Originally Posted by spence
I like Frum's analysis because as usual he's willing to go after everyone to tell it like it is. This may not go to the courts, but I'll bet it probably will. You've nailed it in stating that the SCOTUS might be nervous...because this is a gray area and precisely the reason it should be in the debate.
I don't see it as a gray area, rather it is a no area. When the Constitution does not grant a power to a branch of government, that branch does not have it. The Constitution expressly states in Article 1, section 5, that "each house may determine the rules of its proceedings . . . ." It does not speak of a judicial power of review over Congress's rules. That omission is not intended as a "gray" area that might be "interpreted" to imply that maybe the Court can review how Congress determines what is a recess, the omission means that it is not the business of either the Court or the President. The Constitution was not meant to be an endless list of minute laws that would encompass every "gray area" of how the government of our republic is structured. That would not be possible, nor desirable. It is a framework that grants limited specifed powers to the branches of government (separation of powers), and within, and only within, those limitations the powers are broad and can expand to unknown limits. The specific powers granted to the Court do not concern Congressional rules. The specific powers granted to Congress do. Likewise, those granted to the President defer to Congress and do not give him the power to define congressional rules. Article 2, section 3, does say that the President "may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them . . . he may adjourn them to such time as he shall think proper . . ." He did not do that, with good reason. Filling a vacancy is not an extraordinary occasion and the Senate has a Constitutional duty to advise and consent. Such an adjournment would clearly nullify the Senate's Constitutional obligation. Such an adjournment would be a precedent to forever eliminate that obligation and could not therefore be construed as a proper adjournment.
None of this is to say that if this was brought to the Court that it would refuse (as it should) to judge the matter for lack of standing. Nor can anyone predict, as is witnessed by what the Court has done over the last 75 years, how it would decide. And who would be the plaintiff? Congress, in my opinion, has the clearest case for Presidential overreach than vice versa. But who would bring it on behalf of Congress? Either party might want its President to have the power that Obama just snatched. If the Republicans are confident of winning the presidency this year, why would'nt they want to have such power? And why would the Obama justice dept. bring it. Does the Court entertain a plaintiff against itself?
If anything Bush increased the power of the Executive Branch during the last 8 years. Given the partisan climate is Obama doing the same or remiss in his duty if he doesn't?
Bush is just one of most Presidents that increased Executive power--singling him out is irrelevant, except that he understood that Congress had the power to recess as it wished, so he did not do what Obama has done when Congress recessed pro-forma. His appointments were blocked. Are you implying that it is the duty of the President to expand Executive power at the expense of Congress? How far should it go? Do you want an imperial presidency?
Wouldn't even surprise me if this becomes an issue during the general election.
-spence
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