Saturday evening, the New York Times put up an important editorial, The Banks Win Again, on its website regarding the financial crisis, an editorial piece that would be key in their Sunday Morning Edition Opinion Section:

Last week was a big one for the banks. On Monday, the foreclosure settlement between the big banks and federal and state officials was filed in federal court, and it is now awaiting a judge’s all-but-certain approval. On Tuesday, the Federal Reserve announced the much-anticipated results of the latest round of bank stress tests.

How did the banks do on both? Pretty well, thank you — and better than homeowners and American taxpayers.

That is not only unfair, given banks’ huge culpability in the mortgage bubble and financial meltdown. It also means that homeowners and the economy still need more relief, and that the banks, without more meaningful punishment, will not be deterred from the next round of misbehavior.

The nation is on the cusp on having the government, both federal and states, sign off on arguably the biggest financial fraud on the American public in history, and doing so in a way that massively rewards the offending financial institutions and refuses serious investigation, much less prosecution, of any participants perpetrating the conduct. This pattern of craven conduct cratered not just the US economy, but most of the world economy.

In the face of all this, David Gregory and MTP had on the Sunday morning show one of the most senior Senators in the United States Senate, John McCain, who serves as a key member of both the Governmental Affairs and Health, Education, Labor and Pensions Committees, both of which are integrally affected by, and concerned with, the financial collapse and the financial fraud, churning and undercapitalization that directly caused it.

Oh, and this oh so worthy Meet The Press guest, a man such a fixture and well known to the MTP crew that he has been an honored guest 64 (sixty four!) times – the Right Honorable Senator John Sidney McCain III – just so happens to have been one of the key players in the only recent analogous situation to the current financial collapse, the Savings & Loan Crisis scandal of the late 80s and early 90s. McCain, who unethically conspired with one of the key men convicted of substantive crimes (criminal charges are curiously NOT being sought currently) in the Savings & Loan Crisis, Charlie Keating. McCain nearly lost his political career over it. John Sidney McCain III, who was so tight with the living epitome of the destructive Savings & Loan Crisis, Charlie Keating, that he frequented Charlie’s Bahama Keys mansion (traveling on Charlie’s private jets) and donned pineapple hats with his best buddy for booze filled Bahama birthday bashes. Booyah!

The same John Sidney McCain III who resurrected his Savings & Loan Crisis cratered career on supposedly getting corrupt money out of government and insuring that another mass financial fraud could not gut the country’s economy. The same McCain who bellowed about the corrupting influence of the moneychangers and their crooked cash. You would think the esteemed David Gregory would want to do his country a service and explore this topic that has most affected every American’s life over the last five years and that still roils and depresses the US economy and leads to debilitating unemployment and underemployment rates.

You would think David Gregory, NBC and the venerated and esteemed Meet The Press would want to discuss how the government’s perfidy in refusing competent investigation and prosecution has resulted in heinous offenders like Bank of America being bigger than ever and ready to crater the economy again, as lamented by the spot on Matt Taibbi recently:

It’s been four years since the government, in the name of preventing a depression, saved this megabank from ruin by pumping $45 billion of taxpayer money into its arm. Since then, the Obama administration has looked the other way as the bank committed an astonishing variety of crimes – some elaborate and brilliant in their conception, some so crude that they’d be beneath your average street thug. Bank of America has systematically ripped off almost everyone with whom it has a significant business relationship, cheating investors, insurers, depositors, homeowners, shareholders, pensioners and taxpayers. It brought tens of thousands of Americans to foreclosure court using bogus, “robo-signed” evidence – a type of mass perjury that it helped pioneer. It hawked worthless mortgages to dozens of unions and state pension funds, draining them of hundreds of millions in value. And when it wasn’t ripping off workers and pensioners, it was helping to push insurance giants like AMBAC into bankruptcy by fraudulently inducing them to spend hundreds of millions insuring those same worthless mortgages.

But despite being the very definition of an unaccountable corporate villain, Bank of America is now bigger and more dangerous than ever. It controls more than 12 percent of America’s bank deposits (skirting a federal law designed to prohibit any firm from controlling more than 10 percent), as well as 17 percent of all American home mortgages. By looking the other way and rewarding the bank’s bad behavior with a massive government bailout, we actually allowed a huge financial company to not just grow so big that its collapse would imperil the whole economy, but to get away with any and all crimes it might commit. Too Big to Fail is one thing; it’s also far too corrupt to survive.

You would think the NBC braintrust would want to talk about the most important issue on the burner over the last few years – and still today – financial fraud and government complicity and regulatory failure. And who better to discuss it with than a founding member of the Keating Five? But, of course, you would be wrong. No, NBC and their dancing stooge David Gregory instead engaged in a longwinded gossip fest on the inane and intellectually ignorant current GOP Primary horserace. Because that is what Dancin Dave, Meet The Press and NBC are now, cheap political gossip mongers who make Access Hollywood look like serious reportage.

Maybe we should cut Dancing David Gregory some slack tough, his mind was undoubtedly preoccupied with his upcoming admission into the Chevy Chase Club, the “historic social club that has catered to Washington’s wealthiest for over a century”.

[And, if you are wondering, yes that picture of John Sidney McCain III in the asinine pineapple hat is quite real and was taken at his special birthday party he jetted down to Charlie Keating’s Bahama Keys mansion and estate for with Keating and other sundry revelers. Okay, I did let TWolf add some colorization….]

Earlier this morning, we posted A Primer On Why Schuelke Report Of DOJ Misconduct Is Important that laid out all the legal and procedural background underlying the Schuelke Report into prosecutorial misconduct in the Ted Stevens criminal case.

The full 500 page report has now been released, and is titled:

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009

I wanted to get the post framework and document link up so everybody could read along and digest the report together. Consider this a working thread to put thoughts, key quotes – whatever – into as we chew on the report. Then after having been through it, Marcy and I will; later do smaller stories on specific angles raised.

We know the irreducible minimum found:

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness

You would think the involved attorneys would be ducking and apologizing for their ethical lapses that terminated the career of the powerful chairman of the Appropriations Committee on the US Senate. You would, of course, be wrong.

The mouthpiece for Brenda Morris, Chuck Rosenburg, is already clucking:

Brenda is a woman of tremendous integrity and an exceptionally talented prosecutor—she was fully honest with the investigators and always hoped that one day this report would be made public so that the facts of her individual role would be known.

Um, no, Ms. Morris does not smell like a rose here Chuck. Edward Sullivan, one of the AUSAs had this statement by his lawyer already this morning:

Mr. Sullivan is a diligent attorney, with strong character and integrity, whose conduct comports with the Department’s highest ethical standards. Mr. Sullivan was rightfully exonerated by Mr. Schuelke and the Department’s Office of Professional Responsibility, and his vindication is evidenced by the fact that he continues to prosecute cases in the Criminal Division’s Public Integrity Section

Well, yeah, sure, you betcha Ed Sullivan. I guess that is why as late as yesterday you were personally in the DC Circuit Court of Appeals trying to have the whole matter both stayed and sealed and were arguing you would be harmed if it wasn’t. Today, Edward Sullivan is suddenly a spring flower of purity.

So, yes, all these spring flowers in bloom must be operating off some pretty fertilizer, and the manure is indeed rather deep. So, let us dive in and see what we find. Put your thought, comments and opinions in comment as we work. See you there!

It’s here!! Yep the fateful Emptywheel Primary day! Why is it the Emptywheel Primary you ask? Well silly, because today is the Super Tuesday of GOP primaries in both Michigan and Arizona. My Mormons versus Marcy’s Hutaree. Gonna throw down baby.

I want to tell you how thrilling the excitement of the Republican primary has been for us here in Arizona. Except, well, I can’t. Because it hasn’t. It is now 5:00 pm here on the day of the primary, and I have not seen one single campaign ad on television. Other than a flurry of coverage on the day of the debate here, Nada. Zero. Zilch. As for campaign signs, which are always up everywhere in my busy area that sits at the intersection of Arcadia, Paradise Valley and Scottsdale. There are major roads leading to a lot of voters – many of them affluent – and this is a quite Republican district (it elected Ben Quayle handily just as an indicator). The pitiful tiny little Santorum sign in the picture above is the only sign I have seen within a two mile radius. That’s it.

As for Michigan, Marcy reports the same there. CNN and MSNBC says the GOP candidates have been traipsing around Michigan, but Marcy has not seen much in the way of advertising or excitement either. Charlie Pierce gives a rundown on the wonderful candidates in Michigan. Here is what Marcy reported on Twitter yesterday about the level of excitement:

Honestly though, it just seems like a non-event to me. I have yet to see an ad–not TV, direct mail, robo, signs. Nothing!

So, two decent sized primaries in pretty interesting states, for differing reasons, and…..bupkis.

It looks like Romney has Arizona solid unless there is a major upset, which is not shocking with the large contingent of Mormons here. But Michigan has been shockingly tight given Romney’s roots there, and that could really be interesting depending on how a few key counties go. And Ron Paul has better strength than you think in Michigan. So this is a thread for election chatter, and anything else in the world you got (hint FOOTBALL and other sports, etc!).

On piece of pretty interesting news today, Olympia Snowe has announced she is retiring after this term and will not run, so there is a scramble underway up in Maine. The big Dem names floated so far to replace Snowe are current Representatives Chellie Pingree and Mike Michaud, as well as former Representative Tom Allen. Of those, it is hard not to think Pingree has the edge, and she is already thinking about it hard. This could be a great pickup opportunity for the Dems in the Senate, and would sure help the effort to keep the majority control of the Senate. DDay has more.

So, with that, let’s hoop and yak it up for The Emptywheel Primary! Music by Bo Diddley and Roadrunner, which he first released in 1960.

One of the hottest, and most important, stories of the last week has been that broken by Scott Shane in the New York Times, on February 5th, of Army Lt. Col. Daniel L. Davis’ stunning report on the unmitigated duplicity and disaster that characterizes the American war in Afghanistan. It painted the story of a man, Davis, committed to his country, to his service and to the truth but internally tortured by the futility and waste he saw in Afghanistan, and the deception of the American public and their Congressional representatives by the Pentagon and White House.

And then, late last month, Colonel Davis, 48, began an unusual one-man campaign of military truth-telling. He wrote two reports, one unclassified and the other classified, summarizing his observations on the candor gap with respect to Afghanistan. He briefed four members of Congress and a dozen staff members, spoke with a reporter for The New York Times, sent his reports to the Defense Department’s inspector general — and only then informed his chain of command that he had done so.

Concurrent with Shane’s NYT article, Davis himself published an essay overview of what he knew and saw in the Armed Forces Journal.

The one thing that was not released with either Shane or Davis’ article was the actual Davis report itself, at least the unclassified version thereof. The unclassified Davis report has now been published, in its entire original form, by Michael Hastings in Rolling Stone in The Afghanistan Report the Pentagon Doesn’t Want You to Read.

The report is every bit as detailed, factually supported and damning as the articles by Shane and Davis portrayed. It is a must, but disturbing, read. If the American people care about economic waste and efficacy and morality of their foreign military projection, both the Obama Administration and the Pentagon will be browbeat with the picture and moment of sunlight Daniel Davis has provided. Jim White has penned an excellent discussion of the details of the Davis report.

My instant point here, however, is how Davis conducted himself in bringing his sunlight, and blowing the whistle, on wrongful US governmental and military conduct. Davis appears to have attempted to carefully marshal his evidence, separated the classified from the unclassified, released only unclassified reportage himself and to the press, taken the classified reportage to appropriate members of Congress and the DOD Inspector General, and notified his chain of command. Davis insured that, while the classified information and facts were protected from inappropriate and reckless release, they could not be buried by leveraging his unclassified press publication. In short, Daniel Davis is the epitome of a true military whistleblower, both in fact, and in law.

As I have previously delineated, there is no common law “whistleblower defense” umbrella protection, whether under American military law or civilian law. Despite the indiscriminate bandying about of the term by commenters, pundits and analysts across the spectrum, the “whistleblower defense” is a creature of statute, and simply does not formally exist other than where specifically provided for as an available affirmative justification defense. There is, however, just such a specific statutory grant of a whistleblower defense for the US military, and it is spelled out in the Military Whistleblower’s Protection Act, codified in 10 USC 1034:

(a) Restricting Communications With Members of Congress and Inspector General Prohibited.—
(1) No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.
(2) Paragraph (1) does not apply to a communication that is unlawful.
(b) Prohibition of Retaliatory Personnel Actions.—
(1) No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing—
(A) a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted; or
(B) a communication that is described in subsection (c)(2) and that is made (or prepared to be made) to—
(i) a Member of Congress;
(ii) an Inspector General (as defined in subsection (i)) or any other Inspector General appointed under the Inspector General Act of 1978;
(iii) a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
(iv) any person or organization in the chain of command; or
(v) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.

Daniel Davis may have a bit of a rough ride in spots with his military career from here on out because, well, they often just do not take well to the type of challenge from within the service he has made. But there is little to no chance that he will be busted out of the Army or rank, much less arrested, charged, subjected to an Article 32 Investigation and court-martialed. Davis made a good faith attempt to conduct himself within the scope of the Military Whistleblower’s Protection Act and honored his service and country in doing so.

That is not, however, how Army Pfc. Bradley Manning conducted himself (assuming arguendo that Manning indeed did what he is accused of, and the evidence to date, and reasonable inferences thereon, suggest he did). Although Manning appears to have released several classified items intentionally and specifically (for instance the “Collateral Murder video”), nearly all of the well over 250,000 classified documents, including the State Department cables, look to have been indiscriminately hoovered up and released just because they were there and he could. There is no evidence, nor reasonable view, by which Manning could have reviewed and understood exactly what the vast majority of documents were or what effect they may have.

Manning did not carefully prepare the material as Davis did, using only that which is necessary and taking precaution that classified information was protected and disseminated through legal avenues to Congress and the DOD IG pursuant to the Military Whistleblower’s Act. No, Bradley Manning impetuously and indiscriminately dumped the lot of it to the uncontrolled whims of a flaky, at best, foreign entity, WikiLeaks. And then proceeded to chat about it with a mentally unstable, known felon hacker, Adrian Lamo.

Now, all that said, there has been much good and sunshine that has resulted from Bradley Manning’s acts and, it appears, little in the way of grave harm as originally claimed. At this point, there is really not much dispute on that. Further, Manning appears to be a genuinely troubled kid who had his heart in the right place in wanting to get, at least as to the items he knew and understood, important information out to make a difference; although, it is more than a stretch to say that is credible as to the vast majority of the classified documents, which he had no idea of what was really contained therein. Most all of the documents were just an indiscriminate and petulant classified information dump by Manning.

It is easy to admire Bradley Manning, in a way, for his righteous ideals, and to feel pity and sorrow for the pain and lot in life he has experienced emotionally and physically both before, and after, his acts leading to his charging and incarceration. And I feel that for him. But such a feeling does nothing to detract from the fact he appears to quite clearly have committed clear offenses as to data transfer and information protection, not to mention conduct unbecoming, all in direct contravention of the UCMJ. You can quibble about whether Manning’s conduct constitutes “aiding the enemy”, and while that may seem to be an extreme reach to many, the technical elements can be argued by the government and sent to a jury. The remainder of the charges, however, appear clear cut if the government’s evidence is what it appears to be and is properly adduced at trial.

But, assuming Manning committed the acts, he is no heroic military whistleblower; in fact, he does not come close to even being legally eligible for the defense. Manning, instead – irrespective of what you think of him personally – a criminal who dishonored his service. There are laws under the UCMJ, and a military ethos and code of conduct against it, and for good reason. As Aaron Bady eloquently stated:

This is happening because Bradley Manning does not live in a democracy. He lives in the U.S. Army. The same is true when the “Manning hearing” gets called a “court case,” which it is not: we forget that while the United States is a democracy, the U.S. military is something different.
…..
I don’t say any of this to justify what is being done to Bradley Manning, of course; I’m as appalled as anyone. But let’s look clearly at why it’s being done: the terms through which the military operates – where winning the war means giving up “normal” rights and concerns – make what is happening to him the very opposite of a scandal. It is normal for one person’s rights to be subordinated to some larger social imperative, however defined. This is what the military is, does, and must be. And when we have always tolerated (usually venerated) this non-democratic space at the heart of our democracy, a permanent state of exception to the right of things like trial by jury, this is what will happen as a result. Soldiers don’t live in a democracy; soldiers live in a military dictatorship, one ruled by martial law (in the most literal sense possible).

This is exactly right. No matter how much one admires Manning for what he did, the irreducible minimum is that there is a legitimate basis and need for military discipline and adherence to the code of conduct, and that was the system Bradley Manning swore to uphold, protect and live within.

Bradley Manning is a lot of things, but if he did the acts alleged, he is not innocent, and he is not a honorable military whistleblower. There was a path specifically laid out to where that could have been the case, the path Daniel Davis honorably followed. Bradley Manning went the opposite direction.

Out of the blue this morning, the Obama Administration has released the OLC opinion it relied on in making last weeks recess appointments of Richard Cordray to the CFPB and others to the NLRB. Several legal analysts and pundits have lobbied publicly and privately for the memo, which almost certainly existed, to be released, maybe the most cogent of the public pleas being made by Jack Goldsmith at Lawfare. Honestly, I agreed fully with Jack, but since the White House was reticent to admit it even existed, and since (as Josh Gerstein pointed out) a 2nd Circuit opinion from 2005 likely meant it was not subject to FOIA, I was not sure how soon it would meet public eyes.

Well, here it is in all its glory.

While some had suggested the reason the White House would not discuss whether there even was an opinion, much less release it, was that the OLC did not support the President’s ability to so recess appoint. I never particularly gave this much credit, even though Obama clearly is not above acting contrary to OLC advice, he did exactly that regarding the Libya war action. And, indeed, here the OLC did support his action in their 23 page opinion.

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

As I previously have noted, the entire “block” of the President’s recess appointment power is predicated upon the Article I, Section 5 provision in the Constitution that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”. And, so upon what exactly does the OLC hang their hat on that the three day periods do not prevent a “recess” within the meaning of a President’s Article II, Section 2, Clause 3 recess appointment power? Mostly some reasonably thin quotes from GOP Senators that were not directly on point, and some spare language culled from an otherwise non-definitive webpage at the Senate site:

Public statements by some Members of the Senate reveal that they do not consider these pro forma sessions to interrupt a recess. See, e.g., 157 Cong. Rec. S6826 (daily ed. Oct. 20, 2011) (statement of Sen. Inhofe) (referring to the upcoming “1-week recess”); id. at S5035 (daily ed. July 29, 2011) (statement of Sen. Thune) (calling on the Administration to send trade agreements to Congress “before the August recess” even though “[w]e are not going to be able to consider these agreements until September”); id. at S4182 (daily ed. June 29, 2011) (statement of Sen. Sessions) (“Now the Senate is scheduled to take a week off, to go into recess to celebrate the Fourth of July . . . .”); 156 Cong. Rec. at S8116-17 (daily ed. Nov. 19, 2010) (statement of Sen. Leahy) (referring to the period when “the Senate recessed for the elections” as the “October recess”); 154 Cong. Rec. S7984 (daily ed. Aug. 1, 2008) (statement of Sen. Hatch) (referring to upcoming “5-week recess”); id. at S7999 (daily ed. Aug. 1, 2008) (statement of Sen. Dodd) (noting that Senate would be in “adjournment or recess until the first week in September”); id. at S7713 (daily ed. July 30, 2008) (statement of Sen. Cornyn) (referring to the upcoming “month- long recess”); see also id. at S2193 (daily ed. Mar. 13, 2008) (statement of Sen. Leahy) (referring to the upcoming “2-week Easter recess”).

Likewise, the Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions. The Senate’s web page on the sessions of Congress, which defines a recess as “a break in House or Senate proceedings of three days or more, excluding Sundays,” treats such a period of recess as unitary, rather than breaking it into three-day segments.

Nice argument, marginally compelling, but certainly not authoritative. There are numerous pages devoted to a discussion of the historical use and practice of recess appointments during which the OLC concludes that a recess of twenty (20) days is indeed a sufficient recess to permit recess appointments. That is all well and good, but nobody really would have disputed that, as it was nearly universally agreed by this point in history that any recess of ten or more days sufficed; the only questions were did the 3 day ruse interrupt a longer recess and, if so, could a President appoint in gaps less than three days.

The key statement, as it pertains to how certain the OLC (or anybody else for that matter) is on this issue is this:

Due to this limited judicial authority, we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones.

Interestingly, in making this conclusion, the OLC cites Evans v. Stephens, which I have long pointed out stands for the proposition that there does not currently exist any defined limit as to what is “too short of a recess”.

The second half of the OLC memo explores in more detail whether the 3 day ruse is sufficient and effective to block a President from the making of recess appointments. Quite frankly, it is mostly a pretty rambling and self serving discussion at that point, and does little to add to the cause. The one interesting part is a cite to the Federalist Papers, which I always find interesting and instructive:

The Clause was adopted at the Constitutional Convention without debate. See 2 The Records of the Federal Convention of 1787, at 533, 540 (Max Farrand ed., rev. ed. 1966).14 Alexander Hamilton described the Clause in The Federalist as providing a “supplement” to the President’s appointment power, establishing an “auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, at 409 (Clinton Rossiter ed., 1961). The Clause was necessary because “it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers,” and it “might be necessary for the public service to fill [vacancies] without delay.” Id. at 410.

The one other semi-notable area of support comes on page 17, and delineates the only other interesting case authority other than Evans:

There is also some judicial authority recognizing the need to protect the President’s recess appointment authority from congressional incursion. See McCalpin v. Dana, No. 82-542, at 14 (D.D.C. Oct. 5, 1982) (“The system of checks and balances crafted by the Framers . . . strongly supports the retention of the President’s power to make recess appointments.”), vacated as moot, 766 F.2d 535 (D.C. Cir. 1985); id. at 14 (explaining that the “President’s recess appointment power” and “the Senate’s power to subject nominees to the confirmation process” are both “important tool[s]” and “the presence of both powers in the Constitution demonstrates that the Framers . . . concluded that these powers should co-exist”); Staebler v. Carter, 464 F. Supp. 585, 597 (D.D.C. 1979) (“it is . . . not appropriate to assume that this Clause has a species of subordinate standing in the constitutional scheme”); id. at 598 (“It follows that a construction of [a statute] which would preclude the President from making a recess appointment in this situation—i.e., during a Senate recess and after the statutory term of the incumbent [official] has expired—would seriously impair his constitutional authority and should be avoided [if it] is possible to do so.”); see also Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (rejecting an argument that “rests on the assumption that a recess appointment is somehow a constitutionally inferior procedure”). But see Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C. 1994) (concluding, contrary to McCalpin and Staebler, that a holdover provision could preclude a recess appointment), rev’d on other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 57-58 (D.D.C. 1993) (same), vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir. Mar. 9, 1994).

Really, that is about the long and short of the substantive portion of the opinion. As stated above, even by the OLC itself, there is thin precedent and law guiding the question, and it is nearly impossible to know where courts, much less the Supreme Court, will come down on this.

Also the issue of what the relative power of Mr. Cordray’s position of Director really vests, as discussed in this post, is not at issue or discussion in this OLC memo. Both the issue of propriety of the recess appointment as performed by President Obama, and what power it gives to the CFPB and Cordray even if legal, are still extremely cognizable issues for court challenge. Expect just that.

One interesting, and previously unknown (as far as I can discern or am aware of) fact is that the Bush Administration briefed this issue literally days before leaving office:

We draw on the analysis developed by this Office when it first considered the issue. See Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009).

So, the Bush/Cheney regime was actively briefing and filing memoranda on the lawfulness of a President making recess appointments in the face of the 3 day Congressional ruse, eleven days before they left office.

You would think it hard to believe the Bush Administration just wanted to leave a “how to manual” for Barack Obama to make recess appointments in the face of the 3 day ruse. Even though Obama was entering with huge majorities in both chambers of Congress, you would think they would assume they could get at least one of the chambers back (which they certainly did in 2010).

Well, you would be wrong. I spoke to the author of said memo to the file (which is not an “official OLC Memo”) at the Bush OLC, John P. Elwood, and he assured, no, nothing nefarious. It turns out that it was just a memo that had been worked on at some point, and he was cleaning up his office and desk in getting ready to leave office, and filed it officially “in case the next guys might need it”. I have to commend Mr. Elwood for so doing, and his consistency on the issue can be seen in this Washington Post Op-Ed from October of 2010 and this article at the Volokh Conspiracy last week when Obama used his theory and actually pulled the trigger on the recess appointments. Good show Mr. Elwood.

But, the fact that the Obama OLC went to such lengths to cite informal memoranda to the file, and statements by GOP senators of questionable context, exposes quite clearly how desperate they are both for foundation for their argument and support for the proposition it is a non-controversial bi-partisan position. That is, shall we say, a pretty thin raft. The litigation will be coming and it will be hotly contested.

The internets are alive with the sound of excitement over the appointment today by President Obama of Richard Cordray to be Director of the Consumer Finance Protection Bureau (CFPB). And, as Brian Buetler correctly points out, by doing it today, the first day of the new legislative session, Obama (assuming he gets re-elected) has provided Cordray with the longest term possible to serve as a recess appointee:

By acting today, with session two of this Congress technically under way, Obama has given Cordray the rest of this session and the full next session of the Senate to run the bureau. Cordray could potentially serve through the end of 2013.

The Congressional Research Service outlined this in a recent report (PDF) — and the White House and Senate leaders of both parties confirm the analysis.

If Obama loses in 2012, that could shorten Cordray’s tenure — and of course Cordray can leave early if he wants to. But this move makes it much more likely that the CFPB will truly take root.

Most of the banter so far has been on the viability of Obama’s move to recess appoint in this manner. I have looked at this issue for years, going back to early in the Dawn Johnsen imbroglio, and find no reason to believe this was not a proper exercise of Presidential power and prerogative.

The long and short of it is, there is no restriction on timing of recess appointments by a President pursuant to Article II, Section 2 of the Constitution. Both the “10 day rule”, which got narrowed to the “3 day rule” were practices and, at best were based on non-binding dicta from an early 90s DOJ memo; they are not now, nor have they ever been, binding law or rule. Legally, they are vapor. The issue was actually litigated in the 2004 11th Circuit case of Evans v. Stephens.

And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional.2 See United States v. Allocco, 305 F.2d 704, 713 (2d Cir. 1962) (Recess Appointments Clause case); see also U.S. v. Nixon, 94 S.Ct. 3090, 3105 (1974) (observing “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”).
…….
The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.

And there you have it. There is no minimum time. Also, somewhat significant, is that Evans was decided by the full 11th Circuit, not a three judge panel, and SCOTUS considered a full cert application, and denied it, leaving the 11th Circuit decision standing as good law and citable precedent.

Oh, and if you wonder if SCOTUS has a real hard on for Presidential recess appointments, the answer would appear to be no. During the oral argument in New Process Steel v. NLRB last year, Chief Justice Roberts scoldingly asked Deputy Solicitor General Neal Katyal “And the recess appointment power doesn’t work why?” I am not sure the blustering Republicans like McConnell and Boehner will find quite as receptive an ear from the Roberts Court as they think.

Well, as Beutler notes, things should be all rosy and good to go for Cordray and CFPB, right? Not so fast, there is another issue not receiving any attention by the chattering classes.

The CFPB was promulgated by a pretty bizarre act – The Dodd Frank Act – bizarre, specifically, in how it structures and empowers the CFPB in its various duties. Notably, several of the key powers flow not necessarily through the agency, but through the “confirmed director” of CFPB. If there is no director, the bureau is run in the interim by the Treasury Secretary. Yep, good ‘ole Turbo Tax Timmeh Geithner. Specifically, Section 1066 provides:

The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011. (emphasis added)

So, in all this meantime, and despite the White House trying to put the patina on that Liz Warren was running the CFPB, it has actually been Geithner. And the problem with this has been (remember I said the enabling language was bizarre??) that not all of the full powers of the CFPB vest, nor can they be exercised, until there is a director.

A director “confirmed by the Senate” according to the literal wording of the Dodd Frank Act.

If I were speculating on legal challenges to Cordray, rather than focusing solely on Obama’s ability to so appoint him (which, again, I think stands up), I might be more concerned about the issue of whether Cordray has full powers to lead and operate CFPB because he is not “confirmed by the Senate”. That should be a stupid argument you would think, but the words “confirmed by the Senate” in the enabling act make it at least a very cognizable question.

Normally a confirmed appointee and a recess appointee have the same legal authority and powers but, to my knowledge, there is no other situation in which substantive power for an agency flows only through its specific “confirmed” director. If I were going to attack Cordray, I would certainly not restrict it to the propriety of Obama’s recess appointment, I would also attack his scope of authority since he was not “confirmed”. I would like to think such a challenge fails, but Congress sure left a potential hidden boobytrap here.

Many people have been wondering what happened regarding the signing of the 2012 NDAA containing the critical, and much criticized, detention provisions. The House of Representatives passed the conference report of the bill on December 14th, with the Senate approving it by a 86 to 13 margin the following day, December 15th. Interest then turned to whether the President would veto it (he won’t) and when he will sign the legislation.

Most seemed to think that meant the bill must be signed by yesterday, which would have been the tenth day, excluding Sundays, after passage pursuant to Article I, Section 7 of the Constitution, which provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

But Obama has not yet signed the NDAA, so what gives? Presentment. A bill coming out of Congress must be formally presented to the President for signature. Sometimes, if the subject matter is deemed urgent, the presentment process is accelerated remarkably and happens on an emergency basis quite quickly. But, normally, it is a time honored deliberate process also governed by statute. 1 USC 106 and 107 require an enrolled bill passed by both chambers of Congress be printed on parchment or paper “of suitable quality” and “sent” to the President; this is the “presentment” process. 1 USC 106 does allow for alternate accelerated means for a bill emanating during the last six days of a session, and the OLC, in a little known opinion from May 2011, has decreed that electronic transmission is even acceptable (basically, the thing can be emailed).

In the case of the critical 2012 NDAA, however, Congress (one would assume with the blessing of the White House) apparently made no attempt to accelerate the schedule as often occurs for end of session matters, and the NDAA was not formally presented to President Obama until December 21st. So, excluding intervening Sundays, the tenth day is, in fact, Monday January 2, 2012.

Why, then, is the White House and President stringing out the signing of the NDAA? Well, we know AG Eric Holder has indicated Obama would be attaching a signing statement to the executed NDAA. Although unconfirmed officially, the word I am hearing from DOJ, who was working with the White House on the signing statement, was that they were done late last week.

So, it is not clear why Obama has still not yet signed the NDAA. Maybe he and the White House optics shop realized what a sour pill it would be to sign such a perceived toxic hit on civil liberties right before Christmas? The better question might be whether they are planning on slipping this little gem in the end of the week pre New Years trash dump.

The targeted execution of Anwar al-Awlaki struck different people along the political spectrum in the United States in many different ways, but it has been heartening most all have recognized it as a seminal moment worthy of dissection and contemplation. Despite all the discussion afforded the execution of Awlaki in the last few days, it cannot be emphasized enough how impossible it is to have a completely meaningful discussion on the topic due to the relentless blanket of secrecy imposed by the United States government. Before I get into the substantive policy and legal issues surrounding the targeting and assassination of American citizens, which I will come back to in a separate post, a few words about said secrecy are in order.

The first to note, and complain of, the strange secrecy surrounding not just the kill listing of Awlaki, but the entire drone assassination program, was Marcy right here in Emptywheel. Within a couple of hours of the news of the Awlaki strike, she called for the release of the evidence and information serving as the Administration’s foundation for the extrajudicial execution of an American citizen and within a couple of hours of that, noted the ironic inanity of the pattern and practice of the one hand of the Obama Administration, through such officials as Bob Gates, James Clapper and Panetta trotting out “state secrets” to claim drone actions cannot even be mentioned while the other hand, through mouthpieces such as John Brennan are out blabbing all kinds of details in order to buck up Administration policy.

Now, you would expect us here at Emptywheel to vociferously complain about the rampant secrecy and hypocritical application of it by the Executive Branch, what has been refreshing, however, is how broad the spectrum of commentators voicing the same concerns has been. Glenn Greenwald was, as expected, on the cause from the start, but so too have voices on the other side of the traditional spectrum such as the Brookings Institute’s Benjamin Wittes, to former Gang of Eight member and noted hawk Jane Harman, and current Senate Armed Services Chairman Carl Levin and Daphne Eviatar of Human Rights First.

But if there were any doubt that it was just left leaning voices calling for release of targeting and legal foundation information, or only sources such as Emptywheel or the New York Times pointing out the hypocrisy and duplicity with which the Administration handles their precious “state secret”, then take a gander at what former Bush OLC chief Jack Goldsmith had to say Monday, after a weekend of contemplation of the issues surrounding the take out of Awlaki:

I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information.

I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.

Jack has hit the nail precisely on the head here, the courts to date have found no avenue of interjection, and even should they in the future, the matter is almost surely to be one of political nature. And accountability of our politicians depends on the public havin sufficient knowledge and information with which to make at least the basic fundamental decisions on propriety and scope. But Mr. Goldsmith, admirably, did not stop there and continued on to note the very hypocrisy and duplicity Marcy did last Friday:

We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s. So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people. Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike. It could also describe the limits of presidential power in this context.

The Obama administration frequently trumpets its commitment to transparency and the rule of law. The President and many of his subordinates were critical of what they deemed to be unnecessarily secretive Bush administration legal opinions, and they disclosed an unprecedented number of them, including many classified ones. Now is the time for the administration to apply to itself a principle that it applied to its predecessor.

Again, exactly right. From Marcy Wheeler, to Gang of Eight members, to Jack Goldsmith, the voice is both clear and consistent: The Obama Administration needs to come clean with as much of the legal and factual underpinnings as humanly possible short of compromising “means and methods” that truly are still secret. That would be, by almost any account, a lot of information and law with which the American public, indeed the world, could not only know and understand, but use to gauge their votes and opinions on. Doing so would make the United States, and its actions, stronger and more sound.

In the second part of this series, which I should have done by tomorrow morning sometime, I will discuss what we know, and what we don’t know, about the legal and factual underpinnings for targeted killing of US citizens, and sort through possible protocols that may be appropriate for placement of a citizen target and subsequent killing.

UPDATE: As MadDog noted in comments, Jack Goldsmith has penned a followup piece at Lawfare expounding on the need for release of the foundational underpinnings of how an American citizen such as Alawki came to be so targeted. Once again, it is spot on:

First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful). I do not know if the leaks are authorized in some sense or not, or where in the executive branch they come from, or what if anything the government might be doing to try to stop them. But of course the president is ultimately responsible for the leaks. One might think – I am not there yet, but I understand why someone might be – that the double standard on discussing covert actions disqualifies the government from invoking technical covertness to avoid scrutiny.

Second, there is no bar grounded in technical covertness, or in concerns about revealing means and methods of intelligence gathering, to revealing (either in a redacted opinion or in a separate document) the legal reasoning supporting a deadly strike on a U.S. citizen. John Brennan and Harold Koh have already talked about the legality of strikes outside Afghanistan in abstract terms, mostly focusing on international law. I don’t think much more detail on the international law basis is necessary; nor do I think that more disclosure on international law would do much to change the minds of critics who believe the strikes violate international law. But there has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.

Listen, we may not always agree with Jack here, and both Marcy and I have laid into him plenty over the years where appropriate; but credit should be given where and when due. It is here. And, while I am at it, I would like to recommend people read the Lawfare blog. All three principals there, Ben Wittes, Goldsmith and Bobby Chesney write intelligent and thoughtful pieces on national security and law of war issues. No, you will not always agree with them, nor they with you necessarily; that is okay, it is still informative and educational. If nothing else, you always want to know what the smart people on the other side are saying.

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

Coming across the wire this morning was this stunning announcement by the Department of Justice:

Statement of Attorney General Eric Holder on the Resignation of U.S. Attorney for the District of Arizona Dennis Burke 08/30/2011 01:01 PM EDT

“United States Attorney Dennis Burke has demonstrated an unwavering commitment to the Department of Justice and the U.S. Attorney’s office, first as a line prosecutor over a decade ago and more recently as United States Attorney,” said Attorney General Holder.

Say what? Maybe I am not as plugged in as i used to be, but holy moly this came out of the blue. What is behind the sudden and “immediate” resignation of Dennis Burke, an extremely decent man who has also been a great manager of the Arizona US Attorney’s Office through some of the most perilous times imaginable? The USA who has piloted the office in dealing with such high grade problems such as those stemming from SB1070, to traditional immigration issues, to the Giffords/Loughner shooting tragedy, the corruption and malfeasance of the Maricopa County Sheriff’s Office to voting rights and redistricting controversies brought on by the ever crazy Arizona Legislature, has now resigned in the blink of an eye? Really?

Why?

The GunWalker mess. Also known as “Project GunRunner” and “Operation Fast and Furious” (yes, the idiots at ATF actually did call it that). From the Arizona Republic:

Burke’s resignation, effective immediately, is one of several personnel moves made in the wake of a federal gun-trafficking investigation that put hundreds of rifles and handguns from Arizona into the hands of criminals in Mexico. Burke’s office provided legal guidance to the federal Bureau of Alcohol, Tobacco and Firearms on the flawed initiative called Operation Fast and Furious.

The news comes on the same day as a new acting director was named to oversee the Bureau of Alcohol, Tobacco, Firearms and Explosives following congressional hearings into Fast and Furious, an operation that was aimed at major gun-trafficking networks in the Southwest.

Irrespective of the name attached to the program – I have always known it as the GunWalker operation, so i will stick with that – is has been a first rate clusterfuck from the outset. And, unlike so many things bollixing up the government, it cannot be traced back to the Bush/Cheney Administration; this beauty was the product of the Obama and Holder Department of Justice. In fact, the entire effort was, believe it or not, a byproduct of the vaunted Obama Stimulus Package, known as the American Recovery and Reinvestment Act of 2009.

What this ill fated venture accomplished instead was to stimulate deadly gun possession and crimes of violence in Mexico. Again, from the Arizona Republic:

Questions about the Fast and Furious program began to emerge in the spring as a member of Congress began pressing ATF officials for answers about an operation that was designed to track small-time gun buyers until the guns reached the hands of major weapons traffickers along the southwestern border.

Instead, ATF agents ended up arresting low-level suspects and nearly 2,000 of the weapons were unaccounted for, with nearly two-thirds of those guns likely in Mexico, according to testimony federal firearms investigators gave to a House committee in June.

Investigators also confirmed that two of the weapons connected to the ATF operations were found at the scene of a December gunbattle near Rio Rico, Ariz., that left Border Patrol Agent Brian Terry dead.

Terry’s slaying effectively ended the operation.

Dozens of so-called straw buyers have been arrested, and more than 10,000 guns confiscated. However, the ATF came in for criticism from the Justice Department’s Office of Inspector General last year because Project Gun Runner was catching only the straw buyers — small fish in the smuggling business.

At a news conference in February, the ATF in Phoenix announced that 34 suspects had been indicted and that U.S. agents had seized 375 weapons as part of Operation Fast and Furious. None of those arrested was a significant cartel figure.

In short, it is, and has been, a cock-up of epic proportions. Who has paid the accountability price for this operational disaster? Well, two weeks ago, on August 16, the Los Angeles Times had this to report:

The ATF has promoted three key supervisors of a controversial sting operation that allowed firearms to be illegally trafficked across the U.S. border into Mexico.

All three have been heavily criticized for pushing the program forward even as it became apparent that it was out of control. At least 2,000 guns were lost and many turned up at crime scenes in Mexico and two at the killing of a U.S. Border Patrol agent in Arizona.

The three supervisors have been given new management positions at the agency’s headquarters in Washington. They are William G. McMahon, who was the ATF’s deputy director of operations in the West, where the illegal trafficking program was focused, and William D. Newell and David Voth, both field supervisors who oversaw the program out of the agency’s Phoenix office.

Now, to be fair, the ATF complained about the LAT report, and the paper has issued a correction as follows: “The ATF said in a statement Aug. 17 that the three supervisors were “laterally transferred” from operational duties into administrative roles, and were not promoted.”

So McMahon, Newell and Voth were “laterally transferred” instead of being promoted. well, that’s convincing. The three men most responsible for the operational program still have cushy federal jobs at their regular status and pay grade, and Dennis Burke and the acting head of ATF are going to take the fall for it all. How nice.

Now, to be fair, as the sitting US Attorney for Arizona, Dennis Burke would have had to provide some legal guidance for the project and, perhaps, sign off on related warrant applications; but that is a far cry from being the one who designed the program and ran it operationally which, by all appearances, was done straight out of ATF and DOJ Main. Burke appears to be a convenient fall guy for an Obama Administration too craven to stand up for its own mistakes in DC. Former high level prosecutor and US Senator Dennis Deconcini had this to say:

If his resignation is tied to Fast and Furious, it’s ridiculous. It would be absolutely outrageous for ‘Justice Main’ to take it out on Dennis and make him the fall guy,” DeConcini said. “It’s just typical Washington cronyism. It just shows you how incompetent government can be to save themselves. It appears they screwed up, based on congressional hearings.

Without downplaying that the Arizona US Attorney’s Office would have had some involvement in the Gunwalker fiasco, it is extremely hard to see how Deconcini is off the mark with his assessment.

Why is the Obama Administration selling out a man like Dennis Burke? Because the Gunwalker fiasco is really that big of a total cock-up, they own every ounce of it, and would rather paint a scapegoat than own up to it. The mess has not gotten more play in the news and political discourse because the Obama Administration and Holder Department of Justice have done everything within their power to tamp down any investigation and/or discussion of the case because it really is that ugly.

Shamefully, the only sources of dedicated inquiry to date have come from Darrell Issa at House Oversight and Chuck Grassley at Senate Judiciary.

Sen. Charles Grassley, R-Iowa, ranking minority member of the Senate Judiciary Committee, has pressed the ATF for two months to disclose details of Project Gun Runner and to justify a policy that allowed weapons into a nation where there were more than 36,000 drug-related murders in four years.

Last month, William McMahon, the head of ATF’s Western region, testified that the agency had good intentions when it launched Operation Fast and Furious in 2009. But looking back, there are things ATF would have done differently, he said.

Appearing before the House Oversight and Government Reform Committee, McMahon said he was committed to dismantling criminal networks on both sides of the border and that “in our zeal to do so, and in the heat of battle, mistakes were made. And for that I apologize.”

Say what you will, Darrell Issa and Chuck Grassley are right to be asking questions on the GunWalker affair, and others, including our fine Democrats, should be too. The Obama Administration should quit obfuscating, and trying to divert attention by sacrificing scapegoats, and make a full accounting for a failed program. Dennis Burke is owed that.

As about everyone knows by now, the great debate is still ongoing on the issue of the debt ceiling. The frustration of those on the left with the intransigence of the Republican Tea Party, coupled with the neutered Democratic Congress, has led many to call for President Obama to immediately “invoke the 14th”. The common rallying cry is that legal scholars (usually Jack Balkin is cited), Paul Krugman and various members of Congress have said it is the way to go. But neither Krugman nor the criers in Congress are lawyers, or to the extent they are have no Constitutional background. And Balkin’s discussion is relentlessly misrepresented as to what he really has said. “Using the 14th” is a bad meme and here is why.

The Founders, in creating and nurturing our system of governance by and through the Constitution provided separate and distinct branches of government, the Legislative, Executive and Judicial and, further, provided for intentional, established and delineated checks and balances so that power was balanced and not able to be usurped by any one branch tyrannically against the interest of the citizenry. It is summarized by James Madison in Federalist 51 thusly:

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.
….
We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

which must be read in conjunction with Madison in Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

This is the essence of the separation of powers and checks and balances thereon that is the very root foundation of our American governance. It may be an abstract thing, but it is very real and critical significance. And it is exactly what is at stake when people blithely clamor to “Use the 14th!”.

Specifically, one of the most fundamental powers given by the Founders to the Article I branch, Congress, was the “power of the purse”. That was accomplished via Article I, Section 8, which provides:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…

and

To borrow money on the credit of the United States;

The call to “Use the 14th” is a demand that the President, the embodiment of the Article II Executive Branch, usurp the assigned power of the Article I Congress in relation to “borrow money on the credit of the United States”. This power is what lays behind the debt ceiling law to begin with, and why it is presumptively Constitutional. It is Congress’ power, not the President’s, and “invoking the 14th” means usurping that power. Due to “case and controversy” and “standing” limitations, which would require another treatise to discuss fully, there is literally likely no party that could effectively challenge such a usurpation of power by the Executive Branch and an irretrievable standard set for the future. The fundamental separation and balance of powers between the branches will be altered with a significant shift of power to the Executive Branch.

This is not something to be done lightly or if there is any possible alternative available. Indeed, the only instance in which it could be rationally considered would be if all alternatives were exhausted. That does NOT mean because the GOPTeaers are being mean and selfish. It does NOT mean because you are worried about some etherial interest rate or stock market fluctuation that may, or may not, substantially occur. It does NOT mean because your party’s President and Congressional leadership are terminally lame. That, folks, is just not good enough to carve into the heart of Constitutional Separation of Powers. Sorry.

And for those that are thinking about throwing “experts” such as Jack Balkin in the face of what I have argued, go read them, notably Jack himself, who said before invoking the 14th, first the President would have to prioritize what was paid by existent resources, those that could be liberated and revenues that did still come in:

…certainly payments for future services — would not count and would have to be sacrificed. This might include, for example, Social Security payments.
….
Assume, however, that even a prolonged government shutdown does not move Congress to act. Eventually paying only interest and vested obligations will prove unsustainable — first because tax revenues will decrease as the economy sours, and second, because holders of government debt will conclude that a government that cannot act in a crisis is not trustworthy.

If the president reasonably believes that the public debt will be put in question for either reason, Section 4 comes into play once again. His predicament is caused by the combination of statutes that authorize and limit what he can do: He must pay appropriated monies, but he may not print new currency and he may not float new debt. If this combination of contradictory commands would cause him to violate Section 4, then he has a constitutional duty to treat at least one of the laws as unconstitutional as applied to the current circumstances.

So, contrary to those shouting and clamoring for Obama to “Use the 14th”, it is fraught with peril for long term government stability and function, and is not appropriate to consider until much further down the rabbit hole. It is NOT a quick fix panacea to the fact we, as citizens, have negligently, recklessly and wantonly elected blithering corrupt idiots to represent us. There is no such thing as a free lunch; and the “14th option” is not what you think it is.

As a parting thought for consideration, remember when invasion of privacy and civil liberties by the Executive Branch was just a “necessary and temporary response to emergency” to 9/11? Have you gotten any of your privacies and civil liberties back? Well have ya?

UPDATE: Joberly added this in comments, and a quick perusal of legislative intent materials and the limited case interpretation seems to indicate it is spot on:

Thanks to Bmaz for his post and for his Comments # 3 and # 34. I’m no lawyer, just a history teacher who has taught Civil War & Reconstruction for some time. This is not the time and place for a history essay on the context of Section 4 (“validity of the public debt” clause) of the 14th amendment; instead, let me just point to the so-far-ignored Section 5 of the amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” None of the first dozen amendments to the Constitution had anything like this clause; for the most part, the first dozen limited Congress in what it could enact (think “Congress shall make no law…”). The 13th Amendment, passed by Congress in March 1865 was the first to affirm that Congress had the power to enforce a constitutional right. The 14th amendment repeated that. In short, Section 5 put Congress specifically in charge of making sure of the “validity of the public debt,” and definitely not the president. That was no accident. The Congress that passed the 14th Amendment had zero confidence in the president (Andrew Johnson) in carrying out congressional policy. The last thing they wanted over the winter of 1865-66 was to give Pres. Johnson any more power that he could abuse. But abuse he did and the next House, elected in 1866, impeached him. I’m with Bmaz on this one.

[Note: I actually did this post at the request of our good friend Howie Klein at his blog Down With Tyranny and it is cross posted there as well]