January 6, 2012

Guess who rakes Obama over the coals for the abuse of executive power?

John Yoo.
Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers by making a recess appointment for Richard Cordray (whom I respect and have no problems with as a nominee) to head the new Consumer Financial Protection Bureau.
Yoo's key point is that it's up to the Senate to decide whether it's in recess:
Even with my broad view of executive power, I’ve always thought that each branch has control over its own functions and has the right — if not the duty — to exclude the others as best it can from its own decisions....
Yoo says that the Senate needs to defend itself from encroachments by the President, and that here it can refuse to support the agency in any way. But, more important, anyone who is affected by the new agency challenge could challenge the constitutionality of all of the agency's work.

However the courts would ultimately resolve the issue, the questionable appointment casts a pall over all the agency's work and, in an election year, tells us something about the way Obama understands the role of the President. So a third remedy for this power grasp — in addition to Senate resistance and court challenges — is for the GOP candidates to assail Obama for overreaching.

Let's see what those candidates do, because a big question — as the GOP chooses its candidate — is: Who is best at attacking Obama?

137 comments:

Mark O said...

Obama is Nixon. Get on board.

Jay said...

tells us something about the way Obama understands the role of the President.

But you see Obama was a constitutional law lecturer so it is all, like, ok.

When you're as smart as Obama you get to determine when the Senate is in recess.

PS, you inspire me!

TMink said...

Who is best at attacking Obama?

Obama himself.

Can you imagine how much play the video of him saying stuff that he ignored or repudiated 6 months later will get? If the Rs are smart (a big if I accept) they will let Obama condemn Obama.

Trey

Toshtu said...

He won, get over it.

campy said...

No one can attack Obama. It's racist.

Tim said...

Oh, is this more of that "change we can believe in?"

It will be interesting to see if contemporary historians ever study if an American mass movement, dwarfing the People's Temple fiasco, was as quickly, broadly and willingly duped as those who joined the Obama cult in '08. And who remained on board in '12.

bagoh20 said...

Some people think that if you are pissing off everyone, you must be doing something right. Of course you could just be doing everything wrong.

Ann Althouse said...

"But you see Obama was a constitutional law lecturer so it is all, like, ok."

As a conlawprof, I can tell you that conlawproffing does not generate reverence for constitutional law. We conlawprofs are more likely to view deep respect for constitutional law as an American folk belief, important mostly to the extent that it affects the power that various players in the system wield. Obama is now the strongest wielder of power in the system. That's very interesting to me.

Ann Althouse said...

And how much of a conlawprof was he? He didn't do scholarship of any sort. He wrote about himself. His background is community organizer — which is all about leveraging power. There's no reason whatsoever to believe that he takes conventional restraints seriously.

Tyrone Slothrop said...

As clueless as the American electorate can be, stuff like this eventually filters down, especially when the Senate comes back and Republicans start making noise about this usurpation. I see this as another nail in the coffin of Obama's reelection hopes.

The Crack Emcee said...

Who is best at attacking Obama?

Seems to me that would be Newt - the guy you seem intent on attacking.

You're so confused,...

Christopher in MA said...

"His background is community organizer - which is all about leveraging power. There is no reason whatsoever to believe he takes conventional restraints seriously."

If only you were this clear-eyed in the voting booth. . .

pbAndjFellowRepublican said...

Any con who doesn't call for the impeachment of BHO is a traitor to the constitution.

And, any con in the congress who doesn't immediately work to impeach BHO is a traitor to the constitution.

Clinton doesn't have anything on BHO.

No BS blather. Action!


And:

"His background is community organizer — which is all about leveraging power."

Yes!!! Those comOrgers are sooo powerful in America. Their domination must be restrained.

Peano said...

We conlawprofs are more likely to view deep respect for constitutional law as an American folk belief ....

"We"? How did you determine that your blonde, screwball thinking is representative of most "conlawprofs"?

Tim said...

"There's no reason whatsoever to believe that he takes conventional restraints seriously."

Yet you thought him worthy of your vote for president.

Does that say more about him, or your understanding of the role of government in America?

So, I suppose, the Constitution is now just words, as viewed through Humpty Dumpty's looking glass:

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - - that's all."


Yes, this explains much.

rhhardin said...

The courts don't have any more standing to say what's what than Congress does.

Congress's remedy is impeachment and removal, which they should start.

gk1 said...

Sad, desperate, gesture from a collapsing political figure. This is a sign of weakness, not a sign of strength. Can't wait till the next republican president decides to pull the same stunt.

EMD said...

I, as a consumer, can't wait to be protected by Richard Cordray (who actually is a decent guy), so all those big, bad mean credit card people can't take advantage of me!

Simon said...

When your view of executive authority is so broad that even John Yoo says that you've gone too far, something is desperately wrong.

Lookit, politics are politics—Democrats based Bush and used legal rhetoric to assail him, and Republicans bash Obama and use legal rhetoric to assail him. It's par for the course to accuse the other side of breaking the rules. Okay? But this is different. What Obama has done here is desperately wrong even if one assumes the validity of modern recess appointment practice. Modern recess appointment practice is actually unconstitutional, and a recess appointment to this position would thus be invalid even in the best of circumstances, but what makes this so singularly problematic, what makes this a Constitutional crisis—yes, a constitutional crisis—is that the President has claimed the right to make a recess appointment when he says Congress is in a recess, even though Congress is not in fact in recess, and even though Congress disagrees. This isn't politics as normal. This is a serious problem.

Simon said...

Ann Althouse said...
"And how much of a conlawprof was he? He didn't do scholarship of any sort."

As far as I recall, he wasn't a conlaw prof at all. He taught a class on race and the fourteenth amendment—a sbuset of conlaw 2. That's not structure. That's not real conlaw.

Joe Schmoe said...

If only you were this clear-eyed in the voting booth.

Oh no he ditn't!

{snap}

       {snap}

{snap}

gk1 said...

The thing that scares me the most about this power grab is the president is not surrounded by adults, eveidently . They can't see past the next election cycle or how the senate will respond in future. This is what a child does, not looking ahead.

Bender said...

If the Republican leadership had not repeatedly proven themselves to be weak, Obama would not have done this.

Essentially Obama is saying to McConnell, Boehner, et al., "You don't like it? What are you going to do about it, bitch?"

What are they going to do about it? NOT A DAMN THING. And Obama knew and knows that they aren't going to do anything about it. In fact, the GOP leadership will be all too eager to move on and seek to "work with" Obama elsewhere.

Yeah, we can blame Obama for the crap that the country is in all we want. But truth be told, the Republicans in Congress have a LOT of responsibility for Obama too since they have too often helped Obama, rather than tried to stop him.

Tank said...

Ann Althouse said...
"But you see Obama was a constitutional law lecturer so it is all, like, ok."

As a conlawprof, I can tell you that conlawproffing does not generate reverence for constitutional law. We conlawprofs are more likely to view deep respect for constitutional law as an American folk belief, important mostly to the extent that it affects the power that various players in the system wield. Obama is now the strongest wielder of power in the system. That's very interesting to me.


LOL. That's exactly what I got out of my Con Law class as a 1L. No, more respect was not the answer.

Obama is wrong, but Yoo is the wrong messenger.

There might be something the Zero could get impeached over, but recess appointments - not it. Get real. Even I don't think that's a high crime or misdemeanor, and I hate the guy's guts.

EDH said...

But, more important, anyone who is affected by the new agency challenge could challenge the constitutionality of all of the agency's work.

That's what I took away from the recess appointment and the analysis of the CFPB statute.

Bender said...

what makes this a Constitutional crisis—yes, a constitutional crisis—is that the President has claimed the right to make a recess appointment when he says Congress is in a recess . . . This isn't politics as normal. This is a serious problem

Actually, what Obama is claiming is the power to do whatever the hell he wants. Whatever.

Why? BECAUSE HE CAN, that's why. Because he knows that NO ONE has the balls to stop him.

TMink said...

Toshtu, he will lose. Embrace the change.

Trey

Simon said...

Bender said...
"If the Republican leadership had not repeatedly proven themselves to be weak, Obama would not have done this. Essentially Obama is saying to McConnell, Boehner, et al., 'You don't like it? What are you going to do about it, bitch?' What are they going to do about it…[?]"

They'll encourage litigation, but there's not a lot that McConnell can do—the Senate might have standing, but McConnell doesn't run the Senate and he doesn't have standing personally. I don't know whether the House would have standing without thinking about it further. But as soon as Cordray starts making decisions, the pool of available plaintiffs becomes huge, if there aren't already viable plaintiffs, and it seems obvious to me that a preliminary injunction is merited (see Winter v. NRDC, 555 U.S. 7 (2008); CLS v. Walker, 453 F.3d 853 (7th. Cir. 2006)).

Bender said...

Claiming a unilateral and absolute power to appoint public officials?

Once upon a time, America would have started (and did start) a Revolution if the King had claimed such absolute powers.

Simon said...

Bender said...
"Actually, what Obama is claiming is the power to do whatever the hell he wants. Whatever. Why? BECAUSE HE CAN, that's why. Because he knows that NO ONE has the balls to stop him."

It's not a question of balls, or even vaginas.

Bender said...

They'll encourage litigation

Yeah, Obama is wetting his pants over that prospect.

As for the Republicans using that as their "response," basically threatening Obama, like little children, "we're telling dad", and expecting someone else to do something about it, is hardly doing anything about it.

Obama can say "bite me" to the courts as well as he can say it to Congress.

Bender said...

It's not a question of balls, or even vaginas

To the contrary. Obama did this EXACTLY because he knows that McConnell and Boehner, et al. are a bunch of p*ssies.

Robert Cook said...

Yoo facilitated and is consequently complicit in the commission of war crimes...is it any surprise he's intellectually dishonest and a hypocrite?

Christopher in MA said...

"But truth be told, the Republicans in Congress have a LOT of responsibility for Obama too, since they have too often helped Obama, rather than tried to stop him."

HOWARD JOHNSON IS RIGHT!!!

Christopher in MA said...

"is it any surprise he's intellectually dishonest and a hypocrite?"

Objection, counsellor. Yoo's complicity in any farcical "war crimes" is not the issue here.

Is Obama in the right, or not?

Simon said...

Bender said...
"Yeah, Obama is wetting his pants over that prospect."

Said Republicans, of Bush, when civil libertarians started filing next friend sutis for detained terrorists. Rasul, Hamdi, Hamdan, Boumedienne...

"As for the Republicans using that as their 'response,' basically threatening Obama, like little children, 'we're telling dad', and expecting someone else to do something about it, is hardly doing anything about it. To the contrary. Obama did this EXACTLY because he knows that McConnell and Boehner, et al. are a bunch of p*ssies."

What are you, a child? We're in a Constitutional crisis and you're making playground taunts. What is it, precisely, that you want them to do? What is it that you think McConnell, the minority leader in the Senate should do? What is it, precisely, that you want Boehner to do?

Why is it so often the case in politics that the only thing worse than the yahoos in the other guy's trench are the kooks in one's own?

Matthew said...

"Yoo facilitated and is consequently complicit in the commission of war crimes...is it any surprise he's intellectually dishonest and a hypocrite?"

He seems perfectly consistent. Presidents can do things within their power. This, he says, is not within the range of their power. Presidents cannot do this.

You know who else is listening to a lot of Yoo's memos and committing war crimes? Three guesses, first two don't count!

Jay said...

Ann Althouse said...
And how much of a conlawprof was he? He didn't do scholarship of any sort. He wrote about himself.


He wasn't any bit of a conlawprof.

He isn't capable of scholarship.

Of course he wrote about himself.

He's the one we've been waiting for, you know!

Thorley Winston said...

And how much of a conlawprof was he? He didn't do scholarship of any sort. He wrote about himself. His background is community organizer — which is all about leveraging power. There's no reason whatsoever to believe that he takes conventional restraints seriously.

Indeed, judging by the description of the course (Con Law III) he taught and the materials that were made available online before the election, he seemed to focus largely (almost exclusively) on post-civil war racial issues similar to the seminar he taught on the Voting Rights Act. That’s a pretty narrow focus and not one the addresses separation of power issues.

Mick said...

Who's best? The one that speaks the truth--- That Obama is not eligible since he was born British, of a British subject father-- Minor v. Happersett 1874.

Here is an article on Academia's abject failure in educating the public, a role that I guess this "law blog" doesn't see as it's role. Today at American Thinker.

http://www.americanthinker.com/2012/01/academia_shrugs_obamas_citizenship_and_the_presidency.html

Mick said...

Ann Althouse said...
"And how much of a conlawprof was he? He didn't do scholarship of any sort. He wrote about himself."


And how much of a "law prof" are you, since you refuse to even acknowledge the issue of Obama's eligibility as a natural born Citizen?

Simon said...

Mick said...
"Who's best? The one that speaks the truth--- That Obama is not eligible since he was born British, of a British subject father-- Minor v. Happersett 1874.

Stop regurgitating this false claim. It's been thoroughly debunked—it seems in bad faith to continue to make it.

Thorley Winston said...

Obama can say "bite me" to the courts as well as he can say it to Congress.
And the courts can respond by upholding every challenge to every regulation, rule or decision made by a “recess appointee” who was appointed when the Senate wasn’t in recess. Obama gets to have his agency make rules and the courts effectively say no one has to follow them. Just the sort of thing Obama wants over his going into the 2012 election.

Mick said...

Constitution? There is no Constitution when the President is ineligible, and everyone in Congress knows it. Even the SCOTUS knows it, and didn't even administer the proper oath in public.

Mick said...

Simon said...

Mick said...
""Who's best? The one that speaks the truth--- That Obama is not eligible since he was born British, of a British subject father-- Minor v. Happersett 1874.

Stop regurgitating this false claim. It's been thoroughly debunked—it seems in bad faith to continue to make it."



Ah the monitoring Obots make their appearance--- so how is it possible that one born a British subject is an eligible natural born Citizen, even though the requirement's purpose was to prevent foreign influence? Until you can refute Minor v. Happersett you have no argument.

"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. "

Methadras said...

Consumer Financial Protection Bureau.

Is an in our face fuck you to everyone. You can't audit it, you can't defund it, you can't question it's decisions, you can't even have oversight of it. Who needs czars when you have this?

Robert Cook said...

"You know who else is listening to a lot of Yoo's memos and committing war crimes?"

I've said here many times that Barry is a war criminal and mass murderer like his predecessor.

I have no respect or support for Obama, but it just seems quite rich for Yoo, a servile lackey to thugs, whose specious legal "reasoning" was intended soley to provide an excuse (and cover) for the crimes committed by the Bush Administration, to offer such phony outrage over a fucking recess appointment.

If he--or anyone--wishes to express outrage over Obama's executive overreach, how about decrying his claim to have unilateral power to declare the guilt of any person, including American citizens, such that he may imprison or murder them at whim, without a whisper of due process?

Methadras said...

Toshtu said...

He won, get over it.


Yes, we know. Thanks to in part by our sometimes not-so-gracious blogstress here who for some godforsaken reason thought it would be cool and quirky to give this islamo-sympathetic marxist a shot at wrecking this country. While she revels at why it's so interesting to her that Urkle, the once conlawprof may not have the reverence for the constitution that we unwashed masses think that all conlawprofs should have for the document that allows them to facilely scratch their chins and nod scholarly over. All so we can watch him push it aside like used toilet paper and wield his new found powers of circumventing it on his own whim.

caseym54 said...

Precedent matters. We'll see how much the Democrats like it when President Gingrich fills the 12th, 13th and 14th Circuits with recess appointments at 3AM some night, claiming that since the Senate had gone home for the night they were "effectively in recess."

Matthew said...

"To offer such phony outrage over a fucking recess appointment."

No one is upset over recess appointments, because... the Senate is not in recess.

Try again?

Simon said...

Mick said...
"Until you can refute [the birther reading of] Minor v. Happersett you have no argument."

I have already done so the last time you rode the merry-go-round (see this, and your continued reliance on a misreading of dicta from Minor is disingenuous.

Simon said...

Robert Cook said...
"such phony outrage over a fucking recess appointment."

To offer such phony outrage over a fucking detention camp!

"I've said here many times that Barry is a war criminal and mass murderer like his predecessor."

To offer such phony outrage over a fucking political disagreement!


"If he--or anyone--wishes to express outrage over Obama's executive overreach, how about decrying his claim to have unilateral power to declare the guilt of any person, including American citizens, such that he may imprison or murder them at whim, without a whisper of due process?"

To offer such phony outrage over a fucking terrorist! (Not to mention the egocentric "stop talking about what you want to talk about and talk about what I want to talk about" mindset that unites you with the birthers and paulasites.)

Simon said...

caseym54 said...
"Precedent matters. We'll see how much the Democrats like it when President Gingrich fills the 12th, 13th and 14th Circuits with recess appointments at 3AM some night, claiming that since the Senate had gone home for the night they were 'effectively in recess.'"

And that is the upshot of Obama's claim here. Obama is claiming that the President judges when Congress is in recess. That claim is not limited to situations where the President judges Congress to be in recess because [insert reason here]; it is an unlimited and illimitable assertion of authority.

For years, I've rolled my eyes at the "impeach Obama" people, and said, you know, what exactly do you want to impeach him for other than being a Democrat? You wanted to impeach him the moment he arrived in office and you've been looking for any excuse. Well, this merits impeachment. What Obama has done here cannot be allowed to stand.

Matthew said...

They'll have to wait until he lets them in from recess to do anything about it, Simon.

MayBee said...

Obama ignored the Constitution with the war on Libya, and not enough people made a stink. So now he knows.

He's the first black president and nobody is going to impeach him. He can walk all over the Constitution and be the Chinese-style leader his minions have been encouraging him to be. There's no way to cut off funding, because he just spends the money anyway.
The good news is, he has promised not to detain us indefinitely, because that's against our traditions.

So we've got that going for us.

MayBee said...

My guess is Obama will start moving everybody out of Gitmo.

Scott M said...

He's the first black president

You're half-right.

edutcher said...

Have to agree with Bender, McConnell and Boehner, but especially McConnell have to go.

This is dereliction of duty.

pbAndjFellowRepublican said...

Any con who doesn't call for the impeachment of BHO is a traitor to the constitution.

PB&J, the biggest con job of all, is being his usual moronic self, but there would seem to be a case for calling in the three feasance brothers - mis, mal, and non - as fulfilling the high crimes and misdemeanors requirement.

MaggotAtBroad&Wall said...

It's interesting to me that when Newt simply suggested the people's representatives might want to hold judicial appointments more accountable, he was portrayed by both the Left and the Right as some sort of lunatic fringe nut who didn't understand the separations of powers.

But now that Obama has actually usurped power from the people's representatives at least twice, first by unilaterally going to war with Libya, and now by usurping power from the Senate, he's applauded by the Left and the Right mostly yawns.

Mick said...

Simon said...

"Mick said...
"Until you can refute [the birther reading of] Minor v. Happersett you have no argument."

I have already done so the last time you rode the merry-go-round (see this, and your continued reliance on a misreading of dicta from Minor is disingenuous."




And of course you're wrong, and lying, and trying to conflate "Citizen" w/ "natural born Citizen", which is the usual Obot tactic.

If Minor wasn't a Citizen, then there would have been no need for the Case-- non citizens can't vote-- duh.
Judge Waite SAID HIMSELF that V. Minor's Citizenship was an essential holding of the case, and held that she was indeed a US Citizen because she was in the class eligible for POTUS--- natural born Citizens-- the largest class of US Citizens, that did not need the 14 A to make them Citizens:

"But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision."

"To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership."

Then the money line:

"Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record."


The citizenship shown on the record was that V. Minor was a natural born Citizen--- born in the US of US Citizen parents---one of those US Citizens eligible for POTUS-- who were undoubtedly US Citizens.

Case closed, thanks for playing. Try Again?

Freder Frederson said...

Well, this merits impeachment. What Obama has done here cannot be allowed to stand.

And exactly what high crime or misdemeanor has Obama committed?

The whole CFPB debacle is a power grab by a minority of the Senate. If anyone should be impeached it is the Senators holding this nomination up. They are holding their consent to the nominee, not because they think the candidate is unfit, but because they don't like the legislation as it is passed. They are trying to get the law changed after the fact. Talk about encroaching on the executive.

Matthew said...

Congress using legislative tactics to hobble the Executive branch?

It's almost like a balance being checked.

Hoosier Daddy said...

"... And exactly what high crime or misdemeanor has Obama committed?.."

Well if we pull out the lefty playbook you guys used for 8 years; Gitmo is still open, despite his pledge to shut it down. Targeted assasination of an American citizen?

Funny how that all went down the memory hole with you guys.

realwest said...

And guess who called the U.S. SENATE into session on January 3rd:
John Warner D-VA.
See:http://www.senate.gov/legislative/LIS/floor_activity/floor_activity.htm

Jose_K said...

Some people think that if you are pissing off ...
If the mob is appauding me i must be doing something wrong. Unamuno
Well we go Sancho, the dogs barks as us... Don Quijote

Simon said...

edutcher said...
"This is dereliction of duty."

Same question for you as for Bender—what is it, precisely, that you want them to do?

MayBee said...
"Obama ignored the Constitution with the war on Libya, and not enough people made a stink. So now he knows."

I disagree. Obama's actions vis-à-vis Libya may have been irregaular but they were legal.

Freder Frederson said...

Gitmo is still open, despite his pledge to shut it down. Targeted assasination of an American citizen?

I was asking what crime Obama committed with this appointment. I happen to agree with you on those two issues (but of course I would only be willing to pursue Obama for these crimes if you agreed that Bush, Rumsfeld, Cheney et. al. were war criminals and also deserve to be tried.)

Simon has already limited his outrage to this appointment. He has indicated, like Ann, that he has no problem with the president committing war crimes.

machine said...

Repubs in the Senate refused to confirm anyone for the position, regardless of qualifications, instead of amending or repealing the law...unprecedented obstruction/nullification...

President Obama pushed back finally...

Go ahead...fight for the bankers...

Freder Frederson said...

John Warner D-VA

When did John Warner switch parties?

edutcher said...

Simon said...

"This is dereliction of duty."

Same question for you as for Bender—what is it, precisely, that you want them to do?


The I word ring a bell? Maybe hold all his appointments for the rest of the year?

If the Constitution is the supreme law of the land, he's certainly violating it.

Start making the point that GodZero isn't running against a "do nothing Congress", he's running against the Constitution.

Matthew said...

"Repubs in the Senate refused to confirm anyone for the position, regardless of qualifications, instead of amending or repealing the law...unprecedented obstruction/nullification..."

Darn co-equal branches of government. It's almost like we're a Republic with complicated governing mechanisms designed to protect the rights of the political minority.

Hoosier Daddy said...

"... I was asking what crime Obama committed with this appointment..."

Well I guess if the Constitution says he needs Senate approval to make appointments and he did so w/o them then it seems obvious he violated the Constitution.

Didn't one of his Congressional Democrat buddies tell him he should just bypass Congress and do what he needs to do? Maybe he's taking that advice.

Matthew said...

"Go ahead...fight for the bankers..."

-- Bankers have nothing to do with whether or not the president can determine when the Senate is in recess. If you can determine that, you can also, by the way, determine when they are in session. That's... a bad idea.

MayBee said...


I disagree. Obama's actions vis-à-vis Libya may have been irregaular but they were legal.


It's legal if you decide bombing people with the intent of overturning political leadership isn't war, and the important Constitutional issue is whether the president has the authority to utter the word "war".

His war action was not unprecedented. I will grant you that.

This "recess" appointment is legal if you give the president the same power to redefine recess as you're giving him to define "war".

And now this action isn't unprecedented either.

Simon said...

Mick said...
"If Minor wasn't a Citizen, then there would have been no need for the Case--non citizens can't vote"

Actually, the Court specifically rejects that point (see Minor, 88 U.S., at 177 ("citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas" (emphasis added))), but we won't waste space here rehashing a point argued and rejected—this comment eviscerates your theory that the citizenship question is holding rather than dicta.

Freder Frederson said...

Well I guess if the Constitution says he needs Senate approval to make appointments and he did so w/o them then it seems obvious he violated the Constitution.

So you think the recess approval process itself is unconstitutional and constitutes a high crime or misdemeanor? Funny, I don't remember this outrage from you when Bush was appointing clearly unsuitable people through recess appointments (e.g., John Bolton).

Matthew said...

"So you think the recess approval process itself is unconstitutional and constitutes a high crime or misdemeanor? Funny, I don't remember this outrage from you when Bush was appointing clearly unsuitable people through recess appointments (e.g., John Bolton)."

A recess appointment is perfectly legit. That's not what this was. Let's not use the wrong words, otherwise people might think that making an appointment when the Senate is in a pro forma session (and even voting on things!) is the same as when the Senate is in recess. Which would be bad.

MayBee said...

Repubs in the Senate refused to confirm anyone for the position, regardless of qualifications, instead of amending or repealing the law...unprecedented obstruction/nullification..."

When Reid and Obama realized the GOP was using the very frustrating but legal tactic of holding up the appointment because they didn't like the content of the law, did Reid or Obama consider working with the Republicans to amend the law?

That would have provided an opportunity to legally move the appointment through, no?

Scott M said...

Funny, I don't remember this outrage from you when Bush was appointing clearly unsuitable people through recess appointments (e.g., John Bolton).

The only possible way you could back this up is if you're keeping a matrix of bloggers here and their points of view. Are you doing this on Hoosier, Freder?

Simon said...

MayBee said...
"It's legal if you decide bombing people with the intent of overturning political leadership isn't war, and the important Constitutional issue is whether the president has the authority to utter the word 'war'."

See my post to which I linked above.

machine said...
"Repubs in the Senate refused to confirm anyone for the position, regardless of qualifications, instead of amending or repealing the law...unprecedented obstruction/nullification..."

So what? It's not difficult to construct an argument that what the Senate has done vis-à-vis Obama's nominees is perfectly legitimate; it's hard to imagine an argument that the President should have unilateral authority to decide when he can bypass the Senate in making appointments, which is the sum and substance of Obama's claim here.

realwest said...

To: Freder Frederson It was Mark Warner, D-VA, my mistake; your mistake was not going to the link I provided.
So its ok with you if a DEM Senator calls the DEM controlled Senate into session and noted Presidential Scholar Obama IGNORES IT AND the U.S. CONSTITUTION and makes his recess appointments anyway?

machine said...

When the White House wants to make recess appointments, congressional Republicans respond, “You can’t do that; we are in session.” And this morning, when James Clyburn wants to say a few words from the House floor, congressional Republicans respond, “You can’t do that; we’re not in session.”

Pastafarian said...

casey said: "Precedent matters. We'll see how much the Democrats like it when President Gingrich fills the 12th, 13th and 14th Circuits with recess appointments at 3AM some night, claiming that since the Senate had gone home for the night they were "effectively in recess.""

Here's what will happen, casey: The Democrats will begin impeachment proceedings against President Gingrich/Romney/Santorum immediately.

And you and several other people will point out the inconsistency in comments sections like this one; and about 2% of the public will even know about the objection, and only half of them will care.

And Freder and machine will applaud the impeachment, and they'll indignantly counter your assertions of hypocrisy with "Cite?!". So you might want to bookmark this page for future reference; but it won't matter, after you link back to this thread, they'll move on to the next one and start calling you a racist and a homophobe.

Matthew said...

"When the White House wants to make recess appointments, congressional Republicans respond, “You can’t do that; we are in session.” And this morning, when James Clyburn wants to say a few words from the *--HOUSE--* floor, congressional Republicans respond, “You can’t do that; we’re not in session.”"

Shall we talk about Senate Mouse and House Mouse?

MayBee said...

I did read your linked post, Simon. That's what I'm responding to. And reading your comments, I seem to have company in my opinion of your opinion.

Scott M said...

Here's what will happen, casey: The Democrats will begin impeachment proceedings against President Gingrich/Romney/Santorum immediately.

Not if they are in the minority in both houses.

bbkingfish said...

OMG. The GOP is worried about the Constitution today. It must be Friday.

This is a pure political play by Obama, and a good one at that.

He's giving the Republicans a Hobson's Choice: They either can let Barry have his way, or spend the election year explaining to the American people why it's important that the financial plutocracy have no oversight.

My prediction is that, after a few weeks of the obligatory caterwaulling, they'll quietly cave. You see, the Republicans in Congress want to get re-elected just as much as Obama does.

Matthew said...

"They either can let Barry have his way, or spend the election year explaining to the American people why it's important that the financial plutocracy have no oversight."

False choices are the best choices!

Simon said...

By the way, I did criticize Bush's abuse of the recess appointment power, and not after the fact but when he actually did it in 2007.

This, however, is different.

Bush's use of recess appointments was unconstitutional in my view, and I have argued that position in some detail, but one can at least say of it that it was within the bounds of the prevailing use of the clause over the last century, which has run contrary to my view. And similarly, Obama making a recess appointment to the vacant position of the Director of the United States Consumer Financial Protection Bureau is unconstitutional under my reading of the clause, but, like Bush's use of it, would be constitutional under the prevailing use of the 20th century. The problem here, the compounding factor not present in the Bush appointments, is that Obama hasn't made a recess appointment because the Senate isn't in recess. Thus, even if a recess appointment to Cordray's billet would be constitutional in the abstract, the timing makes this appointment plainly unconstitutional. And if one accepts the correct view of the recess appointments clause, which holds that a recess appointment to Cordray's billet is unconstitutional, then Obama's actions are doubly unconstitutional.

Simon said...

MayBee said...
"I did read your linked post, Simon. That's what I'm responding to. And reading your comments, I seem to have company in my opinion of your opinion."

Quod scripsi scripsi. And with respect, your reply wasn't really a response; as I took you to be pointing out, the key issue would be the original meaning of "war," and as my post explains, it's opaque; at very least, it doesn't indict Obama's action. That sends us looking to precedent, and as my post also explains, we see a long and consistent line of interpretation that supports Obama's action.


edutcher said...
"Maybe hold all his appointments for the rest of the year?"

So you're faulting them for failing to do something that is, by definition, can only take place in the future? It's dereliction of duty that they haven't done something that can't yet be done? The Senate is in recess. They can't hold anything.

"If the Constitution is the supreme law of the land, he's certainly violating it."

I enthusiastically agree. I might have thought that I'd made that pretty clear.

"Start making the point that GodZero isn't running against a 'do nothing Congress,' he's running against the Constitution."

It seems to me that they're doing that. So perhaps I should be clearer: What is it, precisely, that you want them to do that they can do right now but aren't?

Matthew said...

"The Senate is in recess."

-- Are they now? ;)

Christopher in MA said...

"The only possible way you could back this up is if you're keeping a matrix of bloggers. . ."

He isn't, Scott. The "Bush did it too!! John Bolton!! ELEVENTY!!!" is the spin du jour of the lefty hacks. Freder's just repeating talking points.

garage mahal said...

So if the Senate isn't in recess, we can drag Cordray in today to the floor, and get an up or down vote? No?

Matthew said...

"So if the Senate isn't in recess, we can drag Cordray in today to the floor, and get an up or down vote? No?"

Ask Harry Reid to schedule a vote, which may or may not be avoided through legislative tactics. You know, the way the game is played.

Jay said...

or spend the election year explaining to the American people why it's important that the financial plutocracy have no oversight.


Yeah, becasue the SEC and IRS, not to mention DOJ are all like out of commission.

The myopia of you silly leftists is staggering.

Crunchy Frog said...

HOWARD JOHNSON IS RIGHT!!!

Actually that would be Gabby Johnson, he of the authentic frontier jibberish and all that.

Howard Johnson was speaker of the phrase.

edutcher said...

Simon said...

"Maybe hold all his appointments for the rest of the year?"

So you're faulting them for failing to do something that is, by definition, can only take place in the future? It's dereliction of duty that they haven't done something that can't yet be done? The Senate is in recess.


No, dear, it's not. That's what part of the fuss is about.

And I'm faulting them for not stating their intent now and promising to make it an issue for the rest of the year and to hold their friends across the aisle accountable for once.

"Start making the point that GodZero isn't running against a 'do nothing Congress,' he's running against the Constitution."

It seems to me that they're doing that. So perhaps I should be clearer: What is it, precisely, that you want them to do that they can do right now but aren't?


If they have, it's so faint nobody can hear it.

If Dubya were doing this, we wouldn't even be having this discussion.

Freder Frederson said...

It's not difficult to construct an argument that what the Senate has done vis-à-vis Obama's nominees is perfectly legitimate;

Really, and what would that argument be? And before you make it, remember you are an originalist. It is kind of disingenuous to read the advice and consent clause, subject to original intent, and believe that the senate can use that power, not to object to a particular nominee, but the legislation underlying the appointment.

Jay said...

unprecedented obstruction/nullification..."


Hysterical.

I think you should ask Janice Rogers Brown all about it.

Jay said...

Freder Frederson said...

Funny, I don't remember this outrage from you when Bush was appointing clearly unsuitable people through recess appointments


Um, this isn't a recess appointment.

The lies you need to tell yourself in order to be a leftist are endless.

Freder Frederson said...

The Senate is in recess. They can't hold anything.

I thought your argument was that the Senate isn't in recess. Now you are really confusing, are they in recess or not?

MayBee said...

t's opaque; at very least, it doesn't indict Obama's action.

Yes, I understood from your post that's how you read it.

Jay said...

Isn't this cute?

"I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made," he said on the Senate floor in 2008, as Democrats blocked a potential recess appointment of Steven Bradbury to be the assistant attorney general for the Justice Department's Office of Legal Counsel in the Bush administration.

No matter, hypocrisy is a virtue for these people.

unprecedented obstruction/nullification...!!!

GIGGLE.

Freder Frederson said...

the compounding factor not present in the Bush appointments, is that Obama hasn't made a recess appointment because the Senate isn't in recess.

The very next post:

The Senate is in recess. They can't hold anything.

Simon, you are slipping my friend. You generally wait for a gap of least a dozen posts before you contradict yourself.

You are making my job way too easy!

Matthew said...

Freder - Language slippage happens when people abuse languages. The Senate is in recess, meaning it is meeting sporadically in pro-forma sessions. It is not in recess, the technical meaning of having, you know, adjourned or whatever, for recess.

This is what happens when people are sloppy with word choice.

WV - logicids -- the murder of logics.

Simon said...

*sigh*

Do I have to put a winky face next to sarcasm every single time? I do credit the commentariat here with an ounce or two of wit.

Simon said...

Garage:
"So if the Senate isn't in recess, we can drag Cordray in today to the floor, and get an up or down vote? No?"

Do you have a unanimous consent resolution under which the nomination can be considered?

Listen, the Senate is never more than a few hours from being able to assemble, even when it is recessed. The recess appointments clause is an exception to the normal appointments process, and if we look at the clause purposively rather than textually, as the supporters of presidential authority tend to urge, that analysis would contract, not expand, Presidential authority. For much of our history, the distinction between recess and adjournment would have been simple and clear: "out of town" and "in town but not meeting," respectively. Travel, especially in the early republic, was difficult and time consuming, and the purpose of the recess appointment clause was't to allow Presidents to get around advise and consent, but to ensure that key posts would not remain vacant simply because the Senate out of town and thus unable to consider nominations. But that situation never obtains any more; the Senate is never more than a few hours from being able to convene. (How long is the flight from the west coast to DC? About six hours?) So if folks want to bail out of the text, it strikes me that a more purposivistic approach only gets you from the frying pan into the fire.

bbkingfish said...

"The myopia of you silly leftists is staggering"

Gee. That's a really compelling counter-argument. Should convince the under-12yo set.

"My prediction is that, after a few weeks of the obligatory caterwaulling, they'll quietly cave. You see, the Republicans in Congress want to get re-elected just as much as Obama does."

That's my prediction. What's yours?

Mick said...
This comment has been removed by the author.
Scott M said...

So if the Senate isn't in recess, we can drag Cordray in today to the floor, and get an up or down vote? No?

That depends on how many senators would end up fleeing to Virginia to avoid the vote.

Mick said...

Simon said,

"Mick said...
"If Minor wasn't a Citizen, then there would have been no need for the Case--non citizens can't vote"

Actually, the Court specifically rejects that point (see Minor, 88 U.S., at 177 ("citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas" (emphasis added))), but we won't waste space here rehashing a point argued and rejected—this comment eviscerates your theory that the citizenship question is holding rather than dicta.""



And of course, as Obots are want to do, you are arguing semantics, parsing words and trying to present the exception as the rule. If a NON US Citizen brought the same case it WOULD NOT HAVE BEEN HEARD. As usual, Obots try to claim that the sky is Green. Waite said HIMSELF that if V. Minor was not a US Citizen then there WAS NO CASE, and proceeded to construe A2S1C5 to ascertain her Citizenship:

"Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record."

That's about as plain as it can be. Just like natural born Citizens are born in the US of US Citizen parents.

You are sent here to lie and obfuscate, but others can see that you are wrong--- I rely on educating them, not you.

Joe Schmoe said...

"They either can let Barry have his way, or spend the election year explaining to the American people why it's important that the financial plutocracy have no oversight."

False choices are the best choices!


I don't think Evil Knievel could've spanned such a yawning chasm of illogic as deftly as bbkingfish did. But, whatever you need to do to convince yourself that Barry is some sort of political mastermind, I guess.

Scott M said...

Actually that would be Gabby Johnson, he of the authentic frontier jibberish and all that.

Howard Johnson was speaker of the phrase.


Point of order, sir. They agreed with Gabby with a sound, close to what "reverend" would sound like, but utterly irreducible to text.

Howard Johnson: "Dr. Samuel Johnson's right about Olson Johnson being right. And I'm not giving up my ice cream parlor, that I built with these two hands, for nothing or nobody."
Sam Johnson: Howard Johnson is right!

Scott M said...

I do credit the commentariat here with an ounce or two of wit.

You will rue the day...

Go on. Start ruing.

wildswan said...

These appointees are the weak link in this abuse of power. It should be made plain to them that they will be held accountable. Hearings by the House, etc. Quotes from Obama and Harry Reid in 2006 on recess appointments read to the appointees. Ask them: What do you think about these quotes and the legality of your appointment? A record created. Calls to the appointees to resign rather than participate in the grab

(which is going to fail - he will never truly grab anymore than he will be bipartisan - last time he was Messiah, this time he is Dear Leader - he is neither, he is more the Wizard of Oz.)

Freder Frederson said...

Do I have to put a winky face next to sarcasm every single time?

As sarcasm, your statement doesn't make sense.

Jay said...

bbkingfish said...

Gee. That's a really compelling counter-argument


Um, nobody said that was a or the counter-argument.

Idiot.

wildswan said...

Look, Obama wants Congress to go off on a wild goose chase about impeaching him because he is about to lose the election. He will lose the election before he could be impeached, so what is the point for Republicans in trying to impeach him also?

Obama's point, the reason he is doing this, is that a Congress working on impeachment won't be doing the people's work; it'll look foolish.
So the Republicans must make it plain to any collaborators that there will be a reckoning and go on working to elect a Republican. Don't be a pawn in his game.

Jay said...

bbkingfish said...

spend the election year explaining to the American people why it's important that the financial plutocracy have no oversight."


Right. Because in an era where 40,000 new laws just went into effect this month, Dodd-Frank is not understandle by the Agencies trying to implement it, and the SEC, IRS, and DOJ receive increased funding, while the President delivering that message collects more donations from Wall Street than any candidate for President in the history of America, I think you have a winning message with no oversight.


Really. I do.

PS, I think Obama should use the term financial plutocracy at his next $10,000 a plate Wall Street fundraiser. Don't you?

Freder Frederson said...

Because in an era where 40,000 new laws just went into effect this month

As usual, you are being completely dishonest. The 40,000 laws (and apparently whoever came up with the figure, is lumping laws and regulations together) you are referring to are new state laws. If you don't want the States passing new laws, seems like you would favor a strong Federal Government with expansive regulatory authority, rather than leave it up to the states to pass disparate and often contradictory laws.

Simon said...

No, Mick, today the court would have said "we assume without deciding that Minor is a citizen," and would have rejected the suit on the narrower ground that even if she is a citizen she doesn't have the right she claims has been violated. And that's what Minor essentially does. It says that there's no right to the franchise inherent in citizenship—thus Minor loses her case. If you don't understand why the discussion of citizenship is therefore dicta, you need to get a better understanding of what terms like dicta and holding mean. If "Waite said HIMSELF that if V. Minor was not a US Citizen then there WAS NO CASE," tell us the page of the U.S. Reports on which we will find that statement, or tell us the exact words that he used.

"You are sent here to lie and obfuscate, but others can see that you are wrong--- I rely on educating them, not you."

Now there's a classic case of projection. By all means, please continue to tilt at windmills, but don't use arguments that have alerady ben debunked. All it does is prove that you have nothing to support your case.

paminwi said...

machine at 11:57am: "When the White House wants to make recess appointments, congressional Republicans respond, “You can’t do that; we are in session.” And this morning, when James Clyburn wants to say a few words from the House floor, congressional Republicans respond, “You can’t do that; we’re not in session.”"

I am not a lawyer, a constitutional law professor but really? These appointments come through the SENATE which is NOT in recess and James Clyburn is a member of the HOUSE OF REPRESENTATIVES and they ARE in recess. Do you understand there are TWO parts of the legislative branch and they each have their own responsibilities as stated in the constitution?

Revenant said...

but it just seems quite rich for Yoo, a servile lackey to thugs, whose specious legal "reasoning" was intended soley to provide an excuse (and cover) for the crimes committed by the Bush Administration, to offer such phony outrage over a fucking recess appointment.

It seems "rich" to you because you assume he didn't actually believe in the reasoning he used -- that he was just a "lackey". His endorsement of Obama's single-handed declaration of war on Libya proves you wrong on that point.

There is nothing hypocritical or inconsistent about thinking the President (a) has the power to conduct wars as he sees fit but (b) has NO power to decide when the Senate is in recess.

Jay said...

Freder Frederson said...

As usual, you are being completely dishonest.


Er, given what I said was factually correct, no I am not.

Nor could you point to any instance where I've been "dishonest"
Ever.

The 40,000 laws (and apparently whoever came up with the figure, is lumping laws and regulations together) you are referring to are new state laws.

Who said they weren't?

f you don't want the States passing new laws, seems like you would favor a strong Federal Government with expansive regulatory authority,

Alternatively, I favor less government at the federal and state level.

Duh.

Maguro said...

Lord, another thread full of comments arguing with the birther dude. You'd think people would've learned by now...

Simon said...

Maguro, if everyone would agree to ignore him, that would be great. If his bad faith comments were deleted that would be fine. But if he's here and people are engaging with him, he shouldn't go unchallenged. It's worth pointing out how utterly specious his arguments are.

Phil 3:14 said...

OBAMA: A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility…” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

bbkingfish said...

"Um, nobody said that was a or the counter-argument.

Idiot."

Once again, long on insults, short on
original thinking.

I'm starting to notice a trend.

Jose_K said...

Obama is wrong, but Yoo is the wrong messenger.

Ad hominem fallacy

Jose_K said...

As usual, you are being completely dishonest. The 40,000 laws (and apparently whoever came up with the figure...and thanks to sunshine provision amny are simply reenactement of previous laws

Eric said...

Of course impeachment is the proper response to this. The Republicans don't want to do it because they're afraid of the political consequences. But they should do it, or be prepared to surrender the Senate's advice and consent role forever.

Maybe they figure it's likely Obama won't be reelected, and the new Republican president can use this new, unconstitutional power to make "recess" appointments for a wide range of offices. If so they ought to be replaced by the voters.

Jay said...

bbkingfish said...

Once again, long on insults, short on
original thinking.


Keep flailing.

SDN said...

Maybee, Simon, et al:

The reason no one is mentioning impeachment is that no one even imagines there won't be 34 Copperheads in the Senate who will refuse to confirm it. That makes it if not useless, irrelevant.

And having a President ignore both the Constitution and even the courts because he knows impeachment won't be confirmed is hardly unique to Obama. Abraham Lincoln did it during the Civil War, and on a far more fundamental doctrine, habeas corpus.

Simon said...

SDN,
Abraham Lincoln was locked in an existential struggle, a war for the survival of the union which would also determine the fates of enslaved millions. Obama's ticked off that the Senate won't confirm a nominee. There's a bit of a difference.

The Senate won't remove Obama, but I don't know if that's a strong enough argument against impeachment in this case.

donald said...

I find it awesome that constitutional law professors hold in contempt the basic rules of our country. Rules, that million's have sworn an oath to protect.

It'd be nice if you fuckers could get a nice aneuryism going.

wildswan said...

Yes, Obama disregarded the Constitution. But he has to be impeached, if at all, on a clear, major issue. This recess appointment issue is somewhat remote. The main thing, the better thing, is that he loses the election.

Simon said...

Wildswan, the structural constitution is a clear major issue. All that rights stuff—it's paper. It's paper. It's nothing. The soviet Constitution had some great-sounding rights in there, but they weren't worth shit; why not? Structure. The real constitutional guarantor of liberty is structure, not rights. Rights are rights, but liberty is structure.