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constitution Archive



June 2015



Don’t Cry Wolf on Religious Liberty Infringements

Written by , Posted in Culture & Society, Liberty & Limited Government

Respect for religious freedom has deep roots in American society. Many of those who came to America did so to escape religious persecution, and they brought with them a profound understanding of the importance of protecting such personal rights from oppressive rule, be it by the hand of monarchy or democratic majority. Thus why Constitutional protections for religious freedom were included in the First Amendment.

Yet many areas where religious freedom is said to be under attack are actually examples of a different sort of problem. No one should be forced to make a gay wedding cake, for instance, simply because they make their living as a baker (assuming they are their own employer). The idea that one must sell to all in order to sell to any contradicts basic Constitutional tenets, yet is an idea that has wormed its way into Constitutional doctrine thanks to the misguided idea of “public accommodations” in non-discrimination law, and long eviscerated protections for economic liberty. Focusing on the subset of cases where objections are made on the grounds of religious sensibilities misses the larger issue, which is that the freedom of association and basic liberty should allow all the right to choose with whom they do or do not engage in commercial exchange – for any reason, be it religiously motivated or not, that the individual sees fit.

But there are also ways in which religious freedoms are actually in danger of being undermined today. Under the direction of Houston’s first openly gay mayor, Annise Parker, the city last year subpoenaed sermons and other pastoral communication from local churches. They were ordered to turn over any communication relating to a contentious local non-discrimination law, as well as “all speeches and sermons related to Mayor Annise Parker, homosexuality and gender identity.” She backed down after national uproar over the flagrant abuse of power, but the episode is both illuminating and disturbing.

Religious concerns from the fallout of Obergefell are also not without merit, as admitted by U.S. Solicitor General Donald Verrili when he acknowledged during oral arguments that tax-exempt status “is going to be an issue” with the Court’s potential (and now real) ruling that the exclusion of same-sex couples from marriage (rightly) violates Constitutional protections. The ACLU has also decided that it’s no longer on board with the whole religious freedom thing now that Christians might be the ones in need of legal protections. And given the proven vindictiveness of today’s cultural winners, more attacks ought to be expected.

Which is all the more reason why it’s a shame that some Republicans, along with the Texas Attorney General, are insisting that county clerks in Texas or elsewhere ought to be able to be able to “opt out” of issuing same-sex marriage licenses if they have religious objections. This is a misapplication of religious liberty.

Look, we’re not talking about clergy or non-state wedding officiators here, who like bakers ought to be able to decide whether they wish to take part in a same-sex wedding or not. These are people whose job it is to process paperwork and issue wedding licenses. County Clerks are municipal employees, be they elected or appointed, and therefore agents of the state. And agents of the state don’t get to dictate actions of the state based on personal whims. If they won’t or can’t do the job required of them and fulfill their duties as public servants then they ought to resign.

Individuals have every right to not work at a place that requires issuing same-sex marriage licenses, but what they don’t have is the right to insist that they not be replaced by someone who will do the entire job and not just part of it. Anyone with true convictions should understand that sometimes upholding those beliefs means making sacrifices, including not working at places that as a fundamental part of the job necessitate violating those beliefs.

There are real threats to religious freedoms, and those who might wish to meet those threats with robust Constitutional protections shouldn’t try to expand the concept to its breaking point. I’m sure it’s not easy to have to choose between honoring ones principles or performing a duty that one currently under obligation to perform, but there’s no Constitutional right to not have to make tough choices.



September 2013



Syrian Intervention Reveals Central Foreign Policy Divide

Written by , Posted in Foreign Affairs & Policy

When Obama was elected, I noted that his soon-to-be Ambassador to the U.N and now National Security Advisor, Susan Rice, had previously argued for unilateral military action in Darfur and represented a kind of left-wing humanitarian interventionism that those preoccupied only with the most current of events might not have been familiar with:

Left-wing interventionists are actually more common than right-wing ones. Before the neoconservatives had won the day in establishing Republican policy, there was Secretary Madeliene Albright, who asked Colin Powell, “What’s the point of having this superb military you’re always talking about if we can’t use it?” The ironic difference between the left and right interventionists is this: on the left they only want to use force when U.S. interests are non-existent. Boondoggle that Iraq was in many ways, at least there was a debatable, though certainly plausible, claim of serving U.S. national interests in deposing Saddam. One can’t even make a pretense of serving U.S. interests in Darfur.

I assumed this information would come as a surprise to many given the dominant opposition rhetoric of the Bush years. Many had also forgotten that Bush ran a campaign opposed to interventionism and nation building, which contrasted with Clinton’s international adventures as world police. But like so many politicians, Bush reversed position upon entering office.

We’ve since witnessed Obama’s unilateral interventionism in Libya, an adventure conjured for the specific purpose of revitalizing the image of humanitarian interventionism post-Iraq. And now we see the same thing happening with Syria, where once again there is no credible argument of a U.S. interest at stake. Matt Welch at Reason does an excellent job of exposing the administration’s dissembling via Secretary of State John Kerry, who was against military mistakes before he was for them.

While the public overwhelming opposes a pointless strike on Syria, Republicans are nevertheless providing the President political cover. Speaker Boehner and House Majority Leader Cantor have endorsed a strike, while John McCain is once again one of the loudest voices calling for insertion of the United States into a Middle Eastern civil war, suggesting it would be “catastrophic” should Congress decline authorizing force.

The position of Republican leadership and the GOP old guard contrasts with more stridently small government newcomers Rand Paul, Ted Cruz and Justin Amash, and they’re joined by true anti-war liberals (as opposed to those, like Nancy Pelosi, who apparently just took positions for convenience because they were against Bush). All of this makes for a lot of political intrigue surrounding the vote over a resolution of force.



July 2013



We Are the Press

Written by , Posted in Liberty & Limited Government

Sen. Dick Durbin recently authored an op-ed calling for some sort of legislation to determine who qualifies for speech protections:

In Branzburg’s case, the Supreme Court ruled that there was no absolute privilege for journalists to refuse to reveal sources to a grand jury. The ruling did, however, seem to recognize a qualified privilege for journalists. Today, some federal courts recognize a qualified privilege for journalists, while others do not.

The vagueness of this decision has led 49 states, including Illinois, to recognize a journalist privilege by statute or common law. These laws state that a protected journalist cannot be compelled to disclose sources or documents unless a judge determines there is an extraordinary circumstance or compelling public interest.

But who should be considered to be a journalist?

The answer to the Senator’s question is stunningly easy: anyone who practices journalism. If a person engages in an act of journalism, regardless of what they do for a living or how frequently they practice journalism, then regarding that act and any issues that arise surrounding it, they are a journalist.

He goes on to state:

For a few years now, a bill to protect journalists from revealing their sources and documents has been making its way through Congress. With no current federal statute recognizing a privilege for journalists, the so-called “media shield” law attempts to establish one.

Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.

I think it is all well and good if Congress is simply attempting to “define…the constitutional and statutory protections … journalists should receive.” Obviously the Constitution contains a broad protection for free speech, one frequently violated, but at some point the exact implications of the right must be applied to particular circumstances. Its limits must be marked. The courts typically play a large role in defining the boundaries or scope of these rights, but they shouldn’t be the only participant in the process. Congress should be involved as well. I don’t know  the particular details of the bill Sen. Durbin references, though I know it’s bipartisan and therefore immediately suspect in my mind as a conspiracy against the people, or whether it is a good or bad attempt to define the boundaries of journalistic protections, and the courts will continue to be there to weigh in if they should be unconstitutionally narrow. But it’s better if our legislative body do the actual legislating, rather than the judiciary.

But it is by no means necessary to reserve the rights of journalists to a privileged class. The very description of the idea leaves a sour taste. Such power in the hands of politicians to decide who deserves the full slate of journalistic rights would render ineffective the most powerful purpose for having a free and independent press: keeping the political class in check.

Sen. Durbin counters with this:

To those who feel politicians shouldn’t define who a journalist is, I’d remind them that they likely live in one of the 49 states, like Illinois, where elected officials have already made that decision.

Even if this is true, it’s no argue for federal legislation. At least with 49 different definitions there is a chance that one or more doesn’t suck. And there is recourse for those in states with bad definitions that would not be available if the same happens at the federal level.

It’s important to remember that the Constitution is not a broad grant of government authority with a few particular carve-outs. It is the opposite – a narrow and particular grant of authority for government to act in the preservation of rights. The First Amendment really ought not even have been necessary as government has no expressly granted authority to violate the rights of speech or the press, which was an argument made at the time against the inclusion of the Bill of Rights. Its existence has been wrongly interpreted over the years to mean that anything not expressly protected is fair game, and now Sen. Durbin is looking to chip away at even those limited protection by defining down nature of the press. Don’t let him do it.



January 2013



About Those Non-Recess “Recess Appointments”

Written by , Posted in The Courts, Criminal Justice & Tort

The president of the United States, who heads the executive branch, does not have the authority to determine when Congress, the legislative branch, is or is not in session, according to a unanimous DC Circuit Court. Reaching the correct decision, the court found that the administration’s appointments to the NLRB were illegal:

A federal appeals court has unanimously slapped down President Barack Obama’s unprecedented claim that he can decide when the Senate is in session.

“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” said the three-judge decision, written by U.S. Circuit Judge David Sentelle.

…The Jan. 25 ruling came after Republican senators filed a case arguing that Obama did not have the power to appoint top-level officials via a “recess appointment” if the Senate says it is in session.

Obama made that claim when he announced the appointment of two people to the National Labor Relations Board in January 2012.

The appointments allowed the board to subsequently issue a series of pro-labor, anti-business decisions. Following the court’s ruling, the board’s decisions are now vulnerable to a series of lawsuits.

The question was whether, for the purpose of recess appointments, the executive could decide what level of activity was necessary for a legislative session to be legitimate. Basically, if Senators wants to sit around all day reading newspapers instead of doing work, that’s their prerogative, and the President has no legitimate power to determine that they aren’t doing enough work to actually be considered in session. The President insisted he could, but the court sided with the view that because Congress sets its own rules, it is the sole authority on whether or not it is in session.

The administration’s political justification – that they were simply responding to Senate reaction – was also faulty. The non-recess “recess appointments” were made in January of 2012, but  2 of the 3 had only been submitted a month prior, and the Senate had not yet received all the required information to begin. As I said at the time:

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

Despite the legal preservation of the separation of powers and having the kibosh put on yet another attempted power grab by the executive, the larger problem with the concept of the recess appointment remains. As I also said before:

Although there are legitimate concerns with agencies being left unmanned by Senate inaction, I’m more inclined to view the idea of the recess appointment as the bigger problem here. It made much more sense when originally conceived, as the legislature was a part time body which might be out of session for months at a time. Such is simply not the case anymore. Today we have a full time legislature that rarely recesses for more than a few weeks at a time. There are few if an vacancies that are so critical they would have to be filled before the Senate soon returned to session. And if the Senate refused to do so for poor reasons, that’s a political issue best sorted out by voters at election time.

The last point is worth repeating. If the President feels the Senate is not acting sufficiently fast enough for his tastes, that’s a political matter to be resolved by political means. The public can decide who is right and who should be punished. Doing an end run around the Constitutional arrangement to have the Senate provide Advice and Consent, on the other hand, is not the appropriate response. And now we have confirmation that’s it’s not a legal one, either.



July 2012



We All Lie, Cheat and Steal

Written by , Posted in Culture & Society, Government Meddling, Liberty & Limited Government

That’s the gist of a TIME piece from last month. And I’m inclined to agree.

Behavioral economist Dan Ariely, who teaches at Duke University, is known as one of the most original designers of experiments in social science. Not surprisingly, the best-selling author’s creativity is evident throughout his latest book, The (Honest) Truth About Dishonesty. A lively tour through the impulses that cause many of us to cheat, the book offers especially keen insights into the ways in which we cut corners while still thinking of ourselves as moral people.

…“A student told me a story about a locksmith he met when he locked himself out of the house. This student was amazed at how easily the locksmith picked his lock, but the locksmith explained that locks were really there to keep honest people from stealing. His view was that 1% of people would never steal, another 1% would always try to steal, and the rest of us are honest as long as we’re not easily tempted. Locks remove temptation for most people. And that’s good, because in our research over many years, we’ve found that everybody has the capacity to be dishonest and almost everybody is at some point or another.”

Human nature is what it is. Yet some of the greatest philosophical differences between the various political ideologies are rooted in differing views of human nature. Utopian ideologies tend to start from a conception of man that is either good or improvable through social tinkering. Turn of the century movements on both sides of the Atlantic, Progressivism and Fascism, shared this central idea that human nature could be corrected through government manipulation. Classical liberalism, based on Lockean theorizing (which in turn drew from the Hobbesian conception of human nature as violent and competitive) rejected this view. While Locke saw the state as necessary to protect fundamental rights, it is also posed a threat of its own. It would be, after all, run by the same flawed individuals.

Which brings me to this passage from the article:

“People are able to cheat more when they cheat for other people. In some experiments, people cheated the most when they didn’t benefit at all. This makes sense if our ability to be dishonest is increased by the ability to rationalize our behavior. If you’re cheating for the benefit of another entity, your ability to rationalize is enhanced. So yes, it’s easier for an accountant to see fudging on clients’ tax returns as something other than dishonesty. And it’s a concern within companies, since people’s altruistic tendencies allow them to cheat more when it benefits team members.”

With this understanding, is it any surprise that government’s are full of liars and cheats?

This reminded me of a quote from James Madison in Federalist #51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

It seems as if the left often stops after the first sentence. Men are bad, so we need government. But what about our government of men? The “auxiliary precautions” of which Madison speaks are exactly the restraints on political power which the left has worked so consistently to erode. In expanding the Commerce Clause into meaninglessness, and turning on its head the Constitutional idea of enumerated powers, today’s government has plenty of control of the governed, but little if anything left in place to oblige it to control itself.



July 2012



Medicaid and Federalism

Written by , Posted in Big Government, Health Care, Welfare & Entitlements, Liberty & Limited Government, The Courts, Criminal Justice & Tort

The less talked about, though hardly ignored, aspect of the Supreme Court’s recent Obamacare decision is the fact that the court struck down the requirement that state’s expand Medicaid coverage up to 133 percent above the federal poverty line (some states do so already), or lose their federal Medicaid funding.  The court ruled that while the federal government can provide strings for accepting new federal dollars, it cannot threaten to revoke already granted dollars if new strings are not adhered to.  The latter is deemed coercive on the part of the federal government, and thus an unconstitutional violation of state sovereignty. The ruling essentially cuts in half the number of uninsured which the law was supposedly going to give coverage.

While the court was right to strike the provision, the scope of the decision was insufficient and the distinction offered is strained and unworkable. Congress must retain the power to revisit the law creating Medicaid, as one Congress cannot legally bind a future Congress, which means there is no real mechanism to prevent them from changing the requirements on states to receive Medicaid dollars. The error of the court is in not acknowledging that all federal dollars to states are coercive, whether they come with only carrots or include an explicit stick. All federal carrots eventually turn to sticks.

Transferring federal dollars to states erodes state sovereignty, undermines one of the primary benefits of federalism (competition and innovation in policy approaches) and reduces democratic accountability. No such grants should be allowed, period.

As I previously wrote on the subject:

A fifty-five mph speed limit, promptly ignored by most motorists, was dictated to the states by passage of the 1974 Emergency Highway Energy Conservation Act.  Although the national speed limit was later repealed in 1995, numerous federal standards remain, such as the minimum ages for drinking and smoking. The federal government has largely accomplished this power grab by opening the spigot of federal dollars, then threatening to cut off any state that doesn’t kowtow to Washington’s demands.

So when a number of governors of both parties balked at taking federal money for unemployment insurance, knowing that they would be stuck with the bill of an expanded government welfare mandate when the federal funds expired, it should come as no surprise that the beltway response was to attempt to denigrate and browbeat the rogue states into compliance. Democratic Senator Charles Schumer responded to their rejection of federal funds by admonishing governors for playing “political games,” then boldly declared, “whether the governors want to or not, they can be forced to take the whole thing.” This astonishing declaration strikes at the heart of our federalist system.

…Aside from the eventual subjugation of state authority, funneling federal dollars into the states also leads to significant waste. No longer dependent on their constituents for financial support, the states become rent-seekers looking to game the federal system. This is why 250,000 Washington State residents recently received a $1 check in the mail.  As a reward for this wasteful spending, the federal government will pump into the state millions in new welfare funds. This seemingly irrational and grossly wasteful spending is encouraged by the present system, where states have financial incentives to meet federal bureaucratic rules that allow them to qualify for more funding.  The impact on the taxpayer is simply not important to the state in this calculus.

When states are offered federal dollars, it’s a lose-lose situation. Their citizens are already paying the taxes, and if one state refuses while another accepts, it means tax money is being redistributed from the more fiscally prudent state to big spending states. States, moreover, are only ever offered bribes to increase spending and regulation, but never to reduce either. In other words, it is a taxpayer funded incentive for bigger government. States that accept federal money, meanwhile, are then placed at the mercy of a federal government which can cut off funds at any time, leaving local politicians to either pick up the slack (by reducing other spending or racing taxes) or face the consequences at the polls.

Which leads to my next point. Collecting funds through federal mechanisms to be spent by states reduces politically accountability. Who do voters blame for poor results, the federal taxers or the state administrators? And what keeps either focused on the interests of voters? The goal of state lawmakers is to please the federal lawmakers that keep the money flowing, while the federal lawmakers just point to state government’s as the source of any mismanagement.

This is completely backwards from the concept of America at its founding. Taxes should be collected as locally as possible and sent up, rather than down, the political ladder. If state and local governments collected the bulk of taxes, for instance, and then had to “buy in” to the federal government, federal lawmakers would be held accountable by state governments that are closer to – and thus more easily held accountable by – the people.

States cannot be counted on to refuse the offer of federal dollars, and the mere fact that other states might and will accept penalizes them for refusing if they do. Nor is there hope that the federal government might decide on its own to stop engaging in the practice. Politicians will always seek to expand their power, which for the federal government means encroaching upon the sovereignty of the states. The cash spigot is simply too useful a tool in the pursuit of federal power to ever be turned off, and explains why the prevalence of such programs has exploded in recent decades.

The fact that the federal government can offer it at all is the problem, and the ideal solution is thus to prohibit all federal grants to states. But unless the Court can be convinced that any federal dollars are necessarily and inherently coercive to states, its Obamacare ruling will have minimal impact on the practice. A Constitutional amendment is the only real solution I see available.

For more on this issue, see this great summary by Cato’s Downsizing the Federal  Government, and related blog posts here and here.



May 2012



Common Cause Was For Filibusters Before They Were Against Them

Written by , Posted in The Courts, Criminal Justice & Tort, Waste & Government Reform

Common Cause, which is part of the left’s organized campaign to silence ALEC, recently filed a silly lawsuit seeking to have the Senate filibuster declared unconstitutional:

For years, critics of the filibuster have failed to convince senators to change the procedural delaying tactic. Now they’re taking their case to the courts.

The nonpartisan nonprofit Common Cause sued the U.S. Senate on Monday, challenging the constitutionality of the filibuster rules that require routine 60-vote thresholds for bills and nominations that often have majority support. Several House Democrats and three undocumented students who would be aided by the so-called DREAM Act also joined the suit.

Constitutionally the suit is easy to dismiss. Congress has the authority to set its own rules, and the Court neither has the authority nor the desire to say otherwise. There’s also the issue of standing, which these three undocumented illegal immigrant students don’t have just because they would have theoretically benefited from some bill that was not passed. That is just a mind boggling argument all the way around.

Common Cause would be on slightly stronger ground if they challenged the filibuster’s use to oppose appointments, rather than legislation, where the Senate has a constitutional duty to advise and consent. But even then the argument is flimsy, and the court would likely not intervene given the wide discretion it rightfully gives Congress on managing its own affairs (which contrasts with the unfortunately wide discretion it gives Congressional legislation, which should instead be closely examined for Constitutional fidelity).

But such debate assumes that Common Cause can be taken at face value as a good faith participant in the political process. The facts suggest, however, that they are merely partisan hacks staking out a position of convenience because they disagree with the ideology of the Senate’s current minority. To wit, consider Common Cause’s position when Senate roles were reversed (Hat-tip: Outside the Beltway):

In 2005, Common Cause vigorously defended the filibuster when some Republicans proposed invoking the “nuclear option” to end the filibuster of judicial nominees.  From a 2005 press release:

Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate’s historic role in the nomination approval process.

“The filibuster shouldn’t be jettisoned simply because it’s inconvenient to the majority party’s goals,” said Common Cause President Chellie Pingree. “That’s abuse of power.”



April 2012



The Judiciary Strikes Back

Written by , Posted in Liberty & Limited Government, The Courts, Criminal Justice & Tort

Following the President’s intemperate, childish outburst of Constitutional ignorance, one  federal appeals court is fighting back:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

…The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists.

Orin Kerr at the Volokh Conspiracy is upset over the rebuke, finding it to be “embarrassing to the federal judiciary.” I disagree. While I don’t necessarily think that demanding a three page response is necessary, standing up to the Obama’s dangerous assault on the judiciary certainly is.

The Obama administration, which leads a branch of the government, has since Citizens United all but declared war on another co-equal branch, the judiciary. I, for one, do not expect members of the judiciary to just sit back and take such a dangerous assault (see the damage wrought to our liberty and economic well-being by FDR’s successful attack on the Supreme Court), and am rather heartened to see that they are not.

Simply put, I don’t think it’s appropriate for a sitting President to engage in dishonest, populist assaults on a vital American institution in order to undermine freedom and expand the already near limitless power of government. I find pushing back against his intemperate outbursts to be entirely appropriate, certainly in intention if not the precise manner.



April 2012



Obama Desperately Lashes Out at SCOTUS

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

Indicating just how serious the White House is taking the Supreme Court’s review of Obamacare after the government’s dismal performance during oral argument, President Obama has lashed out with a populist and ignorant scolding of the court for daring to consider the Constitutionality of his signature legislation.

“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress,” President Obama said at a White House event in the Rose Garden today.

“I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step,” Obama said to the White House press.

Is the President really so ignorant of both the facts regarding his legislation (it was not passed with a strong majority, for instance, but instead by an extremely narrow, party-line vote), and the Court’s history? There is nothing unprecedented about overturning unconstitutional legislation. Overturning unconstitutional acts is precisely the job of the court. Or is our law professor President not familiar with Marbury v. Madison?

And as I’ve previously written, judicial activism is a red herring. The job of the court is to actively defend the Constitution.

The President later urged the court to look at the “human element,” as if liberal feel-good intentions trump the Constitution. This is typical of the left, where the ends are frequently used to justify any means. If a law is good and necessary to advance some liberal goal then it must be Constititional by virtue of the fact that the left has deemed it good and necessary. But of course that’s not how it works, and a President supposedly schooled in Constitutional law should know better.



January 2012



Advice and Consent Has Been Written Out of the Constitution

Written by , Posted in General/Misc.

Recess appointments are certainly nothing new, even if Obama’s much talked about not-really-in-a-recess style recess appointment of Cordray to head up the Consumer Financial Protection Bureau, the unaccountable regulatory agency created by Dodd-Frank, along with three new members to the NLRB, has gone above and beyond the more recently accepted practices. What’s interesting to me is how ridiculous is much of the rhetorical justification for the move. The argument I frequently see goes something like this: Republicans blocked Obama’s appointments, therefore he just had to act.

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

Although there are legitimate concerns with agencies being left unmanned by Senate inaction, I’m more inclined to view the idea of the recess appointment as the bigger problem here. It made much more sense when originally conceived, as the legislature was a part time body which might be out of session for months at a time. Such is simply not the case anymore. Today we have a full time legislature that rarely recesses for more than a few weeks at a time. There are few if an vacancies that are so critical they would have to be filled before the Senate soon returned to session. And if the Senate refused to do so for poor reasons, that’s a political issue best sorted out by voters at election time.