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Archive of entries posted on June 2011

He May Not Be a Witch, But He Sure Can Make Congressional Powers Disappear

Although an acquaintance (a noted constitutional scholar) emailed me today “it is difficult to believe anyone could be so far gone as to think the President can transgress a debt limit on his own authority,” he underestimates the “can-do” (or maybe it should be “can’t-do”) spirit of the U.S. Senate. According to this article, several [...]

If the President Violates the Constitution and No One has Standing to Sue, Did he Really Break the Law?

That seems to be the question (of the “if a tree falls in the woods” variety) posed by this New Republic article entitled “The Debt Ceiling: Why Obama Should Just Ignore it.” Although the author cites Garrett Epps and others for the proposition that there is a “strong argument” that the President has the authority [...]

A Cert-Worthy Speech or Debate Case

In United States v. Renzi, handed down yesterday, the Ninth Circuit definitively rejected the Speech or Debate arguments advanced by the former congressman. I will have more to say about this decision in coming days (for previous posts on the Renzi matter, see here, here and here). For now I would just observe that the [...]

Resigned to Distraction

As I have discussed before, there is a theory, advanced by Professor Josh Chafetz, that Members of Congress should not be able to resign as of right, but should require permission of the House before doing so.  As a matter of constitutional law, Chafetz contends that the Framers expected that Members of the House, like [...]

How is Kucinich v. Obama Different than Campbell v. Clinton?

In a federal complaint filed today, a bipartisan group of Congressmen (led by Representative Dennis Kucinich) seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without [...]

“This is Not a Love Making Process”

So explained Charles Tiefer, former Solicitor and Deputy General Counsel to the House and former Assistant Senate Legal Counsel, speaking at a hearing of the House Committee on Oversight and Government Reform yesterday. Tiefer was not talking about the latest congressional sex scandal, but advocating for an aggressive congressional posture when the executive branch withholds [...]

Gang Territory: Improving Congressional Oversight of Intelligence

In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine”  (FAD). That doctrine would provide that  “under the Constitution, Congress is entitled to seek and receive any information from the executive [...]

Absences from the House

It was announced yesterday that Representative Anthony Weiner had  “departed this morning to seek professional treatment to focus on becoming a better husband and healthier person.” His spokesperson stated that the congressman would request “a short leave of absence from the House” in this connection.  This request implicates two legal provisions. House Rule III(1) provides [...]

A Brief Comment on Weiner and the Media

I have been working on a post regarding congressional oversight of intelligence, but it is my solemn duty to drop everything and comment on the ethical troubles of a certain congressman, who unfortunately will not remain nameless.  As reported by the Washington Post: “In an extraordinary reversal at an extraordinary news conference, Rep. Anthony Weiner [...]

Snatching the Power of the Purse

In prior posts (see here, here and here), I argued that Garrett Epps (and, to a lesser extent, Michael Abramowicz) had adopted an overly broad interpretation of the Public Debt Clause and that this interpretation, even if accepted, could not justify invalidating the debt limit. These errors are minor, however, compared to Epps’s proposal that [...]