New Evidence Suggests Obama’s “Recess Appointments” Are Not Valid

Litigation over President Obama’s “recess appointments” to the National Labor Relations Board is going to the Supreme Court. A similar battle is being waged among lawyers about whether the President’s appointments to that Board, and to the Consumer Financial Protection Board, are constitutional.

At stake is the legal validity of hundreds of administrative decisions and regulations.

There are two constitutional issues involved. President Obama, like earlier Presidents, maintains that when the Constitution allows him to appoint officials without Senate approval so as to fill vacancies during “the Recess,” the latter term includes breaks within a session of the Senate, not just formal breaks between sessions. In addition, he claims (like many others before him) that for the vacancy to “happen,” as that word is used in the Constitution, it is enough that the vacancy continue into a recess. It doesn’t have to be created then.


Reject the Obamacare Medicaid Extension

Colorado’s legislature and governor have opted to endanger our state’s financial future—and the quality of health care—by yoking Colorado to Obamacare’s risky and expensive “Medicare expansion.”

This is one area in which Colorado could take a lesson from our sister state to the north, Montana.

Montana has a long history of what used to be “prairie socialism” and often has made bad fiscal decisions. But on this issue Montanans got it right.

I was in the legislative galleries in Helena last Friday, when the state stepped back from the brink.

Democrats and some Republicans were pushing for the state to join the Medicaid expansion, enticed by “free federal money.” So they amended a bill designed to keep the state free from the expansion to one chaining the state tothe expansion.

The rules of the state house of representatives generally provide that when the purpose of a bill is changed, it should go back to committee for review. So in a courageous move guaranteed to irritate the state’s “opinion leaders,” Speaker of the House Mark Blasdel decided to just that.


Avoid Election-Day Registration

Carting uninformed, transient voters to the polls to vote for the political boss-man is a time-dishonored practice of demagogues everywhere. It has been proposed for Colorado, but it has no place here.

Some historical perspective: America has a long tradition of democratic governance. By the time our American Constitution was adopted, nearly all states had broadened their electorates greatly from colonial days. Property requirements were loosened. Several states allowed women to vote (formally in New Jersey, informally elsewhere). Free African-Americans cast ballots in at least five states.

This was all to the good. But the Founders also understood that democracy is not the same as ochlocracy (mob rule). They understood that, for democratic governance to work, the electorate must (1) be reasonably well informed, and (2) stand to lose personally as well as gain from the choices they make.  One of the Founders’ solutions—an imperfect one, to be sure—was to retain some modest property requirements. Several states also provided exemptions for people meeting other qualifications, such as gainful employment.


New Issue Paper on the Interstate Threat of the anti-TABOR Lawsuit

As regular readers of this site know, a group of plaintiffs representing government interests has sued the State of Colorado, claiming that the Taxpayer Bill of Rights (TABOR) in the state constitution violates the U.S. Constitution. Even though the claim is an exceptionally weak one, last year a federal district court allowed it to proceed.

That ruling is now on appeal to the U.S. Court of Appeals for the Tenth Circuit.

Although the plaintiffs’ immediate attack is on Colorado’s TABOR, the underlying theory of their lawsuit is far broader. Their theory is that in order for a state to comply with the U.S. Constitution’s requirement that a state have a “republican form of government,” its legislature must have unrestricted power to tax, spend, and borrow.


It’s Been Done Before: A Convention of the States to Propose Constitutional Amendments

In 1861, the states held a dry run for an Article V “convention for proposing amendments.”

The event was the Washington Conference Convention or Washington Peace Conference. It was called by the Virginia legislature in January of 1861 in an effort to avert the Civil War. The idea was that the convention would draft and propose one or more constitutional amendments that, if ratified, would weaken extremists in both the North and the South, and thereby save the Union.

This gathering differed from an Article V convention primarily in that it made its proposal to Congress rather than to the states. In most other respects, it was a blueprint for how an Article V convention would conduct itself.

When the convention met in Washington D.C. on February 4, 1861, seven of the eleven states eventually in the Confederacy already had seceded. Of the 26 then remaining in the Union, 21 sent committees (delegations).  The conference lasted until February 27, when it proposed a 7-section constitutional amendment.


Count of Legislative Applications for a Balanced Budget Amendment

The following states have applications outstanding for a federal convention to propose a balanced budget amendment: Alabama, Alaska, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania, and Texas.

That’s 19 of the 34 states required. In addition, Illinois has an 1861 application outstanding that says essentially that Illinois hereby joins with the application of any state that chooses to make one. Arguably, that pushes it to 20.

However, Florida’s recent (2011) application may be too specific in its terms to be counted along with (“aggregated with”) with those of other states. The applications of Delaware, Maryland, and Mississippi may be invalid for mandating specific language to the convention. That leaves 16 (or 15 if the Illinois application isn’t counted).

As the count nears 34, we no doubt will see lawsuits from groups that want to keep spending no matter what the debt is. They will raise a number of other objections, including claims that some of the existing applications, even though never repealed, are too old. In my professional judgment, those objections are unlikely to prevail.


New Flyer Explains How the States Can Use the Constitutional Amendment Process to Curb the Feds (Article V)

The Founders built various checks and balances into the Constitution. One of the most important was the power of state legislatures to propose constitutional amendments to curb an abusive federal government. The Founders placed the procedure in the Constitution’s Article V. The Founders would be astonished—and chagrined—to learn the process has never been used. If…


Can the President Raise the Debt Limit Unilaterally? Hell no! Part II

The claim—partly silly, partly dangerous—that President Obama may raise the debt limit unilaterally without the approval of Congress is again being raised. I addressed it previously here. Now it has been further debunked in a Wall Street Journal op-edauthored by David B. Rivkin and Lee A. Casey.

Under the Constitution, only Congress may incur debt. The exclusive power of the legislature to do so is one of the central parts of our governmental system, pre-dating the Constitution by centuries, and with its roots in colonial and British practice.

Those seeking this indefensible extension of presidential power argue that the existing level of entitlement benefits are “debt” and that the Fourteenth Amendment requires it to be paid.


Boehner Admits Mistake: Sometimes the Constitutional Course is the Wisest Politically

In a December post, I pointed out that House Speaker John Boehner should not be conceding the initiative on revenue measures to the Senate and President. Doing so not only made no political sense, but it was contrary to the Constitution’s mandate that revenue bills originate in the House. Mr. Boehner now agrees that he erred.…


A Correction They Didn’t Print: The Denver Post and Judge Bork

A Denver Post article on the passing of Judge Robert Bork (Dec. 20) says, “He advocated a view of judging known as ’strict constructionism’ or ‘originalism.’”Actually, the writer was confused. Those two terms have very different meanings. An originalist believes the Constitution, like other legal documents, should be construed as understood by the people who…