House GOP Plays Hardball on Mattis Appointment

 

generaljamesmattisBreaking 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.

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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Ryan M(cPherson):Also; Bryan, keep in mind that we just spent 8 years complaining about executive overreach, and the left used a whole lot of arguments to justify why Obama was in the right, and that we should just get over it because we won and he lost.

    Yes, we certainly could simply take up that mantra and say that now we’ve won and it is they who have lost. But it is important to remember that Obama’s legacy will not be lasting, and that is primarily because of the way he went about accomplishing things while flipping the bird to 1/2 the country. We can undo it because he used so much executive overreach. We may not be able to “accomplish” as much as him by doing it legally, but if we enact laws through legislature (which we can do for the next 2 years, though it might require some amount of compromise), we can actually make lasting changes that can’t simply be signed away by another president with a pen.

    If our side does something and we jump straight to the defense, simply because it’s our side, then we’ve got problems. Think about whether those same arguments would apply to a defense of things that Obama did in office; if so, we should probably take a different approach.

    None of that really applies to this one thing. This is about the President and Senate asserting their power under the Constitution.

    I am on record as saying that the POTUS should note that Congress is not given the ability to legislate away its ability to legislate. As such, any regulations not spelled out in law are against the Constitution. Therefore, all regulations are null and void. Further, Congress is not given the ability to establish an legislature independent of itself or the Executive. Therefore, all ruling by such things as the NLRB are null and void.

    I am on strong ground in an interpretation of what the text of our Constitution says. These actions would roll back, overnight, the regulatory state put into place. Smash it, in fact. Trump won’t do it, but it is what is needed to shock Congress back into action.

    I am sure y’all will all be aghast, and I might even be compared to a dictator for advocating this radical reduction in power of the Executive. Have fun.

    Cheers,

    Bryan

    • #91
  2. Seawriter Contributor
    Seawriter
    @Seawriter

    The King Prawn: My main point is that law isn’t waiverable. If it’s a good law, adhere to it. If it’s bad policy and bad law then change it, which could be done with a single sentence in any bill striking this one sentence in 10USC§113(a). Picking and choosing when to follow the law and when to not follow the law is a terrible way to run a country.

    They are not “picking and choosing when to follow the law and when not to follow the law,” by passing a law to exempt Matthis from a law passed by a previous Congress. They are passing a new law, which specifically allows Matthis to serve despite the provision of an older law. This is the purpose of Congress: to pass laws. To pass new laws and to modify old laws. If Congress amends an act of Congress by a new act of Congress and the President signs the law that is the system working.

    I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years.  But I also think there are good reasons to amend the law when circumstance dictates. As long as Congress is forced to think about the reasons to make an exception, and get at least half of both houses to agree to the exception, and the President to sign off, that is the system working.

    Seawriter

    • #92
  3. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Seawriter:

    The King Prawn: main point is that law isn’t waiverable. If it’s a good law, adhere to it. If it’s bad policy and bad law then change it, which could be done with a single sentence in any bill striking this one sentence in 10USC§113(a). Picking and choosing when to follow the law and when to not follow the law is a terrible way to run a country.

    They are not “picking and choosing when to follow the law and when not to follow the law,” by passing a law to exempt Matthis from a law passed by a previous Congress. They are passing a new law, which specifically allows Matthis to serve despite the provision of an older law. This is the purpose of Congress: to pass laws. To pass new laws and to modify old laws. If Congress amends an act of Congress by a new act of Congress and the President signs the law that is the system working.

    I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years. But I also think there are good reasons to amend the law when circumstance dictates. As long as Congress is forced to think about the reasons to make an exception, and get at least half of both houses to agree to the exception, and the President to sign off, that is the system working.

     

    This, exactly

    • #93
  4. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Bryan G. Stephens:

    Jamie Lockett:

    Bryan G. Stephens:

    Jamie Lockett:

    Bryan G. Stephens:

    Jamie Lockett:

    Bryan G. Stephens:

    Jamie Lockett:

    The King Prawn:I have an annoying question. Is waiving the law for an individual rather than changing it for all in keeping with our principles of equality before the law? I think Mattis is amazing. He should be SecDef, but the timing sucks. 10 USC § 113 (a) states plainly:

    A person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.

    There is no provision for waiver. How is this action, even for this unquestionably great man, proper?

    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.

    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.

    Please be kidding.

    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.

    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.

    There are people who disagree with Marbury, you know. Learned types even. I suppose they were Trumpsters even before Trump was born. In fact, isn’t the “Madison” in question one of the authors of the Constitution and the Federalist Papers, and an advocate of a less powerful Government?

    http://tenthamendmentcenter.com/2015/03/08/the-myth-of-marbury-v-madison/

    http://townhall.com/columnists/benshapiro/2005/03/16/its_time_to_end_judicial_review

    I am pretty sure Ben is not a super big Trump guy, but maybe he is.

    So saying that I am abandoning the Rule of Law, is, just a bit melodramatic. You agree the law is wrong. It does not take a law to undo it, it does not take a ruling to do it.

    Now, if the Supreme Court had already ruled on the topic, I would agree the law would need to be changed.

    You need to read the Shapiro piece again – he’s arguing that judicial review should end because it is no longer tied to the constitution. That judges are substituting their own personal opinion for constitutional opinion.

    Your argument seems to be that we should extend that power to all branches of government – which would create nothing but chaos.

    Since that is all you picked at, I will take that as agreement with my other items.

    Or that I didn’t have time to address it yet. Sheesh you’re unkind sometimes.

    • #94
  5. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Bryan G. Stephens: Congress is not given the ability to establish an legislature independent of itself or the Executive. Therefore, all ruling by such things as the NLRB are null and void.I am on strong ground in an interpretation of what the text of our Constitution says. These actions would roll back, overnight, the regulatory state put into place. Smash it, in fact. Trump won’t do it, but it is what is needed to shock Congress back into action.

    I am sure y’all will all be aghast, and I might even be compared to a dictator for advocating this radical reduction in power of the Executive. Have fun.

    I like your interpretation and think it’s valid. Now, if we think doing the full null and void thing all at once is too much, perhaps President Trump can do an executive order that will require every newly proposed regulation from the executive branch or independent bodies to go to congress for enactment along with some number of regulations that will be immediately dropped. Additionally, he could require that any other existing regulation that may be challenged or any action by a regulatory body for a violation of any regulation not enacted into law by the Congress must be enacted into law before enforcement. I’m sure there are any number of variations of this that could be effective.

     

    • #95
  6. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Seawriter:

    The King Prawn: My main point is that law isn’t waiverable. If it’s a good law, adhere to it. If it’s bad policy and bad law then change it, which could be done with a single sentence in any bill striking this one sentence in 10USC§113(a). Picking and choosing when to follow the law and when to not follow the law is a terrible way to run a country.

    They are not “picking and choosing when to follow the law and when not to follow the law,” by passing a law to exempt Matthis from a law passed by a previous Congress. They are passing a new law, which specifically allows Matthis to serve despite the provision of an older law. This is the purpose of Congress: to pass laws. To pass new laws and to modify old laws. If Congress amends an act of Congress by a new act of Congress and the President signs the law that is the system working.

    I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years. But I also think there are good reasons to amend the law when circumstance dictates. As long as Congress is forced to think about the reasons to make an exception, and get at least half of both houses to agree to the exception, and the President to sign off, that is the system working.

    Seawriter

    I agree with this interpretation, but Congress passing a law is very different than both Congress and The President just ignoring the law as currently written.

    • #96
  7. Aaron Miller Inactive
    Aaron Miller
    @AaronMiller

    Democrats might be putting up a fuss for no other reason than that they don’t want to look weak to their constituents by going along with the first extraordinary action of Republicans.

    Also, they might be able to get an extra concession from Republicans.

    • #97
  8. Robert McReynolds Member
    Robert McReynolds
    @

    Matt Balzer:

    Robert McReynolds:So for this we are all gung-ho about a government shutdown but we can’t risk defunding Obama’s illegal amnesty, cease funding Planned Parenthood, or force a change to the tax on medical equipment that is in Obamacare? Man we have some serious priority problems within the GOP.

    I think in this case it’d be the Democrats initiating the shutdown.

    So you think the press, which we are supposed to fear in other cases, is going to present it that way?

    • #98
  9. Robert McReynolds Member
    Robert McReynolds
    @

    Jamie Lockett:Question: If I as a private citizen agree a law is unconstitutional do I have the right to simply ignore it?

    You can until the state attempts to use said law to coerce you, then you can challenge it through the judiciary. Or during the time you are ignoring it you might advocate that your state declare it void within its borders and fight back that way.

    • #99
  10. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Robert McReynolds:

    Matt Balzer:

    Robert McReynolds:So for this we are all gung-ho about a government shutdown but we can’t risk defunding Obama’s illegal amnesty, cease funding Planned Parenthood, or force a change to the tax on medical equipment that is in Obamacare? Man we have some serious priority problems within the GOP.

    I think in this case it’d be the Democrats initiating the shutdown.

    So you think the press, which we are supposed to fear in other cases, is going to present it that way?

    Not to argue with your point, but do you think the public credibility of the press now is equal to what it has been when the republican congress displayed such fear?

    • #100
  11. James Of England Inactive
    James Of England
    @JamesOfEngland

    The King Prawn:

    James Of England: They almost certainly can’t block it for all that long.

    They can only block the waiver or changing of the law because it is legislation and requires 60 vote cloture. Because Reid went nuclear on confirmations they cannot block that.

    Right, but as a practical matter it seems unlikely that they could do much on the waiver, either.

    • #101
  12. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Jamie Lockett: I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years. But I also think there are good reasons to amend the law when circumstance dictates.

    How would that differ from “advise and consent”?  Why do they need the law if they’re going to waive it from time to time?

     

    • #102
  13. Robert McReynolds Member
    Robert McReynolds
    @

    Bob Thompson:

    Robert McReynolds:

    Matt Balzer:

    Robert McReynolds:So for this we are all gung-ho about a government shutdown but we can’t risk defunding Obama’s illegal amnesty, cease funding Planned Parenthood, or force a change to the tax on medical equipment that is in Obamacare? Man we have some serious priority problems within the GOP.

    I think in this case it’d be the Democrats initiating the shutdown.

    So you think the press, which we are supposed to fear in other cases, is going to present it that way?

    Not to argue with your point, but do you think the public credibility of the press now is equal to what it has been when the republican congress displayed such fear?

    Okay fair question. But then answer this, was that credibility shot overnight? The were scary in 2013 but now have no affect on the minds of the people? There is a logic disconnect here with our new found gusto for shutdowns.

    • #103
  14. James Of England Inactive
    James Of England
    @JamesOfEngland

    Miffed White Male:

    Jamie Lockett: I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years. But I also think there are good reasons to amend the law when circumstance dictates.

    How would that differ from “advise and consent”? Why do they need the law if they’re going to waive it from time to time?

    It helps to maintain the norm of civilian control that the Sec. Def. is generally a civilian. The current arrangement encourages that without stopping the best people from taking the position.

    • #104
  15. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

     

    James Of England:

    Miffed White Male:

    Jamie Lockett: I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years. But I also think there are good reasons to amend the law when circumstance dictates.

    How would that differ from “advise and consent”? Why do they need the law if they’re going to waive it from time to time?

    It helps to maintain the norm of civilian control that the Sec. Def. is generally a civilian. The current arrangement encourages that without stopping the best people from taking the position.

    I think the law is not only unconstitutional, it is just a bad idea. We are in no danger of a military coup.

    • #105
  16. Skyler Coolidge
    Skyler
    @Skyler

    Just a reminder, Jim Mattis is  civilian.

    • #106
  17. Ryan M(cPherson) Inactive
    Ryan M(cPherson)
    @RyanM

    The King Prawn:

    Ryan M(cPherson): I’m not read up on any of this. Let me rephrase to see if I’ve got it right: there’s a law that requires a time lapse before a general can become SOD, and so congress is creating a new law that allows for a waiver, and using the budget process to push it through?

    Mostly. Once before a waiver was passed through Congress 2 years after the law was enacted. My main point is that law isn’t waiverable. If it’s a good law, adhere to it. If it’s bad policy and bad law then change it, which could be done with a single sentence in any bill striking this one sentence in 10USC§113(a). Picking and choosing when to follow the law and when to not follow the law is a terrible way to run a country.

    Ah – well…  that’s where I might disagree, though I’m not certain.  I would imagine that if congress passes a law that requires a waiting period, it can also pass a law granting a waiver.  The only thing that would create a constitutional question would be if the executive simply granted a waiver.  That said, it should most certainly pass a waiver rather than ignoring the law.  As was noted above, it’s a relatively easy solution that would save a lot of trouble.

    • #107
  18. Ryan M(cPherson) Inactive
    Ryan M(cPherson)
    @RyanM

    Bryan G. Stephens:

    None of that really applies to this one thing. This is about the President and Senate asserting their power under the Constitution.

    I am on record as saying that the POTUS should note that Congress is not given the ability to legislate away its ability to legislate. As such, any regulations not spelled out in law are against the Constitution. Therefore, all regulations are null and void. Further, Congress is not given the ability to establish an legislature independent of itself or the Executive. Therefore, all ruling by such things as the NLRB are null and void.

    I am on strong ground in an interpretation of what the text of our Constitution says. These actions would roll back, overnight, the regulatory state put into place. Smash it, in fact. Trump won’t do it, but it is what is needed to shock Congress back into action.

    I see.

    I don’t necessarily disagree.  But you’re talking about your version of how things ought to be, not what they are.  Unfortunately, jurisprudence doesn’t quite work in the manner you’re hoping.  As the SCOTUS has interpreted the constitution over time, so it is.  But it’s not necessarily how it should be, or how it was intended.  There are things future courts can go back on, and things they cannot.

    • #108
  19. Ryan M(cPherson) Inactive
    Ryan M(cPherson)
    @RyanM

    Bryan G. Stephens:

    James Of England:

    Miffed White Male:

    Jamie Lockett: I think there are good reasons to keep the provision that Secretary of Defense shall not have served in the military for the last seven years. But I also think there are good reasons to amend the law when circumstance dictates.

    How would that differ from “advise and consent”? Why do they need the law if they’re going to waive it from time to time?

    It helps to maintain the norm of civilian control that the Sec. Def. is generally a civilian. The current arrangement encourages that without stopping the best people from taking the position.

    I think the law is not only unconstitutional, it is just a bad idea. We are in no danger of a military coup.

    So – we could probably clear things up by agreeing on terms.  You’re wrong inasmuch as you say “unconstitutional” to mean “not in line with what our constitution intended.”  But all that means is that you’re talking past one another.  A law that says the SoD needs to have been a civilian of 7 years is likely constitutional, but you are certainly free to argue that it goes against the intent of our founders.

    • #109
  20. Ryan M(cPherson) Inactive
    Ryan M(cPherson)
    @RyanM

    Robert McReynolds:

    Bob Thompson:

    Robert McReynolds:

    Matt Balzer:

    Robert McReynolds:So for this we are all gung-ho about a government shutdown but we can’t risk defunding Obama’s illegal amnesty, cease funding Planned Parenthood, or force a change to the tax on medical equipment that is in Obamacare? Man we have some serious priority problems within the GOP.

    I think in this case it’d be the Democrats initiating the shutdown.

    So you think the press, which we are supposed to fear in other cases, is going to present it that way?

    Not to argue with your point, but do you think the public credibility of the press now is equal to what it has been when the republican congress displayed such fear?

    Okay fair question. But then answer this, was that credibility shot overnight? The were scary in 2013 but now have no affect on the minds of the people? There is a logic disconnect here with our new found gusto for shutdowns.

    All fair points.  But it really would be the Dems shutting down the government.  Fact is, if you have a president openly saying “I’m ready to sign the bill that Republicans have produced,” and the Democrats block it, even our press will have a hard time making it a Republican shut-down.  It will literally be the democrats blocking, and even if the press says they have good reasons, Republicans can say “we’re all ready to sign!”  And Trump surely will.

    • #110
  21. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Ryan M(cPherson):

    Bryan G. Stephens:

    None of that really applies to this one thing. This is about the President and Senate asserting their power under the Constitution.

    I am on record as saying that the POTUS should note that Congress is not given the ability to legislate away its ability to legislate. As such, any regulations not spelled out in law are against the Constitution. Therefore, all regulations are null and void. Further, Congress is not given the ability to establish an legislature independent of itself or the Executive. Therefore, all ruling by such things as the NLRB are null and void.

    I am on strong ground in an interpretation of what the text of our Constitution says. These actions would roll back, overnight, the regulatory state put into place. Smash it, in fact. Trump won’t do it, but it is what is needed to shock Congress back into action.

    I see.

    I don’t necessarily disagree. But you’re talking about your version of how things ought to be, not what they are. Unfortunately, jurisprudence doesn’t quite work in the manner you’re hoping. As the SCOTUS has interpreted the constitution over time, so it is. But it’s not necessarily how it should be, or how it was intended. There are things future courts can go back on, and things it cannot.

    I agree with Ryan. (What? This is weird. I don’t like it. Time for whiskey.)

    • #111
  22. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Lawyers is no ruling that cannot be undone. In fact there is no ruling that cannot be changed. There is no ruling on this law at all right now.

    • #112
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