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constitutional law Archive

Saturday

26

January 2013

1

COMMENTS

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.

Monday

28

May 2012

1

COMMENTS

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.”

Tuesday

3

April 2012

1

COMMENTS

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.

Monday

13

December 2010

1

COMMENTS

Court Recognizes the Obvious: Individual Mandate Unconstitutional

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

U.S. District Judge Henry E. Hudson has delivered as expected and ruled that the individual mandate is unconstitutional (the full ruling is available here). Even under the modern Commerce Clause jurisprudence, which itself has long ago turned the clear meaning of clause on its head, there has never been recognized any legal authority compelling individuals to purchase a particular good or service.

The oddity of the ruling is that it didn’t throw out the entire law, despite the lack of a severability clause in the original bill (which would make provisions for severing clauses found unconstitutional so that the bill itself could remain intact). As a practical matter, however, the lack of an individual mandate scuttles the entire affair. The question now is: what will the higher courts do?

Monday

13

December 2010

0

COMMENTS

The Constitution Versus Constitutional Law

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

Professor Kerr at Volokh conspiracy observes a common source of confusion in constitutional debates:

[T]here are two semantic alternatives, and those alternatives can be used to generate a lot of confusion. We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. My sense is that the most common way to refer to these two different kinds of claims in our legal culture is that (1) describes what the Constitution presently is or means, and that (2) is what the Constitution should be or should mean. That is, what courts have done is descriptive, and what courts should have done is normative. I’m not saying that is objectively correct: I’m just saying that it is the most common choice of wording. At the same time, you can make a different semantic choice by saying that “the Constitution” means what the courts should have said. If you take this semantic option, (1) is what the courts have said the Constitution is, and (2) is what the Constitution is. Now both are descriptive claims: What the courts have done is descriptive of the courts, and what the courts should have done is descriptive of the Constitution.

He goes on to demonstrate, correctly I think, how these two approaches can lead people to talk past one another.

I have an issue with his overall characterization, however. He seems to have characterized any discussions about the Constitution as one that must necessarily be about constitutional law. That is, one is either describing what Constitutional law should be or what it is. This is not surprising given that he is a legal professional, but I think it’s myopic when lawyers often assume that constitutional law is the only relevant avenue by which we understand the Constitution. It is not.

In addition to the two questions he describes, there are two more. 1) What does the Constitution say, and 2) what should it say? Sometimes these questions overlap with his own, but not always. (more…)