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To: chaosagent
So what do you know that they don’t?

For one thing, I have a strong and powerful legal mind on my side who may very well end up ruling on any court challenge to Whitaker's appointment:

"We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency. That the Senate voluntarily relinquished its advice-and-consent power in the [Federal Vacancies Reform Act] does not make this end-run around the Appointments Clause constitutional." -- Justice Clarence Thomas, concurring opinion, NLRB v. SW General, Inc. (2017)

It's important to not that the Vacancies Act may have been used "over 100 times" for Executive Branch appointments, but I'm going to venture to guess that none of them involved the appointment of someone who would be considered a "principal officer" under the Appointment Clause as defined in multiple Supreme Court cases (including the one I cited above).

The bottom line here is this: The U.S. Senate cannot pass a statute that surrenders its constitutional obligation to confirm principal officers in the Executive Branch. If that argument sounds ridiculous, just remember that this is the exact same argument that many legal professionals (maybe even including Mark Levin himself) have made when they object to the "fast-track authority" Congress has given to the Executive Branch to negotiate trade deals.

45 posted on 11/20/2018 2:25:41 PM PST by Alberta's Child ("The Russians escaped while we weren't watching them ... like Russians will.")
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To: Alberta's Child

“We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency. That the Senate voluntarily relinquished its advice-and-consent power in the [Federal Vacancies Reform Act] does not make this end-run around the Appointments Clause constitutional.” — Justice Clarence Thomas, concurring opinion, NLRB v. SW General, Inc. (2017)


Are you sure that wasn’t a dissenting opinion from Thomas? Because it doesn’t seem to jibe with this below.

Because in the majority opinion, written by Chief Justice Roberts, he says this is OK.

“The Supreme Court did issue a ruling related to the Vacancies Reform Act in 2017. In his majority opinion in National Labor Relations Board V. SW General, Chief Justice John Roberts reviewed the act’s history. “The general rule is that the first assistant to a vacant office shall become the acting officer. The President may override that default rule by directing either a person serving in a different PAS office or a senior employee within the relevant agency to become the acting officer instead,” Roberts said, in a dispute over acting officers becoming nominees to the same office. The Court didn’t discuss exceptions to the act’s language about how a position became vacant.”

Doesn’t sound like SCOTUS thinks this law is unconstitutional. Or am I missing something?


47 posted on 11/20/2018 3:23:43 PM PST by chaosagent (Remember, no matter how you slice it, forbidden fruit still tastes the sweetest!)
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