Archive | Presidency

The Recess Appointments clause: Amicus brief on original meaning based on State practices

As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early practice. (The VC co-authors were William Baude, Dale Carpenter, and Eugene Kontorovich, plus former VC writer Michael McConnell.)

Another amicus brief in the case address the contemporary legal meaning of the words and phrases in the Recess Appointments Clause. The main sources for information about this are the records of the state legislatures during and before the ratification period. These sources clearly show that a “recess” took place only between the formal sessions of a legislative body. For a vacancy to “happen” during the recess, the vacancy must first arise during the recess. If a vacancy arises while a legislature in session, and the office is still vacant when the legislature goes into recess, the vacancy did not “happen” during the recess.

This originalist amicus brief was filed on behalf of the Independence Institute. The brief is based on the research contained in the article The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause, by my Independence Institute colleague Rob Natelson. [Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), forthcoming.]

Thanks to the Polsinelli firm, and to attorneys Sean R. Gallagher, Bennett L. Cohen, and Jon R. Dedon for writing the brief. The Independence Institute also worked with the Polsinelli firm this summer, in an amicus brief for a cert. petition in Bakoss v. Certain Underwriters at Lloyd’s of London (arguing state law, rather than federal common law, should supply the definition of “arbitration” in the [...]

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House Judiciary Committee Hearing: Take Care Clause

On Tuesday morning at 10:00am, the House Judiciary Committee will hold a hearing about the President’s constitutional duty “to take Care that the Laws be faithfully executed.” Michael Cannon, Simon Lazarus, Jonathan Turley, and I will testify. Video here and possibly on C-SPAN.

UPDATE: I will be discussing this with Greta on Fox News, Tuesday, Dec 3, 7:30pm. [...]

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Arthur Schlesinger and the Kennedy Assassination

The events of November 1963 and their aftermath are described in Chapter 9 of my undergraduate thesis The Highbrow in American Politics: Arthur M. Schlesinger Jr. and the Role of the Intellectual in Politics.

In brief: Schlesinger, John Kenneth Galbraith, and most of the rest of the White House immediately leaped to the conclusion that “the radical right” was the perpetrator. In the days following the assassination, the Kennedy White House staff split between those who were willing to work for Lyndon Johnson, and those who wanted to find a way to replace him as the the 1964 Democratic nominee with Hubert Humphrey or Robert Kennedy.

Johnson convinced Schlesinger, like almost all of the Kennedy staff, to stay on. But Johnson never gave Schlesinger any assignments, and Schlesinger resigned in early 1964. Schlesinger went to work on a biography of John F. Kennedy (A Thousand Days), and to campaigning on behalf of Robert Kennedy’s successful carpet-bagging run for a New York U.S. Senate seat.

Some observations from half a century later: liberals often had difficulty recognizing their ideological allies. Schlesinger et al. didn’t think Johnson was a liberal, although he turned out to be a much more aggressively liberal President than Kennedy had been. New York liberals, such as Americans for Democratic Action, and Jewish voters, didn’t think Robert Kennedy was a liberal, although as a Senator he (like the Democratic party) became much more liberal than John F. Kennedy had been.

The LBJ-RFK feud had much more to do with personality than with policy. The best study of this is Jeff Shesol’s excellent book Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade. Shesol finds plenty of blame on both sides, but ultimately it was RFK who obdurately refused LBJ’s overtures. [...]

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Wall Street Journal Op-Ed: Two Presidents, Two Suspensions

My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different.

The op-ed is here.

UPDATE: I will be discussing this on Fox News tomorrow morning around 8:45am EST. [...]

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Colorado Inside-Out 1973 Time Machine

This Friday, July 6, at 8 p.m. Mountain Time, is Colorado Inside-Out’s annual Time Machine episode, on Colorado Public Television, channel 12. These episodes have won three regional Emmy Awards. This year’s episode takes us to 1973, with discussions of Equal Rights Amendment ratification, political violence, the energy crisis, and Watergate.

The characters are, from left to right: KHOW radio host Charlie Martin (Dominic Dezutti), folksinger Judy Collins (Patty Calhoun), Colorado State Rep. Gerald Kopel (me), an obscure actress with a couple Broadway cast appearances (Dani Newsum), and Rocky Mountain News police reporter Al Nakkula (Kevin Flynn). If you don’t live in Colorado, you can watch it on the cpt12.org website, starting sometime next week.

Also on the cpt12.org website, by Friday, will be a bonus segment, set in the year 2025. There we discuss the challenges facing President Chelsea Clinton, as she faces a hostile Congress dominated by the fusionist Green Tea Party.

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Did the Obama Administration have a Duty to Defend DOMA?

I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should choose not to defend it. I outlined my reasoning in greater detail in this post, written at the time the administration first decided not to defend Section 3 of DOMA. That post addresses both theoretical and practical arguments against the president’s decision. [...]

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The Trillion Dollar Heist

Whatever else one might say about the Trillion Dollar Coin, it would certainly set the stage for the ultimate heist movie.

Maybe an “American Buffalo” needs Mamet, but this would write itself. In my version, a disgruntled Treasury worker swallows the coin, then goes on a hunger strike, holding the economy hostage until his demands are satisfied.

Also, it better be pretty big. Otherwise all hell would break loose if someone accidentally dropped it somewhere…. [...]

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How Syria is Iran’s route to the sea

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated PressThe GuardianThe Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? …when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now

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A Libertarian Perspective on Romney vs. Obama

In recent weeks, libertarians have been debating whether there’s any good reason for us to support Romney over Obama, or vice versa. In contrast to 2008, when many libertarians endorsed Obama, few if any are making the case for him this year. There is near-universal agreement among libertarian commentators that Obama’s presidency has done more harm than good.

But there is some debate over whether Romney is likely to be any better. Stephen Green, the “Vodkapundit,” makes the case for Romney here. Doug Mataconis argues against. As for me, I voted for McCain in 2008 because it was the only way to maintain divided government and avoid a massive increase in government spending and regulation. Sadly, most of my 2008 fears about the effects of an Obama victory have been realized.

This year, however, I think the presidential choice is a much closer call than in 2008. The primary difference is that a reelected Obama would have to deal with a Republican-controlled House and at most only a narrow Democratic majority in the Senate. That greatly limits the potential harm he might do in a second term.

In this post, I break down the tradeoff between Obama and Romney on several of the most important issues for libertarians: Government spending and regulation, the fate of Obamacare, the courts, the War on Drugs and immigration, and foreign policy. I picked these issues because they all have a massive impact on large numbers of people. Ultimately, I think that Romney deserves a slight edge. But there are many uncertainties involved. Because it’s such a close and complicated call, this post will unfortunately be much longer than I would prefer. Even so, I will have to leave consideration of Libertarian Party nominee Gary Johnson for a future post, which I [...]

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Why the Presidential Debate Should Have Covered the Issue of Judicial Nominations

In this Politico post, I expanded on my recent VC post about dogs that didn’t bark during last night’s presidential debate. It was especially unfortunate that both candidates and the moderator completely ignored the issue of judicial nominations:

[N]either of the candidates or the moderator even mentioned judicial nominations, even though this is one of the areas where a president can have his biggest impact. The next president may well appoint as many as two or three Supreme Court justices, and numerous lower court judges. Those judges will likely serve for decades after he leaves the Oval Office, wielding enormous influence over the constitutional rights of all Americans. And there are big differences between the two parties on overall judicial philosophy, and specific constitutional issues such as federalism, property rights, free speech, and executive power.

For most presidents, the judges they appoint are among their most important and longest-lasting legacies. [...]

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Why We Choose Presidents Based on the Wrong Issues

In a recent Slate column, John Dickerson points out that presidential elections typically focus too much on issues the president has little control over and too little on those that he has more effect on:

Nothing tests a president’s temperament like foreign affairs. Though this presidential campaign has only recently touched on the topic, the lack of focus points to another flaw in our election system. If we arranged our campaigns around what a president actually can control, we wouldn’t spend the majority of our time talking about the economy, where a president is a bit player.

Not so in foreign affairs. A president is the last word on decisions regarding military strikes, covert operations, or how to treat political prisoners. George W. Bush signed off on every prisoner that faced enhanced interrogation techniques. Barack Obama personally approves every drone strike of a high-value terrorist target. When the president serves as the country’s chief diplomat, he acts almost entirely alone.

Dickerson exaggerates a little when he suggests the president “acts almost entirely alone” on key foreign policy issues. But he certainly has much more control over them than over short-term economic trends. Yet the latter are the biggest factor in most elections. Voters also tend to ignore or underemphasize other issues that the president has a great deal of control over: issues such as judicial nominations and appointments to federal regulatory agencies.

Why are voters myopic in this way? Because, thanks to widespread political ignorance, most voters have difficulty telling the difference between issues that the president can affect and those he can’t. That’s why studies show that voters routinely reward and punish politicians for events they have little or no control over, including trends in the world economy, shark attacks and droughts, and even [...]

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Next step: Repeal the individual mandate because it is unconstitutional

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same [...]

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Is President Obama’s assertion of executive privilege valid?

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law [...]

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that 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.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every

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