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On January 23, Jason Mazzone, Gerald Baylin Professor of Law at Brooklyn Law School and Andrew M. Grossman, visiting legal fellow in The Heritage Foundation's Center for Legal and Judicial Studies and litigator at Baker & Hostetler, debated the constitutionality of President Obama's invocation of executive recess appointment authority to appoint the first director of the new Consumer Financial Protection Bureau and three new members of the National Labor Relations Board.

Professor Mazzone articulated a unique national-security argument in defense of the President's recent use of the Recess Appointments Clause, stating:

The Constitution is a document for times of war as well as times of peace. Many of the Constitution's provisions are explicitly directed at matters of national security; many other provisions serve a security function. The President's "Power to fill up all Vacancies that may happen during the Recess of the Senate" is a power that plays an important national security role by ensuring that even in times of war or other national crises high-level governmental offices remain staffed and functional. The power is located in section 2 of Article II of the Constitution, along with other presidential powers (to act as Commander in Chief, to make Treaties, to appoint Ambassadors, public Ministers and Consuls) that secure the nation. Early interpreters of the power emphasized its security role. For example, in 1823, Attorney General William Wirt, invoking military analogies, explained that were the President dependent upon the resumption of the Senate, a vacancy could "paralyze a whole line of action in some essential branch of our internal police."

Allowing the Senate to block presidential use of the appointment power with pro-forma sessions (the equivalent of an "In Session" sign on the door of a vacant chamber) would have grave security implications. In assessing President Obama's recent use of the power, we should ask about the scenario that is at the heart of the Recess Appointments Clause.

My latest Manhattan Moment column discusses the SOPA legislation fiasco, the successful protest against it, and why this experience can serve as a teaching moment of the importance of limited-government principles.

An excellent Mark Hemingway Weekly Standard piece explored the intellectual dishonesty of supposedly neutral "fact-checking," which often turns into a way for reporters to insert their opinions into a contentious political debate. Recently, I noted hypocrisy in President Obama's State of the Union speech: "It is ironic that Obama is calling for a 90-day 'simple up or down' vote on judicial nominees when he is the only sitting president in American history who has voted to filibuster a judicial nomination." Reuters decided to fact-check this. Of course, a fact check that is a fact-check would be a single word long: "true." Obama is the only sitting president in American history who has voted to filibuster a judicial nomination. Even aside from a discussion of the Fortas nomination controversy that never mentions the severe ethical issues that caused him to resign from the Court entirely (instead it was the opposition of "Republicans as well as Southern Democrats"), the article is a nice demonstration of how much in the tank the media will be for Obama this year. Reuters went on at length how my analysis was "disingenuous"; after all, many presidents were never senators, so never had the opportunity to vote against cloture on a judicial nomination. Which misses the point. Obama isn't any less hypocritical if JFK or Warren Harding had also filibustered judicial nominations. But anything to discredit criticism of Obama.

Some thoughts on Barack Obama's State of the Union speech, which was more of a stump speech than anything else:

• It is ironic that Obama is calling for a 90-day "simple up or down" vote on judicial nominees when he is the only sitting president in American history who has voted to filibuster a judicial nomination—and that was for someone well within the mainstream like Justice Alito.

• We've previously commented on the faux populism of the "Buffett Rule" that Obama has made the centerpiece of his tax policy.
• The fundamental economic unsoundness and ignorance of Obama is demonstrated by lines like "Over a thousand Americans are working today because we stopped a surge in Chinese tires." How much poorer are Americans and how many Americans lost their jobs because Americans are now paying higher prices for tires? How much less competitive are American vehicle exports because Americans are paying higher prices for tires? How much displacement of private investment will occur because Obama wishes to incur more public debt by creating a new bureaucracy, a "Trade Enforcement Unit," to raise prices on Americans?
• Obama "call[s] on every State to require that all students stay in high school until they graduate or turn eighteen." The public schools of the District of Columbia are already unable to teach their students because teachers have no power to discipline bad actors in the classroom. How much worse will that subpar education be when teenage thugs who don't want to be in school are instead disrupting classes? How much will schools have to water down their curriculum to "pass" that bottom decile who don't have the intellectual firepower to handle high school classes at the expense of the other 90% of students?
• I'd be more impressed that Obama calls for "[tearing] down regulations that prevent aspiring entrepreneurs from getting the financing to grow" if he weren't proposing and implementing so many new regulations that do just that. PPACA in particular is a job-killer.
• The idea that we need a government program to help "manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings" strikes me as insane. If manufacturers can profitably cut energy waste and build in energy efficiency, they don't need a government incentive to do so; if the government incentive is for making unprofitable energy-saving decisions, then that's just burning taxpayer dollars. If you think that reducing energy consumption is a good thing, then have the guts to implement a Pigouvian tax on energy consumption (which will by itself incentivize spending on energy savings) instead of increasing taxes on earning income and investment.

Andrew Sullivan and others sneer at Romney's debate proposal that illegal immigration can be resolved through "self-deporting," but the idea is sound. If enforcing regulations on employers means that illegal aliens face worse economic conditions by their presence in the United States than they would by staying south of the border, there won't be illegal aliens because they won't come in the first place, and leave if they're already here. There's certainly evidence that the recession reduced illegal immigration over the last four years; there's no reason to think that illegal aliens don't respond to economic incentives. (Indeed, the main problem with amnesty proposals is that they encourage future illegal immigration in the hopes that they'll receive the next generation's amnesty.) Federal policy can make a big difference here. The Obama administration's hypocritical upside-down-federalism lawsuits against Arizona and Alabama for attempting to reduce the costs of illegal immigration, refusal to enforce deportation law, and attempts to encourage voting fraud by suing states that dare to require ID at the polls are all examples of the policy going 180 degrees the wrong way.

Of course, Romney discussing the issue in jargon that even pundits don't understand and the fact that the political discourse is so debased that ignorant pundits feel it appropriate to use snark in response are two obstacles that he faces in the road to the White House.

Brooklyn Law professor Jason Mazzone and Heritage Foundation visiting legal fellow Andrew Grossman debate the constitutionality of President Obama's recess appointment of CFPB director Richard Cordray and three members of the NLRB.

Professor Mazzone's first comment articulates a unique national security argument in defense of the President's recess appointment authority. The featured discussion promises to be lively and thoughtful; please check back throughout the week as the discussion continues.

Last night's Republican debate featured an exchange between Senator Santorum and Governor Romney over the right of felons to vote. [CBS] Roger Clegg takes Santorum to task. See also Glassman and Lott in the 2005 New York Post.

On December 8, 2011, after Senate Republicans blocked the confirmation of Richard Cordray, former Ohio attorney general nominated to serve as the first director of the Consumer Financial Protection Bureau, President Obama vowed that his administration would not give up on the appointment. On Wednesday, the President followed through on his pledge with a recess appointment of Cordray, officially expanding the authority of the CFPB over non-bank institutions/lenders that can offer loans to consumers.

While there was an expected partisan response to the President's strategy from both sides of the aisle, a serious and legitimate legal issue was identified by constitutional scholars. The issue is whether the President has the authority to make recess appointments while the Senate is hosting "pro forma" sessions for the purpose of blocking those appointments.

The White House argues that the President does indeed have such authority:

The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called "pro forma" sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President's constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham "pro forma" sessions to prevent the President from exercising a constitutional power.

In response, Andrew Grossman, visiting legal fellow in The Heritage Foundation's Center for Legal and Judicial Studies and litigator at Baker & Hostetler, points to contradictions that could occur as a result of executive authority in deciding whether the Senate is functionally in session or not.

...on December 17, the Senate agreed to an order instituting "pro forma" sessions, of the kind the President now claims are actually recess. (See the PDF of the Congressional Record here.) But it was at one of those sessions, on December 23, that the Senate passed the payroll tax cut extension that the President signed into law later that day. (Again, see the Congressional Record entry.)

Of course, if the Senate was actually on recess that day, it couldn't have passed the bill, and the President couldn't have signed it into law. (The President has not claimed--at least, not yet--that he can enact laws that have not passed Congress.) But in that case, the President chose to respect the Senate's own view as to whether it was open for business.

Professor Richard Epstein and Professor John Yoo both identify the danger in the recognition of executive authority to determine whether the Senate is in session. Professor Epstein then articulates a strong textual argument in the interpretation of Article II, Section 2 of the Constitution concluding that Cordray's confirmation does not fall within the scope of the President's recess appointment authority. The U.S. Chamber of Commerce echoed that sentiment in their sharp admonition of the President's recess appointment calling it "unprecedented, constitutionally questionable, and puts the authority of the director and the validity of the bureau's work in legal jeopardy."

Among the many viewpoints expressed, we can probably all agree that this appointment is not likely to go unchallenged.

Newt Gingrich's attack on the judiciary is doubly unfortunate. It would be bad enough if it were simply wrong, but it's worse than that because there are kernels of legitimate grievances in Gingrich's critique that are buried in a decidedly radical view of the Constitution that would obliterate checks and balances and the ability of that document to protect limited government.

Let's start with the more wrongheaded aspects of the Gingrich analysis. Why attack Cooper v. Aaron, of all cases? That's a simple application of the Supremacy Clause: when the states and the federal government conflict, the federal government wins. That's before you get into the political problems of being perceived as defending racial segregation and opposing the Fourteenth Amendment powers of the federal government to end it. Whatever dog whistle advantage one is hoping to gain in the primaries will be more than overwhelmed by the soundbites used to alienate independents against you in the general election.

Ed Whelan and Matthew Franck have more than adequately refuted Gingrich's idea that Congress can remove judges by defunding judgeships; that's just incorrect as a Constitutional matter.

The "two out of three" rule—whereby Congress and the Executive could collude to override a Supreme Court decision—would have extraordinary consequences. A Democratic Congress and President want to ban guns? Any willingness of the Supreme Court to preserve the Second Amendment would have no effect. Congress wishes to pass the Elena Kagan Memorial Eat Your Vegetables Law? If the president signs it, what could the Supreme Court do? Beyond that, Congress could vote dictatorial powers for the president, cancel elections, bar speech criticizing incumbents (or just one political party)—two-out-of-three, so Congress passing, and the president signing gives the Court nothing to say about the matter. That's a lot of protection against Leviathan to give up just for the momentary satisfaction of overriding First Amendment protections against mandating that minorities participate in Christian school prayer.

What Gingrich doesn't understand is that the Constitution requires three-out-of-three agreement before limited government can act: Congress has to pass a law, the President has to sign it (with some rare veto override exceptions), and the judiciary has to be satisfied that the law is not outside the scope of the government's limited powers. As Roger Pilon points out, when Gingrich expresses upset at the overaggressive New Deal laws the Supreme Court signed off on, it was Congress and the President who acted outside their powers, and the Supreme Court that failed to act.

Where we need to distinguish is between legitimate judicial action—the exercise of the Article III judicial power to protect the citizenry from unconstitutional exercises of government power—and judicial activism, the misuse of the judicial power to act as a superlegislature to create new causes of action or to overrule legislation or constitutional provisions thought unwise. Part of the problem is Congressional laziness, a tendency to punt issues to the Supreme Court with poorly drawn legislation that grants large swaths of judicial discretion to interpret Congressional commands; for that, see Nick Rosenkranz. But the larger problem is judicial aggrandizement: courts dictating how prisons or school systems are to be run, finding ways to thwart the popular will for capital punishment, engaging in other social engineering outside of the legitimate judicial power. There, Gingrich has a smaller point: the original constitutional checks and balances have dissipated. He's correct that part of the solution is the appointment of judges that respect the rule of law, though that is an unfortunate uphill battle, given the enmity of much of the legal academy and one of the political parties to that position. But the other is to end the Congressional abdication of its impeachment authority.

As I pointed out five years ago, the 21st-century notion that "judicial independence" meant that judges were above Congressional criticism is a recent invention. The Founding Fathers anticipated that judges would get too big for their britches, and further anticipated that the check on such judicial aggrandizement was Congressional investigation and impeachment. As Alexander Hamilton wrote in Federalist No. 81:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

This is an important potential reform that could do much to solve the problems of overreaching judges were it to become a once-again accepted mechanism. (That's quite some time away: there's not even a substantial minority, much less a two-thirds majority, of Congress that buys into this aspect of the constitutional structure.) It's a crying shame that that signal is being buried by the noise of the rest of Gingrich's wrongheaded proposals and the way he's selling these issues. Judge Mukasey is right: the Gingrich proposal needs a red pen taken to it.

Wajert:

Sen. Ron Johnson (R-Wis.), along with two dozen co-sponsors, has authored a bill that would bar all federal agencies from finalizing any pending rules or voluntary guidance documents that could significantly impact the economy. The moratorium would remain in place until unemployment returns to the level it was when the President took office (7.7%).

The Regulation Moratorium and Jobs Preservation Act of 2011 (S. 1438) would apply to any "significant regulatory action," meaning any regulatory action that is likely to result in a rule or guidance that may have an annual effect on the economy of $100,000,000 or more, or adversely affect in a material way the economy, or jobs, or materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or raise novel legal or policy issues.

Alas, nothing has happened since the bill was referred to committee in July.