The D.C. Circuit’s 46-page opinion in Canning v. NLRB (ably analyzed by John Steele Gordon) is a master class for law students, legislators, and lawyers–an illustration of the first rule of constitutional interpretation: before you refer to legislative or judicial history, or how a “living” Constitution might read if you could re-write it, or the words in invisible ink in the “penumbras”–look at the words as written, and determine what they meant to those who adopted them.
The Recess Appointments Clause provides the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Canning contended “the Recess” is the period between sessions of the Senate, when it is by definition unavailable to receive and act on nominations from the president. The NLRB argued the president could act during any break in the Senate’s business (and determine for himself when a sufficiently long one occurred). The court held the NLRB failed to note that the Constitution references “the Recess,” not “recesses.” Here is the key portion of the opinion:
After criticizing French plans to counter Al Qaeda-affiliated terrorists in northern Mali, the Obama administration is slowly increasing its support to the French, as the French military conducts a mission vital to U.S. interests as well as their own.
Mali is a beautiful country, one which I visited as a tourist a decade ago. (My thoughts from the time are encapsulated in this New Republic article). It was also the Muslim majority country which Freedom House had, for years, rated as most free. Despite being one of the poorest countries on earth and democratic, Mali was for years ignored by the United States.
The Commentator draws our attention today to the fact that Britain’s Sunday Times celebrated the anniversary of the liberation of Auschwitz—the date that is observed outside of Israel and the United States as Holocaust Memorial Day—by publishing a cartoon depicting Israeli Prime Minister Benjamin Netanyahu as a hook-nosed thug cementing helpless Arab victims into a wall whose bricks are lined with blood rather than mortar. This is an apt reminder of just how low Europe’s intellectual elites have sunk and how deep the taint of anti-Semitism is baked into the political culture of the West these days. As the Commentator’s Raheem Kassam points out, in Britain as in many other places, the Holocaust is not a historical lesson of the product of 2,000 years of anti-Semitism and Jewish powerlessness as it is an excuse to depict Israel as a Nazi-like entity.
The cartoon will be defended as fair comment about Israel’s security fence that the Palestinians and their foreign cheerleaders depict as a war crime. That this strictly defensive measure was made necessary by the Palestinians’ campaign of suicide bombings that cost the lives of a thousand Jews in the last decade goes unmentioned. The willingness of Israel-bashers to appropriate the Holocaust to promote a new generation of anti-Semitic imagery is rooted in a worldview in which the actions of the Palestinians, or their consistent refusal to make peace, are irrelevant. If even a fence to keep out suicide bombers can be seen as criminal then it is obvious that no terrorist outrage or act of hateful incitement (such as the Egyptian president’s belief that Israelis are the “descendants of apes and pigs”) is worthy of censure so long as Israelis are standing up for themselves and refusing to be slaughtered as the Jews of Europe were 70 years ago.
When U.S. troops withdraw from Afghanistan “on schedule,” Afghanistan will revert to civil war. White House and Pentagon officials may have convinced themselves that their transition mirrors that in Iraq, and that Iraq’s transition was a success, but to Afghans, the U.S. strategy is a cookie-cutter repeat of the Soviet withdrawal. We have the Afghan Local Police, and the Soviets had similar local militias. We hope that we can leave behind agents of influence in the government, and the Soviets tried the same tactic.
The Soviet-era dictator Najibullah managed to hold on to power for three years after the Red Army’s withdrawal, but that was only because of the Soviet ‘peace dividend’: The Soviet Union provided Najibullah with almost $3 billion a year and equipment it withdrew from Poland, Czechoslovakia, and East Germany. Only when the money ran out did Najibullah fall. The same will happen with Hamid Karzai. Even the most sobering World Bank reports regarding what the international community must do to keep Afghanistan afloat assume that Afghanistan will have a functioning mining industry, but insecurity and poor infrastructure have hampered even the Chinese, who do not care as much if they lose civilian contractors.
As expected, Fox News cut its ties with Sarah Palin on Friday. The former Alaska governor and Republican vice presidential candidate had worn out her welcome at the network over the last year and her brand had lost a lot of its pizzazz after sitting out the 2012 presidential contest and new conservative voices had come to the fore. Though she remains a cult favorite among some on the right and a convenient punching bag for the left, in a party with a large cast of rising stars like Marco Rubio, Bobby Jindal, Chris Christie, Paul Ryan and with Rand Paul looking to expand his appeal beyond his father’s libertarian base, her hold on the affections of the Tea Party and/or the GOP base looks tenuous at best. It’s likely that Fox decided she was yesterday’s news.
Palin is taking the blow with her customary defiance. In her first interview since the announcement, she channeled John Paul Jones as she told Breitbart News that she “hadn’t yet begun to fight.” She spoke about the need for conservatives to go outside their comfort zone and to stop “preaching to the choir.” That’s good advice, though it’s hard to see how anyone as polarizing as Palin is going to get moderates to listen to anything she has to say.
While it’s not clear what her next step is, anyone who writes her off completely is bound to wind up looking silly. She lost a lot of her credibility when she resigned her governorship and then made a number of puzzling career choices, which did nothing but further marginalize her as a serious political figure. But the raw political talent that dazzled so many conservatives in 2008 is still there, even if she spent the last four years acting like a reality TV show star and alienating many people who once wished her well. The problem for Palin is not in finding another platform for her views (something that is all but a given in this era of social media and proliferating political websites) but that if she still harbors an ambition to be more than just another talking head, she’s going to have to something more than talk.
Jonathan Schanzer, vice president for research at the Foundation for Defense of Democracy and an expert on the confluence of money laundering and terrorism, drew my attention to an important story getting lost in the shuffle of confirmation hearing and more violent stories from the Middle East:
The Turkish parliament is scrambling to avert action by the Financial Action Task Force (FATF), an international body meant to combat money laundering and terror financing, which would place Turkey on its blacklist if it does not adopt legislation preventing terror finance within a month.
John Kiriakou, the former CIA operative who pled guilty to one count of leaking information, was sentenced on Friday to 30 months in prison. I have known John for almost two decades since I was a State Department intern in Bahrain at a time he served there. Even though we have often been on different sides of the issues, work has often led us to cross paths and, because of mutual friends, we have also seen each other socially on sporadic occasion. While I do not defend the crime to which Kiriakou has plead guilty and has now been sentenced, as often in these matters, I suspect the case is more complicated than that depicted in the press. With so much material classified, it can be near impossible to present a defense if most of the material upon which the defense would be based cannot be used because it is rightly or wrongly classified. There certainly seems to be ample evidence that the prosecution was selective. While that does not mitigate the wrong, it should raise questions if the FBI identified other leaks in the same case involving far more material released by another but which the CIA chose not to pursue.
The public learned more background about both Kiriakou and the case on January 6, when New York Times reporter Scott Shane published a major piece describing the case, and how the FBI nabbed Kiriakou. From the first paragraph, it is clear that Kiriakou helped Shane with the story. While The New York Times’ ombudsman has written about issues surrounding a reporter writing a story about a case in which he is a participant, if my understanding is correct, the Times’ coverage omits one crucial detail: Because he wanted to ensure a scoop, Shane apparently broke an agreement to embargo the story until after Kiriakou’s sentencing, putting at risk the ability of Kiriakou’s family—including very young children—to see their father.
Last week, chaos enveloped Asmara, Eritrea’s capital as renegade troops tried to overthrow President Isaias Afewerki. It is a pity they did not succeed. Dawit Giorgis, a visiting fellow at the Foundation for the Defense of Democracy (FDD), would disagree. In an analysis he penned for FDD, he explained:
Stability in Eritrea is crucial to the region. So far, the government seems to have resisted growing pressure from Islamists in Yemen and Saudi Arabia to radicalize Eritrea, the only non-Arab country along the Red Sea coast. But as the Horn of Africa, Gulf of Guinea and the porous borders of Northern Africa become a preferred routes for arms smuggling, the future of the country remains uncertain. Internal political disarray and tensions with Ethiopia could make Eritrea especially vulnerable to the Islamist influences exerting pressures in an increasing number of African countries. Iran is rumored to have established a military base along the coast, although there has been no confirmation of such reports from Washington, Jerusalem, or Tehran. Eritrea has denied the existence of such a base.
He is right that Eritrea is increasing strategic, but stability in Eritrea is not something to desire. While two decades ago there was hope that Afewerki might be enlightened if not democratic, he has transformed Eritrea into a prison camp. Eritrea has the dubious honor, for example, of being the only country to score below North Korea in international rankings of press freedom.
Last week, while participating at a conference on Afghanistan at Fort Hood, I met some U.S. officers who served in Turkey a bit over a decade ago. While they clearly loved their time in Turkey, they noted how many of their Turkish counterparts had quietly fled the army and Turkey itself over the past few years. Many disagree with the Islamism which Turkish Prime Minister Recep Tayyip Erdoǧan, and fear his arbitrary justice, as well as the blind eye so many in Europe and our own Foggy Bottom who care little so long as the victims are soldiers.
The flight of old guard Turkish officers reminds me of the flight of Pakistani officers in the wake of the 1971 loss of East Pakistan/Bangladesh when Gen. Zia ul-Haq, who came to power in 1978, accelerated Islamization as a means to build an overarching Pakistani identity. Many high-ranking Pakistani veterans, uncomfortable with religious radicalization, fled Pakistan. Whereas the Turkish military, at least until a few years ago, served as the bulwark against Islamic radicalism in society, the Pakistani military—under which Pakistani intelligence falls—became the catalyst for radicalization. Several decades later, Pakistani is a state sponsor of terrorism in all but name.
As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.
All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.
After Congress has adjourned sine die, the President can only call it back into session.
Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.
Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.
As we noted last week, Egyptian President Mohammed Morsi’s attempt to explain his anti-Semitic and anti-American televised rant to a group of visiting American senators was that his claim that Israelis were “the descendants of apes and pigs” was taken out of context. That was bad enough but as it turns out the first reports about the meeting fell far short of conveying just how offensive Morsi’s rationalization of hate was. As Josh Rogin reported yesterday at Foreign Policy’s blog The Cable, Senator Chris Coons of Delaware who was at the meeting said the Morsi implied that Jewish control of the media was the reason why he was being called to account for his hate speech.
This calls into question not just the continuing U.S. aid to the Muslim Brotherhood government headed by Morsi but the determination of the senatorial delegation, including its leader John McCain, to continue their support for the flow of more than a billion dollars in American taxpayer money to a hatemonger. The details of the meeting make it hard to understand how McCain could continue to justify such American support when the explanation for the Morsi rant is actually worse than the original anti-Semitic smears.
Eight years after Congressional opponents pronounced President George W. Bush’s immigration reform plan dead on arrival, there appears to be a real opportunity that a far-reaching proposal on the subject will pass the Senate. As the Washington Post reports, a working group of senators, including heavy hitters from both sides of the aisle, are close to an agreement on the principles for changing the country’s immigration laws. According to the Post, the proposal, which could be announced as early as a week from today will include the following:
The working group’s principles would address stricter border control, better employer verification of workers’ immigration status, new visas for temporary agriculture workers and expanding the number of visas available for skilled engineers. They would also include a call to help young people who were brought to the country illegally as children by their parents become citizens and to normalize the status of the nation’s 11 million illegal immigrants.
The plan, which is the result of talks including Democrats Robert Menendez, Richard Dubin, Charles Schumer, Michael Bennett and Republicans Marco Rubio, Lindsay Graham, John McCain and Jeff Flake. While there are still some disagreements to be ironed out since Rubio believes that illegals should have to wait for citizenship until those who arrived legally are accommodated while Democrats disagree, this may be the best chance to pass a bill dealing with the problem in decades. But there is one potential obstacle: President Obama.
Could a change in the way states allocate their votes in the Electoral College have changed the outcome of the 2012 presidential election? The answer to that question is generating outrage among Democrats over schemes that are currently under consideration in Virginia and some other states. That’s because had every state in the union discarded the winner-take-all rule currently used in all but two and instead employed one in which each Congressional district would be an individual contest, Mitt Romney might have earned a slim victory despite losing the popular vote.
Nebraska and Maine currently divide their votes in this manner giving both major parties a chance to win individual districts. That is each state’s prerogative since there is nothing in the Constitution saying that the winner-take-all rule is sacred. But in 2012, when President Obama won a narrow majority in the popular vote but a decisive victory in the Electoral College, allowing such splits would have created an anomalous outcome since the president’s win was predicated on his sweep of virtually every closely-fought battleground state in which he ran up big vote totals in urban areas while losing rural counties. That’s leading Democrats to call the plan to change the system in Virginia, which Obama won by a razor-thin margin, a “sore loser” scheme that is a GOP effort to subvert democracy.
Even though Republicans in some states have been talking about this issue for years, coming on the heels of their 2012 loss, it’s hard to argue that the sore loser tag doesn’t apply. Indeed, though their plan has its virtues, the idea of changing the rules in order to skew the results a bit more in their favor instead of working on issues and producing candidates that will win on their own merits sounds like exactly the sort of foolish thing Republicans ought to be avoiding as they ponder how to do better in 2016. Nevertheless, though the plan creates some bad optics for the GOP, even its Democratic critics should admit that it is neither crazy nor essentially undemocratic.
President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.
Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.
Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.
Louisiana Governor Bobby Jindal made some headlines with his speech to the Republican National Committee yesterday in which he called out the GOP as having behaved like “the stupid party” in 2012. He is hardly alone in considering the infamous cracks of Todd Akin and Richard Mourdock about rape and pregnancy to be classic examples of stupidity but the main point of his address wasn’t about the perils of nominating idiots for Senate seats. Instead, Jindal put forth a manifesto about how to revive conservatism in the age of Obama. His formula is deceptively simple: opt out of a rigged game focused on how to balance the budget and replace it with a populist approach in which big government is the target.
The idea is a powerful message and is exactly what the Republican grass roots wants to hear, especially the part in which the Washington is put down and state and local governments, such as the one Jindal leads, are lauded. He’s right that the current debate in the Capitol over things like the debt ceiling and the fiscal cliff is being fought on the Democrats’ terms and has, predictably, led to GOP defeats. Jindal is also right that Republicans ought to be more interested in growing the economy than in enforcing austerity. But as much as his talk sounded like a winning approach to the 2016 presidential primaries in which he may be a serious competitor, the problem for his party is that opting out of the current debates on the debt and the budget is easy if your office is in located in Baton Rouge. It’s not an option for a House Republican caucus that remains the only real obstacle to President Obama’s plans for higher taxes and more spending in the next four years.
Law professor Karima Bennoune has an important op-ed in the New York Times today that should be required reading for all those who think that Muslims are somehow different from “you and me” and actually enjoy living under a tyrannical regime as long as its diktats are justified by a twisted reading of Sharia law. Based on her interviews with Malians fleeing the Islamists who have taken over the northern part of the country, Bennoune shows it just isn’t so–tyranny is unpopular no matter how it is packaged and justified. As she notes:
First, the fundamentalists banned music in a country with one of the richest musical traditions in the world. Last July, they stoned an unmarried couple for adultery. The woman, a mother of two, had been buried up to her waist in a hole before a group of men pelted her to death with rocks. And in October the Islamist occupiers began compiling lists of unmarried mothers.
Even holy places are not safe. These self-styled “defenders of the faith” demolished the tombs of local Sufi saints in the fabled city of Timbuktu.
After the 2012 presidential election, liberals gave conservatives a piece of advice: do some soul searching, and get out of your media bubble. Conservatives were wrong about the election, they were told, because they turned their assumptions into predictions. So it will be interesting to find out if the leftist foreign-policy press is ready to take its own advice, after a colossally botched year of coverage leading up to this week’s Israeli Knesset election.
In his wrap-up of just how wrong the media was, Walter Russell Mead gives his readers the following tip: “As negotiations to form a coalition government unfold in the next few weeks, expect more of the same from the MSM”–referring to the mainstream media. I imagine he’s right about that; the liberal press in America got the Israeli election so wrong because they get Israel itself so wrong. But it’s easy to understand how this happens by reading the article that Mead singles out as the “piece of journalism that got furthest away from the facts”–David Remnick’s essay in the New Yorker, dated for this week to coincide with the elections, on the rise of Israel’s right. Remnick writes:
Barack Obama is a record-setting president.
He is the most polarizing president in the history of polling.
According to the Gallup organization, during his fourth year in office, an average of 86 percent of Democrats and 10 percent of Republicans approved of the job Barack Obama did as president. That 76-percentage-point gap ties George W. Bush’s fourth year as the most polarized years in Gallup records. Now let’s dial the clock back a year, when Jeffrey Jones of the Gallup organization wrote, “The historically high gap between partisans’ job approval ratings of Barack Obama continued during Obama’s third year in office, with an average of 80 percent of Democrats and 12 percent of Republicans approving of the job he was doing… The 68-point gap between partisans’ approval ratings of Obama last year is nine points higher than that for any other president’s third year.”
This came after Obama set a record for polarization in each of his first two years in office. So Barack Obama has set a record for polarization for three years in a row and tied the record for polarization in a fourth year.
Earlier today North Korea released a barrage of unprovoked and unexpected insults toward the United States, declaring that the U.S. is the “archenemy of the Korean people.’’ The LA Times reports on the bellicose language used by the North Korean government meant to strike fear into the hearts of Americans:
“We are not disguising the fact that the various satellites and long-range rockets that we will fire and the high-level nuclear test we will carry out are targeted at the United States,” North Korea’s National Defense Commission said in a statement released by the official news service.
“Settling accounts with the U.S. needs to be done with force, not with words,” it said.
[Updated 10:46 a.m. Jan. 24: In Washington, White House Press Secretary Jay Carney called North Korea’s statement “needlessly provocative,” adding that a test would be a “significant violation of United Nations Security Council resolutions.”
Quietly today, another story emerged from North Korea that is in all probability related to these threats. RealClearWorld reported on the latest deadly “man-made” famine gripping the reclusive nation:
Secretary of Defense Leon Panetta’s decision, taken at the recommendation of the Joint Chiefs of Staff, to lift the ban on women in combat is hardly “radical social engineering,” as some critics claim. It is, more than anything, a recognition of what is and has been the status quo.
Roughly three-quarters of military jobs have already been opened to women. They are serving in combat zones as pilots, intelligence analysts, logisticians, military police officers, and in other specialties that expose them to considerable risk—all the more so because the kind of war we are fighting today is a guerrilla war in which the enemy can strike anywhere and there are no defined front lines. In the army and Marine Corps women are still forbidden from serving in combat units at the battalion and below level, but there are many women—not just military personnel but also contractors—on Forward Operating Bases where brigades and higher headquarters are to be found. This means that there is plenty of interaction today between men and women in uniform.