Recess vs. pro forma sessions

Former U.S. Attorney General Edwin Meese on why, according to the Constitution, pro forma sessions in the Senate do not allow for recess appointments:

As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age — but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.”

It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

President Obama is not the first to abuse the recess appointment power. Theodore Roosevelt did as well, but for almost 90 years the executive branch has generally agreed that a recess as recognized by the Senate of at least nine to 10 days is necessary before the president can fill any vacancies with a recess appointment.

When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush’s use of the recess appointment power. Reid was right, whether or not his tactics were justified.

via Obama’s recess appointments are unconstitutional – The Washington Post.

Newt and the courts

What do you think of Newt Gingrich’s expressed plan, if he is elected president, to ignore court rulings that he disagrees with, to legislate judicial districts out of existence, to arrest judges in order to haul them before legislators to explain their rulings, to over-rule the Supreme Court with the agreement of the other two branches of government, and to attach riders to some laws that make them unreviewable by the courts?

What I think is that this would be a dangerous tampering with the constitutional division of powers.  In place of the rule of law (the conservative ideal), our government would be reduced to an unstable and arbitrary power struggle.  Yes, the judicial branch gets out of hand sometimes, but this is no solution.  Conservatives might like the idea of squelching liberal judges, but liberals can play the same game against conservative judges.  And for whatever legal precedents Gingrich thinks he has for all of this, throwing our whole system of government up in the air to try something else is NOT conservative and certainly NOT wise.

I’m open to persuasion, but this is turning me against Newt.

 

Gingrich, the anti-conservative – The Washington Post.

The National Debt and the Constitution

As we wrestle with the national debt and as Congress debates over whether to raise the debt limit or risk default, we should consider what the Constitution says about the issue.  First, Congress does have the right to borrow money:

‘The Congress shall have power … To borrow money on the credit of the United States.’  Article I, Section 8

But read on to the 14th Amendment and you find this:

‘The validity of the public debt of the United States … shall not be questioned.’  14th Amendment, Section 4

The 14th Amendment deals with the wreckage of the Civil War, giving citizenship to former slaves by virtue of their having been born here (another controversial issue in the immigration debate, though clearly addressed in the Constitution) among other things.  Article 4 repudiated the debt of the Confederacy, but in doing so it affirmed that the United States will always honor its debts.

This was a brilliant addition, serving as the basis for the idea that U.S. bonds are backed by the “full faith and credit” of the United States of America, meaning they are a rock solid investment.  It isn’t just our full faith and credit that backs them but the Constitution itself.  It would be unconstitutional to default on our loans.

But, as some experts are saying now in the midst of the debt ceiling negotiations in Congress, the 14th Amendment would render all of that moot.  There is no need to raise the debt ceiling because the Constitution provides that all debt that we incur must be paid.  The money that our lawmakers are squabbling over has already been spent and has been authorized by statute.  According to the 14th Amendment, that debt has to be honored.

Debt can certainly be too high and need to be controlled.  But the 14th Amendment means that whatever we borrow must be paid back.   According to some attorneys, if the current negotiations to raise the debt ceiling break down, to prevent the country from going into default, the President simply needs to sign an executive order invoking the 14th Amendment and keep borrowing money to pay our obligations, despite what Congress does.

Do you see any flaws in this legal reasoning?

 

see U.S. Constitution Under Siege over Libya, Taxes, Health Care – TIME.

HT:  Jimmy Veith

An even bigger reason why Obamacare is unconstitutional

So far the main argument why the “Patient Protection and Affordable Care Act” is unconstitutional is that it forces individuals to buy health insurance.  But there is a much bigger constitutional issue at stake, as George Will points out:

The point of PPACA is cost containment. This supposedly depends on the Independent Payment Advisory Board. The IPAB, which is a perfect expression of the progressive mind, is to be composed of 15 presidential appointees empowered to reduce Medicare spending — which is 13 percent of federal spending — to certain stipulated targets. IPAB is to do this by making “proposals” or “recommendations” to limit costs by limiting reimbursements to doctors. This, inevitably, will limit available treatments — and access to care when physicians leave the Medicare system.

The PPACA repeatedly refers to any IPAB proposal as a “legislative proposal” and speaks of “the legislation introduced” by the IPAB. Each proposal automatically becomes law unless Congress passes — with a three-fifths supermajority required in the Senate — a measure cutting medical spending as much as the IPAB proposal would.

This is a travesty of constitutional lawmaking: An executive branch agency makes laws unless Congress enacts legislation to achieve the executive agency’s aim.

And it gets worse. Any resolution to abolish the IPAB must pass both houses of Congress. And no such resolution can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. And if passed, it cannot take effect until 2020. Defenders of all this audaciously call it a “fast track” process for considering termination of IPAB. It is, however, transparently designed to permanently entrench IPAB — never mind the principle that one Congress cannot by statute bind another Congress from altering that statute. . . .

Diane Cohen, the [Goldwater] institute’s senior attorney [a group filing suit on this issue], demonstrates that the IPAB is doubly anti-constitutional. It derogates the powers of Congress. And it ignores the principle of separation of powers: It is an executive agency, its members appointed by the president, exercising legislative powers over which neither Congress nor the judiciary can exercise proper control.

via Government by the ‘experts’ – The Washington Post.

Veto by lack of quorum

As you know, 15 Democratic state legislators in Wisconsin are hiding out in Illinois–beyond the jurisdiction of Wisconsin state troopers–to prevent a quorum so that Republican lawmakers can’t pass a bill cutting benefits for state workers and restricting their union.  Now Democratic lawmakers in Indiana are doing the same thing, for much the same reason.  Two Maryland legislators were briefly on the lam on the issue of gay marriage.  The tactic has been used before–Abraham Lincoln did it as a state representative in Illinois, as did Texas Democrats in 2003 trying to foil a redistricting plan–but not all that often.

Let’s bracket the specific issues that have sparked this behavior.  Though the modern-day examples I could find have all been Democrats doing it, the tactic could just as easily be used by Republicans in the minority who want to stop some bill.

Doesn’t the deliberate absence of legislators to prevent a quorum thwart democracy and representational government?  Doesn’t this give minority parties, in effect, a preemptive veto on all bills they do not like?  State and national constitutions generally give a veto to the executive branch, to the president or governor, but this seems an even greater power.  Executive vetoes can be overturned by a two-thirds majority, but this legislative veto cannot be overturned by any majority, since it prevents a majority from ever being formed.  Moreover, it prevents a duly-elected constitutional body from convening.

Isn’t this tactic unconstitutional, whether according to the national Constitution, which mandates that all states be governed as republics, or to state constitutions?  Is there any theoretical argument that can justify this practice?  If so, I’d like to hear it.  (I’m not interested in arguments that “they have a right to do this” or that “it’s legal.”  I’m wanting to know in what sense this can be considered good government.  If you defend it because of the specific bills that are being blocked, please use examples as if the other side from the one you agree on were doing this.  That is, if you like the Democrats doing it to protect unions, would you similarly like it if the Republicans did it to block health care reform?)

 

Democratic legislators embracing tactic to gain leverage: Fleeing.

You be the judge

Two Supreme Court cases. . . .

(1)  A man was shot.  Just before he died, he said, “Rick shot me.”  So Rick was arrested.  The problem is, the Constitution requires that the accused be able to face the witnesses against him so they can face cross-examination.  In this case, the witness–who was also the victim–is dead.  Therefore, according to the Michigan Supreme Court, the victim’s dying words identifying his killer are not admissible in a court of law.

The Supreme Court overturned that ruling, 6-2.  Rick will have to pay for his crime, on the testimony of his victim.  Justice Antonin Scalia, a Constitutional originalist, wrote a bitter dissent.  In this case, the court favored what might be called common sense over and against the literal reading of the Constitution.

Court: Victim’s dying words may be used at trial.

(2)  Westboro Baptist church has a ministry of picketing the funerals of dead servicemen, carrying signs that say things like  “Thank God for dead soldiers,” and “God hates America.”  Efforts have been made to keep the picketers away from the funerals and from the families of the bereaved.

The Supreme Court, with only one dissenting vote (that of Justice Samuel A. Alito), ruled that the free speech provisions of the Constitution protect the protesters, who must be allowed to show up at funerals with their offensive placards.  In this case, the court favored the literal reading of the Constitution over what might be called common sense.

Supreme Court rules First Amendment protects church’s right to picket funerals

Conservatives are supposed to take the Constitution literally.  That would suggest being against allowing a victim’s dying words to be used as testimony AND supporting the free speech rights of the funeral protesters.  Is that what you believe?  If not,  what is your constitutional basis?


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