Recess appointments

In my last posting, I said that “as good as our Constitution is in so many ways, it has a few blemishes resulting from the fact that the world has changed in the 200+ years since its adoption, without the necessary amendments.” And one of those outdated provisions refers to the fact that, since it would be hard (given the state of transportation in the 1780s) to reconvene the Senate after it has adjourned and its members gone home, the President was given the power to make appointments which would normally require Senate confirmation, without that confirmation, during a recess of the Senate:

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 their next Session. (Article II, Section 2, U. S. Constitution)

With the Congress in almost continuous session, it would appear that this clause would be almost defunct in its effect, except that Presidents have construed “recess” in a very generous way, considering relatively short periods when the Senate has closed up shop as recesses within the meaning of this clause — no President more than our incumbent, President Barack Obama. He has made a number of appointments during periods when the Senate had simply closed for the weekend — particularly, ones that might not pass the Senate's muster. He has particularly used this power to stack the National Labor Relations Board with pro-organized-labor appointees, destroying its ability to make impartial decisions.

But now the chickens have come home to roost.

The U.S. Court of Appeals for the D.C. Circuit has just ruled that some appointments made to the NLRB in January of last year were unconstitutional. And in that ruling, (Canning v. NLRB), the court specifically defined a recess:

…we hold that “the Recess” is limited to intersession recesses.

Now this is only a decision of the Circuit Court of Appeals, and the Obama Administration will surely appeal to the Supreme Court. But unless the Supreme Court rules otherwise, it is a powerful tool to rein the Obama Administration's attempt to do an end run around the Constitution's “advise and consent” clause. There were a number of interpretations current on what the “recess appointments” clause actually means, and the Court adopted the most restrictive one possible. It is surely to be hoped that this court's opinion will be sustained if and when appeal is made to the Supreme Court. Let us await their decision, with hope for the best.

I have to concede he is right

Pres. Obama has decided to make a strong pitch for gun control legislation, and to use executive orders to do whatever he can do without Congressional action. Sadly, this is one area where I cannot accept the congressional Republicans' position — they are as much in fealty to the NRA as the Democrats are to organized labor on the issues they consider important. So on this issue — gun control — I want the President to prevail.

I recognize that most of the measures being proposed would not have prevented the Newtown murders. Unfortunately, the only thing that might have done so would be unconstitutional: confiscation of all guns not in the hands of the police or military. And to make this constitutional requires an amendment that will never get through the process, repealing the Second Amendment. The problem is, as good as our Constitution is in so many ways, it has a few blemishes resulting from the fact that the world has changed in the 200+ years since its adoption, without the necessary amendments. Some things, like the provision authorizing Congress to issue “letters of marque and reprisal,” actually cause no problems — the Congress just doesn't exercise this power. But the Second Amendment is a terrible blemish. And one that will not go away, because there are actually people who think it is a source of liberty for our population. And these people are numerous enough to prevent its repeal.

I really do not know the solution. We have to live with the Second Amendment, and with it being there, we can't do what really needs to be done: to get rid of all these guns that threaten our people.

An NRA idea that I would actually support

I've generally thought that the National Rifle Association is diametrically opposed to everything that makes sense regarding guns. Yet one thing that they have advocated in the wake of the Connecticut shootings does make sense.

The NRA's president, Wayne LaPierre, has called for putting armed guards in the schools. While some pro-gun people have advocated arming teachers — which makes no sense, as teachers are by and large not trained marksmen — I could support the idea of armed guards. A school district in western Pennsylvania has hired armed guards for the schools — choosing retired Pennsylvania state policemen for the jobs. These are trained people, who know how to use guns, and who have had the policeman's training in judging when to use them and when it would be too dangerous.

My position has always been that guns should be taken out of the hands of ordinary people, but two groups need them: the military and the police. These armed guards are technically not police, but they are performing a police function. So I can have no objection to this idea.

Don't give Pres. Obama a victory by default

I've remarked before about Noemie Emery, a columnist for the Washington Examiner, whose columns I usually find very close to my own thinking, and in yesterday's paper she had another very good column. It's too long to quote in its entirety — please follow the link to read the whole column — but the main point is that, by fragmenting, the Republican Party is making it easier for President Barack Obama to foist his far-left agenda on the American people. She points out, for example:

In 2008, during the fiscal implosion, they took two weeks off from the campaign against him to engage in a tong war over the much-loathed Troubled Asset Relief Program that turned a difficult race into one already lost. Between 2010 and 2012, they threw away four seats in the Senate -- two to primaries, one to Todd Akin, and one when they drove Olympia Snowe out of politics. This gave us Obamacare, when a primary election threat drove Arlen Specter back to his old party, where he morphed from a critic to an ardent supporter of that much-despised and badly formed legislation.

In particular, one section of her column is particularly apropos:

…last week, Republicans turned the lame duck into a TARP rerun, capped by a half-baked attempt to dismember the speaker, which embarrassed both him and themselves. This is what happens when people decide that some on their side are really The Enemy and get distracted from those with whom they have much larger differences. So before they move even more down this dream-scene-for-Democrats road map, there are three facts they might think of and four things they should do.

Fact No. 1 is to realize a political party isn't a church nor a cult but a mechanism to get diverse people who share some things in common to work toward a common position of power that none could achieve on their own. Fact No. 2 is that unless you can convert your principles into actual policies, standing upon them does no one a favor. If you believe in your principles but can't convert others, you are not an asset. If you antagonize them, you and your principles are a real liability, and perhaps you should shut the hell up.

Fact No. 2 [she means 3] is that because no coalition big enough to win power can ever be pure or completely united, and no pure wing or segment can be big enough to win or rule on its own, it is in everyone's interest to cherish the mavericks. Each party needs members who vote with them sometimes. Conservatives dreamed of the day they could rid themselves of the Snowes, Lugars and Castles; that day has come, and they and their party are weaker than ever. Many conservatives would kill now to have those seats back.

Sometime soon, before the debt ceiling crisis writes a thrilling new chapter, Republicans should sit down together and try to agree on four things: to name the shared goals that they want to move forward; to decide what to do to in a practical manner (in the real world, not an imagined alternative); to find their best spokesmen, and have him (or her) speak for them all; and to remember exactly who their real enemies are — who, in the real world, are not themselves.

The Tea Party loves the Gadsden flag symbol, with its poised-to-strike rattler and "Don't Tread on Me" message, but there is another illustration of that era that it ought to note: Benjamin Franklin's cartoon of a snake, chopped into 13 small pieces, unable to make any threatening noises. Beneath it was Franklin's exhortation for unity among the 13 Colonies: "Join, or Die."

She is right on the nose there. There is another blog I like, which has been relatively inactive lately, called “Big Tent Revue.” The name, I presume, comes from the remark that the GOP should be a “big tent” under which people of differing opinions, but with some in common, can all find shelter. This is a good image. If the Republican Party tries to purify itself to become a single-dogma party, the Democrats will win by default on every issue. Let us try to prevent this.

A good idea, but not feasible

I saw a post last night on Vanity Fair magazine's site by Kurt Eichenwald, entitled “Let’s Repeal the Second Amendment.” Now I wish we could do just that. Most of what Eichenwald says makes a lot of sense to me. But the fact is, it has no chance of happening. There are too many gun nuts around who think the Second Amendment is as important as the First. There is no way a repealing amendment could get two thirds of each house of Congress and three fourths of the State legislatures to approve it — in fact, I doubt it could get simple majorities in both houses or even half of the State legislatures to approve it. So Eichenwald's column makes no sense. By pushing for something that has no chance of passing, he deflects the debate from where it needs to be — reducing the incidence of guns in a country whose Constitution has the Second Amendment in its text.

I don't disagree with Eichenwald that it would be better if we had no Second Amendment. But let us be practical. It would also be better if we had a Senate that did not give Montana the same two Senators as California. That is not going to change, and neither will the Second Amendment be repealed. Wishing for the impossible makes the possible less likely to happen.

Now what?

The “fiscal cliff” has now been averted, thanks to the professionalism of Vice President Joseph Biden and Senate Minority Leader Mitch McConnell, who are clearly the heroes of this drama. Now the question is, what next? Will Pres. Obama be even more emboldened, since he was able to fend off spending cuts with only a moderate upgrade from $250,000 to $400,000 in the threshold for the repeal of the Bush-era tax cuts? Or will the Tea Party be emboldened, since now they cannot be hung with the slander that they only want to help millionaires hold on to more of their money?

President Obama had said he would not negotiate on the debt ceiling raise. But he's accepted a compromise plan that does not raise the debt ceiling. He hardly has any cards left to play, now that the “fiscal cliff” compromise is passed and signed. He can bluster that he won't sign any bill that meets the needs Republican lawmakers have to reduce spending, but unlike the tax effects, he does not have the threat that he had built into the “fiscal cliff” issue — if the debt ceiling does not rise, there are provisions that such things as Social Security payments will continue to be made. What will happen? Who knows?

The "fiscal cliff" compromise

There are a lot of posts I see, from various liberal commentators, complaining that President Obama gave up too much. And there are a lot of posts I see on the other side, saying that the Republicans gave up too much. The fact that we see both of these means it's probably a good sign. There is still a necessary vote in the House of Representatives, of course, so it's not a done deal. But it's quite obvious that neither side can get all it wants. And I think that when both sides start off as far apart as they were, it can only be a good sign that both sides are unhappy.

There were a lot of issues, of course, that were not settled — kicking the can down the road a while. But with less of a time crunch, perhaps some compromise can be attained on these too — but even if not, the worst of the “fiscal cliff” crisis has been averted.

The only way a better solution could have been reached was if Mitt Romney had been elected to the Presidency. So under the circumstances, this was the best that could have been hoped for. And thanks to Vice-President Joseph Biden and Senate Minority Leader Mitch McConnell for negotiating it.