Obama Re-Constitutes

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Bush Guts Constitution, Again

"In other words, I jez set aside th'
consteetushun an' do whut I want."

REUTERS/Jonathan Ernst

"Whaddaya mean I caint do that?"

REUTERS/Larry Downing

"Ah donwanna play preznent no more."

AP Photo/Ron Edmonds

GW Bush continues his crusade to gut the US Constitution, this time by claiming the Senate is in adjournment when it is not.

On Friday (12/28), Bush announced a "pocket veto" of H.R. 1585:

The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.

Bush is claiming this is a "pocket veto," as defined in Article I, Section 7 of the U.S. Constitution. The President must either sign or veto a legislative bill within 10 days of its delivery to him, "unless the Congress by their adjournment prevent its return...."

Congress has not adjourned. The Senate has remained in session over the holiday break. In fact, the most recent pro forma session was Friday (12/28).

Congress delivered H.R. 1585 to Bush on Wednesday, December 19th. The Constitution exempts Sundays from the 10 day period. The ten days aren't up until (at least) Monday, December 31st. Bush has until then to attach his signature to his veto (an affirmative veto) or the bill becomes law.

Why is this important? Because Bush is flat out claiming the Senate's pro forma sessions do not mean what the Constitution says they mean -- Congress is still in session; Congress has not adjourned. And if that is accepted, then Bush can make recess appointments.

But wait! There's more! H.R. 1585 contains several provisions for veterans and active members of the Armed Forces, including a 3.5% pay raise, effective Jan. 1, 2008. The bill authorizes additional assistance for military families, retirement pay, disability pay, etc. Oh, and it authorizes $150.91 billion for appropriations for the operations in Iraq and Afghanistan.

How exactly is Bush supporting the troops here?

George W. Bush is vetoing this bill. He just doesn't want to actually put his signature to that veto, claiming Congress is preventing him from doing so, and thus ignoring the U.S. Constitution. Again.

[hat tip to Kagro X]

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Wide Stance Court Stalls On The Law

The Court in Minnesota has issued it's decision denying Larry Craig's Motion To Withdraw Guilty Plea. It is certainly not unexpected, and I am not surprised in the least. Craig is not a sympathetic defendant here, and for good reason. I think that he was indeed doing exactly what he was accused of. I still think the decision, and indeed the initial charging of the crime, is, and was, legally wrong. While Craig's behavior in the bathroom absolutely could be viewed as consistent with the homosexual cruising lewd behavior he was accused of, it could also be consistent with harmless and innocuous behavior. I don't like Craig one bit, and good riddance to him, but I think it is questionable whether his conduct supported a charge, and see no way it could be seen as proof beyond a reasonable doubt in a fair court of law. Beyond that, I believe that Craig knew what he was doing in entering his plea, and was just hoping it would slide through the cracks; so, again, not much sympathy there. That being said however, I still think his plea was legally and Constitutionally deficient in it's advisement of right to counsel and factual basis for a finding of guilt on the charge he was found guilty of. These are technical legal arguments, and I do not expect most lay people to fully understand them or agree with them; but as a lawyer, I absolutely consider the plea to be so deficient that it should be set aside. I might also note that I do not even reach further technical arguments under local Minnesota statutes that I also think support the proposition that the plea was defective statutorily. Bottom line, I think it was wrong, but couldn't happen to a more deserving guy.

Despite what many people would believe, and the Court seems to accept, the fact that the cops advised Craig of Miranda, or the prosecutor made some comment in a note or phone call, is irrelevant to the argument I am describing. There are simply legal requirements as to what information, and how it is to be delineated, that must be contained within the four corners of the plea document and the official court record of the acceptance of the plea. There was no formal record, whether by court reporter transcription or audio recording, made in this case. In fact, there was no court proceeding, it was simply sent in by mail and considered done. The law should apply equally to those we don't like as those we do like; here, there is no question in my mind whatsoever that the plea proceeding was legally deficient. I fully understand why people either don't understand these arguments, or don't want to believe them, but I stand by them completely.

I understand that many, if not most, may disagree with me; but I still maintain that the plea was deficient as to containing a Constitutionally adequate waiver of counsel and proper factual basis. I also believe that the court improperly bootstrapped extraneous evidence from the police report as support in making it's predetermined decision. The police report was not made a formal part of the factual basis in the plea document (and it often is made a formal part on the record by verbal reference in the transcript, of which there is none here, or by words formally adopting and incorporating it in the actual plea document, again, none of which are present here). This is a very long memorandum authored by a line level county misdemeanor judge in an attempt to support a predetermined incorrect decision if you ask me. The plea form and process supplied by the prosecutor and court here is as lame and goofy as I have ever seen. I have never seen any as bad, in any court I have ever been in, even for a broken taillight petty offense traffic ticket. Oh well, no big deal, the Constitution and due process rule of law do not mean diddly squat anywhere in this country anymore; no reason it should here either I guess.

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Tim Johnson, Your Country Needs You.

Can someone please explain to me why Senator Tim Johnson, D-S.D., is not voting on the most important issues the U.S. Senate has considered since, oh, the Gulf of Tonkin resolution?

Yes, I know he's recovering from a nearly-fatal brain aneurism, and as someone whose family history includes stroke victims, I emphathize strongly.

But really, they were propping up Strom Thurmond, R-S.C., and faking his votes for years after he was, for all intents and purposes, you know, dead.

Johnson's not bed-ridden. There are photos on his Senate web site of him undergoing physical therapy, walking with a cane. His Newsroom page has more than a dozen press releases just this month announcing the millions of dollars in funding that he has secured for South Dakota.

So why does Harry Reid keep using the absence of Senator Johnson as an excuse for the Senate Democrats not having even a one-vote majority (Joe Lieberman notwithstanding?)

I understand and appreciate the importance of near-constant physical therapy for those who have suffered brain injuries. If it were me, I'd want to be home, as far away from the lethal miasmas of D.C. as I could get.

But these, dear Tim, are perilous times. The fate of this country and the entire planet are quite literally at stake. I don't believe that getting you onto the floor of the Senate, whether in a wheelchair or a hospital bed, to vote to preserve the Constitution of the United States, would kill you.

But even if it would kill you, I am still asking - nay, demanding - that you do it.

When the Founders signed the Declaration of Independence, they were signing their own death warrants. If they'd been caught by the British soldiers who patrolled every street, they'd have been hanged. No trial, no appeal, no delay.

Is your taking a break from physical therapy to cast a vote to preserve the nation they risked their lives to create so much to ask?

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Calvinball

Commenter melior at TPMMuckraker comes up with the perfect one-word description of this maladministration's attempt to explain why it is not subject to the Constitution.

"It's more than improvisatory, it's outright Calvinball."

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Craig Thomas' Replacement -- Wyoming and the 17th Amendment

Last week I exchanged some e-mails with Blue Girl. The traffic went a little like this.

Blue Girl--Senator Craig Thomas (R-Wy) has just lost his tragic battle with cancer. The governor of Wyoming is a Democrat. It looks like the razor thin balance in the Senate just shifted a little to the blue end of the spectrum.

Corpus Juris--Na, under Wyoming law the Democratic Governor has to pick the replacement from three candidates nominated by the Wyoming Republican party.

Blue Giri--I am sad for the Thomas family, but rats.

Digging around this morning I uncovered a legal analysis of Wyoming's selection process. Findlaw's Vikram David Amar argues that any effort by the Wyoming legislature to limit the governor's discretion in the selection of a replacement violates the text of Section 2 of the 17th Amendment to the US Constitution. That section reads

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Amar says

There is a very strong textual argument that the Seventeenth Amendment prevents the Wyoming legislature from dictating the Governor's choices in making a temporary appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

There is no case law interpreting section 2. If Governor Dave Freudenthal chose to rely on Amar's argument and ignore the legislatively authorized selection process, we would bump up against a significant Constitutional question. Do you think the Democrats want that fight?

My guess is they would only if the three Republican nominees are limited to Lynne Cheney and two of Casper, Wyoming's less well known town drunks. If the Republicans nominate anybody close to reasonable, Freudenthal will avoid the battle. In addition to Cheney a Fox News short list of possible names includes state Sen. John Barrasso; state Rep. Colin Simpson, son of former Sen. Alan Simpson; and U.S. Attorney Matt Mead. None of those guys are town drunks.

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Second Amendment Foundation Says Gonzales Should Resign

I read this press release and just couldn't believe it. The Second Amendment Foundation, a gun advocacy group, is calling for the resignation of Alberto Gonzales. It seems the AG is supporting a senate bill called the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007." The press release says that the bill would give the Attorney General discretionary authority to deny the purchase of a firearm or the issuance of a firearm license or permit to American citizens suspected of having terrorist connections.

“This bill,” said SAF founder Alan Gottlieb, “raises serious concerns about how someone becomes a ‘suspected terrorist.’ Nobody has explained how one gets their name on such a list, and worse, nobody knows how to get one’s name off such a list.

“The process by which someone may appeal the Attorney General’s arbitrary denial seems weak at best,” Gottlieb suggested, “and there is a greater concern. When did we decide as a nation that it is a good idea to give a cabinet member the power to deny someone’s constitutional right simply on suspicion, without a trial or anything approaching due process?

“...S. 1237 is loaded with red flags. It would allow an appointed bureaucrat the authority to suspend or cancel someone’s Second Amendment right without even being charged with a crime.

“Attorney General Gonzales has no business asking for that kind of power over any tenet in the Bill of Rights,” Gottlieb said. “He took an oath to uphold the Constitution, not trample it. Perhaps it is time for him to go.” Emphasis added

I haven't read the bill. I don't know the answers to Gottlieb's objections. If you read the quote, however, you will notice that he isn't just advocating 2nd Amendment rights. He is also making strong 4th Amendment arguments. It strikes me that some people on the right are beginning to catch on. This administration has launched an assault on the individual freedoms we used to take for granted.

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The Justice Department Investigations Must Not Be Portrayed As Us Versus Them

There has been much written and discussed of late on the roiling scandals permeating the US Department of Justice. Much of it, and rightfully so, is being driven by the Democratic left. Our own Corpus Juris has been both eloquent and dogged on these issues, and deserves our commendation and thanks. Although I have seen absolutely no evidence of this from CJ, or any other contributor here, there are many of our brothers and sisters out there among the political activists and blogosphere that are, unfortunately, viewing this set of issues as but another political battle to be played for maximum advantage against the Republicans. Such a view cannot, and must not, be our tact.

The cracking of the Justice Department scandals must be a goal of justice and the rule of law, not a political goal. Quite frankly, adherence to steadfast political goals, albeit it on the other side, is what got us to this point in the first place. The actions of the investigating Congressional committees should not be to advance political goals, they should be to advance the principle of justice irrespective of whether the benefit inures to the Democratic or Republican side. To act otherwise puts the result above the process; the foundation of American law, and indeed American democracy itself, is the primacy of a fair and impartial process not the guarantee of any particular result or goal.

There has been a long and slow degradation of the understanding of this fundamental premise by both the American public and their elected leaders. When either side decides that "political goals" are primary, that inherently places results above the process. I have practiced law in the governmental misconduct and criminal areas for twenty years, and the phenomenon I describe is quite evident in the halls of justice. A lot of the circumstances and problems we are focused on today are the festering mature result of the primordial decisions of one party, the Republicans, to serve "political goals" by declaring themselves the "law and order party" and spreading fear of isolated and ultimately inconsequential, yet publically hyped and discussed, results in criminal cases. If a particular criminal defendant went free because the police or prosecution had substantially violated fundamental Constitutional protections, they screamed and bellowed "Hide the women and children, those liberals have freed this heinous criminal on a technicality to roam your streets and rob, rape and murder again".

So it began with characterizing hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, usually being elected officials themselves, started shading their duties and principles under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for election proudly proclaiming how they had protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal's use of technicalities". The more they talked the talk, the more they walked the walk.

The sad result over time is the situation we now find ourselves in where technicalities (read: the Constitution) be damned, the government and justice system is to be used as just another partisan tool. The Attorney General of the United States dismissively brands the Genevea Conventions as "quaint" and inconsequential. The President of the United States belligerently ignores the Constitution screaming that "it's just a damn piece of paper". The Executive Branch acts, and thinks, like Article II of the Constitution (the one delineating and defining the Executive Branch) is the only portion that exists. This is what happens when political goals (the results) trump adherence to the principles of the system (the process). There is no way to excise politics completely because it is inherent in the process at hand; however, it must not be the guiding intent. If the fundamental process can be restored and borne out, our victory will flow therefrom automatically.

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Congress, are you out there?

[Updated Below]

Congress? Are you going to take this?

"The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn't have oversight ability." Tony Snow, March 22, 2007

I heard that, and you could have knocked me over with a feather.

I would refer Mr. Snow to Article. I. Section. 3. of the Constitution of the United States, which concludes:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

And Article. I. Section. 3. of the Constitution of the United States:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Would someone please explain to me just what the hell that is, if not oversight ability?

If congress doesn’t spike that right back over the net, we need a whole lot of new representation in two years. Both committees voted for subpoena power, and Republican Senator Charles Grassley specified he wanted to be on the record with his support of the authority.

Use as necessary. Contempt of Congress?

That qualifies.

UPDATE: Please follow this link to an official Senate publication that explains Congressional oversight better than I can. Here is the summary:

Congressional oversight of policy implementation and administration, which has occurred throughout the U.S. government experience under the Constitution, takes a variety of forms and utilizes various techniques. These range from specialized investigations by select committees to annual appropriations hearings, and from informal communications between Members or congressional staff and executive personnel to the use of extra congressional mechanisms, such as offices of inspector general and study commissions. Oversight, moreover, is supported by a variety of authorities—the Constitution, public law, and chamber and committee rules—and is an integral part of the system of checks and balances between the legislature and the executive.

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Impeachment--Let Us Review the Process.

Given the reception President Bush's people received on Capital Hill yesterday I thought it might be prudent to review the various avenues available to Congress for dealing with a President who has decided to send America's children to fight an unnecessary and unpopular war. Well, the Congress has the power of the purse. They can simply refuse to fund any war. That is what happened at the end of the Vietnam War. Some have argued that the public response to the video of Americans boarding choppers on the roof of the American embassy was the genesis of the modern Republican party. Democrats are loath to allow that scene to be replayed.

What other tool does the Constitution provide the Congress for a President who has moved beyond his popular mandate?

Yesterday, Condi Rice was treated very rudely by several Senators as she tried to promote the President's “New Way Forward.” As I recall at least two Senators referenced the Administration's numerous lies in response to Congressional inquiries as supporting their skepticism about the President's “New Way Forward." The President's talk about Iran especially troubled some. Senator Joe Biden went so far as to announce that if the President attempted to widen the war to Iran without specific Congressional authority, the President would provoke a Constitutional crisis.

Of course, the phrase “Constitutional crisis” brings the word “impeachment” immediately to mind. For those playing at home, let us review how the impeachment process begins. Article 1, Section 2, of the Constitution specifies that "the House of Representatives...shall have the sole power of impeachment." This means that it has the power to bring charges against President, Vice President, or cabinet members, such as Condi Rice. Such an impeachment process would normally start in the House Judiciary Committee. In the last congress the new Chairman John Conyers proposed H.Res.635 which called for the creation of a Select Committee to investigate various administration lies about Iraq, wiretapping and related matters, and to make recommendations about the sufficiency of evidence to support impeachment. If such a Select Committee were created, the House Judiciary Committee would consider any charges it might level and might adopt a resolution to conduct an "official inquiry." If that resolution passed the Judiciary Committee it would go to the House floor for a vote of the full house. An "official inquiry" resolution is considered a question of privilege so it has to be dealt with before any other business. If that resolution were passed by a majority vote, the Judiciary Committee would be directed to conduct an inquiry or investigation into the alleged crimes. Once the investigation is completed the Committee would draft and vote on Articles of Impeachment. The full House of Representatives would then debate and vote on each Article. If one of the Articles passed the official charged would now be officially impeached. The matter would then move on to the Senate for trial. Article 1, Section 3, United States Constitution. Elected Republicans would hold a prayer vigil on the steps of the Capital. Oh, sorry, Bush is not Clinton. His approval rating is about 27% so Republican Congress critters and Senators would probably skip the rally.

There, ladies and gentlemen, is the old way forward for any President who forgets he is working for the people.

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