The Desperation of the Left

Now we have Larry Tribe, the esteemed Harvard professor of constitutional law, contorting himself in an attempt to justify President Obama’s unconstitutional pseudo-recess appointments.

It seems, though, that Tribe already had commented on the legitimacy of appointments of the Obama style some years back in the context of the Bush the Younger administration.  Adam White, a DC lawyer, writes about Tribe’s bias (some might suggest horrific hypocrisy) in The Weekly Standard.  White’s commentary is so clear, that I’ll just quote extensively below.

In support of Obama, Tribe asserts that the president’s power to deem the Senate to be “in recess” and then make recess appointments “is clearly stated in the Constitution….”  But against Bush, Tribe argued that “[t]he text, structure, purpose, function, and pre-1921 history of the Recess Appointments Clause all confirm…that the President may not make recess appointments during intra-session Senate breaks.”

In support of Obama, Tribe argues that intra-session recess appointments are especially justified when the Senate is deliberately “frustrat[ing] presidential appointments.”  But against Bush, he argued the opposite: recess appointments are all the more illegitimate when the nominee in question already had been the subject of Senate debate yet “failed to obtain enough votes to go forward under Senate rules.”

In support of Obama, Tribe argues that the Senate made itself “unavailable” by largely leaving Washington. But against Bush, he scoffed at the notion that the Senate was ever truly unavailable, thanks to modern technology…Senate business “can easily resume, if necessary, owing to modern communications and transportation.”

In support of Obama, Tribe invokes Alexander Hamilton’s Federalist 67 for the proposition that recess appointments, even intra-session appointments such as Cordray’s, are justified when “necessary for the public service to fill without delay.”  Against Bush, by contrast, he invoked Federalist 67 for the proposition that “recess appointments would be ‘necessary,’ and thus permissible, only outside the ‘session of the Senate”—i.e., never during type of intra-session break that President Obama exploited last week.

In defense of Obama’s recess appointments, Tribe said that the president was setting a precedent that would apply “only in instances of transparent and intolerable burdens on his authority.”  But when Bush made recess appointments, Tribe warned of a slippery slope toward tyranny[.]

Hmm….  Still, I suppose Tribe was at least partially right.  We are presently sliding down that slippery slope.

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