Mary Frances Berry and the tyranny of her leadership.

CSPAN ^ | 12/10/01

[VidaBlue]

I think Berry loses because the text of the statute doesn't settle the issue one way or another. We know a term lasts for 6 years, but we don't know if the vacancy appointee received her own term or was finishing out the dead guy's. The statute simply has nothing to say on the matter. The Democrats will make the argument that the elision of the old language is evidence that Congress intended to change the law. I think this argument will fail, in that the 1994 amendment (PL 103-419) is a complete rewrite of the law. It's not as if the Congress specifically removed the section in question; there also doesn't appear to be any legislative history on the matter. In any case, the statute as presently enacted does not say anything about whether or not a replacement commissioner gets his/her own term.

The White House has a structural argument that is quite powerful. It is clear that the statute governing the commission includes a number of checks and balances (allowing the President four appointees and Congress 4, limiting the number of commissioners from any one politicdal party, and staggering the terms.) It seems inconsistent, to say the least, to imagine that the 1994 amendment was meant to change this so that an outgoing president could have all his fellow party membes on the commission resign and appoint four new commissioners for 6 year terms on his last day in office.

If the court finds that the statute isn't clear, then its game over. The President's interpretation (via the express language of the appointing document) controls.

[VRWC_minion]

I think this argument will fail,

I at least accomplished what I intended. Too many Freepers were on the bandwagon that Berry has no legal leg to stand on. Its not that simple.