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House GOP Plays Hardball on Mattis Appointment
Breaking from Politico:
House Republicans released a short-term spending bill Tuesday containing language designed to speed confirmation of retired Gen. James Mattis to be Donald Trump’s defense secretary. The move will force Senate Democrats to decide whether to oppose the budget legislation over the matter — and risk a government shutdown — ahead of a Friday deadline.
The language would still require Mattis to receive 60 votes for a waiver needed to join Trump’s Cabinet because of his recent military service. But it would expedite the Senate process in advance of Trump’s swearing-in.
Risking a government shutdown to gain a conservative victory? Hopefully the GOP will get used to this having-a-backbone thing.
Published in General
I fully expect the dems to play the opposition part well. They always do. I’m more concerned with making laws optional. In the military we say “everything is waiverable” but it’s not good policy.
There is a strong case that the law is unconstitutional. Far better to appoint Mattis and then challenge it in the courts on those grounds. End this forever.
I don’t know where the Democrats are headed. Past practice would suggest that the some hard lefties would have a hissy fit about Mattis and shine for their base but that the sane Democrats (increasingly a minority faction to be sure) not from CA-NY-MA would quietly vote for the exemption to let Mattis serve and we would be done with it.
But I have no idea how the Democrats currently see themselves. They could easily reach the (delusional) conclusion that because Hillary won the popular vote (ignoring some substantive issues regarding voter registration practices in several states) that the majority of Americans want an Occupy Wall Street/Black Lives Matter/Aging Hippy Democratic Party.
If the Trump shock were not enough, Tim Ryan drawing 1/3 of the House Dem vote against Pelosi would normally be enough to signal that the party should not exclusively cater to boutique issue fetishes of rich white liberals and fringe groups but I don’t see a lot of sanity on that side of the aisle at the moment.
It could just as easily been altered or abolished in this spending bill. A court challenge is not what anyone wants on this. That would chew up a lot of time and energy. Trump and Republicans have momentum right now, and wasting that would be stupid.
I love this phrase. It is perfectly descriptive of the democrats.
Excellent point Aaron. The answer is no. No, the Republicans have not learned to play the game (although they are at least fighting now). However, Trump has. The Game has changed.
I don’t know that he plays the game so much as takes the field with his own set of rules and confounds the game.
Eh, if we settle the issue constitutionally it would prevent future congresses from trying to bind future Presidents.
No it would not. It would be the GOP not coming up with a reasonable bill for POTUS to sign. That will be the MSM spin.
The Senate and President can ignore the law. No need to invoke the courts at all. Congress and the President have equal power to interpret the Constitution.
Interesting point. Who would have standing to sue?
Please be kidding.
The President.
Explain why the President would sue over his own appointment? You can’t sue for an advisory opinion without actually making the appointment. The only way I could see him suing is if the Senate rejects his appointment citing this law. But if they approve?
Nope. I have read the US Constitution. Nowhere is the Supreme Court given sole power in this regard. In fact, the Presidential Oath implies the President will enact this sort of judgement. No other way to defend it.
The law would die if the Senate ignores it, votes to confirm, and moves on. Done.
If the Democrats blocked the appointment by filibustering the exemption, he could challenge the law itself in the courts as a violation of his Constitutional right to appointment.
Possibly. But if the Senate just ignored the need for exemption and went ahead and confirmed him, in spite of the law, is there anyone who would have standing to prevent Mattis taking office?
You have basically abandoned the Rule of Law for the Rule of Men. This is the most anti-conservative, anti-freedom and anti-constitutional position imaginable. The Constitution is pretty clear: Congress makes law, the President enforces law, and the Courts adjudicate legal disputes (which as illustrated in Marbury vs Madison necessitates adjudicating their constitutionality).
Are you just as uncritical when President Obama decides to ignore laws he doesn’t like because he judges them “unconstitutional”?
My biggest fear of a Trump presidency was that conservatives would abandon longheld beliefs due to expediency or because of a “My Team First” mentality. I had no idea they would completely abandon the rule of law.
Ugh.
Marbury v. Madison created the idea that the Courts can interpret the Constitution. There’s nothing to say that no one else can either, except the Court’s self-serving proclamation.
Marbury also was about an appointment by a president.
Ah, that’s an interesting question. I kick this over to the Ricochet Bar Association. @ryanm? @jamesofengland? @ctlaw?
The Executive and Legislative branches are co-equal and have rights under the Constitution as well. The Supreme Court is not the sole owner and judge (no pun intended) of Constitutionality. [Aside – one of the worst mistakes W. Bush made was to sign McCain-Feingold even though he believed it to be UnConstitutional, deferring to the Supreme Court].
Just because the Court rules one way or another doesn’t mean that the Legislative or Executive branches can’t push back.
Yes but the mechanisms for doing so are different for each branch. The President can and must enforce the law as enacted, the remedy if he thinks it is unconstitutional is the veto. Congress has the ability to repeal the law in question. They do not, nor should they, simply have the power to ignore the law based on their own interpretation of the Constitution. The implications of this are monstrous for our society.
Even if someone had standing to sue, it’s an act of power. There is enough confusion that can be claimed that can make people not agree with the appointment, but if the Senate ratifies the appointment, then that is sufficient. Sue all you want, the deed is done.
Yes but the mechanism for pushback matters. Simply pretending the law doesn’t exist is abandoning the rule of law. The law is on the books. The remedies for that are: repeal the law in Congress or challenge the law in the courts. Anything other than that is a complete abandonment of our Constitutional Republic.
Just because branches are co-equal does not mean they have co-equal powers. The President is not co-equal in the ability to make law – for example.
Let’s put aside the issue of judicial review: Congress and the president passed a law that restricts their own behavior. Rather than repeal the law, you’d just have them ignore it?
I disagree.
I think, for example, that it is vital to the future of our nation for the States to insist on the power to interpret the Constitution, at least as regards the 10th Amendment. The three federal branches of government are no longer serving as checks and balances so much as they are a cabal to protect federal power at the expense of the States. I think it’s time for the Governors to assert their rights as Head of State to tell the feds that they have gone too far. I do not think a Convention is necessary to act per the plain text of the Constitution.
Yes, last time this was tried, Eisenhower sent out the National Guard, but with a bit of gumption, the States can still do it. It is an act of power to protect the People’s freedom.
So you would be perfectly fine with President Obama ignoring laws that restrict abortion? Or our immigration laws?
It wouldn’t be the first time. The War Powers Act is a good example. Most presidents claim it doesn’t restrict their power, but they go along because they want funding. They encroach as much as they can whenever they can.
I’m sure there are other examples.
“John Marshall has made his decision; now let him enforce it!” President Andrew Jackson in response to the decision in Worcester v. Georgia.
He doesn’t perform abortions. And he did act as he wanted regarding immigration.
And you’re ok with that? That is the logical conclusion of your arguments.