an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Three Senators Respond to the President's Assertion of an Appointments Clause Prerogative
I noted last week that the President has asserted a constitutional authority to ignore (i.e., to misconstrue) a new statute that would require that the appointed administrator of FEMA have a demonstrated ability in and knowledge of emergency management and homeland security and not less than five years of executive leadership and management experience in the public or private sector.
Today, Senators Collins, Landrieu and Lieberman sent this letter to the President to complain about this and other constututional objections in the most recent signing statement.
Although this is a political and not a legal observation, I cannot help but notice that, when seeking additional authority, this administration routinely invokes the "unitary executive branch" theory. But when the time comes to take responsibility (which means, of course, not merely uttering the words, but accepting real consequences), the "unitary executive branch" theory disappears as quickly and completely as a snowflake on a hot frying pan.
There's a good argument for political estoppel here, and perhaps for legal estoppel as well.
These three senators are known maverick centrists in their respective political parties. All joined together once before last year to assure Senator Frist he could obtain cloture against the Democrats if Justice Alito's nomination was to be filibustered.
Two of these senators voted for the law which ended eight hundred years of habeas tradition in western democracy; Republican Snowe was not voting.
I like the concept of having an animated president, and, in that sense appreciate INSvChadha's fostering of the separateness of the executive from the legislative.
I expect Globe reporter Savage to revisit the signing statements matter as one scholar is reporting that with the president's most recent signing statement he has surpassed the 1,000 total statutes declared invalid by this president. The last time Charlie Savage covered this story I believe the total was less than 800. Another website following the signing statement story is covering a few new related topics, as well, here.