Archive for the 'Law' Category
Posted by TM Lutas on 19th September 2016 (All posts by TM Lutas)
I believe this is a common sense proposition. You should never define a military force without it having a purpose.
You would think that there would be nobody on the other side of this question. Who would do such a crazy thing as to define a military force, but just have them milling around without a purpose or a mission? It’s ridiculous. Or is it?
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
What is the purpose of the military force called the unorganized militia? What is their mission? What is its proper scope of activity? I think that even people who generally support the 2nd amendment do not have a consensus and certainly have not thought much about it.
As an aside, it’s straight up sexism for female citizens to be included in only one of these two forces. A smart Republican would introduce legislation to fix that.
Posted in Law, Military Affairs, USA | 15 Comments »
Posted by Jonathan on 13th September 2016 (All posts by Jonathan)
Seems like a good idea:
Don’t you think the Democratic National Committee, Vice President Biden, and Senator Tim Kaine, the Democratic Party’s candidate for VP, each already have on file a full-length memorandum on these questions? Maybe the mainstream media could “obtain” copies for the rest of us?
Would not this make a suitable—if not outstanding—law journal mini-symposium issue: “The Hillary Clinton Candidacy: The Legal Issues”? Any takers? An impromptu mini-symposium could be organized, held, and published on line prior to the November election, particularly where all articles are kept to a maximum of 7 pages (footnotes included).
The “natural born citizen” issue generated several timely full-length articles. Surely there is time and means to do this too. The on line supplements to the primary student-edited print journals are particularly well suited for this task. Any takers?
Posted in Elections, Law, Politics | 1 Comment »
Posted by Jonathan on 6th September 2016 (All posts by Jonathan)
Trump is the first presidential candidate of my lifetime who has been regularly criticized for making public statements conforming to rule of law principles. Part of the confusion in the minds of his many critics arises from simple confirmation bias. But another part comes from an inability of his critics to plainly discuss what they mean by the rule of law. No doubt much of it is simply disagreement with the man’s over-the-top style and his political orientation—but normal disagreement about political principles, absent clear on point evidence, ought not lead to claims that one’s opponent is a threat to the rule of law.
So what is the “rule of law”? Unfortunately, there is no simple answer to that query. I well remember my graduation from law school. A thoughtful fellow behind me said, as we waited on line to receive our degrees: “Seth, after three years of law school, as far as I can tell, the rule of law is what a prosecutor says is at risk if he loses a criminal case heard by a jury.” That answer of convenience will not do. Other people fill in the rule of law with all good and noble principles: the rule of law is human rights, separation of powers, democracy, etc. This approach is not helpful either, for even if the virtues of these other principles were contestable, their content and optimal scope remains deeply contested.
Without attempting to fully define the rule of law, I will put forward some minimal necessary (but not sufficient) conditions associated with the “rule of law”. A person’s conduct is inconsistent with the rule of law, if he knowingly disobeys established law without seeking a change in the law from the legislature (including referenda where permitted by law) or validation of his specific conduct from the courts. On the other hand, a person’s conduct is consistent with the rule of law, if he obeys the judicial orders of lawfully constituted courts, and if he obeys the rules associated with the conduct of litigation in those courts.*
Read the rest.
Posted in Law, Political Philosophy, Politics, Trump | 5 Comments »
Posted by TM Lutas on 5th September 2016 (All posts by TM Lutas)
Immigration is defined in law in a pretty straightforward manner. If you cross US borders, you are defined as an immigrant unless you fit into one of twenty two different non-immigrant categories defined in 8USC§1101(a)(15). Each letter subsection of that section corresponds to the more familiar letter codes for non-immigrant visas. Most people are not familiar with all of them but the definitions aren’t particularly complex or confusing. If you’re seeking to cross the border as an immigrant, there are several sections under 8USC Subchapter II that apply. If you are a citizen, you’ve got to have a passport to leave or return.
Neither side in the immigration debate seems to want to lay out, specifically, what sections of the law they wish to change and how exactly they want to change it. Are there extremist imams getting R visas and endangering the safety of americans (mostly muslims)? That’s not the way we talk about immigration. Why,exactly, is the secretary of Labor involved in the issuance of visas?
We’d be a lot better off if discussion of the law had a lot more law in it.
Posted in Immigration, Law | 6 Comments »
Posted by Jonathan on 19th August 2016 (All posts by Jonathan)
As to the Article XII argument …. In a peer reviewed journal article, Professor Somin wrote: “[T]he Privileges and Immunities Clause requires states to treat migrants from other states on par with their own citizens, thereby facilitating interstate mobility.” Somin cites U.S. Const. Art. IV, § 4. See Ilya Somin, Book Review, 28 Const. Comment. 303, 305 & n.5 (2012) (reviewing Michael Greve, The Upside-Down Constitution (2012)). But that’s not right: Article IV, Section 4 is the Guarantee Clause, not the Privileges and Immunities Clause. Now just to be clear: my point isn’t that both Trump and Somin are equally dopes. Rather my point is that anyone can miscite the Constitution, and we should be loathe to call someone “profoundly ignorant” just because they cite to the wrong article or the wrong clause. Anyone can make a mistake.
Read the whole thing.
Jonathan adds: It’s not just academia. The media, and in my (and probably your) experience Trump opponents in private conversation, apply different and much harsher standards to Trump than they do to Hillary. One of the current memes is that Trump isn’t stable enough to have his finger on the nuclear button. Yet Hillary, whose gross negligence made her and our secrets available to hostile foreign powers, and who appears literally to have sold out her country in exchange for donations to the Clinton Foundation, gets a pass.
Posted in Academia, Law, Politics, Rhetoric, Trump | 20 Comments »
Posted by David Foster on 11th August 2016 (All posts by David Foster)
Free speech…free expression generally…is under attack in America and throughout the Western world to a degree not seen in a long time. I think there are seven specific phenomena, incarnated in seven (partially-overlapping) categories of people, which are largely driving this attack, to wit:
The Thugs. As I pointed out in my recent post The United States of Weimar?, illegal actions against political opponents–ranging from theft of newspapers to direct assault and battery–have in recent decades become increasingly common on university campuses, and now are well on track to being normalized as aspects of national political campaigns.
The Assassins. These individuals go beyond the level of violence practiced by the Thugs, and make credible death threats…which they attempt to carry out…against those whose actions or believe they view as unacceptable. The majority of threats and attacks falling in this category have certainly been the doing of radical Muslims; however, some of the more extreme ‘environmentalist’ and ‘animal rights’ groups have also demonstrated Assassin tendencies. At present, however, it is those Assassins who are radical Muslims who have been most successful in inhibiting free expression. Four years in hiding for an American cartoonist.
The Wimps. It seems that among the younger generations in America, there are a disproportionate number of people whose ‘self-esteem’ has been raised to such lofty but brittle levels that they cannot stand any challenge to their belief systems. Hence they are eager to sacrifice their own freedom of speech, as well as that of others, on the altar of ‘safety’ from disturbing words and thoughts.
The Bureaucrats. Bureaucrats, especially in the universities but also increasingly in the private sector, are eager to provide the altars for the sacrifice of free speech, with Star Chamber proceedings and various forms of witch-burnings.
The Regulatory State. The vast expansion of Federal regulatory activities and authority enables a wide range of adverse actions to be taken against individuals without the checks and balances of normal judicial proceedings. Witness, for example, the IRS persecution of conservative-leaning organizations (possibly extended to pro-Israel organizations as well.) And the Bureaucrats in nominally-independent organizations are really often acting as agents and front men for the Regulatory State. (Consider the 2011 ‘Dear Colleague’ letter sent from the Department of Education to colleges and universities, regarding the handling of sexual assault allegations–which has had, the linked article argues, serious negative impact on free speech and due process.)
The Theoreticians. Various academics have developed the concept of ‘oppressive speech’ and have developed models which attempt to break down the distinction between speech and action. Since everyone agrees that actions must be regulated to some degree, this tends to pave the way for tightened regulation of speech. (I think the conflation of speech with action is particularly sellable to those who in their professional lives are Word People and/or Image People. To a farmer or a machinist or even an electrical engineer, the distinction between speech and action is pretty crisp. To a lawyer or an advertising person or to a professor (outside the hard sciences), maybe not so much. And the percentage of Word People and Image People in the overall population has grown greatly.)
The Fragility Feminists. Actually, the word ‘Feminists’ should probably be in quotes, because the argument these people are making is in many ways the direct opposite of that made by the original feminists. There is a significant movement, again especially on college campuses, asserting that women are such fragile flowers that they must be endlessly protected from words that might upset them. See the controversy over the name of the athletic center at the Colorado School of Mines…here I think we have the Bureaucrats and the Fragility Feminists making common cause, as they so often do. For another (and particularly bizarre) case, read about professor Laura Kipnis, whose essay decrying ‘sexual paranoia on campus’ resulted in a Title IX inquisition against her. In a particularly disturbing note, when Kipnis brought a ‘support person’ to her hearing, a Title IX complaint was filed against that person.
Posted in Academia, Big Government, Civil Liberties, Civil Society, Deep Thoughts, Law, USA | 30 Comments »
Posted by Jonathan on 10th August 2016 (All posts by Jonathan)
In 1995, the Amars (as have others before and since) argued that James Madison opposed legislative officer succession on constitutional grounds. This is a legal and historical meme or myth. Madison never stated that he thought that legislative officer succession was unconstitutional, at least as far as our historical records show. The original source involved indicates only that Congressman Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. Madison merely transmitted to Pendleton several arguments touching upon the constitutionality of the 1792 Act which had been made by others on the House floor during debate on the 1792 Act. There is no reason to believe that Madison agreed with any one or more of the particular arguments he transmitted to Pendleton.
There are those today who wish to impugn the constitutional bona fidés of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.
Read the rest.
Posted in History, Law, USA | 1 Comment »
Posted by Jonathan on 8th August 2016 (All posts by Jonathan)
The story is now an old one.
In Western societies, there is now a tremendous disconnect between the traditional political and business elites and the citizenry. The populations of the West now find themselves ruled by a transnational elite who see tradition, loyalty, and patriotism as primitive, and whose promoters within academia, nonprofits, government bodies, labour unions, NGOs, and the media teach that nations, citizenship, borders, and law defined by elected parliaments are irksome problems to be overcome.
I cannot say exactly when I saw these symptoms first arise in the United States. But more than a decade ago, I was clerking in a federal courthouse. It was a good gig. I was glad to have it. The public—litigants, lawyers, jurors, witnesses,** and visitors—went through the front entrance with a security check. Court officials and employees (including judicial law clerks) went through a back entrance, also, with a security check. One day, early in my tenure, I was going through the security check, and an older man went around me and bypassed screening. The security officer waved him through. After I went through security, I asked the security officer:
Read the whole thing.
Posted in Current Events, Deep Thoughts, Law, Personal Narrative, Political Philosophy | 2 Comments »
Posted by Jonathan on 15th July 2016 (All posts by Jonathan)
If the #FamilyResearchCouncil wanted to win a SC case, then change name to Donald #Trump Research Council. #Ginsburg would be conflicted out
–Seth Barrett Tillman
Posted in Humor, Law, Politics, Trump | 1 Comment »
Posted by Jonathan on 14th July 2016 (All posts by Jonathan)
Posted in Current Events, History, Law, Politics, Trump | No Comments »
Posted by Jonathan on 13th July 2016 (All posts by Jonathan)
The federal Code of Judicial Conduct applies to all Article III judges—except members of the Supreme Court of the United States. Is that because Supreme Court justices do not need ethics? No. Is it because they are better human beings, citizens, and jurists than their lower court colleagues? No.
Consider recusal when judicial bias is asserted…
Read the whole thing.
Posted in Civil Society, Deep Thoughts, Elections, Law, Politics, Quotations | 7 Comments »
Posted by Charles Cameron on 5th July 2016 (All posts by Charles Cameron)
[ cross-posted from Zenpundit — questions relating to the ongoing CBz discussion, FBI Kills Rule of Law — Refuses to Indict Hillary Over Her E-mails — with a side dish of Tzipi Livni ]
photo credit: Greg Nash via The Hill
I’ll be socratic here, asking questions to illuminate my hunches.
I’m seldom fully convinced by anything that comes from the left and reads the way I’d expect the left to read, and seldom convinced by anything that comes from the right and reads the way I’d expect the right to read, so I don’t take the left’s assertions downplaying H Clinton’s security behavior with reflex belief, and on the whole I’m inclined to follow John Schindler, who — both as an ex-NSA analyst and as a regular at The Observer — takes a very hard line on Clinton’s security behavior, writing just a couple of weeks ago under the title, The Coming Constitutional Crisis Over Hillary Clinton’s EmailGate.
I also follow War on the Rocks, though, and was struck a while back by a post there from Mark Stout, drawing some interesting distinctions in line with its subtitle, “A former intelligence analyst who worked at both the CIA and the State Department explains how different approaches to classifying information sits at the heart of the scandal that threatens to undo Hillary Clinton.”
Which does somewhat complicate matters, while somewhat helping us understand them.
I’m neither an American nor a lawyer, and as someone who is generally inclined more to bridge-building than to taking sides in any case, I don’t feel qualified to debate the Comey-Clinton affair – but was interested to see emptywheel’s Marcy Wheeler, whom I take to be leftish, coming out today describing Comey’s decision as an “improper public prosecutorial opinion”. She writes:
Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US ..Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.
Comey, in turn, seems to have made it pretty clear that “Secretary Clinton or her colleagues“ were extremely careless in their handling of very sensitive, highly classified information” – specifically:
.. seven email chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters.
Is there, in your views, special treatment in this matter for persons of high rank present here?
And out of curiosity, if so, do you see a similar case of special treatment for persons of high rank over in the UK, known to be substantially less Israel-friendly than the US, where Scotland Yard wanted to question Tzipi Livni about alleged Israeli war crimes in Gaza under her watch as Foreign Minister, and “after diplomatic talks” Livni was “granted special diplomatic immunity”?
On the one hand, I don’t like show-trials, trials-by-press, banana courts or mob justice, and far prefer just laws justly applied – and on the other, I can understand that the scrutiny those in high office find themselves under can render them legally vulnerable in ways that may unduly influence their decision-making – and justice may be platonically blind, but is not always uniformly applied in practice. Such, it seems to me, is the human dilemma.
What say you?
Posted in Britain, Current Events, Elections, Israel, Law, Miscellaneous, National Security, Politics, USA | 19 Comments »
Posted by Trent Telenko on 5th July 2016 (All posts by Trent Telenko)
FBI Director James Comey today in a Washington DC news conference confirmed what many have suspected.
The Rule of Law in America is now strictly a political football for those who are in power.
The FBI has refused to indict ex-Sec of State Hillary Clinton for multiple clear violations of Federal law by hosting an unsecured e-mail server with classified data off-site from the State Department. A server that was know to have been hacked by most of America’s foreign enemies.
Gatewaypundit has many of the details here —
FBI Director Comey: We Found Hillary “Work Related” Emails That Were Not Turned Over to FBI – But Recommend NO CHARGES FIled
Posted in America 3.0, Big Government, Civil Liberties, Civil Society, Crime and Punishment, Current Events, Law, Law Enforcement, Leftism, Miscellaneous, Political Philosophy, Politics | 26 Comments »
Posted by Jonathan on 17th June 2016 (All posts by Jonathan)
Seth advances against enemy fire as we have come to expect:
NRC’s own Seth Barrett Tillman recently appeared on Ireland’s RTÉ Radio One Late Debate. [The Irish media apparently plays by the same rules of engagement as CNN and the rest of the American media–4 out of the 6 participants were left-to-far left.]
But Seth pretty much won the “debate” at the outset [it was pretty much a Donald Trump ‘racism’ bash] by pointing out that in 2004, Ireland herself voted 80-20 for their constitutional Amendment Twenty-Seven, which abolished “birthright citizenship.”
More at the link.
Posted in Anglosphere, Elections, Europe, Ireland, Law, Leftism, Political Philosophy, Politics, Trump | 2 Comments »
Posted by Michael Hiteshew on 1st June 2016 (All posts by Michael Hiteshew)
The Pacific Legal Foundation, who last year at the Supreme Court won the right of citizens to challenge EPA rulings, has now won the right of citizens to challenge the determinations of the US Army Corps of Engineers.
It is not enough that agencies pass rulings and regulations that amount to law without their ever going through Congress or being voted on. Increasingly, the Administrative State takes the approach that you will do whatever they say without recourse, under penalty of egregious fines or imprisonment. Your tax dollars at work.
PLF is donation supported.
Posted in Big Government, Law, Libertarianism, Political Philosophy, Politics | 14 Comments »
Posted by Jonathan on 26th May 2016 (All posts by Jonathan)
Where are the law journal articles and op-ed’s on the potential legal consequences of Clinton’s legal jeopardy? Where? HJLPP? WSJ?
–Seth Barrett Tillman on Twitter
Posted in Elections, Law, Law Enforcement, Leftism, Media, Politics | 5 Comments »
Posted by Michael Hiteshew on 19th April 2016 (All posts by Michael Hiteshew)
Can the president decree that a US law be ignored or even reversed if it advances his party’s political agenda? If so, is that not legislating from the Oval Office?
The US Constitution, Article I, Section I: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
If the president can grant deportation relief to 5 million immigrants here illegally – for whatever reason – what law cannot be reversed? What law has any meaning?
Supreme Court justices seem divided on Obama immigration actions
And what does it say about the current ideological makeup of the court that half the justices think this is a valid and legal course of action for a president? And assuming that Hillary is our next president and will appoint at least one far left justice, what is the likelihood the Constitution means anything at all anymore? Are we moving into the endgame, the first tentative steps of dictatorship, fully blessed and sanctified by the US Supreme Court?
Posted in Immigration, Law, Political Philosophy | 15 Comments »
Posted by Jonathan on 13th April 2016 (All posts by Jonathan)
Seth Barrett Tillman:
Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members. Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties; to recuperate for a reasonable time if ill; and to die. The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock. Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.
Posted in Law, Politics | 8 Comments »
Posted by Jonathan on 13th April 2016 (All posts by Jonathan)
Posted in Law | No Comments »
Posted by Jonathan on 8th April 2016 (All posts by Jonathan)
A biting critique of recent public arguments by liberal academics, by Seth Barrett Tillman:
There is a final possibility. Apparently, some non-originalists believe they are part of a victimized, long-suffering, powerless, discrete, insular intellectual minority. As Professor Jack Balkin, a prominent commentator (but not one of the Alliance-for-Justice-350), wrote:
Accepting that opposition as the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in. [here] [here] (emphasis added)
The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. [here] [here] (emphasis added)
In this intellectual milieu, signing a letter you do not really believe is not hypocrisy: it is virtue. Thus, signing such a letter is the natural and justified response of victims to an unfair world imposed upon them by malevolent intellectual forces which have deformed reasoned, public debate. That’s not hypocrisy: that’s something else entirely. I am going to refrain from characterizing that reason, but I expect the public will take the hint.
Is it any wonder that millions of Americans vote for Trump?
Worth reading in its entirety.
Posted in Academia, Elections, Law, Leftism, Political Philosophy, Politics, Trump | 2 Comments »
Posted by Jonathan on 1st April 2016 (All posts by Jonathan)
Posted in History, Law, Politics | 10 Comments »
Posted by Jonathan on 31st March 2016 (All posts by Jonathan)
Posted in Elections, Law | 2 Comments »
Posted by Jonathan on 28th March 2016 (All posts by Jonathan)
Seth Barrett Tillman:
Non-originalists communicate in two different discourses.
One discourse is the mode of truth: it is the mode they reserve for their sophisticated clients and legal briefs, for their colleagues and students. In this discourse, non-originalists critique originalism as …
1. Wrongheaded or false because the Constitution is not prolix, it is only an outline, and the gaps must be filled in by each generation;
2. Wrongheaded because the Framers’ and Ratifiers’ intent is not discoverable;
3. Wrongheaded because different Framers’ and Ratifiers’ intent, although discoverable, was not unified;
4. Wrongheaded because original public meaning is not (now) discoverable (e.g., the Constitution is too old);
5. Wrongheaded because during the framing era and during ratification there were a multiplicity of original public meanings;
6. Wrongheaded because judicial rulings and precedent are the superior means through which to determine the meaning of the Constitution;
7. Wrongheaded because judges, academic lawyers, and lawyers are not good historians;
8. Wrongheaded because the Framing-era and ratification lacked democratic bona fidés by modern standards;
9. Wrongheaded because we should not be ruled by the moral norms or the dead hand of the past; and,
10. Wrongheaded because originalism gets the wrong (e.g., conservative or libertarian) results.
The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public … non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.
Lexington Green adds:
You are restrained in your condemnation of this despicable dishonesty.
The public has very little understanding of law, the Constitution, the legal system, lawyers, courts or anything else that people like us think about all day long.
There is nonetheless a vague, inchoate sense that there something called a constitution, and it is in writing, and most people who think they know anything about it mistakenly believe that it says that all men are created equal, and that it protects our rights, whatever those happen to be, and that the government has to do what The Constitution says.
If you were to tell these people, well, actually, we law professors and judges and lawyers have figured out that you don’t actually have to do what the Constitution says, because … it won’t matter what the “because” is. The typical American will respond with something along the lines of “are you fucking kidding me?”
My seat of the pants guess is that between between 1% and 5% of the people in this country have any idea what has been going on with the U.S. Constitution in the courts in the last 50 years.
These guys are being smart not publicizing the reality. If Joe and Jane American voter knew what was going on they would cut the funding for these people.
Read the whole thing.
(See also this post by Lex from 2008.)
Posted in Academia, Civil Liberties, Law, Leftism, Political Philosophy | 20 Comments »
Posted by Jonathan on 24th March 2016 (All posts by Jonathan)
It depends on what the meaning of the word shall is, says Seth Barrett Tillman:
Now the people who have opined that President and/or Senate have a constitutional duty (per the Appointments Clause) to nominate a successor to AS are distinguished commentators, whose opinions deserve fair consideration. However, there are people who have taken the opposite position. These include, for example, Professors Lawson and Seidman, Adam J. White, a well-published D.C. practitioner, and Daniel Koffsky, a senior Department of Justice attorney. See, e.g., Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 762 n.123 (1999) (“[T]he Appointments Clause is best read as a grant of power rather than an affirmative duty.”); Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103, 147 n.235 (2005) (“[T]he President is under no duty to nominate someone to fill a vacant office—despite the Constitution’s instruction that he ‘shall’ so nominate . . . .”); cf., e.g., Appointment of a Senate-Confirmed Nominee, Op. Off. Legal Counsel 232, 232 (Oct. 12, 1999) (Koffsky, Acting Deputy Asst. Att’y Gen.) (“The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”), http://tinyurl.com/gljnnv8. These people are also distinguished commentators, whose opinions deserve fair consideration.
Here we are faced with what are essentially conflicting intuitions in regard to the original public meaning of an 18th century text. Both sides cannot be correct. What to do? We should look for evidence, and fortunately, some good evidence is at hand.
Read the whole thing.
Posted in Current Events, History, Law | 18 Comments »