2007: Part I (Reid) - Part II (S.1639)
[no debate on June 19 - just parliamentary procedure to get S.1639 on the calendar]
Debate of June 20, 2007: S.1639 Cloture Motion on Motion to Proceed
Debate of June 21, 2007: UC to conduct "to proceed" vote on June 26
Debate of June 22, 2007: Part I (Sessions)
Debate of June 25, 2007: Part I - Part II (Sessions)
Debate of June 26, 2007: Part I (Motion to proceed) - Part II (Clay pigeon move)
Debate of June 27, 2007: Part I - Part II - Part III - Part IV (Sessions) - Part V - Part VI
Debate of June 28, 2007: Part I - Part II (Sessions/Hutchison) - Part III (Kennedy/Cornyn) - Part IV - Part V (McConnell) - Part VI (Durbin) - Part VI (Salazar/Nelson)
Debate of June 29, 2007: Parts I & II (Schumer/Webb)

On Tuesday, June 26, the cloture motion on the motion to proceed to S.1639, comprehensive immigration reform, was
PASSED on a 64 - 35 vote.
GOP AYE Votes: Bennett, Bond, Brownback, Burr, Coleman, Collins, Craig, Domenici, Ensign, Graham, Gregg, Hagel, Kyl, Lott, Lugar, Martinez, McCain, McConnell, Murkowski, Snowe, Specter, Stevens, Voinovich, and Warner

A prediction On Thursday, June 28, the first cloture motion to limit debate on S.1639, comprehensive immigration reform, will be
REJECTED on a 55 - 35 vote.

There's nothing to say they can't continue debate, and have second, third, fourth, fifth and further cloture motions. As a matter of procedure, rejection of cloture doesn't stop debate. But watch what happens, "We couldn't agree to limit debate by passing cloture, so we won't debate any more."

Senator Specter says the pending bill is the best compromise that can be obtained - he is defending working in secret, and he is upset that objectors want to amend the work of the grand bargainers. Senator Specter says that if the bill doesn't pass, the people here illegally will stay here - he just admits that there will be no enforcement of immigration law.

Specter says, "Those who vote against cloture will be responsible for killing the bill." See? The objectors are saying "We want MORE DEBATE," voting no on cloture is the formal way to express this "we want more debate" sentiment, and the grand bargainers are taking this sentiment and calling it "we don't want more debate."

He brings up the fact that there is a budget point of order scheduled post-cloture (if cloture passes), and urges that the cloture be passed this morning.


Watching this bunch of procedurally-false assertions being expressed this morning (defending the forced compression of debate time in order to get "this is the best you can get" shoved down the public's unwilling throat), by LYING senators who know better, it strikes me that this isn't unusual - this is their normal way of making law.

The supposed grand bargainers are weenies. They say THEY will stop debating, unless cloture is passed, and then blame the people who want more time to debate for stopping the debate. I hope the good people of Arizona kick Senator Kyl to the curb. They won't, these are the same good people who give us Senator McCain.


Senator DeMint says this debate is now a battle between the American people and the Congress - this isn't just about immigration, the people have lost faith in their government. He uses as example, the grand bargainers have granted 10 minutes, of 60, to hear the voices of opposition (the voice of the American people).

He's right about that.


Senator Graham sounds desperate. I hope he is desperately defeated next election. Lying sack of crap, he is. He's another one who says there can't be enforcement unless there is legislation. He invokes President Bush as helping to bring this great bill up for the people - it's the best that can be had, and after the Democrats have more power, the people will never be able to get merit-based immigration again.

Talk about a self-defeating message, this is "vote for us, because they are worse" writ large. Graham, you and every other person who sells their ideas on that basis deserves to be ridiculed and to lose. Good riddance.


Senator Sessions notes that the nature of debate on this bill (take it or leave it, it's the best you'll get, name calling, lying, etc.) is typical of masters of the universe. Yep. Took him long enough to notice. It's typical of government, at all levels, to take power that rightfully belongs to the people. And government will take that power by force, if necessary.


The Senate phone system is locked up due to the volume of calls. Cool - that should happen more often. Senator Vitter says the American people are asking the Senate, "What part of 'NO' don't you understand?"


Senator Kyl says the way to restore public confidence in Congress is to pass this bill. By doing that, says he, we will return to the rule of law. This guy has been held up as an example of a good, stand up conservative Republican. Fool me fifty times, Republicans, shame on you. Fool me a hundred and fifty times, shame on you. Don't worry, I'll keep voting for you. Fool me, lie to me, insult me, keep it up.

The way to restore confidence is honesty, understanding of limits of enforcement, and transparency.

UPDATE @ 11:02

Senator Reid closes debate on this cloture motion as the Senate moves to vote to limit debate on the immigration bill. He delivers one of the lamest and weakest closing arguments I have ever heard.

Senator Sessions says that Senator Reid's extended speech, by virtue of taking over ten minutes, is operating in violation of the unanimous consent agreement. Senator Obama, who occupies the chair, does not rule as to which, as between the UC agreement and the leaders time, controls.

Good for Senator Sessions to rattle Senator Reid's cage. Rules are for the little people.

Cloture vote begins at 11:03. Answer by noon. This one may take awhile. My prediction (above) is 55-35, the thought being that there are at least 9 Senators who would rather not be held to a position on this.

11:10 Stevens and Murkowski voted NAY. I didn't pick up any other surprises in the initial vote reading.

UPDATE @ 11:27

On Thursday, June 28, the first cloture motion to limit debate on S.1639 - Comprehensive Immigration Reform Act of 2007, was
REJECTED on a 46 - 53 vote.
GOP Aye Votes: Bennett, Craig, Graham, Gregg, Hagel, Kyl, Lott, Lugar, Martinez, McCain, Snowe, and Specter

Wow - the grand bargainers couldn't even get a majority to agree to limit debate.

Now to start blaming the nativists. Ratchet up the amount and tenor of insult.

A responsible legislative body would press on, if this was in fact an urgent matter. And I think it is an urgent matter. And this is demonstrably not a responsible legislative body.

Comparing names with recent "conclusive" votes on immigration bills ...

The June 7, 2007 cloture motion to limit debate on S.1348 - Comprehensive Immigration Reform Act of 2007 was
REJECTED on a 45 - 50 vote.
GOP Aye votes: Graham, Hagel, Lugar, Martinez, McCain, Specter, and Voinovich


On May 25, 2006, S.2611 - Comprehensive Immigration Reform Act of 2006 was
PASSED on a 62 - 36 vote.
GOP Aye votes: Bennett, Brownback, Chafee, Coleman, Collins, Craig, DeWine, Domenici, Frist, Graham, Gregg, Hagel, Lugar, Martinez, McCain, McConnell, Murkowski, Smith, Snowe, Specter, Stevens, Voinovich and Warner

UPDATE @ 12:00

The good news is that the July 4 recess can start at the close of business today.

I could either study the record a bit to try to figure out what Senator Reid plans to take up next, if anything, before the recess - or I could just wait and see.

But do check the Senate's legislative calendar of June 29 (when it's out). I predict you will see that, as a matter of formality, the comprehensive immigration reform bill is still pending.

[June 29 - Mmmmm, more crow please! I checked the legislative calendar, S.1639 is NOT pending, and the Defense Authorization Bill, H.R.1585 is the only pending piece of legislation.]

UPDATE @ 12:10

Senator Sessions is talking about the immigration bill. He observes that the promises of enforcement uttered by Congress last year, have NOT been fulfilled. A bit of a credibility problem here.

He asks that President Bush, to preserve his legacy, to improve immigration enforcement. "Make it your legacy to leave a secure border for America. ... Ask the Congress for whatever additional tools you need." Good advice.

UPDATE @ 12:30

Senator Hutchison, in a post mortem of the bill, says that Congress should work on border security and a temporary worker program, and that the handling of the existing 12 million illegal aliens is the ONLY root issue that kept this bill from moving forward.

We have temporary worker VISA programs now, do we not? Why not adjust them, if the numbers presently admitted thereby are "inadequate?"

She suggests perhaps a "safe harbor" for the illegals ... hey! A new word for "amnesty!" It's not amnesty, it's a safe harbor.

UPDATE @ 13:42

Great analysis by Beldar, on the issue of Vice President Cheney's interpretation of the Executive Order that requires executive agencies to report their handling of classified information. Does Cheney have a legal leg to stand on in contending that he and the OVP are not covered by the executive order on classified documents?.


Senator Hatch rises to talk about handling of contentious issues in the Senate, and brings up the issue of judicial nominations. In particular, he raises the issue of Leslie Southwick's nomination being held up in the Judiciary Committee, after the nominee was approved by the Judiciary Committee months ago.


Yesterday, over at JURIST, a collection of articles on the Senate subpoenas to the WH on the subject of domestic surveillance.

Marty Lederman has a comment at Balkinize, The President Asserts Executive Privilege, not on subpoenas for the domestic wiretapping, but on the subpoenas related to the firing of US Attorneys. See also the White House formal assertion of Executive Privilege in the US Attorney's matter.

Congressional subpoenas to the executive make for fairly substantial battles that tend to have political ramifications.

UPDATE @ 14:32

Senator Levin is up, taking about the nomination of Lt. General Lute (Cal. 165, Message 599). He supports the nomination. Lt. General Lute was nominated to be an advisor, on May 23, and was reported out of committee this past Tuesday, June 26th.

General Lute was confirmed.

UPDATE @ 17:00

Senators McConnell and Reid discussed taking S.1 - Lobby Reform, to conference. McConnell wanted assurance that nothing would be stripped from the "Senate Rules" side of the Lobby Reform bill during that conference. Turns out that Senator DeMint's S.Amdt.11 (modified by Durbin's S.Amdt.44) to S.1, to make public earmark transparency a requirement for a bill to be in order in the Senate, is the object likely to be stripped during conference. Senator DeMint objects to S.1 going to conference until the Senate agrees to S.Res.123, which is the same as S.Amdt.11/44.

The Democrats object to passing S.Res.123 - which is odd because S.Amdt.11/44 (exactly the same thing) passed on a 98 - 0 vote. So, who's to blame for S.1 not going to conference? DeMint because he knows his amendment will be stripped out (in conference where there are 4 DEM Senators and 3 GOP Senators)? or the Democrats because they won't pass the earmark transparency measure?

Link to Congressional Record Debate

Mr. DeMINT. Madam President, earlier this year, the Senate took a major step in being more transparent with the earmarking process. We worked together. We passed within the lobbying/ethics reform bill transparency and rules that would keep us from adding secret earmarks when we go to conference. I have asked repeatedly on the Senate floor that we accept that as a rule. I had asked the majority leader to amend his unanimous consent request to go to conference to include Senate acceptance of the rules we have already passed. That way we would have the comprehensive work we have all planned to have. I understand from the majority leader they are not willing to accept that, and they want to go to conference where it is our belief it will be significantly changed.

That answers that. The blame rightfully goes to the Democrats.

UPDATE @ 17:20

Senator McConnell giving a speech aimed to mend the damage done to the egos of Senators by handling the immigration bill. He says that the bill represented the best the Senate could hope to do with the issue of immigration. But he doesn't seem interested in implementing the will of the people, show us you are serious about border security.

The Senate is sad today - the failed cloture vote being a bipartisan defeat. Would they have been happy if the immigration bill had moved forward to passage? Would that have been a bipartisan victory? You betcha, Congress and the Senate in this corner, and the people, they are in the other corner.

UPDATE @ 19:30

Senator Reid tried to move S.4 - Implementing the 9/11 Commission Recommendations, to conference, and was met with objection from Senator Coburn. "A minor detail" remains to be worked out.

The Senate is winding down for the Independence Day recess. Probably a quiet day tomorrow and Monday the 9th of July. The next substantial project coming up will be H.R.1585 - Defense Authorization.

UPDATE @ June 29

I dropped a news story and a comment about "public awareness" at this point in an earlier thread <- Hit the link, the addition is short, and you won't have to "page" your browser to read the few paragraphs.


The effort of Dow Jones and Associated Press to unseal the entirety of Miller's appeal record, in particular to unseal an affidavit by Patrick Fitzgerald as to why the Court should compel Miller (and Copper) to comply with the Grand Jury subpoena as well as sealed portions of the Circuit Court's opinion (Tatel's concurrence), is drawing closer to a conclusion. The Circuit Court docket for case No. 04-3138 has the following entry:

6/19/07 (UNDER SEAL) RESPONSE filed [1048468-1] by Appellee USA ... to court's inquiries

Without seeing the filing (it's under seal and secret), given the subject of of the case, it should be clear that the filing describes (and argues) in detail, which parts of the presently sealed and redacted record relate to matters that should be protected by grand jury secrecy, and which parts were disclosed during the conduct of the Libby trial, and therefore don't need or deserve continued protection.

Libby defenders (a shorthand label that I also apply to those who find Fitzgerald's prosecution to be or border on prosecutorial misconduct, even if those people don't per se "defend Libby") hope to find a smoking gun or evidence of one, that Fitzgerald lied to the Courts in order to get the Courts to compel reporter testimony. The hoped-for discovery is that Fitzgerald knew that Plame wasn't covert, but he continued his investigation anyway.

I'm very confident, to the point of being certain, that Libby defenders will be disappointed in what the Circuit Court eventually unseals. Most of the sealed and redacted material relates to the investigation of Rove and Cooper, and that material will remain out of public view in order to preserve grand jury secrecy. There will be no "smoking gun" of Fitzgerald misconduct. This is probably better for the Libby defenders. When much of the material remains out of sight, they can say that the "smoking gun" is still hidden, and add the Circuit Court to an ever increasing band of conspirators who "wrongly convicted Libby."

Snarky disclosure - I think those who see Fitzgerald as engaging in something resembling prosecutorial misconduct against Libby are as deranged (on that subject) as their counterparts on the left, the moonbats who see every action of President Bush and Vice President Cheney as evidence of bogeymen.


Yesterday's debate has a number of provocative speeches. This part of Senator Corker's speech is striking to me ...

This bill is about a lot of things. Certainly, people have put a lot of effort into it--based on compassion, based on trying to solve a problem. It also, no doubt, has some more sinister components. I hate to say it: cheap labor, party politics, who is going to gain the majority. So there are a lot of different things at play here. I think we all understand that. But I really do appreciate the efforts of all involved.

Today, this is going to get down to four or five Senators. I encourage them to vote against cloture, for this reason: I think this bill is not good for America because I believe America has lost faith in our Government's ability to do the things it says it will do. We have had intelligence gaffs. We have had evolving reasons as to why we are involved in military conflicts. We have seen what has happened at the local, State, and Federal level on things such as Katrina. We have ministers who want to go on mission trips today but who cannot get passports renewed. This is about competence. It is about credibility. I think Americans feel they are losing their country. They are not losing it to people who speak differently or talk differently or are from different backgrounds; they are losing it to a government that has seemed to not have the competence or the ability to carry out what it says it will do.

I believe this bill is going to fail. What I would urge people to do is not what they have said today--and that is, to let it pass--but to move, meaning to pass into another time, but approaching it on a more modest basis, where we do the things we say we will do and build a foundation that will cause the American people to actually have faith in this Government.

I picture in my mind, outrage from the right who see the speech as wrongly critical of President Bush ("Bush-bashing," in the vernacular) because it touches on, without saying it, the rationale for going to war in Iraq, and FEMA's performance in the wake of Katrina. But I see a deeper message here, even if one disagrees with Corker's use of those examples, and it is a message that resonates with me.

Politicians cultivate a sense of dependence on the government. They make promises, that if only we give them more time, or more money, or elect them instead of their opponent, that our vision of good government will come to pass. But it's fiction. Sure, that which party is in power makes a difference is true. No argument. But there is an erosion in confidence, and that erosion is in large part due to over-promising, and to cultivating a sense that the government is the solution.

Another piece, this one by Senator Sessions, strikes me as constructive criticism, not just an observation or complaint on his part, because it also provides substantive and practical advice.

What I would ask President Bush to do with regard to his legacy on immigration would be to carry on at a much more effective and aggressive rate than he has with a movement toward enforcement. He has done things in the last several years to improve immigration enforcement more than the previous four or five Presidents, but it has not been enough.

So I would suggest to the President: Make it your legacy to leave a secure border for America. Enforce our current laws. Utilize every effective and appropriate tool we now have, which would make a huge difference. Ask the Congress for what additional tools you need. Let's begin to create a lawful system at the border. ...

So to my colleagues and particularly to my friend, the President of the United States, whom I respect so much, I would say let's make it a legacy of this Congress and this President to do everything possible, beginning today, to have a secure border in our country. I believe it would be widely approved by the American people. I believe it would be good for our country. It would be a true contribution to American society and put us on the road toward a step to adopting new and better policies for immigration.

I won't be holding my breath, but I will be watching.


Two more names to add to the "nominations withdrawn" list.

John Ray Correll, of Indiana, to be Director of the Office of Surface Mining Reclamation and Enforcement, vice Jeffrey D. Jarrett, which was sent to the Senate on January 9, 2007.

Dale Cabaniss, of Virginia, to be a Member of the Federal Labor Relations Authority for a term of five years expiring July 29, 2012 (Reappointment), which was sent to the Senate on March 12, 2007.

UPDATE @ 9:55

Senator Reid lies about DeMint's objection to taking the Lobbying Bill (S.1) to conference. It's not because he doesn't like the earmarks provision, it's because he DOES like it, and wants it preserved as passed.

Senator Reid also mischaracterizes Coburn's objection to post-grant auditing process for monies spent to implement the 9/11 Commission recommendations under S.4 - on the one hand (in public), Senator Reid says he wants the same process that Senator Coburn has asked for, which is to demand Congressional oversight of spending of public money, but on the other hand, (in private) Reid is blocking that oversight from being cast into law.


I want all of the Republicans to know, I am not going to ask again for unanimous consent to go to conference. When they get ready to go to conference, they can come to us.

That presents a great opportunity for the Republicans. Senator McConnell can ask for unanimous consent in the style propounded by Senator Kyl for the 9/11 - "TSA collective bargaining" issue, and in the style of Senator DeMint for the earmarks reform issue; and show the view that the bottom source for failing to go to conference is Democratic objection to committing to adhere to agreements they say they have already made.

Senator Schumer comes up to amplify Senator Reid's multiple lies, in a style that only he can perform. What an artist. BS artist, that is.

No votes today, but the backlog of judicial nominees presently on the Senate's executive calendar will be voted on Monday, July 9, starting at about 5:30 p.m. That backlog comprises four District Court nominations, O'Grady (ED Va.), Maloney (WD Mi.), Neff (WD Mi.), and Jonker (WD Mi.).

UPDATE @ 12:15

Senator Sessions is up talking about the Judiciary Committee subpoenas to various past and present White House officials, and the White House assertion of executive privilege. As usual, a good speech. Senator Sessions highlights the difference between legal and political, and what he characterizes as abuse of a legal power (subpoena) by the Senate Judiciary Committee.

UPDATE @ 12:30

Talk about timing, the DC Circuit Court has issued its opinion and further unsealed the record in the Miller and Cooper (Libby) case I noted above. HT to HowAppealing, the further unsealed opinion is at As Howard Bashman well summarizes, "the appellate court has agreed to make public more, but not all, of the redacted portions." Italicized portions of the revised opinion are the fruit of the Dow Jones/AP appeal.

Text of the opinion further releasing information - text of newly released information.

UPDATE @ 13:30

And another hat tip to HowAppealing for this HUGE piece of news. (shame on me for converting the Libby/Miller stuff to text before reading a bit further at Howard Bashman's place!)

"Supreme Court to Review Guantanamo Cases": Pete Yost of The Associated Press provides a report that begins, "The Supreme Court, reversing course, agreed Friday to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement."

Lyle Denniston covers the story at ScotusBlog (he's an awesome resource), Bobby Chesney notes the event in his Supreme Court grants cert in Boumediene after all, and the folks at Balkinize will eventually be all over this development.

Indicative of the importance of this development, further detailed posts at ScotusBlog: Questions Presented in the Detainee Cases - by Ben Winograd, and Materials in the Detainee Cases - by Jason Harrow.

And also a substantially sized entry at JURIST, Supreme Court to hear Guantanamo Bay detainee habeas cases.

The basic upshot of all this is that SCOTUS intends to be involved in ruling on the recently passed Military Commissions Act. But the timing and procedural history leading up to the announcement of agreeing to review the cases is significant. My initial reaction is "Holy crap!!!!! The Court is planning to clip both executive and legislative wings."

UPDATE @ 18:10

More news on the Military Commissions trials, over at ScotusBlog, Lyle Denniston's Military judge refuses to revive war crimes case describes the affirmation by Military Judge Brownback, of his earlier ruling that the Combatant Status Review Tribunal (CSRT) had not determined that the defendant was an "unlawful enemy combatant."

The plot thickens, indeed.

Previous action in the case, including cites to comments by Senators (see, there is a connection to the Senate) is in Immigration Redux, continued - S.Amdt.1150 to S.1138 - search for the text "Khadr"

UPDATE @ 20:05

Over at The American Spectator ...

End of a Free-Trade Era - By Doug Bandow

The president's "fast track" negotiating authority expires tomorrow. It will require bipartisanship to get it back. Otherwise, chock [sic] up another Bush-era casualty.

That issue sure is flying under the radar. The Record has a few speeches on the subject this year, and I haven't checked the White House website for any statements that urge Congress to renew the trade negotiating authority. Okay, I just checked the White House for "fast track", "TPA", and "Trade Promotion Authority" -- there is a little material on the subject of fast track trade negotiating authority.

Fact Sheet: Job Creation Continues - June 1, 2007

President Bush Is Committed To Keeping Our Economy Growing By Advancing Free And Fair Trade. In May, the Administration reached a breakthrough trade deal with Congressional leadership that will be applied to free trade agreements with Peru, Colombia, Panama, and South Korea. The agreement also opens the way for bipartisan work on extending the President's Trade Promotion Authority. The Administration continues working aggressively to make progress on the Doha Round of trade negotiations.


World Trade Week, 2007 - A Proclamation by the President - May 18, 2007

The United States continues to work with other nations in the World Trade Organization to complete the Doha Development Round, which has the potential to lift millions of people out of poverty. I have also called upon the Congress to extend Trade Promotion Authority so we can complete the Doha Round and continue to negotiate robust trade agreements. By working to expand trade, we open new markets for American products and services and help build free economies that can raise the standard of living for families.


Press Briefing by Dana Perino - March 26, 2007

MS. PERINO: Yes, on Wednesday the President is giving a speech at the Cattlemen's Association. Two broad themes for that speech are that the President will discuss the importance of trade and opening markets for America's producers, especially the beef industry and other agricultural products. There are a number of trade deals before the Congress. They are Peru, Panama, and Colombia. And the U.S. Trade Representative is also in the midst of promising discussions with South Korea.

So he is going to be talking about that, including asking Congress to reauthorize trade promotion authority, shorthand TPA, as you hear people talk about that. But he'll also talk about the supplemental legislation that's moving through. He'll use it as an opportunity to address the global war on terror, and the importance of allowing the new Iraq plan to succeed. The President will say it is dangerous to our soldiers on the ground to let Washington politics delay this funding. So that will happen on Wednesday.


Press Gaggle by Tony Fratto and Al Hubbard - January 30, 2007

Q What if Congress doesn't renew fast track?

DIRECTOR HUBBARD: Again, TPA, we all know, is extremely important -- TPA meaning Trade Promotion Authority, the fast track -- is very important to passing any trade bill. And so that's been critical during this administration, and it will be critical to future administrations.


DOJ Loses Brand

After just over two years at the Department of Justice, Assistant Attorney General for Legal Policy Rachel Brand is jumping ship. Bush first nominated Brand in March 2005. During her tenure, Brand played a large role in securing reauthorization of the USA Patriot Act. The former White House counsel office aide and clerk to Supreme Court Justice Anthony Kennedy was also responsible for shepherding Chief Justice John Roberts and Justice Samuel Alito's confirmation hearings.

No, I don't usually scan "legaltimes," a hat tip to HowAppealing for the lead.

UPDATE @ 22:33

Over at Volokh, a very informative post on today's SCOTUS decision to rehear Boumediene and Al Odah, by Orin Kerr. Click through to Professor Kerr's testimony before the Senate Judiciary Committee for a more substantive analysis.

UPDATE @ July 1

The number of US Attorney resignations and replacements in 2001 and 2002 corroborates the contention that President Bush and/or AG Ashcroft requested or expected "mass resignation" of United States Attorneys. Whether or not either President Bush or AG Ashcroft made a formal request, it's a fact that mass US Attorney resignations occurred after President Bush took office in 2001.

To compare the number of United States Attorneys replaced by Presidents Clinton and Bush when they took office, one can use the nominations search tool, searching for the string "United States Attorney" (exact match only), and limiting the search to cases where the legislative action was "Confirmed by Senate." A simplified version of that search is provided below, followed by the raw number of US Attorneys confirmed in the last eight Congresses:


  • US Attorneys Confirmed by the Senate Under President Clinton
    • 103rd Congress: 87
    • 104th Congress: 4
    • 105th Congress: 18
    • 106th Congress: 14
  • US Attorneys Confirmed by the Senate Under President Bush
    • 107th Congress: 84
    • 108th Congress: 14
    • 109th Congress: 26
    • 110th Congress: 1


Most people are, as usual, forming firm opinions and convictions without undertaking an open-minded inquiry to ascertain the similarities and differences between the conduct of Presidents Clinton and Bush regarding the replacement of United States Attorneys. Hat tip to left-wing wingnut "watchingthewatchers", the following appears in Duke Law Journal Norm Theory and the Future of the Federal Appointments Process, by Michael J. Gerhardt.

... new norms are more likely to develop when there is conflict over the meaning or status of an existing norm. ^29 Such conflict is evident in the recent uncertainty over whether sitting U.S. Attorneys should offer to resign to give newly elected presidents the chance to replace them. Before Bill Clinton's election, presidents expected that such resignations would be offered. ^30 After Clinton's inauguration, several sitting U.S. Attorneys balked at offering to resign their posts once the Senate confirmed Janet Reno as President Clinton's Attorney General. ^31 After becoming Attorney General, Reno had made what she thought was the routine request that sitting U.S. Attorneys submit their resignations to her, so she could consider whether to reappoint them. She did not expect negative backlash because similar requests had been made by her predecessors in the Carter, Reagan, and Bush administrations and honored by previous U.S. Attorneys. Their refusals to tender their resignations embarrassed Reno, and, in fact, the desire to cause Reno embarrassment may have been the impetus for the refusals. ^32 After sending mixed signals on whether all sitting U.S. Attorneys should proffer their resignations to Attorney General Ashcroft, ^33 President George W. Bush and Attorney General Ashcroft requested the resignations of all but a few of the nation's U.S. Attorneys. ^34 Not a single Republican leader questioned the propriety of Bush's and Ashcroft's actions.


Senator Leahy on NBC's Meet the Press program, says he is willing to ask for a Contempt of Congress citation if the subpoenas regarding the firing of US Attorneys are not complied with.

CORRECTION: My original post erroneously said a majority vote of both bodies (House and Senate) was required for a contempt of congress citation. Wikipedia has a good introduction to contempt of congress proceedings at

He argues that he does not know where the assertion of "executive privilege" bottoms out, seeing as how President Bush was uninvolved in the firing. I noted this earlier, not on the detail point of executive privilege, but on the firings themselves - who, exactly, has the power to fire US Attorneys? The underlings? The AG (who says he didn't make the decisions, he just endorsed them)? Or is such a termination a power properly reserved to the office of the president?

I thought the issues of precisely who has the firing power and how that power is exercised would have been of greater interest.

I predict a smoke screen from both sides - Congress and the White House. Now that the argument is one-step removed from removal/replacement substance, and shifted to the the subject of executive privilege, maybe the question of which executive "officer" has the power to terminate will gain some prominence.

President Bush Addresses Resignations of U.S. Attorneys - March 20, 2007
White House Counsel's Letter Regarding U.S. Attorneys - March 20, 2007

Press Briefing by Dan Bartlett - March 13, 2007

  Q Last one. Harriet Miers' revelation that there's this idea that she wanted to clear house of all the U.S. attorneys, why is this coming out now and what's the timeline of this?
  MR. BARTLETT: It's coming out again because of the Kyle Sampson emails and papers that were being collected in order to respond to the request being made by the Department of Justice, that there's email traffic that jogged the memory of people at the White House and with Kyle Sampson, particularly -- because what Harriet Miers was doing was taking a look and floating an idea to say, hey, should we treat the second term very similar to the way we treat a first term? Because, remember, when Bill Clinton came into office he removed all 93 U.S. attorneys. The President chose not to remove all 93 U.S. attorneys -- removed significant numbers of them, but we left people in key positions because of the role they played.
  So those discretionary decisions made by a President, by an administration are often done. And what Harriet floated was the idea of saying should we treat the fifth year as the first year -- give new blood -- an opportunity for new blood to come in. Kyle, to his credit, and others said, that would be highly disruptive to the process, there are a lot of good U.S. attorneys that are performing; some of them have not served full four-year terms because we hadn't removed them all in the first place.


Press Briefing by Tony Snow - March 15, 2007

  Q Both the Media Research Center, as well as The Wall Street Journal, in an editorial headlined, "The Hubbell Standard: Hillary Clinton knows about sacking U.S. attorneys," deplored the old big media uproar about the firing of eight U.S. attorneys, when the Clinton administration fired 93 in one day. And my question: Does the President agree or disagree with The Wall Street Journal and the Media Research Center?
  MR. SNOW: I'm not aware that he's expressed an opinion on it. Let me just remind everybody again, U.S. attorneys are --
  Q What do you think?
  MR. SNOW: It's not my job to get up here and expound my views.


Press Briefing by Tony Snow - March 16, 2007

  Q A bizarre idea, firing 93 people.
  MR. SNOW: Oh, happened once before. (Laughter.)
  Q Even so, still bizarre.
  MR. SNOW: Okay, well, I'll let you -- let President Clinton make the calls to you.

I see that Mr. Bartlett was careful to distinguish the routine first term mass resignations from the possibility of second term mass resignations, but he followed with a statement that, taken out of context, clearly implies that President Bush was much more reserved in replacement of US Attorneys than President Clinton, "Because, remember, when Bill Clinton came into office he removed all 93 U.S. attorneys. The President chose not to remove all 93 U.S. attorneys ..."

I'll be the last person to defend President Clinton -- but to invite this raw number comparison amounts to a diversion and smoke screen from an honest framing of the issue.

The Hubbell Standard: Hillary Clinton knows all about sacking U.S. Attorneys.
WSJ OpinionJournal - Wednesday, March 14, 2007

UPDATE @ July 2, 12:31 p.m.

Fox News reports that the CADC has rejected Libby's appeal of being denied bail pending appeal.

Firedoglake has more details at BREAKING: Libby Motion For Release On Bond Pending Appeal -- DENIED, TheNextHurrah has a link to the order at Inmate 28301-016, Jeralyn Merritt (TalkLeft) has comments at Appeals Court Denies Bond for Scooter Libby, and some of the commentary at Tom Maguire's JustOneMinute is at Libby Appeal Denied.

Yours truly commented on the subject last week, at Beldar's A prediction: The D.C. Circuit will reverse Judge Walton, and followed up at his D.C. Circuit panel denies Libby's application. I don't find the decision surprising in the least - and as I've said before, I take only sorrow, no joy, from the case. From my point of view (read "opinion" there) the case is incredible in being a clear portal into partisanship over principle, on both sides.

            BEFORE:   Sentelle, Henderson, and Tatel, Circuit Judges

                                       O R D E R

            Upon consideration of the motion for release pending appeal, the opposition 
     thereto, and the reply, it is

ORDERED that the motion for release pending appeal be denied. Appellant has not shown that the appeal raises a substantial question under 18 USC Sec. 3143(b)(1)(B). See United States v. Perholtz, 836 F.2d 554, 555 (D.C.Cir. 1987) (per curiam) (substantial question is one that is "close" or that "could very well be decided the other way"). Per curiam [initialed by all three judges]


Grant of Executive Clemency
A Proclamation by the President of the United States of America

WHEREAS Lewis Libby was convicted in the United States District Court for the District of Columbia in the case United States v. Libby, Crim. No. 05-394 (RBW), for which a sentence of 30 months' imprisonment, 2 years' supervised release, a fine of $250,000, and a special assessment of $400 was imposed on June 22, 2007;

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, pursuant to my powers under Article II, Section 2, of the Constitution, do hereby commute the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.

IN WITNESS THEREOF, I have hereunto set my hand this second day of July, in the year of our Lord two thousand and seven, and of the Independence of the United States of America the two hundred and thirty-first.


Statement by the President

The United States Court of Appeals for the D.C. Circuit today rejected Lewis Libby's request to remain free on bail while pursuing his appeals for the serious convictions of perjury and obstruction of justice. As a result, Mr. Libby will be required to turn himself over to the Bureau of Prisons to begin serving his prison sentence.

I have said throughout this process that it would not be appropriate to comment or intervene in this case until Mr. Libby's appeals have been exhausted. But with the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision.

From the very beginning of the investigation into the leaking of Valerie Plame's name, I made it clear to the White House staff and anyone serving in my administration that I expected full cooperation with the Justice Department. Dozens of White House staff and administration officials dutifully cooperated.

After the investigation was under way, the Justice Department appointed United States Attorney for the Northern District of Illinois Patrick Fitzgerald as a Special Counsel in charge of the case. Mr. Fitzgerald is a highly qualified, professional prosecutor who carried out his responsibilities as charged.

This case has generated significant commentary and debate. Critics of the investigation have argued that a special counsel should not have been appointed, nor should the investigation have been pursued after the Justice Department learned who leaked Ms. Plame's name to columnist Robert Novak. Furthermore, the critics point out that neither Mr. Libby nor anyone else has been charged with violating the Intelligence Identities Protection Act or the Espionage Act, which were the original subjects of the investigation. Finally, critics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury.

Others point out that a jury of citizens weighed all the evidence and listened to all the testimony and found Mr. Libby guilty of perjury and obstructing justice. They argue, correctly, that our entire system of justice relies on people telling the truth. And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable. They say that had Mr. Libby only told the truth, he would have never been indicted in the first place.

Both critics and defenders of this investigation have made important points. I have made my own evaluation. In preparing for the decision I am announcing today, I have carefully weighed these arguments and the circumstances surrounding this case.

Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.

I'm glad President Bush commuted the sentence today, instead of waiting for the day Libby was due to report. I'd have preferred Fitz never been stuck to review what the DOJ already knew, but if wishes were ponies, my house would be full of pony poop.

At any rate, the issue has been shifted back to where it belongs, the political sphere under President Bush's direct influence. And I'm positively impressed with President Bush's statement today. It captures the opposing principles and sides very well. Kudos from me.

UPDATE @ July 3

I've updated my Predictions on the Libby Trial with comments pertinent to the commutation. My comments were predicated on my mistaken belief that President Bush had, by the language on his statement associated with the commutation ("I respect the jury's verdict", "The consequences of his felony conviction on his former life ... will be long-lasting") ruled out a pardon. But a subsequent express statement by President Bush that he neither rules a pardon in or out causes me to reserve my conclusion. For now, I'll parse President Bush as closely as I did President Clinton - and I'll watch what he does instead of taking him at his word.

The connection to the Senate? See Senator Reid's statement, that opens with, "The President's decision to commute Mr. Libby's sentence is disgraceful." I'm sure the commutation will result in more chatter, and it's particularly humorous to me, reading some of Senator Reid's lies of last Friday ...

For the first time in 131 years, someone working in the White House is indicted, the man is now in prison, Scooter Libby. Safavian, head of Government contracting for the President ... he is now in prison.

Neither Libby nor Safavian was in prison. Safavian is free on bail pending the outcome of his appeal, and Libby's prison sentence was commuted before it started.


And on a completely different subject, S.185 - Habeas Corpus Restoration Act of 2007, has been reported out of the Judiciary Committee with Senate Report 110-90. Timely reading, in light of SCOTUS decision to rehear GITMO detainee cases (and maybe the Hamdan case as well), and the Military judges' decisions that were unfavorable to the administration.


Lots of Libby commutation questions asked during the Press Briefing by Tony Snow - July 3, 2007.

UPDATE @ July 6

I started to collect links and CIA-leak related text from White House pressers some time ago, to research the White House stated position on "dealing with the leaker." The collection spans the dates from July 22, 2003 to the present. I don't track pressers on a "daily" basis as a matter of routine, but the reports of Tony Snow's July 5 comments about the Clintons, where he was reported to have said "I don't know what Arkansan is for chutzpah, but this is a gigantic case of it," caused me to seek out the record.

I was surprised to find that particular presser is NOT listed or linked at the White House Press Briefing Page. I wonder how many other press contacts of similar duration and audience are made available only as the press sees fit, instead of being made available so the public can fact-check the press.

At any rate, more Libby commutation questions asked and answered:

President Bush Visits with Wounded Military Personnel - July 3, 2007
Press Briefing by Scott Stanzel - July 5, 2007
Tony Snow Press Gaggle - July 5, 2007


A couple of timely Congressional Research service papers are served up by Steven Aftergood at FAS. I grabbed the one regarding detainees. It has a good summary of the various cases, and is a decent primer for understanding the Habeas Corpus Restoration Act if (when) that comes up for debate in the Senate.

I also grabbed the one on recess appointments, and was surprised to find that President Bush made two recess appointments of Circuit Court judges -- for some reason I was under the mistaken impression that he had not made any recess appointments of judicial nominees.


Also at FAS, CRS Views Private Security Contractors in Iraq on the subject of private contractors (under contract to the United States government) operating in Iraq. Quoting a LA Times article, "The number of U.S.-paid private contractors in Iraq now exceeds that of American combat troops."


JURIST provides some news on a court filing by Hatfill, the doctor who was under suspicion as the anthrax mailer, in Hatfill seeks court order forcing journalists to reveal sources in anthrax case. An interesting confluence of factors here, Hatfill aims to pierce press privilege in order to obtain evidence as to which government officials told the press that he was a person of interest, and the case is being heard by DC District Court Judge Reggie Walton.

In this case, the press and government interests are in alignment - neither side wants the evidence to be exposed.

UPDATE @ 11:10

A collection of news article and a link to the 6th Circuit Opinion dismissing a suit relating to the NSA surveillance program (or Terrorist Surveillance Program - TSP), at this HowAppealing link. The decision mirrors the cursory analysis I provided on August 17, 2006, at Judge Anna Diggs Taylor Rules against NSA Terrorist Surveillance

Having just skimmed the opinion, my first impression is that the Judge made some startlingly conclusory leaps, especially as to the injury to the plaintiffs. For all we know, the surveillance (if there was any) was reasonable and based on probable cause, but until an admission (specific leak against a plaintiff) or a prosecution ensue, there is no way to tell.

The 6th Circuit said there was no specific evidence that the plaintiffs were the subject of surveillance.

I'm sure Circuit Judge Ronald Lee Gilman's dissent is head and shoulders better than the tripe put out by Judge Anna Diggs Taylor last August.

UPDATE @ 13:50

Senator Domenici's statement on his position vis-a-vis the future course of military action in Iraq is making news. It was the primary (just about only) topic of question and discussion in the White House July 6 Press Gaggle by Tony Fratto, and (plagarizing the 19 of 193 entries from on this subject) the print media is having a field day.

  1. GOP senator Domenici withdraws support of Iraq policy - Detroit Free Press
  2. Domenici to change policy stance on Iraq war - Heath Haussamen on New Mexico Politics
  3. 4th GOP Senator Breaks With Bush War Plan - TheHawaiiChannel
  4. (Sen. Pete) Domenici calls for a change in Iraq strategy - Free Republic
  5. Domenici wants change in course in Iraq - KOB
  6. Domenici Joins Other GOPers Calling for Change in Iraq - Fox News
  7. Domenici Calls For Change In Course In Iraq -
  8. Domenci Breaks with Bush War Policy - The Washington Post
  9. Domenici Breaks Ranks With President Over Iraq -
  10. Domenici Breaks Ranks - Hoffmania!
  11. GOP Domenici Breaks With Bush On Iraq - The Huffington Post
  12. Domenici AnnouncesShift In Iraq Policy, Calls For Starting Troop Redeployment - Think Progress
  13. Bush War Plan Loses 4th GOP Senate Ally - NewsNet5
  14. Domenici is the latest.... - Washington Examiner
  15. Pete Domenici Flips On Iraq Re-Deployment - Crooks and Liars
  16. Senate's Domenici Say Iraq Government Is `Failing,' New U.S. Policy Needed - Bloomberg
  17. Domenici calls for change in Iraq strategy - Las Cruces Sun-News
  18. GOP Sen. Domenici Abandons Bush On Iraq Policy, Becoming Latest Defection On Unpopular War - KOTV Tulsa
  19. Domenici calls for change in Iraq strategy - KXMB-TV Bismarck

It was a given that Iraq policy statements will be proposed in the Senate, as amendments to H.R.1585 - the defense authorization bill. That debate will begin next week, rather than being deferred until September.

UPDATE @ 16:15

Jeralyn Merritt undertook an interesting course of research, to prepare her article Libby, the Marc Rich Pardon and Congressional Hearings. I have never reviewed the details of Libby's involvement in the Rich case (or the Rich case itself) or Libby's involvement in the subsequent pardon by President Clinton. I haven't fact checked Jeralyn's article for errors, but find it an easily-readable historical synopsis that is quite amendable to being fact checked.

The short version is that Libby didn't think Marc Rich was guilty as charged (nor was his company, even though Rich's company paid a 200 million dollar settlement), and that President Clinton had adequate and substantive basis for granting a pardon to Marc Rich.

At any rate, I think it's ludicrous to assert that Libby's commutation doesn't represent at least favoritism - but the President has the power of clemecy and all that can be done after the power is exercised is air out the exercise for public review. It would be hypocritical to assert that Congress is out of bounds to investigate the Libby pardon, but was in bounds when it investigated the Rich pardon.

UPDATE @ 18:10

A couple of good posts at Volokh on the subject of the 6th Circuit reversal of Judge Taylor's TSP-related decision: Plaintiffs Lack Standing to Challenge NSA Surveillance (Jonathan Adler) and Sixth Circuit Reverses Judge Taylor on NSA Surveillance Case (Orin Kerr). Lyle Denniston also weighs in (at ScotusBlog) with Circuit Court bars challenge to NSA spying.

UPDATE @ 20:40

On the detainee front, the government has filed a motion opposing the introduction of what is known as "The Abraham Declaration." Text of the Motion in Opposition. An interesting point to note is that the filing is by, in part, Peter D. Kiesler. Kiesler has been a nominee since June 29, 2006, for a seat on the DC Circuit Court. His nomination was twice returned to President Bush, and returned to the Senate both times. The nomination has never moved out of the Judiciary Committee.

I've read the Abraham Declaration (it's attached to Al Odah's Reply to Opposition to Petition for Reharing before SCOTUS, filed on June 22) -- the government's brief provides an appropriate counterpoint.

Al Odah's Reply brief, including the Abraham Declaration, is linked from Lyle Denniston's Final push for rehearing for detainees at ScotusBlog.

UPDATE @ 21:40

LOL. Says JURIST, Congressman McDermott will file a petition for a writ of certiorari to try to get his loss reversed. Fifty bucks says he'll be denied cert. It's a sucker bet, there is no way the Supreme Court will take this case. McDermott lost - the decision wasn't difficult or close, for any of the Courts that heard it.

Friday, June 22, 2007

June 22-26 Interlude: Motions to Proceed

Contrary to Senator Reid's bluster about "working through the weekend in order to get energy and immigration done," the Senate is running on a fairly ordinary work schedule. There won't be any roll call votes today or Monday, the two pending cloture motions (to limit debate on motions to take up H.R.800 and S.1639) will be conducted on Tuesday.

If the timing of taking cloture votes was taken according to Senate Rule XXII, the vote to limit debate on the motion to proceed to H.R.800 would have been conducted yesterday (June 21) and the vote to limit debate on the motion to proceed to S.1639 would be conducted today. Lesson: They don't follow the rules.

Regardless of the outcome of the motion to proceed to H.R.800, the Senate action will move to the subject of comprehensive immigration reform.

H.R. 800 (ORDER NO. 66)

    1.--Ordered, That at 11:30 a.m., on Tuesday, June 26, 2007, the Senate proceed to a vote on the motion to invoke cloture on the motion to proceed to H.R. 800, an act to amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes; further, that if cloture is invoked on the motion to proceed, the motion be agreed to and the Senate vote immediately on cloture on the motion to proceed to S. 1639.

S. 1639 (ORDER NO. 208)

    2.--Ordered, That on Tuesday, June 26, 2007, following the adoption of the motion to proceed to H.R. 800, the Senate proceed immediately to a vote on the motion to invoke cloture on the motion to proceed to S. 1639, a bill to provide for comprehensive immigration reform and for other purposes and that if cloture is invoked, the motion to proceed be agreed to.
    Ordered further, That if cloture is invoked on the bill, it be in order upon the disposition of all post cloture debate time for 20 minutes of time, for debate only, on a motion to waive the Congressional Budget Act in response to a Budget Act point of order against the bill made by the Senator from Alabama (Mr. Sessions), or his designee.
    Ordered further, That on Wednesday, June 27, 2007, if the Senate is considering S. 1639, the Senator from Alabama (Mr. Sessions) be recognized for up to 2 hours.

There is some interesting phrasing in those agreements, and I'm not sure they represent what the Senate really plans to do.

By a literal read, taking the cloture vote on the motion to proceed to S.1639 is conditional, and depends on first passing the cloture motion on the motion to proceed to H.R.800. Looking at order No.2, ask what happens if the Senate does NOT adopt the motion to proceed to H.R.800? Answer, the same thing, the Senate will take the cloture vote on the motion to proceed to S.1639.

Notice the timing of the debate on the Budget Act point of order noted in the second paragraph of Order No. 2. That point of order debate will occur ONLY if the immigration bill is taken up, and then only if the Senate votes to invoke cloture on the bill, and then after all the other debate has been conducted. That budget point of order will be one last opportunity to keep the bill from moving out of the Senate.

The cloture vote on Tuesday is NOT a cloture vote on the bill, it is a cloture vote as to whether or not to take the bill up at all, or in the phrasing used in the Record, "cloture vote on the motion to proceed to the consideration of."

Finally, I make a picayune observation that opposition to the comprehensive immigration bill is not using all of the delaying tactics available to it. For example, under the unanimous agreement, if cloture is invoked on the motion to proceed, then the motion to proceed is automatically and immediately passed. But there is a 30 hour period of debate, under the rules, between passing the cloture motion to limit debate and voting on the issue - in this case the issue being the motion to proceed to S.1639. The reasons this observation is picayune are that the Senate usually (but not always!) merges cloture and motion to proceed, and as a practical matter on the immigration bill, the procedurally-permitted delay could be short-circuited by taking the cloture vote today.


I expect light debate today on the two subjects represented by the orders above, and an early adjournment of the Senate. Same on Monday, except Senator Sessions will most likely be speaking against the proposed immigration bill.

UPDATE @ 10:20

Senator Brown drew Friday duty for the chair.

Maybe a hint of where Senator Reid intends to take the Senate in the future:

  • he continues his lament relating to the Iraq war
  • he notes the continuing legislative-executive battle over AG Gonzalez (some pertinent legislation was added to the calendar yesterday)
Visiting the energy bill (as it will be back after House/Senate conference), Senator Reid chooses to emphasize the importance of the CAFE provision (automobile fuel-efficiency/mileage requirements), and singles out Senator Cantwell as effective in obtaining Senate passage of that aspect of the bill.

My comments on the energy bill debate of yesterday are at the end of H.R.6 - CLEAN Energy Act (Week 2).

UPDATE @ 10:45

Senator Durbin railed against the Office of Vice President for exempting himself from some aspect of security procedure, i.e., protection of classified information. Not subject to Executive Order. Senator Durbin invokes the Libby case as an example of the OVP being irresponsible with classified information. It's a bad example, because Libby got burned for lying, and while he told reporters that Wilson's wife works at the CIA (but told investigators his only awareness of that was from reporter-generated rumors), there is no question that the CIA itself also told reporters that Wilson's wife works at the CIA, and none of the "Wilson's wife works at the CIA" gossip and publicity amounted to disclosing classified information.

In the vein of Congress/Executive battles, JURIST has a summary of recent action in Bush administration was divided on legality of warrantless wiretaps.

UPDATE @ 11:15

Heheheh. The White House said it would veto H.R.2206 - the Iraq Emergency Supplemental if it contained this measure. Probably somebody going off half-cocked, just funny to see the loop closed.

On Thursday, June 21, 2007, the President signed into law:

S. 1537, which authorizes the Secretary of the Senate to transfer proceeds from the sale of holiday ornaments from the Senate Gift Shop Revolving Fund to the Senate Employee Child Care Center.


Senator Sessions starts talking about immigration, notes that having a greater pool of labor has a tendency to reduce the average wage, and ties his objection to a large flow of immigration to his objection to strengthening the power of unions in the legal/judicial system.

LOL - he calls out Senator Lott (not by name) for blaming radio talk shows for opposition to the White House/Senate/Grand Bargainers comprehensive immigration proposal.

Just thinking out loud, Senator Reid made a monumental tactical error by pulling the immigration bill in order to take up the "more expensive energy and enhance the energy bureaucracy" bill, and compounded that error by deciding to move to a new immigration bill, instead of picking up the one that he had "pending." Seeing as how he can take "pending" status off at will, I wonder if he can restore that status to S.1348, if he wants.

UPDATE @ 11:47

Senator Enzi invokes a powerful argument against H.R.800, by noting that it strips individual workers of their privacy when they participate in voting on the adoption of a labor union as their exclusive representative with their employer.

UPDATE @ 12:12

Senator Cornyn knows how to tie a tie with proper pucker, plus it's a handsome tie.

He speaks against the just-passed energy bill and the proposed-to-be-pending union bill.

He is also condemning the Democrat's proposed budget - and much as it pains me to say it, the GOP has been liberal with entitlements and government encroachment too. Action, gentlemen, action. Talk is cheap.

UPDATE @ 13:55

A welcome to Dr. (now Senator too) John Barrasso from Senator Enzi. An unknown quantity to me, and I am optimistic that he has his head screwed on straight.

UPDATE @ 14:18

Have a nice weekend! Bier time (continues =:-O)

UPDATE @ June 23

Clay Pigeon in the Amendment Tree

The procedure wonks have been chatting a bit about "clay pigeon" and other supposedly esoteric parliamentary procedures that immigration proponents are considering in order to get comprehensive immigration reform passed. The process isn't really all that complicated. The fundamental principle in play is availability of amendment and debate, and the real complaint will boil down to freezing out amendments by the premature filing of a cloture motion and the other techniques used to regulate amendment, not to the use of a "clay pigeon" amendment.

The underlying objectionable conduct is 60 or more Senators (plus active White House participation), the "grand bargainers," working outside of public debate and freezing out the other senators, crafting language that they will agree to pass into law. The collusion is undertaken before the bill is brought to the floor for debate. In order to take the taint off the collusion, the "grand bargainers" want to create the illusion of engaging in reasonable and transparent give and take with their opponents (the impression created by public debate and risk of amendment), and they want to give the frozen out senators a venue to vent their frustration. While they need the appearance of possibility of amendment, or deviation from the grand bargain, they don't want to risk voting "on the record" against certain opposition amendments, nor do they want to use too much time, both being parts of an open-ended amendment process.

One way to carry the collusion into law is to craft a bill in such a way that 60 senators would pass it unamended. This is the simplest scenario. Let me describe how this hypothetical, no-amendments-needed bill could be "rammed through" over some amount of objection from opponents.

The Senate Majority leader makes a motion that the bill be brought up for consideration, and is met with objection. He files a cloture motion to limit debate on bringing the bill up. This point is where S.1639 presently stands - a cloture motion has been filed to limit debate on a motion to take the bill up. In a scenario where 60 Senators have already agreed that the bill is good (and need not be amended), they will vote in favor of bringing the bill up for consideration, and the bill will become the pending business of the Senate.

Filling the Amendment Tree

In the ordinary scheme of things, once a bill is brought to the floor for action, all senators have the right to debate and suggest amendments. But the process of making an amendment pending is tightly controlled -- and it should be, otherwise a typical bill would become a cacophony of hundreds of competing amendments. The majority leader can completely short circuit the usual process of permitting substantive amendments from becoming pending by "filling the amendment tree" immediately upon the bill being brought up for consideration. This tactic doesn't cut off debate on the bill, it just sets up a "take it or leave it" situation.

What is "filling the amendment tree?" It is a practice whereby an amendment is offered to the bill (first degree amendment), then an amendment is offered to the amendment (a second degree amendment). That's it, it takes two amendments to fill the amendment tree. Senate rules are that a third degree amendment is never in order, and that unanimous consent is required to set aside an amendment in order to offer a different one. If one senator objects to setting aside the pending (second degree) amendment, there is no way for any other senator to cause an amendment to be pending.

If you're curious, you can see a "fill the tree" maneuver in S.2271 - The USA Patriot Act Reauthorization. The amendments used to "fill the tree" are "do nothing" amendments. The first amendment, S.Amdt.2895, provided "This Act shall become effective 1 day after enactment." The second degree amendment, S.Amdt.2896, provided "This Act shall become effective immediately upon enactment." Similar "fill the amendment tree" action occurred on H.R.6061 - Secure Fence Act of 2006. Again, the point of having the amendment tree full is to prevent additional amendments from being made pending.

As another aside, Senators Specter and Byrd had a brief discussion on Feb 15, 2007 as to whether or not the majority leader in fact has the parliamentary power to "fill the tree," but at this point it's a very safe assumption that the majority leader has the practical power to do so.

Once their bill is pending, the same 60 or more senators who crafted it are sufficient power to invoke a limit on debate both to take the bill up, and to vote on the bill "unamended." The bill is guaranteed to pass, and the timeframe for getting it though is predictable.

The Clay Pigeon

A "clay pigeon" amendment is an amendment that is divisible - and for what it's worth, a great number of amendments are divisible. "Divisible" simply means that a given amendment contains provisions that can logically be debated independently from one another. A clear example that comes to mind is the typical "manager's amendment" that is voted on near the conclusion of action on a bill. A "manager's amendment" is a collection of several amendments, sometimes 40 or 50 or more, that were offered while the bill was pending, but the amendments themselves weren't individually pending. The Senators work in the back rooms and negotiate which amendments they would accept, they do their horse trading while the bill is pending. The only public manifestation is the voice vote or unanimous consent to pass the manager's amendment. A manager's amendment is sort of a "reverse clay pigeon," the parts are put together before the vote is taken.

Now, once you grasp the principles of "fill the amendment tree" and "divisible amendment," you are equipped to ponder the combination of the two. The "need" for the combination arises when the grand bargainers don't have all the language in the bill, unamended. They have already agreed on a package of amendments that they are willing to debate - the only remaining issue is how to get these amendments (and only these amendments) to become pending.

The usual method of getting a package of amendments pending is to negotiate in the back rooms while the bill is pending, and involving any senator who is interested. This one-by-one, or horse trading of amendments method could work for a package of amendments that was crafted in collusion, but it's time consuming, it's messy, it runs the risk of introducing amendments from somebody outside of the clique of grand bargainers, and it runs the risk of some of the grand bargainer amendments being dropped instead of being voted. Hence the temptation to "fill the amendment tree" with a divisible amendment that represents the set of amendments the grand bargainers have decided, in advance, can and must come up for debate and voting.

Skeet Shoot

The "fill-the-tree with a clay pigeon" tactic would begin with agreement to proceed to the bill, the majority leader would introduce the clay pigeon amendment, followed by introducing a second degree amendment. No further amendments would be in order, and the do-nothing second degree amendment is pending. At this point, the process can go in one of three directions. It's a given that when the clay pigeon amendment is made pending, some senator, probably one of the grand bargainers, would move to divide the clay pigeon so the 20 or 30 issues it contains would have to be debated and voted separately.

  1. dispose of the second degree amendment and divide the clay pigeon, long before filing a cloture motion on the underlying bill,
  2. file a cloture motion on the underlying bill and divide the clay pigeon at about the same time, and vote on some or all of the amendments before taking the cloture vote on the underlying bill
  3. the grand bargainers agree in advance to belay division of the clay pigeon until after cloture has been obtained on the underlying bill
In the first scenario, division occurs days before a cloture motion is filed on the underlying bill, and the process is the same as normal, everyday Senate work. Additional amendments can be made pending upon unanimous consent. The usual back room horse trading as to vote on additional amendments is not prevented by the fact that one divisible amendment is being debated and voted on. And of course, the usual calculus of timing of filing a cloture motion would be in play, where filing one "too soon" is objectionable to the senators who want more debate.

The third scenario -- the 60 colluding senators agreeing to obtain cloture on the bill as a whole before making the amendment pending and dividing it -- would limit the time for voting on the amendments to 30 hours, followed by conducting a vote on the bill, regardless of how the individual amendment were decided.

The second scenario, like the third, limits the time for debate, but also delays and (maybe) puts at risk the decision to vote on the underlying bill. This scenario is fundamentally little different from filling the tree or a premature cloture motion - what is being controlled is the subject matter permitted to be voted on. By asserting a time-certain limit to debate (the one day layover provided between filing a cloture motion and voting on that cloture motion) the grand bargainers prevent additional amendments from coming pending before the cloture vote on the underlying bill. There is only so much that can be introduced in such a time-limited window - and the grand bargainers' package of amendments will easily take the entire layover between filing the cloture motion on the underlying bill and taking the cloture vote.

If cloture on the underlying bill is NOT invoked, this scenario becomes like the first scenario. But if the grand bargainers have agreed in advance to pass the cloture motion on the underlying bill regardless of the votes on the divided amendment, then this scenario becomes more like the third one, except it has more than 30 hours of debate before voting on the underlying bill. Even with the additional time for debate, the time isn't enough to admit amendments from outsiders.

In principle, this process is no more objectionable than Bill Frist filling the amendment tree on the USA Patriot act and on the Secure Fence Act. Here's the bill, 60 of us agree with it, we'll debate for awhile and take the political fallout, but at the end of the day, "take it or leave it."

The procedural issue is the timing of filing the cloture motion on the bill, not the use of a "clay pigeon." With S.1348, the most recent redux of the comprehensive immigration reform package, the cloture motion was probably one to three days premature. Senator Reid could have permitted debate to continue, and filed a second cloture motion once it was clear that enough senators were agreeable to vote on the bill.

He can do the same thing on the new bill, that is, wait until an appropriate time before filing a cloture motion. If he does use the "clay pigeon," I'm confident that most people will be so awed by the event that they'll assign stigma to the use of divisible amendment, and will completely miss the fact that a cloture motion was filed before debate even started. Keep your eye on the cloture motion.

UPDATE @ June 25

The day will occupied with speeches on H.R.800 and S.1639, with Senator Sessions having up to one hour to speak starting at 7:00 - no doubt to speak on the motion to take up the comprehensive immigration subject.

Dr. Barrasso will be sworn in around 3:30 p.m..

UPDATE @ 14:15

Add another name to the list of withdrawn nominations.

William W. Mercer, of Montana, to be Associate Attorney General, vice Robert D. McCallum, Jr, which was sent to the Senate on January 9, 2007.

Over at, The Fourth, Minus One-Third, on the subject of vacancies in the 4th Circuit Court of Appeals. And the nomination of Southwick (not in the 4th Circuit) is probably lost, but the responsible and affected parties (the Senate and the White House) aren't talking about it.


Jack Balkin has composed a good read in Bomb Throwers and Dismantlers: Some Notes on Today's Supreme Court Cases. A couple of quotes, and I recommend reading the whole thing.

Roberts' opinion creates a new rule allowing schools to ban student advocacy of illegal drug use-- but this rule would apparently not extend to student advocacy of changing the drug laws. (Which raises the obvious question: How can we tell whether "Bong Hits 4 Jesus" is advocacy of illegality, political advocacy of drug liberalization, or just a joke?)


There are two ironies worth noting. The first is that George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases.

A few other good articles at, one on the "power relationship" involving VP Cheney and the rest of President Bush's advisors.


A technical review of detention law by Steve Vladeck, Making Sense out of the Iraqi Detention Cases.


In general, it seems the subject of executive secrecy is heating up again, with news stories on VP Cheney's refusal to submit to oversight for handling of classified information, as well as on various "informed" opinions relating to the NSA wiretapping program.


Here's one on the subject of immigration, ImmigrationProf Blog, with some very timely and pertinent articles.

State Immigration Bills Submitted at Record Pace

In "Illegal Immigrants Targeted By States Impasse on Hill Spurs New Laws" by Darryl Fears for the Washington Post (here) reports that, by the time most legislatures adjourned in May, at least 1,100 immigration bills had been submitted by lawmakers, more than double last year's record total, according to the National Conference of State Legislatures. This year's total is expected to grow as the issue continues to dominate debate in statehouses still in session.

See also The Senate Debate Continues, Immigrants Running the California GOP? (the same story is covered here by NRO), and The Comprehensive Immigration Reform Bill as a sampling of articles from ImmigrationProf Blog. That last link has a GREAT summary of the bill, including a comparison between it and last year's Senate immigration fiasco, S.2611.


Heheheh, back in the Senate, Senator Enzi notes that the unanimous consent agreement provides for moving to immigration, no matter what the result of the cloture vote on H.R.800. Where have I heard that before?

UPDATE @ 15:17

VP Cheney has sworn in Senator Barrasso. Congratulations, and welcoming speeches from some Senators. Whatever time is used for this purpose is supposed to push Senator Sessions's start time out from 7:00 p.m.


Somebody got to Senator Cornyn, he isn't keen on the proposed immigration bill, and he says the proponents aren't fooling the public with false choices and over-promises. Stern talk from the Senator from Texas, about the ramifications of insulting the public with disingenuous arguments.

Senator Cornyn objects to the substance of the bill, and to the process whereby it is purported to be "debated" by the Senate. After describing several amendments that he wishes he could propose, he says he will oppose taking the bill up. That's a bit disingenuous on his part, because he can agree to take it up, give Senate leadership a chance to make his amendments pending, and then refuse to agree to cloture on the underlying bill on the grounds that it has not been properly debated.

In a sense, he just gave away that the Senate leadership, the "grand bargainers," in fact start the debate process with a definite time and subject limit in mind. "Take it or leave it?" Senator Cornyn says his choice is to "leave it."

UPDATE @ 17:30

Senator Sessions spoke earlier than the 7:00 p.m. scheduled time slot. Link to file download (3.8 Mb mp3 file)

His nose count of proponents of the proposed bill is about 50 or 51 (it would pass, if the Senate invoked cloture on the bill itself - but the cloture vote tomorrow is not on the bill itself), and he described the "clay pigeon in the amendment tree" process that is described above.

UPDATE @ 19:01

Senator DeMint is firmly against invoking cloture on the motion to proceed to the immigration bill. Senator Sessions is back, as of about 6:50 p.m., and notes that the Congressional Budget Office analysis indicates that this bill does not do what it's proponents claim. It reduces the amount of illegal immigration by a paltry 13%. He also points to Canada as a model of an immigration system that works, and that the bill proponents are pulling bait and switch with their promises such as a merit-based immigration system.

Senator Sessions knows how to knot a tie - great style there, Senator!

The Head of the Border Patrol Association says, "Congress is lying about it." (referring to the immigration bill). Senator Sessions is quoting others (past Chiefs of Border Control Union), "I call it the al Qaeda Dream Bill," "the compromise is a raw deal for America," "[Congress is] waving the white flag on immigration." His (Senator Sessions's) main point is the necessity of enforcing the law.

UPDATE @ 19:59

The voting schedule for Tuesday has the cloture vote on the motion to proceed to the consideration of H.R.800 occurring at 11:50 (this is moved out from the previous unanimous consent agreement), with the cloture vote on the motion to proceed to the immigration bill, S.1639, occurring immediately after, followed by a recess until 2:15 p.m.

UPDATE @ June 26

After continued thought about the clay pigeon in the amendment tree, and still of the mind that it's substantively little different from a plain old "fill the tree" or hard-nosed amendment trading, I've come to the opinion that the clay pigeon process is slightly more obnoxious than a pure "take it or leave it" bill because one of the functions of the clay pigeon is to create the illusion that a substantive amendment process is being undertaken.

And I've also come to realize that the divisible amendment could be the second-degree amendment, and that the amendment could be divided the very next moment after being made pending, by the same senator who introduces is -- almost certainly to be Senator Reid. The amendment tree would be just as full, but there would be an illusion that the bill was subject to the possibility of extensive revision, by 24 amendments (just picking that number as a likely guess).

Not noted above, but there is always a possibility that amendments outside of the clay pigeon would be admitted too. The way the Senate operates, the number of amendments offered is always negotiable, and "clay pigeon" doesn't permanently foreclose taking up of outside amendments. If outside amendments are "approved by the grand bargainers," the number is apt to be few, and the admitted substance of outside amendments will be a political calculation designed to air issues not well-aired by any of the topics in the suite of topics addressed in the clay pigeon. Permitting outside amendments may be necessary in order to mollify some senators, and would be useful to take some of the sting and stigma out of having used the clay pigeon procedure.

If the Senate votes to take up the immigration bill, keep your eye out for the filing of the cloture motion to limit debate on the bill itself. I'd be shocked if that came within an hour of taking up the bill (that degree of ram-rodding is too obvious), but expect it to be filed by Wednesday evening, putting the cloture vote to limit debate on the underlying bill (which is almost sure to fail) on Friday.


I'll be AFC&K (away from C-SPAN2 and the keyboard) for all of today and tomorrow.


  • Cloture motion to proceed to the consideration of H.R.800 will fail (party-line vote)
  • Cloture motion to proceed to the consideration of S.1639 will pass, Senator Reid will fill the tree using a clay pigeon
  • A cloture motion to limit debate on S.1639 will be filed late Wednesday (after 8 p.m.)
  • Cloture motion to limit debate on S.1639 will fail in a vote taken on Friday


According to Senator Reid, Senators McConnell, Kyl and Specter requested and agree with use of the "clay pigeon" procedure. The NRO statement, "It's either vote no, and never know whether your amendment to fix the bill would have made it through, or vote yes, and hope that yours is one of the dozen or so," is probably false. The package is known and agreed in advance of taking the cloture vote on the motion to proceed. Plus, it'd be suicide for Reid to NOT include the amendment, as surely each senator in the clique will see the clay pigeon before the cloture vote to limit debate on the bill.


According to the Washington Times, in Rough road ahead for immigration bill, the cloture motion on limiting debate on the underlying bill will probably be filed today.

To pass the Senate, the bill must earn 60 votes today, survive a series of amendments, earn 60 votes in a follow-up vote likely to come Thursday, and then pass with majority support ...

They left out the 60 vote super majority that will be required to waive the budget point of order that will be raised by Senator Sessions. There are THREE separate 60 vote hurdles, before getting to the majority vote passage. At any rate, if the budget point of order and cloture vote on the underlying bill are to occur on Thursday, then a cloture motion to limit debate on the bill will be filed today. I may be "colored shocked" by the obviousness of the ram-rodding.

UPDATE @ June 27

Color me shocked. The cloture motion to limit debate on some substantive part of the immigration bill (probably to limit debate on the amendment, leaving open the issue of time for debate on the underlying bill) was filed at about the same time the divisible amendment was made pending.

Yesterday I said there were THREE 60 vote hurdles (cloture motion on motion to proceed, cloture motion on the bill, budget point of order) before getting to the up-or-down vote on the bill. I'd like to revise and extend my remarks, there are at least three 60 vote hurdles, there could be additional cloture motions on various component parts of the bill.

Filing a cloture motion does NOT start a 30 hour clock. See Rule XXII. The vote on a cloture motion is, under the rule, held not the day after the motion is filed, but the day after that. The cloture motion to limit debate on the amendment was filed on Tuesday, and under the rules would be voted on Thursday morning. But the Senate has no obligation to follow its own rules, see the cloture vote taken yesterday, and my comments above, where the vote taken yesterday had been pushed out two full days. The cloture motion on the motion to proceed to the immigration bill was filed last week Wednesday (June 20), and if the Senate followed its rules, would have been voted on Friday morning.

The 30 hour time period is the delay between passing a cloture motion, and voting on it's underlying issue. The Senate voted yesterday on a cloture motion on a motion to proceed to take up immigration, and by unanimous consent, agreed that if the cloture vote on the motion to proceed passed (it did, that was yesterday's vote), that there would be no 30 hour wait, and the Senate would proceed directly to the bill. And that is exactly what it did.

As of now the new immigration bill is the pending business, and voting on one big amendment (the clay pigeon) and one other amendment (whatever filled the tree) comes before voting on the amended immigration bill. Under routine practice, the one big amendment would get one up or down vote, but the amendment is divisible and either has been or will be divided so there can be multiple votes.

Come the time to take the cloture vote to limit debate on the substantive matter, the Senate can either agree to do so, or, by refusing to invoke cloture, can keep the bill alive for more debate. Saying NO to cloture keeps the bill alive in the normal world. Saying YES to cloture also keeps the bill alive, but also serves to limit the time for debate to 30 hours.

Which reminds me that I don't know for certain the target of the cloture motion filed yesterday. It is most likely to limit debate on the amendment, but Senator Reid has filed some weird cloture motions (see the pair of cloture motions last week where some Senators could use the completely bogus cloture vote on the energy bill tax package amendment - that failed cloture vote was rendered moot when the senate agreed to limit debate on the bill - as evidence to support saying "I blocked higher taxes on the energy bill.")

The quickest way to discern the procedural posture is to read the June 26 Daily Digest. This will recite what is pending, by amendment number, and will recite the exact nature of the cloture motion filed yesterday (whether it is on the bill, or on the amendment - and I am pretty sure it is on the long amendment).

As for the substance of the offered amendments the grand bargainers have prepared for this charade of open legislative process, I doubt the text of the clay pigeon amendment even appears in the June 26 Record - or even the Record for June 27, for that matter. Last time around, the text of S.Amdt.1150 (the first try at an immigration bill) wasn't in the Record until May 24, after being noted as filed on on May 21.


Steyn at NRO ...

I agree with Stanley. There's something creepy about a political class so determined to impose a vast transformative bill cooked up backstage in metaphorically smoke-filled rooms on a nation that doesn't want it. It's an affront to republican government and quasi-European in its disdain for the citizenry. ...

They'll teach this one as a textbook definition of "bipartisanship": both parties gang up on the electorate.

As far as I'm concerned, President Bush is a leader (if not THE leader) of the political class that is running an affront to republican government. He did it before with Harriet Miers, he's doing it now with immigration, and you can bet your bottom dollar that he's done it with many other fundamentally important things. Just because he gets Congress to go along with him, doesn't mean the language that defines torture, for example, is a creation of Congress.

The White House was an active participant in drafting the clay pigeon amendment - Harry Reid and Mitch McConnell are just the front men for the 60+ colluding senators, doing the will of themselves with the bully pulpit of the White House being strongly in their camp (read the WH press stuff) and being used for the purpose of passing the immigration abomination that they helped compose.

As for the substance of the clay pigeon points, I remind you to read the details and see whether the amendments have any "teeth" whatsoever. See Dorgan's "one day sunset" joke, for example.

Anybody who accepts what is being done is open and transparent "working the will of the people" is a fool - and by my accounting, about 90% of the public is too busy with bread and circuses to even merit the label of "been fooled." Among those who watch seriously, my guess is less than a quarter see the charades. The pundits so often get the facts wrong (maybe they misrepresent the facts on purpose), and readers, too lazy to check facts for themselves, form their opinions based on wrong information and on the urge to promote the horse (either the person or the party) that they picked as "theirs.

Ta-ta to personal independence and critical thought.

Mark Kirkorian has more, this on spinning coming from the White House.

And I'm off, again away from the news and Senate play-action - and being away is probably for the better, certainly not for the worse, since my humble opinion has zero impact on the future.


Ahh, the Daily Digest is up before I head into the factory. Time for me to eat some more crow ...

The cloture motion filed yesterday is to limit debate on the bill, not on the amendment. Limits to debate on amendments are meaningless, when (if) the time for debate on the entire bill has been agreed to be limited.

Senator Sessions has been granted 2 hours of debate time today, by unanimous consent.

The clay pigeon amendment (by Kennedy and Specter) is in the Record! What a wonder! Senator Reid has asked the amendment be divided, but the Record does not yet indicate that the formality of division has in fact been performed. There are 26 divisions, 13 GOP, 13 Democratic.

Individual grand bargainers have a safety valve in the form of the agreement to have a vote to waive the budget point of order before voting on the bill. They can agree to limit debate on the bill (they can vote yes to cloture tomorrow) before they have votes on their amendments, secure in the knowledge that there is one last 60 vote hurdle to cross after the 30 hours of post-cloture debate (if cloture is passed) and just before getting to the vote on the bill as amended.

The Senate ought to be ashamed of how it is conducting this debate. It's an embarrassment, an affront, and an insult. And for the White House to applaud this action as "progress" tells me what the White House accepts as "positive progress." This is not positive progress for a republican form of government. This is a charade of participative government - and a piss poor charade at that.

I see Senator Cornyn has also called the White House out for misleading the public about 24 hour background check, where the White House issued a press release labeling criticism of that provision as being based on a myth.

UPDATE @ 22:10

The supposed "procedural nightmare" that developed today runs on a few simple rules. Not that I can explain them, even though I think I pretty well understand them and how to manipulate them. Here is the latest from NRO ...

No More Amendments [Jim Boulet Jr.]

My "Senate rules source" tells me that the Senate cannot consider any more of the "clay pigeon" amendments until cloture is invoked on the immigration bill (S.1639). This is the result of the Senate failing to table an amendment by a vote of 45 to 52


Not Looking Good for Team Amnesty? [Kathryn Jean Lopez]

From Bloomberg:

The supporters' strategy of disposing of amendments that threatened the legislation's bipartisan support hit a procedural snag late in the day, adding to the uncertainty. The Senate refused to set aside an amendment by Montana Democrats Max Baucus and Jon Tester that would dilute requirements employers verify the identity of new workers.

Under Senate rules, Majority Leader Harry Reid, a Nevada Democrat, now can't move to consider other provisions without getting the consent of all 100 senators.

Here's my slightly simplified explanation. Read it slowly - read it over and over if you need to, in order to understand it. THINK about how the rules play, because that is the only way you will understand the process. I can't utter some prose that will cause you to understand how these rules work - understanding the application is a personal chore. Listen to what the Senators say. Read the record.

  • Rule 1 - it takes unanimous consent, or cloture in the alternative, to make a bill pending
  • Rule 2 - any senator who has the floor may offer an amendment, unless the amendment tree is full
  • Rule 2a - the amendment tree is always full
  • Rule 3 - pending matters are set aside by unanimous consent or disposed of by a vote
  • Rule 3a - there is no such thing as a "motion to set aside"
  • Rule 4 - it takes unanimous consent, or cloture in the alternative, to dispose of a pending bill or amendment by up-or-down vote
  • Rule 5 - any senator may make a motion to table the pending matter. Motion to table is a nuke - it is a complete alternative from the path of getting to an up-or-down vote. A motion to table is not debatable, and therefore there is no need to "force" a motion to table by using cloture. In other words, "motion to table" is inevitably (and without debate!) followed by a vote on the motion to table, and there is no delay (except by unanimous consent, and the senator moving to table won't consent) on taking the vote on the motion to table
  • Rule 6 - disposing of a matter by tabling or by point of order is final and dispositive. To not table, just like to not invoke cloture, keeps the matter pending - but tabling kills the matter

Senator Reid's jam is that he was trying to dispose of the divisions of the divisible amendment (see above, "division" discussed) by tabling, and he ran into one division (Baucus amendment) that instead of being disposed of, is still pending (not tabled = still pending). There is no way set the amendment aside over the objection of a single senator. Absent unanimous consent to set it aside, the only way to get rid of an amendment that survived a motion to table (in this case, the Baucus division/amendment) is to vote it up or down, but the only way to force taking an up or down vote on an amendment (amendments obviously being debatable) is via cloture.

Senator Reid can keep things going, the bill isn't dead, and he's not "stuck" with only the clay pigeon amendment. Or, he's not "stuck" because Senate rules dictate the outcome.

"Failed cloture motion" means the bill is still alive! Rejecting cloture is a vote to continue debate. But the public has been conditioned to think "If it can't get 60 votes today, the bill is dead." But that impression is 180 degrees wrong ... see examples of multiple cloture votes on the same issue, judicial nominations being a good example, and funding the Whitewater investigation being another.

UPDATE @ June 28

The substantive debate on this bill has been a joke, which is why I haven't bothered to review the debates on the divisions(amendments) on the merits. The action boils down to how far the Senate is willing to go with a 90% take-it-or-leave-it bill, and which senators are are in the "take it" camp.

The clay pigeon maneuver was short - ensuing debate occupies very little of the Record.

Remember that I said to "watch for the cloture motion - man, it was the very first thing to come out of the block. Here is the action immediately following the 64-39 vote to proceed to S.1639 ...

The PRESIDING OFFICER. Under the previous order, the motion to proceed to S. 1639 is agreed to.

Under the previous order, the Senate will proceed to the consideration of S. 1639, which the clerk will report.

The assistant legislative clerk read as follows:

A bill (S. 1639) to provide for comprehensive immigration reform and for other purposes.

The PRESIDING OFFICER. The majority leader is recognized.


Mr. REID. Mr. President, I send a cloture motion to the desk.

The PRESIDING OFFICER. The clerk will report the motion.

The assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on Calendar No. 208, S. 1639, Immigration.

There's the threat of limiting debate. It isn't the clay pigeon amendment that limits debate, it's the cloture motion. The above is the totality of the Record on the detail of calling for cloture, there was no intervening action between proceeding to the bill and filing a cloture motion to limit debate on the bill.

THAT move, calling for cloture IMMEDIATELY upon proceeding to the bill, before any debate whatsoever, that is obnoxious. And to do so knowing there is a further 400 page amendment waiting in the wings just compounds this farce of legislative process.

Next up is a bit of parliamentary "negotiation" designed to make the clay pigeon amendment look like the only possible way to proceed with debate, faced with "unreasonable objection."

Mr. REID. Mr. President, I now ask unanimous consent that there be a limitation of 26 first-degree amendments to S. 1639, the immigration bill. This is the list of the 13 Democratic amendments, the 12 Republican amendments, and 1 managers' amendment, which each are at the desk; that there be a time limitation of 1 hour equally divided for each amendment; that they be subject to relevant second-degree amendments under the same time limitation; and that upon the disposition of the amendments, the bill be read the third time and the Senate vote on passage of the bill, with no intervening action or debate.
This is urgently objectionable because it would eliminate the cloture motion just filed. It says "Unanimous consent to read the bill the third time and vote on passage" - there is no "if the Senate agrees to limit debate by the cloture motion" language in there. There is no need for a cloture motion or a cloture vote or any part of the cloture process when the senate has entered a unanimous consent agreement. Of course, there was objection to Reid's unanimous consent proposal. The stated reason was that the proposal didn't allow enough debate - but the elimination of the second cloture vote would have followed just as night follows day, if the proposal had been accepted.

There was zero substantive debate on the immigration bill on June 26th. The clay pigeon was made pending, and the Senators went off to beat each other up in private. What follows is the entire Record of debate on the clay pigeon, from Tuesday, June 26th.

Mr. REID. Mr. President, I say to my distinguished friend, the junior Senator from Oklahoma, he always comes directly to the point. I appreciate him and his objection.


Mr. REID. Mr. President, I tried to line up these 26 amendments for debate and vote. We have been told that no matter what the time per amendment is that would be allocated, that is not good enough. I also included second-degree amendments. That was objected to. I have no choice but to offer, after consultation with the Republican leadership, an amendment that contains these Democratic and Republican amendments and ask that it be divided so that these 26 Senators may get votes in relation to their amendments.

I now call up that amendment, which is at the desk, on behalf of Senators Kennedy and Specter.

The PRESIDING OFFICER. The clerk will report the amendment.

The assistant legislative clerk read as follows: The Senator from Nevada (Mr. Reid), for Mr. Kennedy and Mr. Specter, proposes an amendment numbered 1934.

Mr. REID. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. DeMINT. I object.

The PRESIDING OFFICER. Objection is heard. The clerk will continue to read.

The assistant legislative clerk continued with the reading of the amendment.

[Hours of reading do not appear at this point in the record]

The PRESIDING OFFICER (Mr. Menendez). The Senator from Louisiana.

Mr. VITTER. Mr. President, in light of our discussion with the distinguished majority leader under which we won't take further action until tomorrow, so we can begin to digest this mammoth amendment, I move to waive reading of the amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senate debated and tabled a handful of amendments on June 27th, and set the stage to make an excuse for not debating. "We couldn't agree to limit debate, so we'll stop debating."


A minor procedural point - but it proves the senators know how to (ab)use parliamentary procedure. When the Senate did not table Division VII, the so-called Baucus amendment, it remained pending as a first degree amendment. In that condition, any senator who had the floor could offer a second degree amendment. Senator Kennedy protected that position by filing a second degree amendment to Division VII. Here is the relevant section from the Record ...

Mr. KENNEDY. Madam President, I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Massachusetts [Mr. Kennedy] proposes an amendment numbered 1978 to division VII of amendment No. 1934, as modified.

The amendment is as follows:

At the end of the amendment add the following:

This section shall take effect one day after the date of enactment.

And that is procedural posture of the bill at this moment. Kennedy's second degree "do nothing" amendment is pending. The next vote will be the cloture vote to limit debate on the immigration bill. It won't pass.

UPDATE @ June 29

In a short rant above, I said,

Anybody who accepts what is being done is open and transparent "working the will of the people" is a fool - and by my accounting, about 90% of the public is too busy with bread and circuses to even merit the label of "been fooled."

A news report (HT to NRO) by Rasmussen Reports, No One Notices As Senate Passes Energy Legislation, puts a test to my comment.

A Rasmussen Reports national telephone survey found that just 11% of Americans were following news coverage of the [energy] legislation Very Closely. Another 26% say they followed the stories Somewhat Closely. By way of comparison, nearly 8-out-of-ten voters followed news stories about immigration reform legislation over the past month. ...

However, just 13% knew that the Senate had passed a bill last week. Another 6% of adults mistakenly thought the legislation was defeated while 31% thought no action was taken. Half (51%) admitted they were not sure.

And mind you, this poll relates to people who obtain their awareness from news coverage, which isn't exactly known for accurately presenting reality. Anyway, the Rasmussen Report is interesting on the subject of energy, and the public's perception of the role of government in energy.

I agree the extent of public interest runs from close to zero for some subjects (the price of tea in China) to moderate (energy issues) to fairly elevated (as it is for immigration reform); but I'm going to stick to my guns that even for subjects that have an elevated public interest, the public as a whole is far from properly informed. Whose fault is that? My firm belief is that becoming properly informed is a personal responsibility, so I don't blame the media, their pundits, or the politicians. I blame the listener for thinking the passive process of listening and reading will result in being informed.