Monthly Archives: November 2018

“Constitutionally, Matthew Whitaker is a Nobody”

If Neal K. Katyal and George T. Conway III write an op-ed together, you have to figure it’s going to be good.  And oh boy, is it good.

The two dissect the appointment of Matthew Whitaker as acting attorney general of the United States. And they stomp all over it.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody.

Neal Katyal was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III is a litigator at Wachtell, Lipton, Rosen & Katz in New York. Conway is also a famous spouse and, incidentally, a Yale Law School classmate of mine.

Posted in Law: Constitutional Law, The Scandals | Leave a comment

Apparently I Didn’t Vote Often Enough

While outcomes were good very locally–Donna Shalala is going to Congress, Javier Enrique Fernandez beat Javier Enriquez for the state House, state outcomes were bad, but with redeeming features.

Gillum lost a squeaker.  Nelson is a hair behind —  21,899 votes or .26 percent of 8.2 million ballots cast — with recount in the offing. Lots of provisional ballots to be counted, could maybe make the difference.  All the downballot state Dems lost except maybe the Agriculture Commissioner, where the margin is tiny.

Looks like another roller coaster post-election period for Florida.

All the state Constitutional amendments, good and bad, passed except for Amendment 1.  The best news is that 1.2 million Floridians got re-enfranchised by Amendment 4 — although whether implementation will be smooth remains to be seen.

The worst news is that Amendment 5 passed, requiring a supermajority to raise taxes and to close loopholes.  This may make Florida ungovernable, worse even then the fiscal straitjacket that hamstrung California after Proposition 13 and other anti-tax measures.

Equally bad is that DeSantis’s first act will be to name three Justices to the state Supreme Court, doubtlessly cementing a conservative-to-reactionary majority for a generation.

Florida really is a sanity-stressing jurisdiction sometimes.

Posted in 2018 Election, Law: Everything Else, Miami | Leave a comment

I Voted (At Least Once)

As of this morning, the Miami-Dade Elections Dept. online ballot checker showed no sign that the Elections Dept. had received my mail ballot — even though I posted it at a local Post Office eight days ago.

So, trepidatiously, I went off to vote.  I imagined officious claims that I was trying to vote twice, ending in a provisional ballot. In the event, however, it was all a a happy anti-climax.  The official called over someone to explain what to do, which involved punching some buttons, and voilà! I am issued a nice new giant ballot.

Apparently even if they had my by-mail ballot, they would allow me to vote in person as the system is programmed to erase the earlier ballot in that case.  Which sort of makes me wonder how that works.  As I understand it, the state releases the early vote totals pretty quickly after polls close.  That leaves just two possibilities: either (1) they have my name attached to my ballot up until the polls close, and can pull it before they count it; or (2) they have my name attached to my vote even after an initial count, and can deduct my vote from the total before releasing it.  Neither possibility suggests that ballot anonymity is preserved very well, does it?  Although in case (1) I guess it could be anonymous once it’s counted.

Posted in 2018 Election, Law: Elections, Miami | Leave a comment

Please Vote

If you haven’t done so already, please vote. These are the most consequential midterm elections of your life to date.

Posted in 2018 Election | 2 Comments

Directions

Lifted from the ‘Yuks’ mailing list.

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Hey Dude, Where’s My Ballot?

I voted by mail this year, thinking that with such a long ballot the lines might be very long. I posted my ballot at the Post Office on Monday, well before the 1pm pickup scheduled for weekdays. As of this writing, the Miami-Dade elections officials have not received my ballot, at least according to the online lookup tool.

Does it really take five days to deliver a letter from the post office in Coral Gables to downtown Miami?

And, more worryingly, if by Tuesday afternoon, they still won’t admit to having my ballot, how do I cast a ballot that is likely to count? All I’ve been able to find so far is this, from the Florida division of elections:

If the voter decides to go to the polls to vote instead, the voter should bring the vote-by-mail ballot (whether it has been marked or not). Even if the voter comes to the polls without the vote-by-mail ballot, the voter will still be able to vote a regular ballot if the supervisor of elections’ office is able to confirm that it has not received the voter’s vote-by-mail ballot. However, if it is confirmed that the voter have already voted a vote-by-mail ballot, the voter cannot vote again at the polls. If the voter believes or insists that the supervisor of elections’ office is wrong about receiving the vote-by-mail ballot or if the supervisor of elections’ office cannot confirm that the voter has already voted an vote-by-mail ballot, the voter is allowed to vote a provisional ballot.

I guess I better block out some time for Tuesday afternoon.

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