Category: U.S. Constitution

Categories
national politics & policies U.S. Constitution

Power-​Grabbing In Recess?

A recent court decision has slowed — dare we hope, stopped? — the erosion of an important check on executive power. This is the constitutional provision that the president’s appointment of certain high officials be subject to Senate approval.

Trevor Burrus of the Cato Institute reminds us that presidents have sought to circumvent the advise and consent requirement since the days of Warren Harding.

The Constitution enables the president to make appointments when the Senate is in recess, i.e., between sessions. (In the days of the Founders, that hiatus lasted many months.) Starting with Harding, though, presidents began making appointments during so-​called intra-​session “recesses,” or breaks within a regular session. These “recesses” were as brief as ten days by the time we got to Clinton and Bush II.

In 2007, the Senate began conducting brief pro forma sessions within these “recesses” to prevent appointments from being made without its consent. Last year, President Obama counter-​moved by declaring that he had authority to determine what constitutes a session. On this basis he made several appointments sans the Senate’s consent.

The DC Court of Appeals has now ruled the maneuver unconstitutional. “The power of a written constitution lies in its words,” writes Chief Judge David Sentelle. “When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.”

Do presidents sometimes find the Constitution inconvenient? Too bad.

This is Common Sense. I’m Paul Jacob.

Categories
free trade & free markets general freedom U.S. Constitution

Equally Unequal

Two court cases come to our attention, courtesy of Cato’s Ilya Shapiro. Both involve the favoring of members of one group over another.

The Sixth Circuit ruled that a voter-​approved amendment to the Michigan state constitution outlawing racial preferences in college admissions would violate the U.S. Constitution’s equal protection clause. The amendment states in part that Michigan public colleges and universities shall “not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.…”

In his dissent, Judge Richard Griffin writes: “The post-​Civil War amendment that guarantees equal protection to persons of all races has now been construed as barring a state from prohibiting discrimination on the basis of race.” Shapiro calls the decision Orwellian.

The other case involves California law banning sellers of eyewear who are not state-​licensed optometrists and ophthalmologists from conducting eye exams and selling glasses at the same place of business. The law prevents national eyewear chains from competing effectively in California (since customers prefer to get their glasses and eye exams in one shop).

Cato joins an amicus brief urging the Supreme Court to take up the California case. Shapiro also says that because there are two conflicting lower-​court decisions on the Michigan question, the Supreme Court is likely to add that case to its docket.

Let’s hope all further rulings are based on a clear-​sighted respect for equal rights under the law.

This is Common Sense. I’m Paul Jacob.

Categories
initiative, referendum, and recall Tenth Amendment federalism U.S. Constitution

Put Federalism In Your Pipe

Though centralized power, coalescing in Washington, D.C., has increased in recent years as a bipartisan effort to grow government, it’s worth noting that true federalism is not dead.

Take one of America’s longest-​running atrocities, the “War on Drugs.” The American people are rebelling, leaving their political representatives, state and national, in the back seat. The recently successful marijuana legalization initiatives in Colorado and Washington State are already taking effect, thus marking a major retreat in the once-​popular, now increasingly hopeless war.

Last Friday, The Seattle Times reported that King County has dismissed 175 cases involving people over 21 and possession of one ounce of cannabis or less. “Although the effective date of I‑502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month,” explained the county prosecutor.

A smaller number were dismissed in Pierce County, with its prosecutor saying that, “as a practical matter, I don’t think you could sell a simple marijuana case to a jury after this initiative passed.”

In Colorado, a major drug task force has been disbanded. The excuse is lack of funds, but I suspect that Colorado officials had read the writing on the wall, and it wasn’t “Mene, Mene, Tekel, u‑Pharsin” — it was the wording of Colorado’s Initiative 64.

The federales don’t have the manpower to enforce federal law in the 50 states, or the constitutional authority to dictate state enforcement of either federal law much less the nature of state criminal laws.

Courtesy of the citizen initiative, we could be seeing the next major devolution of power away from the nation’s capital.

This is Common Sense. I’m Paul Jacob.

Categories
U.S. Constitution

Romney-​Biden 2012?

The most interesting presidential election in U.S. history may have been the fourth, wherein Thomas Jefferson won. Sort of. How Jefferson got to be president may be relevant in this election, which is now so close that some wonder what would happen if there were an Electoral College stalemate, 269 votes for Romney and 269 for Obama. (Remember, it’s the electors who count, not the popular vote.)

In 1800, because of a constitutional glitch, Jefferson and his running mate Aaron Burr got the same number of electors, and the whole issue went to the House, which the Federalists still controlled, and it took a lot of negotiations and in-​fighting to put Jefferson in office as the president.

The 12th Amendment settled the VP glitch, and cooked up a solution to the possibility of an Electoral College tie, as well. It’s never been used.

If, this Tuesday, the distribution of the popular vote forces the Electoral College into stalemate, the 12th Amendment would kick in, and the House would vote in a peculiar fashion (one vote per state), to select the President — Romney, considering the complexion of that body. Then the Senate would select the Vice President — Biden, considering the complexion of that body.

A wild finish, but it could get even wilder. In 1972, an elector jumped ship, voting for the Libertarian Party’s John Hospers/​Tonie Nathan ticket (making Nathan the first woman to receive an electoral vote). Even against state laws forbidding it, a similar jump for Libertarian Gary Johnson or the Green Party’s Jill Stein — or Ron Paul — might complicate further. Or simplify.

Happy voting.

This is Common Sense. I’m Paul Jacob.

Categories
U.S. Constitution

Setting the Policy

Vice President Joe Biden got the big headlines over the weekend, with his Meet the Press comments on same-​sex marriage. He was quoted everywhere. There was much talk of how this fit (or didn’t fit) with the administration’s official ideology:

I am absolutely comfortable with the fact that men marrying men, women marrying women, and heterosexual men and women marrying one another are entitled to the same exact rights — all the civil rights, all the civil liberties.

But immediately prior to the above, he said this: “I am vice president of the United States of America; the president sets the policy.”Joe Biden on gay marriage ... and the presidency

And that’s where I begin to wonder.

It could be he’s only saying that he’s second banana in the administration (if even that high in the banana tree), and that he can’t speak for the top banana.

But too often, these days, when people talk about the president “setting the policy” or “making decisions” (remember George W. Bush’s self-​description as “The Decider”?) they seem to suggest something approaching a dictatorship by the president. What the head man says goes.

That’s what Biden’s statement does more than imply.

According to the Constitution, on the other hand, Congress sets policy. Not the president. The legislative power is concentrated in the House and the Senate.

Biden’s kind of loose talk is an artifact of what’s called the “imperial presidency.” Leadership (and followership) of both parties have pushed it. It has a long history.

I don’t know about you, but it gives me a lot more concern than the idea of two dudes marrying.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary U.S. Constitution

Liar in Chief

When you hear the word “unprecedented,” reach for your … dictionary.

As I’ve noted before, the word no longer sports its traditional meaning.

On Monday, President Barack Obama commented on the possibility that the Supreme Court would strike down the 111th Congress’s Patient Protection and Affordable Care Act by saying that such a move would constitute “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Yesterday, a three-​judge panel of the Fifth Circuit Court of Appeals ordered the Justice Department to clarify the president’s statement. By Thursday.

Does the president — who happens to have taught constitutional law — really think the courts do not have the power to review and disqualify law on the basis of constitutionality?

As reported on CBS News’s Crossroads site, “Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional.”

I’d like to take a moment and thank the president … for help making the Constitution a live topic of conversation these days. But there’s something worrisome here. The president knows better. This is even worse than, say, Newt Gingrich totally messing up his comments on “activist judges,” making hash of law and interpretation. This is a president with a Harvard-​established reputation on the subject saying something patently untrue.

He could only have been “fibbing.” And hoping to get away with it … apparently on the supposition that Americans are so miseducated we wouldn’t even notice.

We noticed.

This is Common Sense. I’m Paul Jacob.