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The election seems like old news at this point and yet we are still over a month away from inauguration day.  Donald Ritchie, author of Reporting from Washington: The History of the Washington Press Corps, Our Constitution, and The Congress of the United States: A Student Companion, looks at this lag in historical perspective. Ritchie, who has been Associate Historian of the United States Senate for more than three decades, explains why a President-elect may need this time prepare to take over.

Many Americans, and the rest of the world, wonder why so much time elapses between the U.S. presidential election in November and the inauguration on January 20. Why not reform the system and reduce the interval? The answer is we did reform it–the interregnum used to last twice as long.

Under the original Constitutional scheme, the new president took office on March 4, four months after the November elections. The new Congress would not convene until the first Monday in December, thirteen months after the election. This made sense to the framers in the eighteenth century, when transportation was slow and treacherous. The incoming president would call the Senate into special session for a week in March to confirm his cabinet, and then have the rest of the year to get his administration underway free from congressional interference.

By the twentieth century, the old system had grown obsolete. The second session of every Congress did not meet until after the next election had taken place, meaning that senators and representatives who had been defeated or retired came back as lame ducks. They proved especially susceptible to lobbyists, and since the short session had to end at midnight on March 3, they could easily filibuster to block needed legislation. George Norris, a progressive Republican from Nebraska who chaired the Senate Judiciary Committee, led the effort to amend the Constitution and move the presidential inauguration from March 4 to January 20, and the opening of Congress from December up to January 3. By staggering the closing dates of the terms of the president and Congress, the amendment also eliminated the need for outgoing presidents to spend their last night on Capitol Hill signing and vetoing last-minute legislation.

Beyond getting rid of most lame duck sessions, Norris’ amendment halved the transition between presidential administrations, from four months down to two. Transitions had grown increasingly awkward. During peaceful and prosperous times, the incoming president had to keep out of the way of his predecessor. Herbert Hoover, for instance, sailed off to South America after the 1928 election to avoid upstaging Calvin Coolidge’s final months in office. During periods of conflict and crisis, however, the interregnum cost the nation needed leadership. Outgoing presidents tried to coerce their successors into continuing their policies, as James Buchanan attempted with Abraham Lincoln in 1861, and Herbert Hoover did with Franklin D. Roosevelt in 1933. Lincoln and Roosevelt wisely avoided committing themselves to failed ideas, but these impasses did nothing to resolve the crises they faced, which grew worse by the time they took office.

The transition between Hoover and Roosevelt took place against a dramatic collapse of the American financial system, with the nation’s banking system shutting down, credit drying up, and unemployment soaring. Congress had passed the Twentieth Amendment in March 1932 and sent it to the states, but the necessary three quarters of the states did not ratify it until January 23, 1933, three days after the new date for inaugurations, making it too late for that year. The first inauguration on January 20 took place in 1937.

That last long interregnum convinced everyone that a shorter transition was preferable, but is the current system still too long? In a parliamentary system such as Great Britain’s, the new prime minister can move into 10 Downing Street the day after the election and the new cabinet can show up ready for work. The American system of separation of powers, however, makes no provision for a shadow cabinet in waiting. The president-elect needs time to select cabinet members and a host of other executive branch nominees who will be confirmed by the Senate. It may not do the new president any favor to shorten the interregnum further, although when times are tough the inauguration still looks awfully far away.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Zelinsky argues that President-elect Barack Obama should hope that Democrats do not obtain the sixty U.S. Senate seats which would enable them to shut down a Republican filibuster. A filibuster-proof Senate will make it more difficult for Obama to hold together the disparate coalition which elected him.

One important question remains from the 2008 election: Will Democrats occupy the sixty U.S. Senate seats which would enable them to shut down a Republican filibuster? Two Republican incumbents, Coleman of Minnesota and Stevens of Alaska, are still locked in tight battles for re-election. One Republican incumbent, Chambliss of Georgia, must win a run-off election in December to retain his Senate seat. Independent Senator Lieberman of Connecticut has reportedly indicated that he will join the Republican caucus if the Democrats punish him for his vocal support of Senator McCain’s presidential candidacy. Democrats now occupy fifty-seven Senate seats including Lieberman and independent Sanders of Vermont, who caucuses with the Democrats. If the closely-contested seats in Alaska, Minnesota and Georgia all go Democratic and if Lieberman stays in the Democratic caucus, the Senate Democrats would have the magic sixty votes to squelch a Republican filibuster.

One person in particular should hope that the Senate Democrats don’t reach this talismanic number: President-elect Barack Obama. A filibuster-proof Senate will make it more difficult for him to hold together the disparate coalition which elected him.

As James Madison famously noted, a majority in a large democracy invariably consists of different interests (what Madison called “factions”) assembled into an inherently unstable, tension-filled coalition. President Bush’s Republican majority included social conservatives, economic conservatives, libertarians, neo-conservatives – all of whom had some things which united them but many things which did not.

Similarly, the Obama coalition includes unions, minorities, social liberals, and economic moderates who agree on some things but not on others. Holding that majority together will require careful balancing. If the Democrats hold a sixty seat majority in the Senate, elements of the Obama coalition will credibly demand measures which other parts of that coalition oppose. In contrast, if the Republicans can sustain a filibuster, Mr. Obama can better finesse the tensions in his coalition by pinning failure on the G.O.P.

Consider, for example, the union demand that federal labor laws be changed to require recognition of unions without secret votes by the affected workers. No less a Democratic icon than Senator George McGovern has made clear that many Democrats oppose this proposal. If the Senate Democrats have the sixty votes which can stop the Republicans from filibustering this measure, the unions will demand that the new president deliver for them on this issue.

This, however, will alienate those parts of the Obama coalition who were persuaded that he is an economic moderate. If, in contrast, the Republicans can sustain a Senate filibuster, the President-elect has the perfect out: He can support the unions’ demand while counting on the Republicans to successfully filibuster and thereby save him from his commitment.

Or consider gay marriage. The voting results from California reflect the tension on this issue within the Obama coalition. As Californians voted overwhelmingly for Mr. Obama, they also voted against same-sex marriage. This result indicates the fissure between, on the one hand, those social liberals who supported Mr. Obama and favor gay marriage and, on the other, minorities and economic moderates who also supported Mr. Obama but oppose gay marriage. After their California defeat, gay marriage advocates may seek federal action to advance their cause. Mr. Obama can finesse this issue which divides his majority if he can point to the filibustering Senate Republicans as the barrier to federal recognition of gay marriage.

It may be true that to the victor belongs the spoils. But, under our system, to the victor also belongs the problem of holding together his winning coalition. And if the victor is too victorious, that problem can be severe.

The President-elect cannot openly say that he is better off with a Senate which the Republicans can successfully filibuster. But the political reality is that he is. Mr. Obama can control his unruly coalition more easily with external opposition in the form of a Republican minority capable of sustaining a Senate filibuster. President-elect Obama should want the Senate Republicans wounded, not down for the count.

If aliens came to Earth millions of years in the future, what traces would they find of long-extinct humanity? In the post below Jan Zalasiewicz, a geologist from the University of Leicester and author of the forthcoming book The World After Us: What Legacy Will Humans Leave in the Rocks?, ponders what the potential symbols of our world might be for whomever, or whatever, is after us.

Harald V, King of Norway, seems a serious man, and he can certainly make a thoughtful speech. Hence to see him subsequently, with due ceremony, push the button to inflate a life-size model of the biggest pliosaur ever found – 15 metres long, for the record - makes for one of life’s more singular pleasures. It’s an event to be cherished and honed in the memory and passed on down to one’s grandchildren, imagined detail being added with each retelling. The occasion: the official opening of the Thirty-Third International Geological Congress a few weeks ago, when several thousand geologists descended upon the small town of Lillestrøm outside Oslo, to debate the Earth and its eventful past and uncertain future. The royal inflation of the pseudo-pliosaur was one of the organisers’ more fantastical touches, and for all I know the air-filled reptile is still there, lashed to the lawn in front of the conference centre, jaws agape, and painted so vividly as to look more roguish than terrifying.

The return of dinosaurs in some distant future was something that Charles Lyell imagined, nearly two centuries ago, when he contemplated the slow cycles of oceans and mountain chains and of life itself evolving through the immensity of deep time. Henry De La Beche chided him for this fancy, penning a satirical cartoon showing a Professor Ichthyosaurus, flipper pointing to a fossil human skull, teaching infant neo-dinosaurians about the curious life of the humanoid past.

Of course life and the Earth don’t work that way. What’s gone is gone. What will arise, moreover, can’t be predicted from contemplation of the gathering wreckage of a biological empire under siege. To suggest, an hour before the Yucatan meteorite tore into the Earth, that the small scurrying mammals would one day grow to fill the giant shoes of the dinosaurs, would have seemed, then, like the most outrageous of science fiction. Yet this happened. To predict, a few hundred million years ago, that the mighty sea scorpions would not go on forever, would have seemed unthinkable. Yet these armoured crustacean-like hoodlums vanished too, and so today we can venture safely to the beach for a stroll or a swim.

The future is uncertain, and the present is remarkable, not just historically and politically, but geologically too. When thousands of geologists get together to discuss their latest discoveries, then what is happening today seems ever more extraordinary, when viewed through the prism of the deep past. There was one throwaway remark, for instance, noting evidence that the Arctic Ocean has been ice-covered for 13 million years. Well, this is a state of affairs that looks set to end this century, perhaps within decades. And then there is the gathering evidence that the world’s climate, given a sufficient push, can turn on a sixpence, to suddenly refashion itself. How close are we to another such revolution, one wonders?

To have a Professor Ichthyosaurus of the far future musing on the fossilized evidence of our current predicament is, alas, an impossibility. But there may eventually arise a learned hyper-rodent, say, or arrive an inquisitive traveller from Betelgeuse 9. Perhaps these beings might organise scientific congresses too, at which inflatable models of creatures of the long-gone Human Era would be ceremonially inflated. What creature would they choose, then, for maximum dramatic impact? A blue whale, perhaps, for sheer size - or a narwhal, or a swordfish, or a giraffe?

Maybe the alien committee would go for the curiouser, rather than the merely large. They might select, say, that strange sabre-toothed beast, the walrus, gracing an artificial shoreline with an accompanying plastic humanoid for company (as replica of a carpenter, naturally). That might be a fitting symbol for a world – our world – that will still seem a cosmic Wonderland when viewed through that looking-glass of the far future. The shade of the Cheshire Cat might venture, then, one last rueful smile.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Professor Zelinsky criticizes New York’s “convenience of the employer” doctrine for double taxing telecommuters at a time when public policy should be encouraging, rather than hindering, telecommuting. He calls on Congress to pass the Telecommuter Tax Fairness Act to stop such double taxation. Read his past OUPblog posts here.

A gallon of gas today costs $4.00 or more in most parts of the country. The public is concerned, as perhaps never before, about the impact of human activity on the global environment. In this setting, telecommuting has emerged as an environmentally sensitive and economically sensible lifestyle.
By permitting individuals to work at home for part (often much) of the work week, telecommuting removes telecommuters’ cars from the roads, thereby reducing traffic congestion, gas consumption, and automotive pollution. Telecommuting from home also opens job opportunities for persons for whom a conventional, daily trip to the work place is difficult or undesirable – parents’ of small children, disabled individuals, persons who live far from major employment centers. Telecommuting allows employers to hire these individuals who might otherwise withdraw from the labor force.

For all of these reasons, public policy should encourage, or at least not hinder, the growth of telecommuting. Unfortunately, the tax policies of the State of New York discourage telecommuting by double taxing out-of-state individuals who telecommute for New York employers from their out-of-state homes. In particular, New York’s so-called “convenience of the employer” rule imposes nonresident New York income taxes on out-of-state telecommuters on the days they work at home, often hundreds – if not thousands – of miles from New York.

Consider, for example, the recent case of Mr. R. Michael Holt, a human resources compensation consultant who lives in Naples, Florida. In 1999, Mr. Holt worked at his home in Florida for the New York offices of KPMG, LLP and William M. Mercer, Inc. Under the employer convenience rule, New York imposed nonresident income taxes upon Mr. Holt for the income he earned working at home in the Sunshine State, thousands of miles from New York.

When the state in which a telecommuter lives also imposes an income tax, the result of New York’s tax policy is double taxation as the out-of-state telecommuter who works at home must pay tax both to New York and to the state in which she lives. The result is an unfair and inefficient tax penalty for telecommuting, namely, the double taxation of the income earned by the telecommuter on the days she works at her out-of-state home.

New York’s policy is bad, not only for out-of-state persons who telecommute to the Empire State, but potentially for telecommuters throughout the nation and for the employers who employ such telecommuters. If New York can get away with double taxing out-of-state telecommuters, other states will be tempted to emulate New York and likewise tax nonresident telecommuters who work at their out-of-state homes. The upshot will thus be double taxation of telecommuters nationwide when public policy should instead be supporting telecommuting.

Unfortunately, New York’s courts have refused to stop New York’s double taxation of nonresident telecommuters on the days such telecommuters work at their out-of-state homes. In Huckaby v. Tax Appeals Tribunal, New York’s highest court, by a narrow but decisive margin of 4-3, upheld New York’s income taxation of Thomas Huckaby on the days Mr. Huckaby worked at his home in Nashville, Tennessee.

Pending in Congress is legislation which would prevent New York and other states from using the “convenience of the employer” doctrine or any similar artifice to double tax nonresident telecommuters on the days they work at their out-of-state homes. The Telecommuter Tax Fairness Act has attracted bi-partisan support from members of Congress who recognize the importance of telecommuting-friendly public policy.

It is unreasonable for New York to punish telecommuting by double taxing workers who telecommute for New York employers from their out-of-state homes, particularly at a time when sound public policy should encourage telecommuting. There is, however, no sign that New York will alter its irrational “convenience of the employer” rule. Congress should accordingly adopt the Telecommuter Tax Fairness Act to eliminate the ability of New York and other states to double tax nonresident telecommuters on the days they work at their out-of-state homes.

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Amos N. Guiora is a Professor of Law at the S. J. Quinney College of Law, University of Utah, where he teaches criminal law, global perspectives on counterterrorism, religion and terrorism, and national security law. He served for nineteen years in the Israel Defense Forces.  Recently he testified before the House of Representatives Homeland Security Subcommitee about the importance of sharing information in preventing terrorism.  You can watch the video here and download the transcript here.

On May 15, 2008 I testified before the House Of Representatives Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment. The Subcommittee, chaired by Congresswoman Jane Harman (D-Cal) was particularly interested in the subject of resilience—that is whether government and business alike are prepared for a terrorist attack on two different levels: preparing for an attack and ensuring continuity in the aftermath of the attack.

The two issues—before and after—are the essence of counter-terrorism preparation. For them to be truly implementable, government must engage in information sharing on all three levels (state, local and federal) and also with the business community. While the idea of information sharing with the business community raises important –and legitimate—questions within the law enforcement community, it is an absolute requirement.

During the course of my testimony, the Members of the Subcommittee were particularly interested in the difference between the American and Israeli cultures—in particular how Israelis respond to terrorism and understand that attacks are, in a sense, inevitable and how that understanding enables society to more quickly “rebound” in the aftermath of an attack. Furthermore, Members inquired as to the nature of the information sharing relationships and whether this did not raise important legal and constitutional issues.

To ensure a resilient homeland in a post-9/11 society, the United States must have a homeland security strategy that (1) understands the threat, (2) effectively counters the threat while preserving American values, (3) establishes a system of accountability, and (4) creates public-private and federal-state partnerships facilitating intelligence sharing and the continuity of society in the aftermath of an attack.

It is necessary to work with clear definitions of the terms and concepts that frame this strategy for resiliency. As I have previously articulated, “one of the greatest hindrances to a cogent discussion of terrorism and counterterrorism has been that the terms lack clear, universal definitions.” For this reason, I provide clear, concrete definitions of terrorism, counterterrorism, homeland security, effectiveness, accountability, and resiliency—the key terms in articulating the strategy for a resilient homeland. In addition to these definitions, I include two critical matrices for: Determining Effectiveness and Implementing Accountability.

The central focus of this testimony examines the dire consequences of the break-down in communications following both 9/11 and Hurricane Katrina, which suggests that in order to realize resiliency in the future, it is paramount that there is clear cooperation and coordination between the public sector and the private sector. Effective resiliency will ultimately be tied to establishing public-private partnerships.

In establishing these partnerships, they must be based upon three critical components: (1) clearly defined roles and responsibilities; (2) articulating a coordinated prevention-response plan; and (3) repeated training and/or simulation exercises using the prevention-response plan against realistic disaster/terror scenarios. By strategically strengthening security, sharing intelligence, and creating plans for post-attack procedures (such as evacuation plans, transportation plans, establishing places of refuge, and having basic supplies available to aid first-responders) private partners become the key to a secure and resilient homeland.

The importance of information before, during and after a disaster or attack is vital to resilience. Information sharing is, perhaps, the single most important aspect of successful resilience. Information sharing requires government agencies (federal, state and local) to share information both amongst themselves and with the private sector. Furthermore, it requires that the private sector—subject to existing legal and constitutional limits—share information with the public sector. Successful information sharing requires cooperation and coordination both internally (within sectors) and cross sectors (between public-private entities).

The lessons of 9/11 and Katrina speak for themselves. Resilience in the aftermath of either disaster or attack requires federal, state and local government agencies to understand that information sharing is vital to the nation’s homeland security. That information sharing process must include the private sector. Otherwise, the mistakes of yesterday will inevitably re-occur.

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Anastasia Suen has started Nonfiction Monday. BookMoot is planning to participate as often as possible, although, my most disliked word is "schedule."

Let the facts flow!





Surfer of the Century by Ellie Crowe, illustrations by Richard Waldrep, Lee & Low Books, 2007


Duke Kahanamoku was an Olympic gold medalist, the father of modern surfing, and an icon of Hawaiian culture.

Crowe tells the story of Kahanamoku's boyhood in Honolulu where daily swims in the ocean developed his strength and technique. Qualifying for the Stockholm Olympics in 1912, he made friends with another American athlete, Jim Thorpe.

Duke almost missed his first Olympic race because he overslept. In a wonderful display of Olympic spirit, his chief competitor, Cecil Helay, from Australia, refused to swim unless the officials let Duke compete. Such magnanimity is hard to imagine in today's endorsement rich, high-stakes winner-takes-home the-Wheaties-box environment.

He popularized surfing and promoted Hawaii all his life. Duke's Creed of Aloha is a fitting ending to an excellent biography of a man who always exhibited good sportsmanship and Olympic ideals.

Richard Waldrep perfectly illustrates the story with wonderous full color illustrations that evoke vintage art deco travel posters.

Some weeks ago I blogged about ten great places to meet cute guys. Today I want to zero in on one little-known location that is a home base for a few hundred cute guys...

Did you know that Munich, Germany has been called The Surfing Capital of Europe? (Did you know there even was a Surfing Capital of Europe?) I sure didn’t. Until a few years ago when I went on a bike tour of Munich, and was delighted to discover the last stop was to watch several (hot) surfer dudes taking turns on the downtown river.

To give you some background, the Isar River runs through much of the city, and has an offshoot called the Eisbach River (which literally means “ice creek”). At some point, the Eisbach runs underground, so naturally, there has to be a place where this water again resurfaces. This happens to be inside of Munich’s central park--home of the famous Oktoberfest--where the water shoots out of an underground tunnel with such powerful velocity that in recent years, it has become a surfing mecca.


It is estimated as many as 400 surfers (mostly guys) are presently living in Munich, having moved there from all over the world.

Since the actual area is pretty small, it’s a one-a-time sport, and most days, you can spot surfers patiently waiting their turns on the landing, clad in wet suits and holding boards.


Spectators (like me!) line the bridge and squeeze into the dirt-packed viewing area, amazed and awed by the strength and agility shown by these lake surfers as they “hang ten” and “catch a wave”.

So if you’re going to be in Germany any time soon, I definitely recommend a visit. And if not, maybe put this on your to-do list. This is a cute guy locale guaranteed not to disappoint!

What I’m Reading: Um, I can’t say. For the next month or so, I’ll be judging published books for a writing contest, so I'm Taking the Fifth!

Tina
www.tinaferraro.com
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