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.

Many of you will have heard of the Mojave Desert Memorial Cross fiasco and the 9^th Circuit’s weaseling related to that case.  In sum, the ACLU sued to have the cross—a war memorial, erected to honor America’s fallen, our soldiers who’ve died defending our country and our freedoms—removed on the manufactured offense that someone might object to the use of a cross for this purpose.  After the 9^th Circuit Court of Appeals ruled on appeal that the cross had to go, the US Supreme Court, in a strongly worded ruling, said the cross was a legitimate war memorial device and was to be permitted to stay; they then returned to case to the original court to produce a proper ruling.  Following this, vandals tore down the cross, and the current status is that the Obama administration will not permit the cross to be re-erected until that original court gets off its duff and follows its instructions from the Supreme Court.

There is a similar memorial near Mt. Soledad, CA, that honors, among others, America’s Korean War fallen; it was created in 1954.  It’s going through the same vicious ordeal.

Mt Soledad Memorial

In response to another ACLU suit alleging offense at using a cross to honor our war dead, the 9^th Circuit ruled on appeal that the Mt. Soledad cross had to go, also, overruling a lower court Federal judge’s 2008 decision.  The ruling was so poorly reasoned, and so wrong-headedly done, that five judges on the 26-judge court objected to the 9^th‘s refusal to rehear the case en banc.  The essence of the judges’ objections to the Court’s refusal involve arcane mechanics of evaluation, but they center on the plain secular nature of the cross in its use and purpose at the Mt Soledad Memorial.  They wrote

[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears.

They then cited the Supreme Court’s ruling in that Mojave Desert case above:

…recognized the unique history of the Cross as a symbol of respect for fallen soldiers (of all faiths or no faith)….

This is what Justice Kennedy had written, that our five judges were citing:

…a Latin cross is not merely a reaffirmation of Christian beliefs.  It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people.  Here, one Latin cross in the desert evokes far more than religion.  It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

And so it is with the Mt. Soledad cross.

The five judges went on with other arguments, but you get the idea.

As the case now stands, the Mt. Soledad Memorial Association, represented by the Liberty Institute, are appealing to the Supreme Court; the Court will hear a petition for certiorari (lawyer-talk for “agree to take up the matter”—if they grant certiorari, they will hear the appeal itself) in early February.  One hopes the Supremes will take the case and then rule as they did with Mojave; although nothing is certain in legal disputes.  One hopes also that the Supremes will swat the 9^th for their continued…intransigence…, but that’s probably too much to ask.

This case is another example in a long-standing assault on our war memorials through judicial activism and by an ACLU that used to serve a valuable role in protecting the rights of individual Americans, but that now seems bent on attacking the rights of other Americans.

I don’t often take issue with another writer in particular, but a recent column by The Washington Post‘s EJ Dionne wants a response.

Dionne makes his case that President Obama, in the coming national elections, is actually the conservative in the race and that the Republican contenders are the radicals trying to change things utterly.  He frames his argument thusly:

Obama is defending a tradition that sees government as an essential actor in the nation’s economy….

and

Today’s Republicans cast the federal government as an oppressive force, a drag on the economy and an enemy of private initiative.

This is an interesting argument.  Dionne apparently believes that our tradition—that our American history—begins less than a century ago, in FDR’s 1930s, with his Progressive New Deal politics.  It is then, after all, that the “tradition” of government as major actor in our economy began.  But this elides the preceding 140 years of American history.  And it ignores our founding precept of a minimalist government, created in the aftermath of having just freed ourselves from a remote, intrusive, controlling government.

In fact, the conservatism that Dionne defends, the conservative that is Obama, is the 18^th Century Conservatism against which we rebelled: the idea that government knows best and that our rights and freedoms flow from government and are not inherent in the individuals that comprise We the People.  Modern Liberalism—Progressivism—holding as it does that government should instruct us on what we must, or must not, buy (strictly for our own good, you see) and that requires our money for its own spending (leaving such amounts to us as it deems appropriate), is nothing but the modern version of 18^th Century Conservatism.

The modern conservative position is, in fact, an effort to reverse these Progressive politics of big, intrusive government and to restore our country to its 18^th Century Liberal roots of a small government that looks outward, toward foreign policy and external threats, not inward, except to make rational the relations of our constituent States among each other.  The modern conservative looks to restore the individual citizen to his 18^th Century Liberal’s responsibility for his own outcomes and satisfaction of his own obligations and to his place as Sovereign over government.

The titles of Liberal and Conservative have reversed their meaning from the 18^th century.  Dionne chooses to overlook that.