Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

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The Very Definition of Tyranny

federalIt is a close contest which recent assertion of executive authority crowns the rest, but the Administration’s potential skirting of the Senate’s treaty power in negotiating an international agreement on climate change ranks high in the running. The Constitution’s explicit partnering of the Presidency and the Senate in binding the nation in global agreements, combined with the two-thirds majority needed in the upper chamber of Congress to affirm them, points to the unique dangers of cutting one institution out of the process. President Obama is not the first to do this.

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The Whip and the Sting of the Law

Richard Reinsch's post “Return to the Barbaric” leads me to think that there is indeed something different about the use of the executive power in the Obama Administration, though FDR set a new model–closing the banks and barring people from access to their savings, on the strength of nothing but the Trading with the Enemy Act of 1917. FDR also traded destroyers for naval bases, when his Attorney General, Robert Jackson, told him that those destroyers were not his property to sell or trade.  But as Reinsch and others have said, cashiering the president of GM, rewriting the law on Obamacare,…

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The Case Against CIA [REDACTED] John [REDACTED]

CIA

I used to think I wanted the job security of the tenured professor but now I think what I really want is to run the CIA. Nothing, but nothing, gets those guys fired. John Brennan, for one, has retained his position after presiding over a formal, frontal assault on a coordinate branch of government. He has kept it after further mocking the principle of the separation of powers by redacting a Senate report on CIA interrogation practices so thoroughly that even already public material is blotted out.

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Entropy in the Executive

The Massachusetts Constitution’s Declaration of Rights says, in its conclusion, that:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

That constitution, providing for a lower house, a Senate, and a governor armed with a (qualified) veto was, in many ways, the model for the federal Constitution drafted a few years later.

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Impeachment Won’t Stop the Debasement of Our Government

Proper as it is to dismiss President Obama’s daring his opponents to impeach him as childish posturing for his political base – secure as he is that the Senate’s Democratic majority would prevent his conviction regardless of any Constitutional evidence brought against him – nevertheless we must note that Obama risks disaster, as do children who play with matches in the presence of gasoline. His flaunting of impeachment sets up the alternative between the unfettered power of any president supported by a Senate majority and, on the other hand, the unfettered power of any Congressional majority coherent enough to remove presidents politically unpalatable to it.

Either way, Obama is opening the door to the partisan erasure of the distinction between executive and legislative power.

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The Road to Lawlessness

court 2There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.

After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.

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James MacGregor Burns’ Transformative Constitutionalism

Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.

Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.

The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.

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Bodychecking the Administrative State

It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

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Noel Canning, Liberty, and the Coase Theorem

Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence.  And it is the reasoning, not the result, that may shape our constitutional future.  Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution.  Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.

The Recess Appointment Clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Breyer’s majority opinion permitted the President to make recess appointments during intrasession recesses, not only at the end of the congressional session, and to fill vacancies that happen at any time, not only vacancies that happen during recesses.  Those holdings provide the President with potentially substantial recess appointments power, assuming that the Senate in fact takes intrasession recesses.

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