Democrats Win Congress: What Divided Government Can and Can’t Do, Kraft Heinz Sells Maxwell House & the NYT Sues Brave

From Minimum Competence · 9:27

Show by Andrew and Gina Leahey

This Day in Legal History: The Tehran Embassy SeizureOn November 4, 1979, Iranian students stormed the U.S. embassy in Tehran and took dozens of Americans hostage. Fifty-two of them would be held for 444 days. In response, President Jimmy Carter invoked the International Emergency Economic Powers Act, a statute Congress had passed just two years earlier, and froze billions of dollars in Iranian assets in the United States.The crisis ended in January 1981 with the Algiers Accords, in which the United States agreed to unfreeze Iranian assets, end pending lawsuits against Iran in American courts, and send those claims to a new international tribunal. A company called Dames & Moore, which had been trying to collect money it said Iran owed it, challenged that agreement. In Dames & Moore v. Regan, decided that July, the Supreme Court upheld the President’s actions. It found that the asset transfers were authorized by the emergency powers statute, and that while no statute expressly authorized suspending the lawsuits, Congress had long accepted presidential settlement of such claims, which the Court treated as implied approval.The significance of November 4, 1979 is the legal principle the crisis produced: presidential power is at its strongest when it rests on authority Congress has already given, even a Congress elected years earlier. That’s directly relevant to our lead story, because when control of Congress changes, the powers earlier Congresses delegated to the executive branch don’t disappear.Democrats have won control of both the House and the Senate, according to unofficial results from yesterday’s midterms. As of early this morning, the Associated Press had called 228 House seats for Democrats, well past the 218 needed for a majority, with dozens of races still uncalled. In the Senate, Democrats held 54 seats to Republicans’ 44, with the races in Alaska and Mississippi still too close to call. Recall that Alaska is where the Justice Department sued to block certification if Republican Sen. Dan Sullivan lost, so watch that one. Final numbers will change, but the bottom line won’t: the President’s party will no longer control either chamber. The new Congress takes office on January 3, 2027. Until then, the current Congress, with its Republican majorities, can still pass legislation and confirm nominees in a lame-duck session. Winning an election and exercising the powers that come with it are two different things, and existing statutes and regulations keep operating until someone changes them through a lawful process. So what can a Democratic Congress actually do? The key distinction is between blocking new policy and changing existing law. Blocking is easy: either chamber can stop any bill simply by refusing to pass it, so Republican legislative priorities are effectively stalled. But enacting new law is much harder. Both chambers have to pass identical text and present it to the President, who can veto it. Overriding a veto takes two-thirds of each chamber. And in the Senate, most legislation still needs 60 votes to end a filibuster. A 54- or 55-seat majority clears neither bar. There are special procedures, like budget reconciliation, that avoid the filibuster for certain budget measures, but those bills still go to the President and can still be vetoed. Meanwhile, the President keeps substantial power. Agencies can keep using the authority earlier Congresses delegated to them, issuing, revising, or repealing regulations, though they still have to follow the required procedures and survive judicial review. A new majority’s disagreement doesn’t withdraw that authority.That doesn’t leave Congress powerless. It has three main tools to constrain the executive branch. First, it can amend an agency’s governing statute to narrow its authority or impose new duties. Second, it controls appropriations: it can attach riders like “none of the funds in this Act may be used to implement Policy X,” and, more importantly, it can refuse to fund the government on terms it doesn’t accept, which gives it real leverage in every budget negotiation. Third, it can use the Congressional Review Act to overturn eligible agency rules with a simple majority and no filibuster. But all three share the same limit: they have to become law, which means the President can veto them. The CRA in particular is mostly useful when Congress and the President agree; it’s not a tool for overturning a President’s own rules over his objection. The tools that don’t require the President’s signature are oversight and appointments. With control of committees, Democrats can hold hearings, demand documents, and issue subpoenas, choosing which agency actions get sustained public scrutiny. That can produce facts, political pressure, and the record for future legislation, though subpoena fights often end in negotiations or litigation over executive privilege. The Senate, and only the Senate, votes on nominations, so the new majority can reject or simply…

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