Author Archives: Michael Froomkin

The Constitution and Acting

Posted on August 27, 2007 by Michael Froomkin

Someone asks,

Suppose Bush were to decide that a confirmation fight (or even just a hearing) over Gonzales's successor would be too painful, and a recess appointment too controversial. Does he have to nominate anyone? Or can he go through the rest of his Administration with Solicitor General Clement as an interim AG? Are there any powers that a confirmed Attorney General has that an interim Attorney General doesn't? Are there any steps that the Senate or anyone else can take in the event of that eventuality?

As far as I know, an acting Attorney General has all the powers of a confirmed Attorney General; the difference is political, not legal.

Although there is no way that Congress can force the President to exercise his appointment power, I suppose it would be possible for Congress to condition the exercise certain powers of the Attorney General on there being a confirmed holder of the office. I don't think it would be good policy — in fact I think it would be very bad policy to leave the country unable to do things that need doing — but offhand I can't see a constitutional obstacle to such a statute.

There is also a very weird Constitutional argument that might be brought into play but I think it would —- and should — fail. But here it is anyway:

The Solicitor General is appointed by the President by and with the consent of the Senate, as is the Attorney General. But under Article II, Section 2, paragraph two of the Constitution, there are (at least) two kinds of major Presidential appointees: “Officers of the United States” and “Inferior Officers”. The full “Officers” require Senate confirmation; Congress can waive the confirmation requirement for the “inferior” kind. If Senate confirmation has been waived, then only the President, or courts, or “Heads of Department” (usually understood to mean Officers) can appoint “inferior officers”. Let's assume that the Attorney General appoints an “inferior officer” who then makes a decision altering the rights, duties, or responsibilities of someone willing to sue (thus solving the standing issue).

The aggrieved person could argue that the Solicitor General is only a mere “inferior officer” himself — one for whom, as it happened, Congress had not waived the confirmation requirement, but for whom it could if it so chose. If this were correct, any “inferior officer” appointed by the acting Attorney General (himself an inferior officer) held that office illegally and his decisions are null and void.

But is this a good argument? I'm somewhat dubious.

First, one would have to argue that even if the Solicitor General were an inferior officer ordinarily, his being the acting Head of Department didn't give him the necessary appointing power for constitutional purposes by virtue of his acting status. This part of the argument takes us to unchartered waters. Some formalists would argue that a department head is a department head. Other formalists would argue that status comes at the time of appointment. A structuralist would worry that if the President could place non-officers into officer positions in this manner it would undermine the separation of powers. Traditionalists might say that we've often let acting officials run things, and we should be mindful of the need to have a working government would likely carry the day. Being a structuralist at heart, I think the argument here isn't bad — but it all depends on the Solicitor General being “inferior” in the first place.

And this second part of the argument seems much more doubtful. One would also have to convince a court that the Solicitor General wasn't an “officer of the United States” in his own right. That's far from obvious.

There is no bright line between the two types of appointees. We do know that Cabinet officers like the Attorney General are unquestionably “Officers” and that the Special Prosecutor under the now-lapsed statute authorizing them was — barely — an “inferior officer”.

The argument that the Solicitor General is only “inferior,” relies on the facts that he reports to the AG, and is actually the number four official in the DoJ pecking order. No court has ever held that reporting to someone rather than directly to the President is a necessary element of “officerness” but then again no court has ever held otherwise, so the argument remains open. Plus, since the Attorney General is only #4, calling him an “officer” would suggest very strongly that there are four “officers” in the DoJ, and several in every other cabinet department as well; that sounds like a lot.

But given the long history and tradition of the office of Solicitor General, I don't think most courts would find it very difficult to say that the Solicitor General was an “officer”. The Solicitor General has important powers and responsibilities over litigation, including the power to “confess judgment” — throw in the towel on appeal before the Supreme Court for a case the government won below. The office of Solicitor General dates back to 1870, and has a long and generally admirable tradition of independence, so much so that the Solicitor General is sometimes called the “tenth Justice”. I think the Solicitor General is probably an “officer” in his own right, and regardless of what I think, I'm pretty sure most courts and Justices would see it that way.

In short, no, I think there's no legal reason the Solicitor General can't be acting Attorney General for a long, long time. Even so, I predict that the he won't be.

Posted in Law: Constitutional Law | 3 Comments

Gonzales Resigns — At Last

Posted on August 27, 2007 by Michael Froomkin

When the rumors flew yesterday that disgraced and AG Alberto Gonzales would resign and be replaced by Secretary of Homeland Security Michael Chertoff, I didn't pay much attention. Looked like the memory-impaired Bush loyalist was bunkered in.

But it seems that it's true: Gonzales Resigns as Attorney General – New York Times.

Chertoff you may recall is a former federal judge (and was considered a pretty good one), which argues well for the DoJ job. On the other hand, he's done a lousy job at Homeland Security, and presided over the disaster in New Orleans and the even more disastrous ongoing failures since the floods. Both of which argue that his management talents may not be equal to his legal skills.

But he's loyal.

Posted in Politics: The Party of Sleaze | 2 Comments

How the Bush Administration REALLY Treats Soldiers

Posted on August 27, 2007 by Michael Froomkin

Below I quote a very disturbing story from the Army of Dude blog by Alex Horton, a 22 year old from Frisco, Texas.

Last week I heard a story of official blackmail similar to this one from a friend who is a reserve officer regarding the treatment of some career officers he knows — so this blackmail isn't limited to the enlisted ranks.

Army of Dude: Happy Dependence Day!: Four years of war and this Army is a skeleton of its former self. Equipment is broken or obsolete, thousands are dead and wounded and many of us can’t wait to get off the Hindenburg. For awhile, deployments were kept to a year, with at least twelve months back home to recuperate, to get new equipment, to bury the dead. To keep the surge going, deployments have been extended to fifteen months to keep the year at home from shrinking down to nine or less months. The number of people getting out was devastating, so the Army needed a new plan to keep people in. New slogan and advertising campaign? Check. Stop loss program? Check. Bigger bonuses? Check. Guaranteeing non-deployable positions at training posts and recruiting stations, acknowledging people are scared stiff to go to Iraq? Check. Still the numbers are low. After watching too many 80s gang movies, someone thought of such a simple, foolproof idea: good ol’ fashioned blackmail.

Before we left Baghdad, the re-enlistment briefs got a little more disturbing. Instead of letting you know what a bum you’ll become if you leave the Army after your enlistment, they put it in simple terms: if you don’t re-enlist, you’ll be thrown in 5th Brigade, the Stryker unit on Ft. Lewis that was being stood up, and yes, they were deploying as soon as they could. So you might as well stay where your friends are and come back to Iraq with them. Otherwise, you’ll be taking your chances by getting your ass stop-lossed and sent to Iraq in as little as six months to a year after you returned. Better off with the sure thing. Here’s a pen, junior. If you got out after July 2008, you were screwed. I, on the other hand, was in the clear since I was getting out at the end of 2007. The options were re-enlist, extend to meet the unit’s needs, or take no action. I checked take no action, which meant my name would be added to the pool of possible candidates for 5th Brigade. No matter. It was of no consequence if I separated from the Army in 3rd or 5th Brigade. A lot of us were in that boat. Still, it spooked us that someone could come to us with a list and a smile and say in so many words that we were fucked into another deployment unless we added years to our contracts. In short, the thanks we got for serving our country was being forced into a game of Russian Roulette. Take the risk, pull the trigger. See what happens.

I suggest you tell this story the next time anyone dares suggest that anything short of calling for withdrawal amounts to “supporting the troops.”

Posted in Iraq | 4 Comments

Washington Post Introduces Us to “Swamp Divers”

Posted on August 26, 2007 by Michael Froomkin

Yes, it seems that there are Floridians nuts enough to go swimming with alligators. So the Washington Post profiles this group, which it calls

a very small, very savvy, very crazy band of swamp divers — people who purposefully jump into dark and dangerous ponds, pools, canals and creeks in the Everglades and its surrounding wild waters. They do it for science, to make movies, to observe or capture uncommon scenes in an element of the Everglades few humans ever see.

And, yes, for scary fun. Entering the hidden haunts of the lizard king of the Everglades, a creature capable of snapping human bones like tortilla chips, is an electric jolt.

“It's very, very exciting,” said Fernandez, a South Miami man whose murky immersions have rekindled passion for a photography profession he abandoned years ago. “There are times when you're in there and the alligators bump into you. Sometimes, they take off in a very small area, and it's like a chain reaction, they all start flying by and hitting you.”

Swamp diving is eerie, fascinating, frightening — and an experience that almost no one should ever, ever try. Don't even think about it.

OK. If you say so.

Posted in Florida | 2 Comments

TigerDirect Security Illegally Detains a Customer

Posted on August 24, 2007 by Michael Froomkin

Standing up for your rights can be a pain. It certainly takes fortitude.

Thus, the events set out in TigerDirect Unlawfully Restrains And Verbally Abuses Customer For Not Submitting To Receipt-Showing Demands.

One little warning: whether a shop can demand you show a receipt to exit is most likely a question of state law — and yours might be different from his.

I once satisfied myself that Florida law does not allow a normal merchant to prevent me from exiting a shop with goods I've paid for, even if I choose not to show a receipt, so I don't show receipts when asked to at TigerDirect or CompUSA. (As I'm not admitted to practice in Florida, you shouldn't consider that legal advice.) And I'd note that I'm not sufficiently clear what the Florida law is for stores that don't admit the general public — so I do show a receipt at Costco, which requires membership before you can shop there.

Why, one might ask, would anyone be a pain about stuff like this? Are we not sympathetic with merchants being stung by shoplifters, thieves whose actions just force higher prices on the rest of us? I am sympathetic: they have a very legitimate beef, but have chosen a bad way to deal with it.

As our good friends at the Canard Enchainé say about press freedom, La liberté de la presse ne s'use que quand on ne s'en sert pas (“Freedom of the press gets used up only when unused”), so too with other freedoms.

Posted in Law: Criminal Law | 3 Comments

Charlie Rangel’s “And I Haven’t Had a Bad Day Since”

Posted on August 24, 2007 by Michael Froomkin

rangelbook.jpgI've long been a fan of autobiographies by second-rank politicians (note that I said second-rank, not second-rate).

First-rank politicians — national leaders — almost always write boring autobiographies. For starters, they often hire someone to ghost-write the book, depriving it of a genuine authorial voice. The traits that made them leaders also tend to make them cautious. They rarely dish the dirt; instead you get somewhat sanitized political biographies of their opposite numbers. They rarely spill the beans; the good stuff leaked a long time ago, or it won't leak for a long time yet. And they are very self-centered: having been the star of the show, they don't usually feel much obligation to tell you a great deal about the supporting cast. There are exceptions to the leaders'-autobiographies-are-boring rule, Julias Caesar and Bill Clinton come to mind, but it's rare.

Far better to read the work of someone who didn't quite make it to the top of the greasy pole. They usually write the book themselves. They understand that they were not the only figure of importance in their times, so they tell us about their bosses (not always in flattering terms), colleagues, and the very good ones paint a portrait of their times.

By this standard, Congressman Charlie Rangel's new book, And I Haven't Had a Bad Day Since: From the Streets of Harlem to the Halls of Congress, by Charles B. Rangel and Leon Wynter, is a good read, but maybe not a great one.

He's at his best telling us about his early life as a silver-tongued near-hoodlum, and his army experiences, including the near-death experience in Korea that changed his life (and won him medals), and inspired the title for his book. He's at his worst describing his love for trade deals which are bad for US workers (he basically doesn't discuss the issue at all).

Rangel’s early history is fascinating, and the story of how an Army veteran and high-school dropout became a law school graduate in record time reflects a breathtaking energy and intellect. The book becomes much less personal as Rangel's life turns more professional. We don't meet his wife until page 179 and we hear nothing about how they met or married. We do hear, in a defensive sort of way, about the defining characteristics of Rangel’s public life: ambition, hard work, playing along with the power structure. It started when he grabbed what had been Adam Clayton Powell’s seat in Congress in part through his relationships with local political bosses. Then followed years playing the game, making friends with New York’s Republicans – to the point where one year Gov. Rockefeller arranged for Rangel to get the GOP as well as Democratic nomination to Congress. Another year, Rockefeller's “birthday present” was a grease pencil and a map – and an invitation to draw whatever lines he liked for his Congressional district.

Rangel is a beneficiary of the seniority system and the boss system, and as he is now at the stage of his career where those things really pay off, he’s a big defender of them. By Rangel’s own admission, most of his personal relationships are professional ones; he writes of Percy Sutton that even though Sutton is one of his best friends, the product of decades of productive political cooperation, they almost never socialize or even eat dinner together. Tip O’Neil is one of Rangel’s heroes, and it’s clear that Tip knew how to keep Rangel sweet

He never, ever took a congressional trip without inviting me.

…

We came from a world where ethnic urban pols come up poor and climb the ladder of opportunity through public service, doing what they have to do to care for their families, and their neighbors’ families, going along to get along and waiting their turn for the power to advance their community’s interest. Except that, in the Congress, I didn’t really have to get into line and wait my turn; Tip kind of pushed me to the front of the line. And even if he didn’t, most people thought he did, and treated me better for it.”

Rangel’s book is great on Iraq – he thinks it’s a crime, and supports a draft in order to make the rich and powerful have a greater stake in war-making which he, quite plausibly, suggests would be less frequent if the sons and daughters of the middle and upper classes were more likely to be be at risk. He’s good on the failures of Bush tax policy, although surprisingly light on details – this is more a personal history than a manifesto As such, the book is great on his early life, and also interesting on the middle of his career; the present is somewhat cagey, being limited by a publication date in which Rangel’s long-coveted chairmanship of the House Ways and Means Committee was in sight but not in hand.

But at the end of the day, Rangel comes off as interesting, driven, and thoughtful about some issues — but also very much and unapologetically a part of the machine. This boy from Harlem made it to the heart of the establishment; he may not have forgotten the people he left behind but he has no interest in rocking the boat too hard either.

Posted in Readings | 2 Comments