Monday, January 16, 2012

To recess or not to recess...

What’s new Today

Our #1 story is a one minute video of Margaret Thatcher.  #2 looks at Obama’s interpretation of the Constitution and the founders.  #3 looks at the Constitutional argument between the Senate and the President regarding being in a recess.  #4 talks about how the Nebraska Senate seat is pretty much lost to the Republicans.  #5 explains the various economic systems using two cows.  I’ve added my own which I dub Crony cowism.  Finally #6 includes how incivility by the left is rapidly growing.

1.  Thatcher on Socialism

Take a minute and watch this.

2.  Obama and the Founders

Of course President Obama is not concentrating on campaigning, White House press spokesmen assured us -- as the president headed off to Chicago for three fundraisers and a drop-in at his campaign headquarters, two days after a high-roller fundraising choked off traffic five blocks from the White House, with the assistance of a score of D.C. police cars.

No one, or at least no one who is paying attention, is fooled. It's standard presidential procedure to say you're not absorbed in campaigning even as you go out to raise money every other day. Bill Clinton, in my view, spent an undue amount of time fundraising, George W. Bush spent more, and Barack Obama makes them both look like pikers.

So Obama's scorn for the truth in this regard is only a minor matter. His scorn for the Constitution is something else.

That scorn has been expressed most recently in his "recess" appointments of members of the National Labor Relations Board and the chairmanship of the Consumer Financial Protection Bureau. The quotation marks are appropriate because when he made the appointments the Senate was not in recess as the Constitution requires.

Article II, Section 2 of the Constitution says that presidential appointments must be confirmed by the Senate unless Congress provides otherwise. But anticipating that the government may need officials when the Senate is available, the section further provides that "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session."

What constitutes a recess? Article I, Section 5 provides "Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days."

The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments….

Obama basically is saying “It’s a recess when I say it’s a recess.” 

3.  Obama's Recess Appointments

[T]he Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions — not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.

Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place — wholly apart from the pro forma issue — consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.

An interesting look at the legality of Obama’s recess appointments. 

4.  Nebraska Shows 2012 Challenge for Democrats

When Sen. Ben Nelson, D-Neb., announced his retirement, Democrats received a quick reminder of how bleak 2012 could prove for their Senate prospects. The retirement of Democratic Sen. Kent Conrad in North Dakota gives Republicans a near-gimmee. The open Nebraska seat, for which two strong Republicans are already in contention, could be a second. And that would leave Democrats no margin for error as they seek to defend against a GOP takeover of Congress' upper chamber.

Democrats' best hope in Nebraska, many have said, would be for former Sen. Bob Kerrey, D to return and run for his old seat. Kerrey, who is slightly more liberal than Nelson, recently finished a stormy tenure as president of The New School in New York City. (He is a decorated and wounded Vietnam veteran, and the leader of a Navy SEAL team which, as he admitted in 2001, participated in a massacre of civilians. Kerrey took responsibility for his team's actions when The New York Times explored the incident over ten years ago.)

Magellan Strategies, a Republican firm of whose work I am not really a fan, has released the first poll that I am aware of testing Kerrey in head-to-head matchups against the two leading Republican candidates. In both cases, he loses and fails to pull more than 40 percent support. Attorney General Jon Bruning beats him, 51 to 40 percent. Treasurer (and Former Attorney General) Don Stenberg, who litigated the pro-life side in the landmark Stenberg v. Carhart Supreme Court case, beats Kerrey, 47 to 39 percent.

Even factoring in the Republican lean that Magellan's polls tend to carry, this is an ugly poll, considering that Kerrey is probably the best known and most revered Democrat in the state. For Republicans, this means they might not have to worry too much about who among their primary candidates is "more electable."

But for Democrats, this has a deeper strategic significance. If they begin the 2012 cycle ceding two seats, their odds of holding the Senate majority are very slim….

2012 is likely to be a repeat of 2008 but this time the wind is at the Republicans back.

5.  Using Two Cows to Explain the Theory of Government


You have two cows. The government takes one and give one to your neighbor.


You have two cows. The government takes them both and promises you milk but you starve.


You have two cows. The government takes them and sells you the milk.


You have two cows. The government takes them both, shoots one, milks the other, pays you for the milk, and then pours it down the drain.


You have two cows. You sell one and buy a bull.


You have two cows. The government taxes you to the point that you must sell them both in order to support someone else who already got a free cow from the government.

They forgot one. 

Obamaism.  Your two cows puts you in the top 1%.  The government passes a law that says you can’t have two cows unless you get an exemption from them.  If you give them your cream, you get the exemption.  This is also known as crony cowism. 

6.  Hate Speech on the Left Increases

Last week, Rep. Debbie Wasserman Schultz (D.-Fla.) linked the Tea Party to the tragic Jan. 8, 2011, shooting of Rep. Gabrielle Giffords (D.-Ariz.). This is just one example, unfortunately, in a long line of slanders from the far left.

“I hesitate to place blame,” said Wasserman Schultz, Chair of the Democratic National Committee. “But I have noticed the tone take a very precipitous turn toward edginess and a lack of civility with the growth of the Tea Party movement.”

Wasserman Schultz is not alone. VP Joe Biden has compared the Tea Party to terrorists, and David Axelrod, President Obama’s political henchman, has compared Newt Gingrich to a monkey. The Washington Post quoted an Obama campaign e-mail to supporters in October of last year claiming the Republican plan for job creation is to “suffocate the economy for the sake of what they think will be a political victory. ” The President has referred to Republicans as “hostage takers.”

These statements are outrageous and are not part of a civil political discourse between the parties. Expect the left to use liberal hate speech as a means to distract the American people from the President’s failed big-government policies

It appears the call by Democrats for civility was only for the Republicans to hear.

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