It's in Black and White in the GAO Plum book !!
Mary Frances Berry and Victoria Wilson (holder of Peter Kirsanow's seat)
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Send Peter Kirsanow a note of encouragement!
Posted on 12/11/2001 5:28:02 AM PST by Stand Watch Listen
Mary Frances Berry, the chairman of the U.S. Commission on Civil Rights, is a bully. Her most recent escapade -- last Friday -- involved her refusal to seat Peter Kirsanow, the man appointed by President Bush to a commission seat that became vacant on Nov. 29. Berry told White House counsel Al Gonzales he'd better send federal marshals if he wanted Kirsanow to take his lawful place on the commission.
But her outrageous behavior in this incident is nothing new. I've watched her in action for years, even before President Reagan appointed me staff director, the chief executive officer of the commission, in 1983 when she served as vice chairman. She once bullied a member of the commission staff so badly -- in words not fit to print in a family newspaper -- I had to threaten to have her removed from the building.
"Your use of intimidating curses and vile language as well as your overall abuse of a subordinate go far beyond permissible behavior," I informed her in a memo. "If you repeat such abusive behavior in the future, I will ask you to remove yourself from the premises and will seek to have you removed if you do not comply."
"Call It Uncivil" The New York Times dubbed the conflict, one of many in our stormy tenure together.
Berry was first appointed to the commission in 1980, largely to get rid of her at the then Department of Health, Education and Welfare, where she served as an assistant secretary. Berry had embarrassed the Carter administration by returning from a trip to China extolling the Maoist education system there, including its use of ethnic quotas in higher education. So President Carter passed over Berry when he created the new Department of Education, shipping her off to the Civil Rights Commission instead. She's been getting even with presidents ever since.
In 1983, President Reagan fired Berry and two other commissioners. At the time, commissioners were appointed to serve "at the pleasure of the president," like all presidential appointees of executive branch departments and agencies. But Berry refused to go -- until I changed the locks on the door.
She then went to court to fight her removal, and got a favorable ruling from a liberal District Court judge. But in the meantime, the Congress re-wrote the law, authorizing the president to appoint four commissioners for six-year terms and Congressional leaders to appoint an additional four members with the same conditions, thus mooting her court case, which had moved to the U.S. Court of Appeals by then.
I was with President Reagan in the Oval Office when he signed the new law, but he did so with strong reservations. The Justice Department had issued a legal opinion questioning whether the new commission structure was Constitutional. Article II, section two clearly gives the president exclusive right, with the advice and consent of the Senate, to appoint ambassadors, judges and "all other officers of the United States, whose appointments are not herein otherwise provided for."
The Constitution limits Congress' role to vest the appointment of "inferior officers" by law in the president alone, the courts or the heads of departments -- but not to assign such powers to itself.
Ignoring such Constitutional niceties, the Democrats in Congress proceeded to appoint four commissioners, including Berry, for six-year terms. And she's been reappointed every time her commission expired since then.
President Clinton appointed her chairman when he took office, but even he had reservations about Berry. When he decided to initiate what he called a "national dialogue on race," he kept Berry out of the picture, appointing a whole new commission to oversee the enterprise.
President Clinton also appointed Victoria Wilson on Jan. 13, 2000, to fill the unexpired term of a commissioner who had died. The presidential appointment Wilson received clearly states her term expired Nov. 29, 2001. It's Wilson's place Kirsanow should have taken last week after President Bush appointed him and he was sworn in by a federal judge. But Berry believes she -- not President Bush nor President Clinton -- determines when commissioners' terms expire.
The White House says they'll take Berry to court to force her to seat Kirsanow. The president ought to fire Berry at the same time. As long as this issue is going to wind up in the courts, why not settle the question left unanswered in 1983? Since when did the Constitution permit Congress to limit the president's right to appoint and remove officers of executive branch agencies anyway?
It's in Black and White in the GAO Plum book !!
Mary Frances Berry and Victoria Wilson (holder of Peter Kirsanow's seat)
|
Send Peter Kirsanow a note of encouragement!
Berry is nothing more than the article states - a bully.
She just dares someone to have the courage to put her in her place - the unemployment line!!
I hope President Bush has the courage to do this.
The new legislation left the vacancy section out. Unless it can be shown that congressional intent was to keep it the same then Berry has good case. How would you like it if every time you looked up a law and read it at its face value you couldn't be certain if that was what was meant by it ? The courts will take the plain written meaning unless it can be shown that that was not congressional intent. It is not uncommon for the SC to rule this way when the law says one thing even when its fairly clear what congress meant.
2) All previous unexpired terms have been filled by temporary appointments to the end of the term.
Granted but working for Berry's interpretation is that this is the first to occur after this changed 1994 law was written.
3) This particular appointment was specifically made to the end of the unexpired term and had a specific termination date.It seems that Ms. Berry's case is that President Clinton had no authority to appoint a commissioner to anything less than a six year term. But this assertion flies in the face of the original legislation and all precedence since then.
But the key question will be congressional intent. Did they just screw up in 1994 or was this change deliberate ? Now that its discovered how come there is no bill to clarify it ?
Furthermore, this position invites the political stacking of the Commission by having mass resignation of all sympathetic members at the end of an Administration, so they can be re-appointed to six-year terms, which would deny the subsequent administration any right to appoint these seats.
I don't see how this works yet. First they must maintain a balance in parties, second the house and senate can do same thing, third congress could change law or refuse to fund.
Anyway you stack it up, this case seems like a loser for Ms. Berry in any court except for the court of public opinion. IMHO, it's a loser there, too
Anyway you stack it up it shows the GOP arguing as hypocrits (barring clear demonstration of congressional intent). We either believe SHALL means must or we don't. I can just see replays of prominent GOP'ers in Florida arguing the same as Ms. Berry being played by Peter Jennings.
Yes, but the constitution also limits the types of laws congress can create. Article II, Section 2 establishes the power of the President alone to appoint "all Officers of the United States, whose Appointments are not herein (i.e. specifically in the Constitution) otherwise provided for." [parenthetical clarification added] Since the Constitution does not address the Commission on Civil Rights, the exclusion "herein otherwise provided for" clearly does not apply. Article II, Section 2 further adds "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." (Note the PERIOD after the three additional choices that Congress may by Law vest the appointment of such Officers. Also, note the the conspicuous absence of the Congress in the list of vestees of Appointment power available to the Congress.)
Clearly, the democrat Congress that passed this law exceeded its Constitutional authority and violated the separation of powers. Berry does NOT have the law on her side. She was fired once and repossessed her job through the actions of an activist federal judge with nothing but contempt for the Constitution and a democrat congress with no more respect for the Constitution. The current balance of the Supreme Court would PROBABLY overturn the 1983 law and restore the appointment of the Commissioners to the President as explicitly stated in the Constitution, perhaps even by a 7-2 vote.
The Constitution limits Congress' role to vest the appointment of "inferior officers" by law in the president alone, the courts or the heads of departments -- but not to assign such powers to itself.
Ignoring such Constitutional niceties, the Democrats in Congress proceeded to appoint four commissioners, including Berry, for six-year terms. And she's been reappointed every time her commission expired since then.
I know this is extreme wishful thinking on my part but when a judge decides the current case I'm hoping the ruling goes so far as to point out the unconstitutionality of the Congressional appointments. The next appointment to make is the Senate's and its the pubbies turn but Daschle might pull rank and make the appointment. He would be replacing a republican appointee.
Currently, I am trying to unravel the source information to find the committee transcripts in order to determine the purpose behind the changes made to the wording of Title 42, Section 1975, Paragraph (c)
For anyone else trying to research this, the text of the law is here: Title 42 Section 1975
In the Notes link, the origin of the change is shown as Public Law 103-419 Sec. 2, Oct. 25, 1994, 108 Stat. 4338.
From my reading of this Congressional Record CIVIL RIGHTS COMMISSION AMENDMENTS ACT OF 1994 (House of Representatives - October 03, 1994) [Page: H10459] the only reason highlighted to congress for the change was to make the wording generally more concise. ...H.R. 4999 rewrites more concisely the 1983 Civil Rights Commission Act. For example, it eliminates provisions of the 1983 act regarding the conduct of Commission hearings. The provisions are unnecessary because the Commission's hearings are subject to the Sunshine in Government Act...
Unless a specific reason for the change exists and was otherwise explained to congress - since the change was not explicit - I presume the courts will defer to administrative law precedent and side with Bush. Just my two cents...
Please expand on this. I am not following.
There was a Supreme Court decision in the 1980's that held them to be constitutional. Morrison, Morisette, or something like that, I think. Scalia bitterly dissented and referred to them as "sort of a junior varsity Congress", but he lost that argument.
`(c) TERMS- (1) The term of office of each member of the Commission shall be six years and the current staggering of terms shall continue in effect.
Civil Rights Commission Amendments Act of 1994 - Renames the United States Commission on Civil Rights Act of 1983 the Civil Rights Commission Act of 1983 and makes the following changes.
Provides that: (1) the initial membership of the Commission shall be the members of the Commission on the day before the enactment of this Act, and thereafter persons shall continue to be appointed to vacancies according to a specified formula; and (2) the term of each member shall be six years and the current staggering of terms shall continue
There are 2 summaries:
1. Introduced (8/19/1994)
2. Passed House, amended (10/3/1994)
I think there will be two issues. One will be "rules of construction" which maybe someone reading this could provide a link to and congressional intent. From what you posted their was:
THe first bill included staggered term language while the second omitted it.
Sponsor: Sen Simon, Paul(introduced 8/9/1994)
Related Bills: H.R.4999
Latest Major Action: 10/25/1994 Became Public Law No: 103-419.
Title: A bill to reauthorize for three years the Commission on Civil Rights, and for other purposes.
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SUMMARY AS OF:
10/6/1994--Senate agreed to House amendment with amendment. (There is 1 other summary)
Civil Rights Commission Amendments Act of 1994 - Amends the United States Commission on Civil Rights Act of 1983 to reauthorize the Commission. Renames such Act as the Civil Rights Commission Act of 1983.
Provides that: (1) the initial membership of the Commission shall be the members of the Commission on September 30, 1994, and thereafter vacancies shall continue to be appointed according to a specified formula; and (2) the term of each member in the initial membership shall expire on the date such term would have expired as of September 30, 1994.
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