SOTU: In Writing Only, Plese

Many posts have discussed the presidency.

 David Frum at The Atlantic:

Article II, Section 3 of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” The Constitution does not set an annual schedule for such information, nor does it require the information to be delivered in person. George Washington and John Adams started the in-person tradition. Thomas Jefferson ended it, both because it reminded him too much of the British practice of the speech from the throne that opens a session of Parliament and (very likely) also because he disliked speaking in public. Woodrow Wilson reverted to the Washington-Adams precedent. Then came television, and the modern State of the Union spectacle. The spectacle is founded, however, on an invitation from the speaker of the House. No invitation, no spectacle.

Given the intentional abuse of Congress’s time and hospitality last night, the next speaker, if there is a different next speaker, should consider very hard whether to extend another such invitation. The case for suffering Trump is that the tradition, if interrupted, may take a long time to return. A future Republican Congress will requite the next Democratic president the same way. But there’s also a risk of setting a precedent that anti-institutional Republicans get to smash things, which pro-institutional Democrats must then clean up. Maybe the only way to restore norms is by imposing some meaningful costs for breaking them. Next January, the next speaker could do everyone a favor with a letter that begins: “Dear Mr. President, the time has come for your State of the Union message. Please send it in writing in the enclosed envelope. Congress will give it all the attention it deserves. This is the method that was good enough for Rutherford B. Hayes, and, Mr. Trump, it is more than good enough for you.”

George Will made a similar point in 2013. 

The Longest SOTU

Many posts have discussed the presidency.

 NPR:

LGBTQ Estimates and Opinion

Jeffrey M. Jones at Gallup:

The Data: Nine percent of U.S. adults in 2025 said they identify as lesbian, gay, bisexual, transgender or something other than heterosexual, essentially unchanged from 2024 but more than double the 3.5% measured in 2012. The 2025 estimate is based on combined data from over 13,000 interviews with U.S. adults.

Identity Distribution: Eighty-six percent of adults identify as heterosexual, while 5% do not provide a response. Among LGBTQ+ adults, more than half identify as bisexual, representing about 5% of all U.S. adults. Seventeen percent of LGBTQ+ adults identify as gay, 16% as lesbian and 12% as transgender, each accounting for between 1% and 2% of the U.S. adult population.

More Tariffs

Many posts have dealt with tariffs and trade. 

Ilya Somin at Reason:

Within hours of the Supreme Court's decision striking down his massive IEEPA tariffs in our case challenging them, Donald Trump issued an executive proclamation invoking Section 122 of the Trade Act of 1974 to impose 10% global tariffs, and then upped the rate to 15%. Prominent conservative legal commentator Andrew McCarthy has an insightful National Review article explaining why these new tariffs are also illegal. McCarthy and I differ over many issues. But we agree on this one. Here's an excerpt:

These new tariffs are even more clearly illegal than Trump's IEEPA tariffs…..

In Section 122, Congress endowed the president with narrow, temporary authority to impose tariffs "to deal with large and serious United States balance-of-payments deficits" (emphasis added). What Trump is complaining about — something he insists is a crisis but is not — is the balance of trade, not of payments. The United States does not have an overall balance of payments deficit, much less a large and serious one.

A trade deficit between the U.S. and a foreign nation occurs, mainly in connection with goods (which is just one aspect of international commerce), when imports are greater than exports. This is not really a problem for a variety of reasons — e.g., a trade deficit results in an investment surplus, the U.S. is a major services economy and often runs exported services surpluses that mitigate the imports deficit in goods, etc.

The balance of payments is a broader concept than the balance of trade. It accounts for all the economic transactions that take place between the United States and the rest of the world. Even without getting into every kind of transaction that entails, suffice it to say that foreign investment in the United States, coupled with the advantages our nation accrues because the dollar is the world's reserve currency, more than make up for the longstanding trade deficit in goods.

Our overall payments are in balance. There is no crisis.

Gorsuch on Tariffs, Deliberation, and the Separation of Powers

Many posts have discussed the presidency.

By a 6-3 vote, SCOTUS ruled that President Trump exceeded his authority under the 1977 International Emergency Economic Powers Act (IEEPA) to impose tariffs.

Justice Gorsuch's Concurrence in  Learning Resources Inc. v. Trump:

And, of course, it was duties on foreign tea that triggered the Boston Tea Party. J. Ellis, The Cause 17–18 (2021). Are we really to believe that the patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative?

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For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason.  Yes, legislating can be hard and take time.  And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design.  Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.  There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.  And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future.  For some today, the weight of those virtues is apparent. For others, it may not seem so obvious.  But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is. 

The Limits of Presidential Power

Many posts have discussed the presidency.

Peter Wallison at SCOTUSBlog:

There is no sense in which the presidency – finally created as a single person after months of debate near the very end of the Convention – was considered by anyone at the Convention as “directly accountable to the people.” In fact, the idea that the president would be responsible to voters is exactly what the Convention delegates wanted to avoid. They did not want the president to be able to claim he was responsible to the people. That, to them, was the foundation for dictatorial behavior.

To prevent just such a development, the Convention created an early form of the Electoral College to cut the connection between the popular vote and the election of the president, foreclosing an opportunity for the president to claim the very type of power that the Seila Law court contemplates – as an “elected monarch” or a dictator – if he were to be directly elected by a popular vote. After all, the Constitutional Convention occurred only 11 years after the colonies freed themselves from King George III, and creating another powerful ruler was out of the question.

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Based on the history described above, as well as the text of the Constitution itself, there is strong evidence that although the delegates at the Constitutional Convention considered the president as an essential office, it was only for the purpose of administering – not controlling – the government they were in the process of creating. That’s why the powers of the president in Article II are limited to commander-in-chief of the armed forces, making foreign treaties with the advice and consent of the Senate, appointing other officials, and taking “care that the laws be faithfully executed.” There was nothing at all suggesting that the president should control executive personnel or make policy in the way he does today. Indeed, according to Section 2 of Article II, the president “may require the opinion, in writing, of the principal officer of each of the executive departments” – an authority that would be unnecessary if the Constitutional Convention had thought he was intended to control all of the executive’s departments.

Nor does the “vesting clause” in Article II of the Constitution, which states that “[t]he executive power shall be vested in a President of the United States” give him any such power. This was solely to allow the president to carry legislation into effect and was tempered by his limited powers.

Gallup and the Business of Polling

 Many posts have discussed the problems of surveying public opinion in the 21st century.

Natalie Jackson at National Journal explains why Gallup has stopped polling presidential approval after decades of doing so.  She writes that Gallup was still conducting such polls by telephone, including cellphones -- an expensive practice.

Unlike many public pollsters who use expensive, high-quality methodologies, Gallup is a for-profit company. This is not your grandparents’ Gallup—it has evolved into a global research consultancy. Its website advertises services for clients with nary a mention of U.S. politics.

It’s worth mentioning Gallup has a lot of federal contracts, which could factor into a business decision about presidential approval with a president who likes to sue pollsters. The benefits of publishing presidential approval numbers might still outweigh the risks if there were money to be made from doing it. Yet that isn’t the case in today’s political polling environment. From a business perspective, it is an expensive money drain.

Other pollsters using expensive methodologies—mostly colleges and universities, media, or nonprofits—are not dependent on turning a profit directly from their polling. They are trying to generate attention, clicks, ratings, or reputational perks, or simply provide a public service. Some private pollsters release data publicly so that they will be listed in aggregates to bolster their name recognition. Gallup doesn’t need to do that.

Presidential approval numbers, in particular, are worth less than they used to be. Every poll gets put into aggregates with dozens of other surveys and is forgotten about within a few hours. Every now and then, Gallup’s numbers get widespread attention as a new high or low, but we are decades past the time when the company was offering something in its approval ratings that couldn’t be found elsewhere—except for the decades’ worth of comparative data going back to the Franklin D. Roosevelt administration.

Gallup’s decision isn’t out of nowhere. The company has pulled back from public political polling over the last decade or so, including its decision in 2015 to no longer survey on the presidential election horse race after underestimating the strength of President Obama’s 2012 reelection win. Pew Research also discontinued releasing horse-race questions for the 2016 race, explicitly saying, “Putting resources toward an already saturated market doesn’t make much sense for us.”

Essentially, both Gallup and Pew made a calculation: Why take on the reputational risk of a miss when so many other polls are out there? By 2015, the prevailing logic had become to ignore individual polls and look at aggregates and forecasts anyway.