Did Anyone Say Nixon?

From Monday's late edition NY Times:

http://nyti.ms/1cWzjSW

"WASHINGTON — In an extended argument that contained large doses of history and practical politics, the Supreme Court on Monday seemed skeptical of the Obama administration’s contention that it had acted properly in bypassing the Senate to appoint several officials during a break in the Senate’s work.

Several justices seemed attracted to the relatively narrow argument that President Obama had acted during a break in the Senate’s work that was too brief to allow a recess appointment. Others spoke in favor of a much broader argument that would limit such appointments to recesses between sessions of Congress.

Much of the argument concerned how to reconcile the text of the Constitution with more than a century of tradition. On the one hand, as a federal appeals court in Washington ruled, the words of the Constitution can be read to allow a quite limited appointment power.

The constitutional provision at issue says that “the president shall have power to fill up all vacancies that may happen during the recess of the Senate.” The appeals court, leaning heavily on the phrase “the recess,” ruled that appointments may be made only during the recesses that occur between the formal, numbered sessions of Congress. The court added that the vacancies must have arisen during that recess.

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said presidents of both parties have made many appointments during breaks in sessions of Congress. Justice Antonin Scalia responded that the text of the Constitution was more important than contrary practice."

It truly amazes me that a President who has sworn to uphold the Constitution, instead, acts if he was sworn to hold up the Constitution. It seems that at every turn, he, his staff, his appointees, or whoever else works for him will, if at all possible, find a way to twist and turn each phrase to his liking, and not deal with precisely what is said.

I can't believe he really is a Constitutional law professor. What was his grade in that class and on his final exam? Maybe he is like the doctor who operated on the girl with the tonsillectomy or the dentist who did the 10 root canals on the little girl. Good enough to pass and get the degree, but maybe not good enough to teach our kids Constitutional law, because he acts like its a recipe. Yeah, a recipe for disaster.

And back to this case. Does he, through his solicitor general, really think that if the Senate takes a lunch break, or goes home for the evening, that the Senate is not in session? Really? That seems to be the argument General Verrilli wants to sell the Court. If that's the case, I have some Swiss cheese with fewer holes in it than that argument.

And, by the way, I have a problem with Executive Orders in general, no matter which President issues them. My understanding of this practice is to allow a President to function without violating the Constitution until the Congress can convene to validate or undo the action the President did in its absence, not abrogate its responsibilities to the President because it's easier not to ruffle feathers. Otherwise, let's get rid of the Congress and save the cost and benefits of a thousand or more jobs, and form a dictatorship.

And finally, does General Verrilli really want to resort to the schoolyard tactic that "if Johnny did it, why can't I" argument? Is that now a valid argument of law? I am not a lawyer, but I don't think that argument will fly. If the Justices buy that, then the precedent set by this would have severe consequences for years to come and all that is fair and logical in law would be no more. 

Let's hope the Court sees the folly of the President's strange interpretation of what is said in the Constitution. Even if he gets a wrist slap here, he is now on notice that this continual wrong-headed action on his part, will eventually be deemed "Abuse of Power." The last President who pushed the Constitution to its limits, and beyond, resigned in the face of impeachment for precisely the same arguments. 

If the Court doesn't stop him here, what was the lesson of Watergate?