Sen. Mike Lee blocks bipartisan effort to vote on a bill protecting special counsel Mueller

Sen. Mike Lee, R-Utah, objected to the attempt to bring the bill forward, citing late Supreme Court Justice Antonin Scalia as he argued that passing the legislation would be “fundamentally undermining the principle of separation of powers that is so core to our liberty.”

Senate rules dictate that so-called unanimous consent requests be rejected if even one senator objects.

Trump’s Appointment of the Acting Attorney General Is Unconstitutional

The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

.. He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional.

.. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

.. the the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

.. If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

.. Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

.. What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entireUnited States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

.. We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

.. Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation.
.. As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Release the Memo That Really Matters 

Article I, Section 8, Clause 11 of the Constitution grants Congress the power to “declare war.”

.. In practice, however, it seems as if the rule is observed mainly in the breach. In the post–World War II era, American forces have been committed time and again even in offensive military actions without even the slightest effort to obtain congressional authorization.

.. The latest example occurred on April 6, 2017, when President Trump ordered a cruise missile strike on Syria in retaliation for its use of chemical weapons

.. Unless there is classified information we don’t yet know, a strike of this nature is exactly the kind of military action that should require congressional approval.

.. We were not at war with Syria. We were not acting in immediate self-defense of our nation. We were not fulfilling a Senate-ratified treaty obligation.

.. Shrugging off the Constitution is a bipartisan practice.

  • Who can forget President Obama’s strikes against Libya? He ordered offensive military action against a sovereign nation without a declaration of war.
  • While George W. Bush obtained congressional authorization for the wars in Iraq and Afghanistan, his predecessor,
  • Bill Clinton, launched extended aerial campaigns in the former Yugoslavia with no congressional vote.

years of presidential overreach, congressional inaction, and partisan bickering have jeopardized our constitutional structure. We are steadily moving away from the separation of powers and toward an unconstitutional legal regime that places sole war-making authority in the hands of an increasingly imperial presidency.

.. There are widespread reports that the president is considering launching a “bloody nose” strike against North Korea — a strike designed to send the strongest possible message, short of all-out war — that its ICBM program has to end.

.. The discussions are apparently so serious that the administration pulled its nominee for ambassador to South Korea, Victor Cha, because he opposed the strike. He then immediately took to the pages of the Washington Post to express his opposition

.. We are not facing the necessity of immediate self-defense. Oh, and in both countries, military action carries with it risks of dangerous escalation. With Russian boots on the ground in Syria, miscalculation risks a great-power conflict. With immense North Korean forces clustered near the border of South Korea, miscalculation risks a truly terrible war.

.. New military action in Syria and new military action in North Korea represent textbook cases for congressional authorization.

.. So why did the administration feel that it had the legal authority to order its Syria strike?

Well, it turns out there’s a memo.

.. Prior to the Syria strike, the administration generated a classified document by an “interagency group of attorneys” that analyzed the “legal basis for potential military action.

.. We cannot sustain and protect our constitutional structure if we delegate arguments against the unconstitutional abuse of presidential authority exclusively to members of whichever party is out of power.

.. it’s time for Senator Corker to insist on a public debate and congressional authorization before we launch any new military action against North Korea.

.. While the facts supporting the argument may well be legitimately classified, the legal analysis itself — which will turn on questions of constitutional, statutory, and international law — should be a matter of open inquiry.

Richard Cordray’s Political Stunt

Democrats pretend that the Consumer Financial Protection Bureau is its own branch of government.

This fiasco underscores that the CFPB is a rogue agency whose structure is an affront to the Constitution’s separation of powers. A panel of the D.C. Circuit Court of Appeals ruled in PHH Corp. v. CFPB that the “independence” Mr. Frank so prizes is unconstitutional and that the bureau’s director must be subject to presidential authority.

.. Democrats created an executive-branch agency insulated from Congressional appropriations and presidential control, and now they claim to be able to run it like a branch of government unto itself with a self-sustaining directorship. This is a perversion of constitutional government that the President is right to resist and the courts should reject.

Why Trump’s Ban on Transgender Servicepeople Is Flatly Unconstitutional

Here’s another Trump policy likely to get held up in courts.

a wall-to-wall ban on transgender Americans in the armed forces could only be understood as rooted in what constitutional doctrine calls animus: that is, the bare dislike of a group of people. And as the Supreme Court has held in cases going back at least to the 1970s, animus is never a constitutionally valid reason for government action.

.. The Israeli military, which is not known for compromising its fighting effectiveness out of deference to softheaded social causes, includes transgender individuals in its ranks.

.. Trump’s tweets did not speak of barring transgender personnel from combat; it proposed to bar transgender persons from military service “in any capacity[.]”

.. The U.S. military employs people in a lot of capacities. It has doctors, lawyers, chaplains, cartographers, meteorologists, journalists, diplomatic attaches, cargo pilots, engineers and cooks. And it’s hard to think of any reason why transgender individuals should be banned from all of those roles. Indeed, it’s hard even to think of any reason why a government might want to ban transgender persons from all of those roles—except, of course, for simple dislike of transgender individuals.

.. Yes, the military might incur such costs if it paid the bill for the medical care associated with actual gender transition, as was the policy under Obama. But if that were the concern, the military could simply stop providing that benefit, thus saving the money without barring all transgender persons.

.. Regardless of whether the president himself bears ill will toward transgender people, his aim might be to appeal to a political base that does. But it’s well-established that one cannot escape anti-discrimination rules on the grounds that one is catering to someone else’s prejudice rather than acting on one’s own.

The classic example is a restaurant that refuses to hire black waitstaff, not because the restaurant owner is a racist but because the restaurant owner thinks the customers want the waitstaff to be white. This “customer preference” argument is a known loser, and it’s no different as an argument about voters rather than customers.

.. government actions discriminating on the basis of gender are subject to what constitutional doctrine calls “heightened scrutiny” and in particular that they can survive only if they are “substantially related to important government interests.”

.. If a policy is based in animus, it is unconstitutional regardless of whether a similar policy or even the identical policy could have been enacted for permissible reasons. What makes such a policy invalid is its purpose rather than the specifics of how it is carried out.

Trump Threatens to Withhold Payments to Insurers to Press Democrats on Health Bill

‘Democrats will start calling me’ if turmoil hits insurance markets, President Donald Trump tells The Wall Street Journal

In suggesting that he isn’t willing to proceed with changes to the tax code until health care was addressed, Mr. Trump sent a strong signal to members of his own party
.. He didn’t rule out the possibility of a tax bill passing before the congressional recess in August, though many White House officials and lawmakers believe that timeline is unrealistic.

.. Mr. Trump said he had mixed feelings about creating turmoil in the insurance markets… A federal judge in 2016 ruled the government payments were improper but let them continue while Mr. Obama’s administration pursued an appeal. After Mr. Trump’s election, Republicans requested and received an initial delay in the case.

.. “Obamacare is dead next month if it doesn’t get that money,” Mr. Trump said. “I haven’t made my viewpoint clear yet. I don’t want people to get hurt….What I think should happen and will happen is the Democrats will start calling me and negotiating.”

.. House Speaker, Paul Ryan (R., Wis.) has said he would prefer to see the administration continue to fund the payments.

.. Mr. Trump said Mr. Schumer “should be calling me and begging me to help him save Obamacare, along with Nancy Pelosi.”

.. Mr. Schumer said the president was “threatening to hold hostage health care for millions of Americans…to achieve a political goal of repeal that would take health care away from millions more. This cynical strategy will fail.”

Still against Intervention in Syria

Trump’s act of war is in violation of the Constitution, which requires congressional authorization for such an offensive use of military force, provoked by no aggression against our nation.

.. Bashar al-Assad’s continuation in power, dismal as that prospect may be, is in no way the worst conceivable outcome for American national security.

.. If the United States has not been attacked or threatened, congressional approval should be sought, not merely for legal purposes but also to ensure that complexities have been thought through and public support for a risky intervention has been won. Here, quite apart from the want of American legal footing, Trump lacks even the fig leaf of international legitimacy

.. count me out of the virtue-preening that obsesses over the type of monstrous weapons employed when the issue is the monster using the weapons — of any kind. Both Assad and his opposition jihadists regularly commit atrocious war crimes targeting civilians. It is not beneath Assad, his enablers, or his enemies — al-Qaeda, ISIS, and their fellow militant Islamists, all of whom seek and would use weapons of mass destruction — to enter a village and firebomb or shoot up several dozen civilians (including women, children, and “beautiful babies”) with conventional arms. That is a commonplace

.. The barbarism characteristic of Syria’s years-long civil war is not materially different because chemical weapons have been used

.. There is no American interest is deposing Assad if he would be replaced by

(a) a Sunni sharia-supremacist regime that is more likely than Assad to make Syria a platform for jihadist attacks against our homeland and interests or

(b) a Libyan-style failed state that has the same effect.

.. the principal American enemy pulling Assad’s strings is Iran

.. Until we have a strategy for both vanquishing the Sunni jihadists and choking the regime in Tehran

.. accommodations had been made with Russia — particularly in sharing air space — in order to promote U.S.-led coalition attacks against ISIS. Last night’s missile strike against the Syrian air base puts an end to those accommodations. Is the Assad attack worth it if it makes the ISIS campaign more difficult?

.. Proportionality means that a use of force, and the collateral damage it is sure to entail, should be reasonably related to the military value of a lawful objective. It does not mean that an unauthorized, unprovoked attack is legitimate as long as it’s not too big.

.. what are we going to say when Putin cites last night’s strike as justification for his own unilateral but “proportional” attacks in Eastern Europe?