Were Barack Obama's recess appointments to the NLRB unconstitutional?

Answer: Yes (though, importantly, they were not without precedent)

Question difficulty: Medium

Presidents fill vacancies in many governmental appointments with the advice and consent of the Senate. This was and is an important separation of powers, and part of the checks and balances of our constitution. It forces the Executive to make appointments that are acceptable to the Legislature. In Federalist 67, Alexander Hamilton identified concerns of nepotism, home-state favoritism, and fitness for office.

Of course, you wouldn't want a critical vacancy to go unfilled all summer long because the Senate was in recess. And this was more true in the 1780s, when gathering the Senate was a difficult burden -- and lengthy process -- that simply could not be done on short notice.

So the Constitution allows that presidents can forgo advice and consent during "the Recess of the Senate," and their recess appointment serves until the end of the next session. The original understanding of recess appointments (illuminated by the Federalist Papers and early practice) was that this was a supplemental procedure intended to help maintain government during times when the Senate was disabled by recess from providing their advice and consent. It was plainly understood not to be a compromise method by which the president could side-step the Senate by waiting for a recess to make the appointment.

 For this reason, early recess appointments of any sort were relatively rare. And until 1921, it was rare or unheard of to appoint someone through an intrasessional recess. Increasingly since then, presidents have made recess appointments when the Senate was out for even a couple weeks. Clinton made an intrasessional appointment during a nine-day break. Can you imagine the hysteria if a Chief Justice were appointed in such conditions? And presidents of both party no longer have any shame at all about waiting out the Senate to make an intersessional recess appointment.

 This practice of intrasessional recess appointments was specifically upheld -- over a powerful and right-minded dissent -- by the 11th Circuit Court of Appeals in 2004, when the constitutionality of an intrasessional appointment by George Bush was questioned and affirmed by that court. The court should have struck down George Bush's intrasessional appointment as an unconstitutional evasion of Advice and Consent.

 *** Pause for Reflection ***

 If you view this issue with partisan glasses, and you have a strong opinion that Barack Obama was either within our beyond his authority, pause and be honest: if you had never heard the facts of this case, but instead had before you the similar facts from the 2004 case -- that is, if we keep every essential thing the same but substitute George W. Bush for Barack Obama -- would you have a different "going in" position? Give this one a full minute of honest reflection, because the actions of Obama and Bush are going to be approved or rejected (with some caveats beyond our scope) in the one judgment we make. Their fortunes are tied together.

 ** End Pause. Resume Rush to Judgment. ***

 Partly in response to the 11th Circuit, interbranch warfare has been elevated further: the Senate now officially declares itself "not in recess" during short breaks to prevent the executive branch from claiming the right to a recess appointment during them, especially since the Senate is always willing and always able to fly back to Washington to take care of business, if needed.

 To do this, they essentially pass an agreement that during their breaks to travel home, visit with family or celebrate a holiday, the Senate remains in session. They agree that a couple of senators will hang out in DC and hold pro forma sessions every three days in which nothing is to be done except solicit new business, hear none and head out for margaritas again, and that if anyone wants to conduct business during the break they'd need to let everyone know. Importantly, during these periods (and during the one Barack Obama used) the Senate has in fact conducted business that needed to be conducted. So: the Senate is not disabled by such breaks from providing advice and consent if they are willing to do so.

 President Obama took the next logical step in this bipartisan battle for power between the branches. There was strong obstructionism going on at the time of this gambit. The Republicans of the Senate were seen as obstructionists, increasing sympathy for the president's attempts to complete his appointments to vacancies by alternate means. Obama made his appointments during a time when the Senate specifically said they were not in recess, and that they were available for business (though none was intended). He explained that a Senate that was scattered across the 50 states was plainly in recess, and that saying otherwise is only to pretend otherwise. When the Senate accused Obama of cheating, he replied "but you were on a break!"

 A company that wasn't happy with subsequent decisions of the NLRB sued, and the 4th Circuit has now -- January 25, 2013 -- held that these intrasessional appointments are not consistent with the Constitution's requirement for advice and consent, and the Executive branch (whatever the party) is hereby requested to get its hand out of the cookie jar.

If words have meaning, the 4th Circuit Court of Appeals correctly answered the question. The case of Canning v. NLRB will certainly be appealed to the Supreme Court, and I predict that SCOTUS will correctly uphold the 4th Circuit in a split, 6-3 decision. I'll go further, and predict that the opinion will be authored by Roberts, Kagan or Sotomayor, or else be issued per curiam. It will be a coveted opinion to write.

Answering this question isn't as easy as walking through a garden. But we can compare three arguments on the record to see whether a layman can find the truth in such a difficult matter. There is the prevailing majority's argument in the 11th Circuit case from 2004, the strong and correct dissent in that case, and the unanimous opinion in the recent 4th Circuit case.

So, can a layman find the truth in such a difficult matter? Oh yes he can. And that's what we'll do in the next posts.

Does a bill in New Mexico force a rape victim to carry the baby to term as 'evidence'?

Answer: No

Question Difficulty: Easy

Mendacity Alert?: Yes

So, there is in fact a bill in New Mexico that is about this topic -- abortion after rape. But it didn't force women not to have an abortion in its original form, and it was amended within about 48 hours to clarify its purpose.

On January 24 the blogosphere and punditry went nuts, claiming that Cathrynn Brown of New Mexico had proposed outlawing abortion in the case -- specifically in the case -- of rape. 

Some of the headlines:

"New Mexico bill would criminalize abortions after rape as 'tampering with evidence'"

"GOP Bill: Abortion after rape is 'tampering with evidence'"

Here are a couple lead sentences: 

A Republican lawmaker in New Mexico introduced a bill on Wednesday that would legally require victims of rape to carry their pregnancies to term in order to use the fetus as evidence for a sexual assault trial." -- Laura Bassett, Huffington Post

Should a recently introduced bill in New Mexico become law, rape victims will be required to carry their pregnancies to term during their sexual assault trials or face charges of “tampering with evidence.

” -- Aviva Sheen, ThinkProgress

We were shown part B by the reporters [sic], which read in full: 

B.  Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.  [emphasis added]

Of course, in normal usage,  a rape victim who aborts a resulting baby didn't have the intent to destroy evidence: she was a making a difficult reproductive choice. I found few reporters even attempting to explain how a rape victim aborting an unwanted child could be accused of trying to destroy evidence. But a friend of very good will and intellect proposed the following. A crusading, evangelical Attorney General could say "You intended to abort. Abortion destroys babies. Babies are evidence of rape. Ergo, you intended to destroy evidence." And he then proceeds to lock her up.

So, that's is a fair concern. Extremists are extreme, right? But is there anything else in the law -- as drafted the first time -- which might prevent thus misreading? Yes.

Part A, which the reporters [sic] didn't show us, says that "tampering with evidence consists of destroying ... any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person...."

Taken together, both parts of the original bill could not have reasonably applied to the victim of a rape, unless her uncoerced intent (duress is a positive defense) was to prevent the apprehension of a rapist.

Further evidence of intent wasn't long in coming. Cathrynn Brown revised her bill so that part B, standing alone, was not susceptible of misinterpretation.  It now reads: 

“A person who commits criminal sexual penetration or incest and who procures an abortion of a fetus resulting from the crime with the intent to destroy evidence of the crime is guilty of tampering with evidence"

Quite so.

Exit question: why even pass such a law? How often do rapists hang around for a few weeks and then drive a woman to the hospital to procure an abortion? 

Not very often, but it happens, primarily in the case of incest or statutory rape. In these cases, very young women are raped by a family member or friend of the family. Such cases often are ongoing affairs, and the victims are very often too scared to report the crime. And yes, the dirty uncle or friend will certainly procure an abortion in order to conceal the criminal relationship. These are the victims Cathrynn Brown -- admittedly a pro-life legislator, and perhaps a total nutjob -- sought to protect.

UPDATE:
Latest news stories from reporters [sic] who lied or were incompetent in the first instance are now saying that "under pressure," Cathrynn Brown is revising her bill. In none of the examples I find do they admit that Ms. Brown did this in less than 48 hours, or that her stated purpose was never to do what they say, or that they failed to accurately report on the bill's original meaning.

Pretty Boy Floyd

Woody Guthrie wrote a great song about the outlaw Charles "Pretty Boy" Floyd in 1939, five years after Pretty Boy was killed by police. The admixture of truth and falsity in that song are delightful and instructive.

The song is direct. Pretty Boy was in the town of Shawnee, Oklahoma with his wife on a Saturday afternoon. A police office accosted Floyd "in a manner rather rude. Using vulgar words of language, and his wife she overheard."

In the song, Floyd does what any red-blooded American man would do at the time, we are given to believe. He killed the policeman in hand to hand combat for having cursed in front of a lady. In an interview for the Smithsonian Institute, recorded a year after Guthrie wrote Pretty Boy Floyd, Guthrie explained that in those days, if you used rough language in front of a lady, "you'd better smile. Or duck."

Thus forced upon a life of crime by cruel fate, Pretty Boy -- the song tells us -- went into the hills of Oklahoma to hide out from the law. And oh, the unspeakable shame, Pretty Boy did this just as the depression was getting in full swing. He was blamed -- wrongfully -- for several bank robberies, at a pretty much implausible rate. There'd be five banks in five counties, all robbed at lunch time today and all blamed on Pretty Boy. And all the farmers had a good laugh because they knew good old FLoyd was hanging out innocently -- knitting socks for babies, perhaps -- in the hills.

Finally, as Guthrie explained in an interview, Floyd decided to "take the cash and let the credit go." He thus decided to embark on an actual life of bank robbing glee.

As Arlo Guthrie would explain another 45 years later, "Pretty Boy was a bank robber at a time in the country, and a place in the country, when he was not the worst of disasters." The song describes a decent Robin Hood of a man, who distributed stolen booty to farmers to help them pay their mortgages. In Oklahoma City, on Christmas Day, he left a car load of groceries for the poor, the dear heart. The letter that the song says Floyd left with those groceries provide more than one of the immortal lines of Woody Guthrie:

As through this world I've rambled, I've seen lots of funny men
Some will rob you with a six gun, and some with a fountain pen
But as through this world you ramble, yes and as through this world you roam
You will never find an outlaw, who'll drive a family from his home

Great stuff. And all absolute, frantic bullocks.

The real history of Pretty Boy is as unromantic as the life of a brutal SOB usually is. Floyd was imprisoned for petty theft in his teens and was never again not in trouble. He was absolutely not introduced to crime via a log chain fight with a cursing cop in Shawnee.

What is true? Lots. He really was accused of perpetrating a large number of robberies scattered over an enormous geographic area. Problem: he really did them. Pretty Boy would rob one bank in the morning and flee at top mounted speed until afternoon. Thus creating each robbery as the alibi for the other.

What else? Floyd really did help struggling farmers by distributing booty to those who needed it. Robin Hood? No. This is a cold reading trick: every farmer needed it. Pretty Boy gave stolen money in modest amounts as hush money, to guarantee his safe and comfortable passage.

Now, it really all comes together when you get two additional pieces of information:

1. Guthrie was not an economist. He was a conspiracy theorist.

- In the Library of Congress interview (these were conducted by Alan Lomax, by the way, and improve toward the end when Alan Lomax gets palpably drunk and starts singing along and cracking bad jokes) -- as I say, in those interviews, Guthrie expresses a belief that banks weren't really in the trouble they professed to be in. That evil capitalist bankers were pretending to be robbed -- in fact, it was inside jobs -- so they could, what? claim hardship? and close their doors, rather than go out of business in the manly old way. It was these fake, inside job bank robberies, that were blamed on Floyd.

- Guthrie's populist frustration is real, and legitimate. When the money supply suffered a vicious contraction in the early depression, it also migrated away from farms. Farmers couldn't sell as high when city folks began gardening more, they all defaulted to local banks, and rural states came to a stand still.

2. The way it all started isn't even in the song.

- Guthrie's Pretty Boy legend would be more complete but less intriguing, if he had remembered to include all of it in the song. But Guthrie was a story teller, and a great one. He expected a song to be complemented by a story. He also knew that legend songs increase in grandeur when worn down on the sharp edges. 400-year-old songs are always agglomerative messes, incomplete or ill-fitted somewhere. Guthrie's ballads, in my opinion, attempt to recreate that old messy style in the original. They are the acid wash jeans of folk music.

- In an interview, Guthrie tells us the rest of the story. The reason the cop came us cursing, way back on that Saturday afternoon in Shawnee, was that Pretty Boy was in violation of the law. Since Floyd had last been in town, a new ordinance had been passed. It held that horses could no longer be tied to the rail along main street while folks conducted their business. As Guthrie explained "the motorcar had gotten to be pretty popular, and you had to make room." So Pretty Boy was innocently in violation of a parking ordinance. Seems like nothing, until you recall the time and set the picture. The gulf between all those struggling farmers who used their work horses to go to town, and the well-to-do who had a motorcar, was huge. Guthrie is pushing all the right populist buttons when the cop who started it all was yelling at a poor man who simply couldn't afford a car, and didn't show the proper respect to those who could, by either tying up outside of town, or paying tribute at the livery.

Pretty Boy Floyd is a great ballad. It holds a wee bit of true history from the depression and a huge dose of populist paranoia. The early progressive era needed the American heroes that traditional America had been creating -- sometimes from whole cloth -- for a hundred and fifty years. Guthrie, an unintententional but consistent genius, was providing the instant mythology that was called for by the circumstances.

History is beautiful.