Gorelick's Appointment to the 9/11 Commission... Unconstitutional?

4-17-04 | Jonathan M. Stein

[jmstein7]

Gorelick's Appointment to the 9/11 Commission... Unconstitutional?

 

Unless I'm severely mistaken -- and I may be -- but I believe that Jamie Gorelick's appointment to the 9/11 Commission, by Tom Daschle -- is unconstitutional.  I will let all of you legal FReepers field this one.

I believe that Ms. Gorelick's appointment to the 9/11 Commission violates the "Appointments Clause," i.e. Article 2, Section 2, Clause 2.  The clause reads as follows:

"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Now, for those of you who have taken constitutional law, the argument goes as follows.  The legislation for the 9/11 Commission was passed by Congress and signed into law by the President -- P.L. 107-306 Title VI.  The Committee performs an executive function.

Now, the Republican members were appointed by the President, and that is okay.  However, the Democrat members were appointed to the Commission by Tom Daschle -- a member of the Senate!  The Supreme Court has specifically held that this is impermissible -- they have no power to appoint.

Congress can permit the President, on his own to appoint Commission members, or, of course, the "Head of the Department," Kean, could be allowed to do it.  They can also be properly appointed by the courts.  However, a member of the Senate or Congress cannot, constitutionally, appoint such an officer to a Commission like the 9/11 Commission.

Correct me if I'm wrong... but Jamie Gorelick's appointment to the 9/11 Commission is unconstitutional. 

[jmstein7]

Please ping any legal FReepers you know.

[Elkiejg]

Calling Congressman BillyBob!!

[jmstein7]

Con Law BUMP!

[farmfriend]

Short list.

[MadelineZapeezda]

you're being summoned

[JaguarXKE]

Since when did the Constitution apply to Democrats - didn't you read the fince print? It only applys to Republicans.

Jag

[MindBender26]

Doubt she was actually appointed by Dash-hole.

WH staffers probably called Dash-Hole staffers, said "You've got X seats on the committee. Who do you want on it?," then WH did actual appointment.

[Gun142]

Do you believe President Bush would remove anybody from the panel?

No, he would not. W likes to 'reach across the aisle' to his 'friends' on the left.
In the long run, it won't matter if any appointment by Tom Daschle is constitutional or not.

[ALOHA RONNIE]

.

The night before last year's Opening Session of the U.S. Senate Senator TOM DASCHLE quietly appointed Enemy Within Senator HILLARY CLINTON to the last vacancy on the Senate Armed Services Committee in Time of War.


.."IS it SAFE?" = HILLARY on Senate Armed Services Committee..

http://www.TheAlamoFILM.com/forum/viewtopic.php?t=629

.

[jmstein7]

He may not have to.

I believe that Flast v. Cohen may actually work here, if Daschle did indeed appoint her -- i.e. taxpayer standing.

If Daschle actually appointed her, I believe that any taxpayer could sue to remove her. For the narrow case of Flast v. Cohen, a taxpayer has standing to sue if they are challenging a tax or expenditure (and the bill creating the commission was a spending bill), and if they are challenging it as being violative of a Constitutional provision.

Removing her, and any other improperly appointed officers, is the proper remedy here.

[righton granny]

Oh, come on now -- if the Dems made appointments, don't ja know it's OK? Only Reps have to play by the rules.

I wondered - if Kean was so anxious to have us "keep out of the commission's business", why the big deal of having the Aug PDB made public "so the American people can find out the truth"? Hey, chairman of the Dog & Pony Show, which way do you want it? The whole bunch act like they are auditioning for the Jerry Springer show. Our taxpayer money is paying for this joke?

Gorelick is, I would bet, pumping for a cosy spot in Lurch's employ. If there was any connection with Daschle, you know she's there for "lefties" purposes only - known as "bash Bush". Unconstitutional? Damn right. But then that comes from only a Rep - which means it doesn't count.

[mabelkitty]

Then why don't we all sue over the Federal budget?
(I know, it seems simplistic and logical, so there must be a reason).

[Libertarianize the GOP]

Did the President technically appoint all commission members but for the sake of a bipartisan stamp of approval to the report allowed Daschle to appoint the Democrat half?

[deport]

The Committee performs an executive function.

---

Maybe performing an executive function but the Committee was established in the Legislative Branch of government.... not the Executive Branch.... Thus by law it's a Legislative Branch function/investigation not one conducted by the Executive Branch.....

---

TITLE VI--NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED
STATES

SEC. 601. NOTE: 6 USC 101 note. ESTABLISHMENT OF COMMISSION.

There is established in the legislative branch the National
Commission on Terrorist Attacks Upon the United States (in this title
referred to as the ``Commission'').

---

http://www.9-11commission.gov/about/107-306.htm

[jmstein7]

It's worth looking into. If indeed Dashcle did appoint her, then her very presence on the Commission is unconstitutional.

[jmstein7]

Deport,

A Commission passed into law by congress and signed by the President is executive per se. It just is.

If Congress was exercising discretion over nominees, then it may be impermissible re-delegation or a legislative veto.

I'm tired... my brain hurts... night!

[jmstein7]

Because the challenged expenditure has to actually violate some constitutional provision.

[jmstein7]

PING!

[ErnBatavia]

Big Picture time, amigo....big picture time.

So what if it's "unconstitutional"...this story is already a blue duck, and our side has won.

Repubs start trying to de-construct this fiasco on the basis of rule of law would only backfire on us, and bigtime.

[justshutupandtakeit]

President Bush would just agree to appoint those whom Dashole presented to him so it would be constitutional.