This and your previous response on the same subject suggest an answer to my invitation @ 26.

There being no other responses, I propose to proceed in the manner of Radio Rush and invite the “indisputably best source of incisive excellence on this pressing issue” to explicate.

QUESTION: I have Professor Bolten Head of Faber College School of Law and Animal Husbandry on line two – welcome sir. Professor as my millions of devoted dittoheads know I am a man of many and vast parts, but none as it happens of the legal beagle sort, so I would appreciate your putting in as close to humanese as you are able to the exact nature of the dilemma that apparently is would confront Barack Hussein Obama should he be admitted to the White House through the front door. And permit me sir if you will to first attempt to frame the supposed dilemma as I perceive it.

Put simply as I understand the ways things are, there would be only two alternatives, and no more than two, and that those two would mean he would face what is known as a Hobson’s choice, between on the one hand choosing to forgive the thousands of dedicated civil servants their only sin of supporting their president-

and on the other Obama actually abandoning his grandiose rhetorical vision of a post-partisan America completely, thereby forever branding himself and everyone connected to his administration and indeed to his party – and furthermore opening up his “kind” if I may refer to … well I may be putting myself at risk for saying so but it’s just sitting out there waiting to be said: permanently coloring the whole inventory of those who apparently missed out on getting inoculated against an outbreak of rampant Obamania-

by appointing his very own Grand Inquisitor- ritually confirmed by Reed and Leahy and the rest of his Democrat cohorts & pals from his brief visit to the Senate- who would thereafter execute on a deliberate design – such as arranging to lure every single federal employee who happened to have commenced his or her public service at any time after twelve noon on January twentieth two thousand – I’m not just talking about lawyers and budget experts and medicos in the Health department but right down to the typing pool & the janitorial staff- to lure all of them out to Roswell New Mexico from whence they would be bussed or marched or whatever to some remote part of the desert – whereupon the Inquisitor would put to each and every one of them some abomination of Satan’s three temptations of Jesus no doubt developed in the dungeons of the Soros Institute and voted on by the moonbattery of netnuts at Fire Dog Lake and the Daily Kos, and to complete the picture Arianna Huffington serving in the role of Mme Defarge-

is that about the size and shape of it sir?

RESPONSE: You seem to have a firm grasp on this – frankly I don’t think I would wish to improve on how you have put it.

But actually I think there may be another alternative, one for which there exists quite an impressive body of precedent among executive branch directives and findings and orders, and none of them appear to have been ever condemned or challenged or even questioned by Congress.

By way of exemplification, it appears open for the next president to borrow, foregive me for referring to here so crudely, liberally, from as few as just two previous administrations, one Republican of course but also one Democratic, to preserve if you will the bi-partisan character of such a robust initiative.

Upon being sworn into office the new commander in chief could issue a presidential finding that all the hires of the immediately preceding administration are presumptively incompetent, so much so that their continuing in office constitutes an exceptional danger to national security, then arrange with Congress to pass as expeditiously as possible something in the same vein as the military tribunal system currently in use in GTMO.

As to each major component essential to instituting such a program, and ensuring its legal viability, neither of the two components in this example would bear anything approaching the kind of objective offensiveness to American sensibilities which have come to be associated with by its respective historical precedent.

In the case of the former the precedent would be President Franklin D. Roosevelt’s internment policy during World War Two applying only to American citizens of Japanese descent. In the case of the latter, its probably sufficient to note that the fact remains, despite the failure of the current administration to succeed in completely stopping a bare majority of the Supreme Court from forcing some parts of habeas corpus on the GTMO facility, the President has unquestionably succeeded in establishing the authority of the administration in setting up a parallel adjudicative system, as long as its jurisdiction is framed in terms of an area of exclusive executive branch authority.

It also suggests that presidents enjoy a prerogatory power in being able to set up a parallel adjudicative system with exclusive jurisdiction over receiving and resolving individual challenges to the presidential finding based on claims of personal hardship and other effects.

Now, it seems possible, and I’ve actually heard some people say its clearly the case, that many of the individuals who fall into this category, that fall under that kind of presidential finding, are pretty much unemployable outside of the sorts of brutally demanding jobs that typically get done by migrants and itinerants. I also heard Senator McCain say a few months ago that Americans are just not unequipped to do those sorts of jobs.

So if for no other reason than a president Obama presumably would feel quite motivated to avoid looking as heartless and reflexively partisan as the current president, I would expect his administration to go to Capital Hill and get Congress to pass a law that establishes a system for handing some very possibly reasonable claims that some of the federal employees affected by such a finding would want to make.

I’m not saying that the Bush administration would ever hire a Democrat or even an independent, not consciously,; but for instance, I could foresee someone fired for presumptive incompetence wanting to claim that it worked a particular hardship on him because he was actually qualified to do his job and the job itself didn’t hold any scope for expressing political partisanship. And I can certainly see a Democratic administration wanting to give that guy a place to go to file his claim and to hear him out on trying to rebut the presumption in the presidential finding; Democrats tend to think if they look like they’re treating everyone the same then that’s going to result in more votes. Logically if he succeeds in doing that he’s going to want a chance to prove how much he lost and get a ruling that forces the administration that took his job away from him to pay him that in compensation, and again Democrats tend to go for things like that.

At the same time though, I would expect someone like Obama is pretty aware of how twenty years out of the last twenty eight under Republican presidents has resulted in the federal courts being packed with Republican appointees, and the obvious dangers in allowing them an easy shot at crippling and embarrassing his administration. So I would expect an Obama administration would want to capitalize on the model presented by the Bush administration’s GTMO military tribunals, and also to take advantage of an opportunity to improve on that model by refraining from actually detaining any of the affected individuals. If I were consulted on this, certainly if it was by a Democratic administration at least I would expect to urge very strongly that not detaining has the benefit of avoiding most if not all of the panopoly of substantive procedures developed by the judicial branch over the last two hundred and thirty years, procedures that have proved to bring about a vast number of publicly available opinions and decisions which on the whole have worked to limit executive branch power, and moreover to cause a great deal of embarrassment to presidential legacies.

Lastly I think its worthwhile observing that for a lot of our history it was assumed that it was necessary to start out any serious effort to reform government policy and programs by considering what if any limitations might be presented by the Constitution, whether in providing some role to another branch, or identifying and purporting to guarantee some “inalienable” individual right.

However throughout the entire current millenium no great difficulty has been encountered in finding ways to avoid the Constitution, particularly insofar as its practical implications are concerned. If I were asked for it, my advice would be that it probably remains important for maintaining public confidence and support to try as much as possible to stay with the forms provided under the Constitution, but apart from that I don’t see any reason to lose a lot of sleep over it.

QUESTION: Now sir – I have sat here and listened with what you are bound to concede has been a remarkable demonstration of patience; but to my untrained ear all this sounds to me that any decent red-blooded American would be forced to sit back helplessly while a President Obama presides over the commission of an outrage upon thousands and perhaps tens of thousands of loyal patriotic hard working American workers – and leaves me unable to conceive of why a Republican in Congress would ever be motivated to forebear from resorting to filibuster. I am prepared to be enlightened.

RESPONSES: Well – I think I understand where you’re coming from in saying that, and as to what position Congressional Republicans might have on this and what strategies they might resort to in trying to oppose it – all that something I’d expect you to be far ahead of me on and quite literally I think its more up to you than me.

But as to the matter of its political viability, in a philosophical sense if you will I would have thought that Congressional Republicans would be loathe to interfere with a process that extends executive branch authority beyond the reach of the judicial branch and relieves Congress of some much of its legislative burden, thereby freeing its members for more pressing business such as ensuring re-election and arranging benefit packages for their retirement.

QUESTION: All valid points I readily concede. But answer me this: If 8 years worth of hires by one particular administration can be so easily undone by an incoming president, on a presidential finding invoking national security, what then would stand in the way of his using the same vehicle to proceed to fire not just the hires of his immediate predecessor, but each and every single employee no matter how long they’ve been on the federal payroll?

RESPONSE: Theoretically- nothing.

QUESTION: ……. Well ……. that is …. enlightening and inspiring!

Professor Bolten Head, while I feel an irresistible urge to tell you I would feel one whole heck of a lot more comforted by that view if it had come from the mouth of, say, Justice Scalia, I now see your point, not to mention the possibilities, and I feel sure that if my listeners do not, I am fully equipped to explain it to them. I trust you will agree to share your insights with us again and I thank you.