Friday, January 6, 2012

More on the potential Constitutional crisis

I think the best-case scenario would be a Supreme Court ruling in favor of the Prez (and I think that's the likely outcome) prior to the elections.  It would a major slap in the face to the Republicans who are seeking to block the ability of the President to conduct the basic functions of the office via procedural subterfuge.  However,  I expect that the ruling would actually come after the elections, because the conservatives on the SCOTUS wouldn't want to give the Prez this kind of victory.

Obama appointments could trigger court test case
Representing the "blatant abuse of power" side, we have (unsurprisingly) the Wall Street Journal, Investors Business Daily, and former Reagan attorney general Ed Meese (from the Heritage Foundation, naturally):
Obama’s recess appointments are unconstitutional
Obama's Reckless Recess Ploy 
Obama's Recess Appointments: An Impeachable Offense?
"Now we have the makings of a banana republic, where the rule of clearly written constitutional law is compromised by a ruler's subjective whim." That's a bit over the top, I think.

Representing the "Senate is blocking Obama's right to appoint people to run the country" side, we have the Huffington Post's Adam Levin, the New York Times with Harvard's Lawrence Tribe, and The New Republic's Jonathan Cohn.

Is Obama's Cordray Appointment Unprecedented? Not By a Longshot 
Games and Gimmicks in the Senate
"In this case, the administration’s focus on the gimmicky nature of pro forma sessions is best understood as one among several factors that combine to present unconstitutional interference with the president’s irreducible power and duty." Seems much more reasonable to me.

Were the Recess Appointments Constitutional? The Case for Yes
"The administration goes on to point out that Obama did not use the recess appointment power to fill every vacancy. He did so only for the new consumer board and the NLRB because, without the appointments, those particular agencies simply could not operate. Here’s what White House Counsel Kathy Ruemmler said:
"These appointees were necessary for these government agencies to function. The agencies were created to enforce duly passed laws, the Dodd-Frank Act and the National Labor Relations Act. The president has a constitutional obligation to enforce the laws and to make sure that personnel necessary to enforce the laws are in place. That's the whole point of the recess appointment clause, to make it possible for the president to do that."
I think the Constitution wins when the President wins this one.

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