Simon's blog

Yes, three quarters of the country can be wrong; the meanings of legal texts aren't decided by polls. But which texts are law can often be decided by polls, and if the President hoped to make a cause celebre of a decision by the court to strike down Obamacare, that door would appear to have been closed by the fact that even a New York Times poll says that three quarters of the country—so read four fifths, correcting for bias—would agree with the court.

Unions hardest-hit. I liked this line, from Politico's coverage: "Vince Lombardi, the man who taught [Wisconsinites] to think with clarity about the severe consequences of victory and defeat, once offered this gem about life: 'Show me a good loser, and I’ll show you a loser.'” Somehow one gets a sense of what Lombardi would have made of John McCain's 2008 autorotation of a campaign.

Only four in ten Americans will admit to being pro-choice; half identify themselves as pro-life. But, remember, WE'RE the kooky extremists who are waging a war on women, right?

As I've pointed out before, the problem with majoritarian rhetoric is that if you slip into the minority, you're in trouble.

Predictably, liberal feminists like Shakesville's Melissa McEwan are spinning furiously, but Melissa's argument just doesn't work. She says that a different graph, finding 52% of Americans want abortion to be “[l]egal under certain [circumstances],” proves that “77% of USians still favor keeping abortion legal in some form” (presumably the abominable neologism “USians” is cod political correctness), a number that she obtains by aggregating the 52% with the 25% who think it should be legal under any circumstances. But why count the 52% with the 25% instead of the 20% who think it should be illegal in all circumstances? The claim that 77% of Americans wouldn’t ban abortion under all circumstances is weak tea for someone in Melissa’s position, and the same graph also proves, no less correctly and considerably more apropos, that 72% of Americans favor tighter restrictions on abortion than can exist under Roe-Casey, which means that 72% of Americans would tighten abortion law from the abortion-on-demand status quo, and, if they were consistent and it was explained to them properly, favor the overruling of Roe and its poisonous progeny.

I have made it quite clear over the years, that I don't think that the so-called "delegates" should be speaking in any House hearings, except perhaps as a witness, so my immediate thought on seeing the headline " D.C. Delegate Norton silenced at abortion bill hearing" was not sympathetic. But it was as a witness that Ms. Norton sought to appear! While I disagree with the House's sufferance of her as an ersatz member, and while I suspect that I would disagree with her testimony, my inclination is to see the refusal as churlish and unreasonable. This is not like the Sandra Fluke business. Insofar as Congress is proposing to legislate in its capacity as overlord of D.C. and she is an elected representative of the D.C. community (whether she ought to be or not), the committee would be as well-advised to hear from her as to hear from, say, the mayor of the district. And insofar as since Ms. Norton is in fact a member of the Congressional community (whether she ought to be or not)—no more or less than the Clerk of the House, the Secretary of the Senate, and so forth—while the committee would have been within its rights to decline to invite her testimony, to refuse to her permission to do so, sought in good faith, would be exceedingly ill-mannered.

Committees don't have to agree with what they hear from witnesses. To be sure, committees shouldn't be soapboxes, either for members or witnesses—I would lock the cameras out of the committee rooms as well as from the Capitol, and see no reason why the commmittee would have to provide a public platform for Norton's comments. But out of professional courtesy if nothing else, the committee should throw out the cameras, and (given what I know of Ms. Norton's views), listen politely to her, thank her for her time, and then ignore her.

The question isn't whether anyone should give Obama credit for admitting it but rather why so few are willing to fault him for lying about it.

Greg Stohr at Bloomberg, with my emphases and comments:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up. [So was the court; the agency lost that case--Sackett v. EPA--nine to nothing.]

. . . .

Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism ... [that he] is crossing the line that separates tough scrutiny from advocacy. ¶ “His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.” [Prof. Fried has made clear in a number of appearences and interviews that he regards the challenges as risible. It's thus unsurprising that his perception would be skewed.]

. . . .

The justice has never shied away from controversy. ... In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. [I've spent a fair amount of time trying to track down sourcing for this, and while there are ample sources giving the quote from Scalia, I have yet to find any source that records the wording of the question, and it's beyond cavil that a query that might be substantively reasonable can always be framed in a nasty, impolite manner. Without the text of the question, the criticism of Scalia's response falls flat.] ...

. . . .

Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense. [Is that so? I'd like to know how you'd quantify that.]

In January, [in Sackett,] he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state ... [and] Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible” requirements. ¶ “Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day. [What Stewart actually said was that "every version of the compliance order said to the Sacketts [that] if you think that there are things ... in here that are wrong or compliance measures that you regard as infeasible, you're welcome to tell us." Tr. 34 ff. And as Scalia was pointing out, a right to ask an agency to reconsider an order that may be ruinous is cold comfort indeed if the agency is charging you ruinous sums of money for every day that you don't comply, including the time taken for your request to be processed. Scalia was right. Even Stewart conceded shortly thereafter that the EPA had put the Sacketts "an unattractive position." Id., at 37.] ¶ When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high- handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said. [See ibid. "[W]hen litigation was threatened or actually brought," Scalia had noted, "the EPA modified its order: Oh, you don't have to plant the trees. Does it do this as a matter of practice, issue compliance orders that go well beyond what the what the [Environmental Protection Act] would -- would demand?" Does it not show high-handedness for an agency to issue compliance orders that go well beyond what the enabling statute demands, if that is indeed what happened?] ¶ The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court. [So clearly Scalia was way off-base, right? The EPA's position was so reasonable that it attracted support from... um... not a single justice. That's... nice.]

. . . .

With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.” ¶ “Well, don’t obligate yourself to that,” Scalia said. [We have to administer the death penalty because of social norms to which we've obligated ourselves. Well, who's "we" and why are they obliging us? How does that supply a font of (or obstacle to) federal power? Does a decision by a determined minority to oblige Americans to do something supply authority for the government to do that thing? Can the obligation of a treaty in which the United States government promised another nation that it would do something that it lacks Constitutional authority to do supply the power to do it? Of course not. Scalia is right.] ¶ Later, Scalia called one strand of the government’s defense -- its contention that Congress could legally enact the law as a tax -- “extraordinary.” [So what? "Extraordinary" isn't unusual Scalian vocabulary, and while I realize that that sounds odd, it's not a contradiction when his ordinary business is to deal with extraordinary cases. This term, he called the government's argument in Hosanna-Tabor extraordinary (by the by, Justice Kagan called it "amazing"); extraordinary too was Justice Kennedy's opinion for the court in Lafler. Once, Justice Thomas' opinion for the court was extraordinary. Last term, too. And in Santos. And Scalia's not the only Justice to use that word. Or the only person at the court: Sometimes, the SG tells the court that things are extraordinary; indeed, Mr. Stewart did so in Sackett, the case mentioned above. So.] ¶ The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute. ¶ “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages? [It's a bit late for Greg to come on all humorless having observed above that "[i]n the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice...." What does Greg want, a rimshot? Even the transcript adds "(Laughter.)" Tr. 38.]

. . . .

Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference. “So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?” [Again, the point isn't objectionable, and I say that despite being somewhat sympathetic to Verrilli's argument. Verrilli argued, among other things, that generally, the foreign relations of the United States (indisputably a federal business) with a given country are or may be affected by how we treat illegal immigrants from that country, and in particular, our ability to enforce immigration laws depends (I think that's a little strong, myself) on the cooperation of the "donor" country, especially in Mexico's case. Thus, the argument goes, the United States has an interest in enforcing immigration law in a way that doesn't antagonize other countries. See Tr. 69 ff. Scalia's phrasing might have been unkind, but it wasn't unfair, unreasonable, or incorrect.]

. . . .

He's still grousing...

The result in Bush v. Gore was important, but the reasoning turned out to be perishable; the decision has not been cited again by the Justices

Yes, well; that's unsurprising, as I explained a few moons of Jeff's whining about the case ago.

At MP, I have a post following up on this 2009 SF post, if anyone's interested. It looks briefly at liberals and conservatives in terms of epistemological anxiety.

The rationale, after a fashion. After the argument, I was thinking along similar lines:

[H]ere's my devil's advocate argument about all this. No justice since Rehnquist has wanted to revisit the basic premise of the new deal revolution, which is essentially that Congress can do anything, but only four justices are willing to embrace that outcome, and so every time a case challenging congressional authority arrives, liberals can't believe it's serious (because they don't believe there are limits other than individual rights), and the conservative justices desperately search for a limiting principle that preserves the fiction that the new deal settlement doesn't make congress omnipotent (because they don't want to revisit the new deal settlement).

Now, I'm not sure that it's true that the new deal settlement essentially makes Congress omnipotent; certainly that is the proposition that Lopez denies. But in the absence of a limiting principle, it's hard to see how that isn't the upshot, so we are backed into the corner of accepting one of three outcomes: Accept Congressional omnipotence, impose (sometimes slightly artificial) limiting principles to reign in that power, or overrule Wickard et al.

I saw that online earlier, quoted as a German proverb. I like G.K. Chesterton's comment on change and progress:

As enunciated today, 'progress' is simply a comparative of which we have not settled the superlative. We meet every ideal of religion, patriotism, beauty, or brute pleasure with the alternative ideal of progress—that is to say, we meet every proposal of getting something that we know about with an alternative proposal of getting a great deal more of nobody knows what. Progress, properly understood, has … a most dignified and legitimate meaning. But as used in opposition to precise moral ideals, it is ludicrous. So far from it being the truth that the ideal of progress is to be set against that of ethical or religious finality, the reverse is the truth. Nobody has any business to use the word 'progress' unless he has a definite creed and a cast-iron code of morals. Nobody can be progressive without being doctrinal; I might almost say that nobody can be progressive without being infallible—at any rate, without believing in some infallibility. For progress by its very name indicates a direction; and the moment we are in the least doubtful about the direction, we become in the same degree doubtful about the progress. Never perhaps since the beginning of the world has there been an age that had less right to use the word 'progress' than we.

In the Catholic twelfth century, in the philosophic eighteenth century, the direction may have been a good or a bad one, men may have differed more or less about how far they went, and in what direction, but about the direction they did in the main agree, and consequently they had the genuine sensation of progress. But it is precisely about the direction that we disagree. Whether the future excellence lies in more law or less law, in more liberty or less liberty; whether property will be finally concentrated or finally cut up; whether sexual passion will reach its sanest in an almost virgin intellectualism or in a full animal freedom; whether we should love everybody with Tolstoy, or spare nobody with Nietzsche;—these are the things about which we are actually fighting most. It is not merely true that the age which has settled least what is progress is this 'progressive' age. It is, moreover, true that the people who have settled least what is progress are the most 'progressive' people in it. The ordinary mass, the men who have never troubled about progress, might be trusted perhaps to progress. The particular individuals who talk about progress would certainly fly to the four winds of heaven when the pistol-shot started the race. I do not, therefore, say that the word 'progress' is unmeaning; I say it is unmeaning without the previous definition of a moral doctrine, and that it can only be applied to groups of persons who hold that doctrine in common. Progress is not an illegitimate word, but it is logically evident that it is illegitimate for us. It is a sacred word, a word which could only rightly be used by rigid believers and in the ages of faith.

(Heretics, Ch. 2, 1905.) By definition, aimless change isn't progress, because progress is always going somewhere; where and why ought to be threshold questions at each step. And while progress doesn't necessarily mean change within tradition—one may change destinations in midair—it is best when it is. In this sense, I suppose one could say that I'm not for progress at all, but rather, to the extent they are distinct in this sense, growth, which is to say that I prefer gradual organic development in continuity with tradition rather than "progress," the latter being most often a forced march toward artificial goals conjured up by men who fancy themselves clear-sighted and clever.

We haven't had one for a while, so let's. What's happening?

For musical accompaniment, check out a new band I've been enjoying this week, Metropol.

Althouse links to the latest story urging Kagan to recuse herself from the PaPACA litigation or explain why she won't.

Kagan shouldn't recuse herself (neither should Justice Thomas, by the way) and there's really no need to explain it. The prevailing understanding of recusal is needlessly histrionic; generally-speaking, I think that judges should recuse themselves when, and not unless, they have a direct personal stake in the outcome (stocks, etc.) or a personal involvement with a private litigant (the defendant is a family member; the plaintiff killed their dog). The idea that judges should recuse themselves because they might have preexisting opinions about the legal issues in the case at bar is, in a word, fatuous. Writing for the court in Minnesota GOP v. White, Justice Scalia correctly said that

it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."

(Citations deleted.) If anyone believes that there is a single member of the court who doesn't have reasonably well-formed ideas about the Constitutional issues at issue in these cases, and at least tentative views about the application of those principles to these cases, they're living on another planet. And so what? Nobody in their right mind believes that Justices Scalia and Ginsburg must recuse from the next abortion case down the pike simply because they have strong moral views on abortion and settled legal views on the constitutionality of abortion, so what basis is there for demanding that Kagan recuse for potentially having views that are certainly no more settled and more than likely considerably less so?

The only conceivable basis is to argue that Kagan does have a direct stake insofar as she helped create the defense that she is now called to adjudicate. (For precisely that reason, Kagan has recused in a number of cases.) But did she? An email expressing excitement that the bill might pass is hardly a smoking gun, and I see little reason to believe that we're likely to find one. Here's why: The Senate consented to Justice Kagan's appointment on August 5th, 2010; the district court ruling striking down PaPACA, Florida v. DHHS, was argued in December 2010 and handed down in January 2011; the 11th circuit affirmed in August 2011. How could Kagan participate in briefing, arguing, or strategizing in litigation that took place months after she joined the court? It is conceivable that in the spring of 2010, Kagan might have participated in general strategy meetings about potential issues that might be raised in potential litigation, but that just brings us back to the general legal views trap. I see little reason to believe that she participated in the earliest stages of the earliest actual litigation filed, and by the time that one would expect the SG's office to be involved in those cases, Kagan had joined the bench.

The calls for Kagan to recuse have nothing to do with judicial integrity, any more than do the left's recurrent calls for Scalia and Thomas to recuse from various cases. (I recall one article in which a professor seriously argued that five justices should have recused in Bush v. Gore, and what do you know, they just happened to be the five who voted for what the professor thought was the wrong result! Fancy that!) This is about stacking the deck. The left wants Thomas out to eliminate a vote against Obamacare and the right wants Kagan out to eliminate a vote for it. The court should decline the invitation to dignify such naked partisanship by responding any more than it already has.

It's hard to overstate just how completely the folks running Susan G. Komen Race for the Cure have managed to screw a charity that does such important work.

Earlier this week, Komen alienated a huge swath of pro-choicers by announcing that it would cut off funding for abortion industry mothership Planned Parenthood. Now, I'll go out on a limb here and say that those people are gone. They aren't coming back. Komen has, in their view, betrayed their trust and they will henceforth give money directly to Planned Parenthood; they will not be mollified by some kind of humiliating climbdown by Komen.

But the math was pretty clear to me: If you're trying to do work in an area that doesn't divide people, it makes no sense to hook up with an intensely divisive organization that instantly alienates about half your audience without commensurate benefit. Unsurprisingly, and mirroring the outrage on that side, there was something approaching delight elsewhere. Komen does important work, and their association with PP has long precluded support support from Catholics and other pro-lifers; what support there was came by-and-large from those who just didn't know about the association. In the wake of the news, just as outraged pro-choicers were announcing their intention to take their money and walk away from Komen, Komen's donations went through the roof.

So things stood this morning. Around lunchtime, however, Komen made a humiliating and foolish volte-face, announcing that they will keep supporting PP after all.

It's quite incredible that a group that does such important work could be run by such a bunch of boneheads. In the space of a week, they've alienated everyone. As I've said, getting in bed with an intensely divisive organization like PP only hurts the cause for which Komen works, and yet they've just antagonized people on both sides of that divide. The folks who sided with PP are gone, and quite sensibly won't return because Komen has lost their trust; now Komen has lost the trust of the people who were elated by the move, and we won't return either. Earlier in the week, Komen set itself up to thrive; today it's jumped off a cliff.

And it doesn't end there. Here's a comment that someone left on the Central Indiana Komen facebook page, one that ideally captures the other problem: "This is so wrong. I did not know [Komen] gave to Planned Parent hood and now that i do they will not get a dime from me and I am sure their are millions who did not know this." So, great job, Komen: You've not only lost the pro-choice folks, but in doing so, you've also managed to advertise that you support PP, further constricting your pro-life support base.

So apparently incompetent has been Komen's performance that one almost wonders if this is a deliberate attempt to fly the plane into a cliff—but there are surely easier ways to wind up a charity. (The people who hired Komen's managers should look up "fiduciary duty" and call their lawyers.) You can't please all the people all the time, but it's a foolish strategy indeed to alienate everyone at once. There's no way back from this; Komen is dead.

Martin Frost has this op/ed about the prospect of third parties and House contingency elections; I think my 2007 piece on the same remains relevant.

The case of which Perry v. Perez—decided this morning—most reminds me is Ayotte v. Planned Parenthood. Although they deal with different issues, the common thread is a particular kind of judicial minimalism. In the context of an abortion law, Ayotte cautioned courts to strike down only those parts that were problematic, leaving as much as possible of the legislature's work intact; in the context of a redistricting challenge, Perry cautions district courts that if they must draw new districts, they should take as much guidance as possible from the legislature's plans; both expect courts to walk softly and tailor carefully, "limit[ing] the solution to the problem" as Ayotte puts it.

Perry is very short and worth reading, but I'll excerpt what strikes me as the key part:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan—even one that was itself unenforceable—“to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.” …

Section 5 prevents a state plan from being implemented if it has not been precleared. But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan. On the contrary, the state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court’s own preferences.

A district court making such use of a State’s plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan.

The following was sent as a letter to the editor for our local paper. This is a footnoted, annotated version, since I can digress here without a word limit.

"SIR—

Last week, President Obama claimed the power to make recess appointments even though the Senate is not in recess.1 He can do this, he argues, because he has determined that the Senate's session is a sham—that it's effectively in recess even though it's formally in session. While there’s a long-running debate over how long the Senate must be out before the President’s recess appointment power kicks in, no one has ever doubted that the clock must have begun ticking at some point with the beginning of a recess, so this is something new.

The fundamental question is: Who gets to decide when the Senate is in recess?2 While the obvious answer would be that Congress does, President Obama says that he will decide. We should consider the implications for checks and balances.

The Constitution's ordinary appointment process reflects two judgments: That the Presidency is the best place to lodge the appointment power, yet this authority must be constrained, as Hamilton explains in Federalist 76. Thus, in this ordinary process, a President cannot unilaterally make appointments over the objections of the Senate. Balance checks power.

The Constitution also supplies an extraordinary appointment process,3 which (to oversimplify slightly) allows the President to make "temporary" appointments while the Senate is recessed.4 But this authority, too, is hedged. Congress can forestall recess appointments simply by not recessing, by remaining in session.5 Thus, even in this extraordinary process, we might say that a President cannot make truly unilateral appointments over the objections of the Senate. Balance again checks power.

By contrast, the power asserted by the President last week is balanced against nothing; it is checked by nothing.

Some Democrats have cheered the President for "showing some spine," but they have not thought through the implications of the radical principle underlying his appointments. The President’s fundamental assertion is not that the Senate session is a sham; that's derivative. His fundamental (if tacit) assertion that he gets to make that call. It is that the President has unilateral authority to say when his appointment power is unilateral rather than being checked by any other Constitutional actor. That theory should raise your eyebrows; if the President can determine that Congress is not in session today, nothing intrinsic to the theory prevents him from determining that Congress is not in session at any other time.6 Would the Democrats who have cheered for these appointments out of immediate political convenience feel happy waking up in a few years to the news that, overnight, President [insert whatever name scares you most] determined that the Senate was in recess and handed out recess appointments for every vacancy in the administration?

Perhaps that hypothetical sounds absurd. It is—or should be. But the authority claimed by the President opens the door to that result, and when a principle leads to absurd results, we should look at it with skepticism. When it also suggests that a system designed to check every power with balance nevertheless affords unilateral authority, we should look even more closely.7

Candidly: Is your life likely to be materially affected if the Senate's check on Presidential appointments withers? No.8 But anyone who cares about our Constitution (and certainly anyone whose blood pressure rose when executive power was mentioned during the Bush administration) should be alarmed, because this is a radical assertion of power, one that is at war with the Constitution's system of checks and balances and likely to be abused.

1. 1. The original and second drafts of this letter contained the following preface: "I believe that the modern understanding of the recess appointments clause—which holds that Presidents may fill all vacancies that exist during a Senate recess rather than only those that happen to arise—is wrong. But for sake of argument, let's assume it's correct. By that standard, President Bush's recess appointments were okay, and, in principle, so too would be a recess appointment by President Obama to fill the vacant Directorship of the USCFPB." I am indebted to a number of people for their helpful suggestions during the drafting process, one of which was to excise this paragraph.
2. 2. A sentence was cut here moments before this piece left the kitchen: "Seen this way, the authority asserted by the President is far more radical (and thus far more likely to escape the constraints of the immediate situation) than it might appear." I thought it was helpful, but in the end it punched below its weight and it had to go.
3. 3. One that reflects, we should note, the practical constraints of eighteenth century travel rather than a principle.
4. 4. Again, I add the disclaimer that I have stipulated for sake of argument that the clause authorizes "exist" appointments not just "arise" vacancies. New arrivals will find my post here useful on that point. Also: Why the scare quotes around "temporary"? Because the "temporary" appointment lasts until the end of the Senate's next session. The casual observer will note that while "temporary" isn't a misnomer, we're certainly talking something more than a stopgap appointment; it could theoretically last a couple of years. The less casual observer will wonder why, if the President has the authority to say that the Senate's session has ended, and thus to make appointments, he doesn't have symmetrical authority to say that the Senate's session has not ended, and thus to prolong them?
5. 5. Note the shift in language here. There's no time or need to explain in this piece the wrinkle that I'm driving at, but I'll simply note here that it requires Congressional opposition to Presidential appointments, not simply that of the Senate, because the House can give the President authority to adjourn Congress by creating disagreement over the adjournment date. See Art. II, § 3. That would create a bit of a crisis in itself, of course, because then we would have to definitively settle questions about the meanings of "recess" and "adjournment" so far as the recess appointments clause is concerned.
6. 6. Elsewhere I have called this assertion "unlimited and illimitable"; in a setting where I can't explain myself, it sounded like hyperbole so it had to go, but I stand by the remark.
7. 7. Cf. Federalist 51 (Madison). I do not, of course, mean to imply that the Constitution is airtight.
8. 8. A few words about the withering effect, by the way, because it may not be obvious. People are apt to get more excited about Constitutional abuses that they can imagine affecting them, no matter how implausible—military detentions and the like. This is entirely more subtle. We must realize that the power asserted by President Obama is very likely to be used; people talk about the President's supposed authority to militarily detain people, but it's just exceptionally unlikely that a President would ever do such a thing. Bypassing Congress to install an officer in the face of Congressional opposition, however, seems very likely to happen, and to happen often. So this is a subversive claim of authority. It seems likely to fly under the radar and that criticism will be dismissed as partisanship. It's the kind of thing that doesn't get too much public notice because, as Doug pointed out the other day, the public often doesn't care much about process issues. It's the kind of thing that burrows into the praxis of politics—exceptional today, common in twenty years, and before you know it it's become routine and Congressional consent is simply a formality because everyone knows that if Congress slow-walks the appointment the President will simply give recess appointments.
   That's what I mean by the Senate's check withering: The President's unilateral appointments will become more frequent, that's the direct effect, but the indirect effect is to change Congress' incentives, reducing the benefit of resisting a given nominee. Indeed, I see the very real potential for this approach to become the usual way of doing business for hundreds of lower-level Presidential appointees, especially those who aren't expected to stay on longer than a year or two anyway—why even take up the Senate's time? You wouldn't think such a thing was possible, but today it's standard practice after a century of abuse to give recess appointments for positions that were vacant before the Senate recessed. This is the thin end of the wedge.

Noting the shift in the definition of rape, Patterico says:

I have seen statistics that show more men are raped in this country every year than women, and while I am unsure of their accuracy, the fact is that rape of men is common — in prison. Long-time readers of the site know that I do not consider prison rape funny. Not only is it not part of the prescribed punishment, but the victims are likely to be weaker and less violent people — meaning that even if you did subscribe to a vigilante justice ethic, you’d still be letting the most violent get their jollies at the expense of the least violent.

I agree; more about that in this post from 2007.

N.b.! The following is not a complete post. It contains the opening parts of the first draft of a post that I was writing in January 2009; it never came close to being finished, and the moment for it passed. It's languished for years in the drafts pile. What's more, I do not now either endorse or repudiate the argument that I was seeking to make, which you can see in outline (the more skeletal parts never made it off the blotter, so there's some holes and the end is completely missing).

So why publish now, almost three years later, and why in this state? Well, a lot of research went into it, and I think there's some valuable material in here that pertains generally to impeachment. Over the last couple of years, I've strip-mined this draft for its research time and again when impeachment issues have come up. For that reason, and since impeachment may become a hot topic again in the coming weeks, I thought that I'd share it "as is."

The limits of the impeachment power

"a hundred-ton gun which needs complex machinery to bring into position, an enormous charge to fire it, and a large mark to aim at." - Lord Bryce, on impeachment.1

Via Prof. Jacobson, I see that Bruce Ackerman is arguing that Judge Bybee should be impeached because of advice he gave while serving at OLC prior to his nomination to the bench. If the Senate had known about that advice, Ackerman charges, it would never have confirmed his appointment to the Ninth Circuit, and impeachment is warranted because it would “focus[] on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?”

That may be a good question, but I want to suggest it was a passenger on a ship that has vanished over the horizon, one that cannot now be called back through impeachment. Assuming that Bybee could be impeached for his conduct at OLC, and assuming that Congress can impeach an officer even after their resignation (historically a hotly contested point), Bybee could be impeached and barred from future appointments, but could not be be removed from his present office on the basis of impeachment qua an OLC officer or impeached qua a judge for his conduct at OLC. Text, history, and practice are all strongly suggestive of this conclusion.

1. 1. 1 James Bryce, The American Commonwealth 212 (1914).

It is reported that President Obama will seek to install Richard Cordray as Director of the United States Consumer Financial Protection Bureau. See, e.g., this, this, and this.

In evaluating the validity of such an appointment, we begin with a familiar principle: The President's recess appointment power extends only to "vacancies that may happen during the recess of the Senate,"1 which encompasses only vacancies that happen to arise during the recess of the Senate, not all those which may exist. See SF: The limits of the recess appointment power (April 26, 2010). Thus, the threshold inquiry when evaluating a recess appointment's validity is to determine the date on which the vacancy arose and whether the Senate was in recess at the time.

The office to which the President seeks to appoint Cordray came into being at the same time as the bureau that it directs, July 21, 2010,2 and no nominee has ever been confirmed to the directorship. Thus the vacancy can only have arisen on July 21, 2010, and the Senate was in session on that day.3 For that reason, the office is not susceptible to a recess appointment.

It isn't yet clear when the President wants to make this move, but the timing of the announcement suggests that he intends to make it today. That would make the appointment doubly invalid, because even under the broader interpretation that allows Presidents to make appointments to vacancies that merely exist during a Senate recess, the Senate must actually be in recess, and the Senate is not in recess today. It last convened yesterday, and presently stands adjourned—not recessed—until Friday morning. Thus, even if the vacancy the President aspires to fill was eligible for a recess appointment as a general matter, there is not presently a recess in which he may act.

For the foregoing reasons, a recess appointment of Richard Cordray would be ultra vires.

1. 1. U.S. Const., Art. II § 2 cl. 3.
2. 2. See Pub. L. 111-203 § 1018, 124 Stat. 1376, 1979 (2010).
3. 3. See 156 Cong. Rec. S6039 et seq.; id., at S6121.

This isn't supported by any rule of usage, it's just personal aesthetic taste, but I suggest that the recent trend by anti-latin types towards forcing round latin loanwords into awkwardly square English pluralizations—rather than simply using the latin pluralization—produces ugly words. This is especially true of formerly second declension neuter nouns. It's media, quanta, stadia, memoranda, addenda, aquaria, etc., not mediums, quantums, stadiums, memorandums, addendums, aquariums, etc. It is referenda not referendums, fora not forums, gymnasia not gymnasiums, maxima and minima not maximums and minimums, dicta not dictums... Although I confess that I balk at the thought of listing the alba in my CD collection!

* The accepted approach until recent decades, and still the accepted approach with appropriations from languages like french: "SolicitorS-general"!