"President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel..."

"... a federal appeals court panel ruled Friday."

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions....

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called “pro forma” sessions.

GOP lawmakers used the tactic — as Democrats have in the past as well — to specifically to prevent the president from using his recess power....

The Supreme Court is likely to take this case, which, if it is not reversed, will invalidate all the decisions the NLRB has made going back more than a year and that going forward, there is no quorum for it to decide any cases. 

"In this bill we will nullify anything the president does that smacks of legislation."

"And there are several of the executive orders that appear as if he’s writing new law. That cannot happen.... I’m afraid that President Obama may have this 'king complex' sort of developing, and we’re going to make sure it doesn’t happen."

ADDED: "If not good law, there was worldly wisdom in the maxim attributed to Napoleon that 'The tools belong to the man who can use them.' We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."

"The president is going to act... Executive order, executive action that can be taken; we haven't decided what that is yet."

"But we're compiling it all with the help of the attorney general and all the rest of the cabinet members as well as legislative action, we believe, is required."

Gun control, it's coming, we don't know exactly how we're going to do it, but we're going to do it without the assistance of Congress, says VP Joe Biden.

Mitt Romney says "The Supreme Court has the final word. And their final word is that Obamacare is a tax."

Interviewed by Jan Crawford, Romney takes the clear, straightforward separation-of-powers position. The judiciary has the work of saying what the law is:

So it is a tax and it's constitutional. That's -- that's the final word. That's what it is. Now, I agreed with the dissent. I would have taken a different course. But the dissent wasn't the majority. The majority has ruled. And their rule is final.

Crawford moves in with the challenge Romney will always have to deal with: You did the same thing in Massachusetts. It this was a tax, then that was a tax. And we expect him always to answer in about the same way: There's a difference between doing something at the federal level and doing it at the state level.

As a lawprof, I see the consistent separation-of-powers theme.
The Constitution gives the judiciary the power to interpret the law, and it gives Congress the power to make the law, but under our system of federalism, Congress's power to make law is limited to a set of enumerated powers. The Supreme Court case was about whether Congress could regulate and require people to buy health insurance, and the answer on that question was that Congress does not have that power. The only reason the Supreme Court appeared to uphold the mandate was that on closer inspection, the Chief Justice decided that there wasn't a requirement to buy insurance at all, despite what the people believed was happening when the law was passed — when the law squeaked by in Congress.

The Chief Justice, the deciding vote, looked and decided that there was no mandate at all, just an option that people were given: Either buy insurance, from a private insurance company, or pay an amount of money to the federal government, and the Chief Justice said that second option, if seen as a tax, could be upheld under the enumerated power that is the taxing power. That may seem awfully strange to people, but in Massachusetts, there was no need to think about it in a strange way like that, because the state's powers are different. The state legislature is not restricted to the Constitution's enumerated powers. The state legislature has the powers of government that are left after the Congress has gotten its set of enumerated powers. That is our system of federalism, and the more expansively the Supreme Court reads those enumerated powers, the less is left for the states, and that is an important rearrangement of constitutional powers.

But that's lawprof talk. Too long. Romney needs to make the federalism point in a convincing, snappy way, and he's got to do it with the interviewer coming at him with the you-raised-taxes challenge — as if the main thing people want to hear about is whether taxes will be raised. And in legal terms, that's just weird, because a penalty — the term used by Congress — is a harsher matter than a tax. The Chief Justice said the "penalty" could be seen as a tax because it was so little that it didn't amount to compulsion. In this view, Congress refrained from forcing people to buy insurance, and because of that, the law survived. But the word "tax" is a hot word in presidential politics, so what was milder ends up seeming more severe.

That's a lot to process in a media interview. You can't say all that. I think I put that in a clear and conversational way, but I know that in political discourse it would sound ridiculously blabby and didactic. And it is Romney's greatest point of vulnerability — his work on health care in Massachusetts. It's especially important that he avoid giving us the feeling that he's dancing around the truth and over-explaining. He says:

Actually, the -- chief justice, in his opinion, made it very clear that, at the state level -- states have the power to put in place mandates. They don't need to require them to be called taxes in order for them to be constitutional. And -- and as a result, Massachusetts' mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.

Pretty good! He's denying that he raised taxes. The same thing, at the state level, isn't a tax, because not only was it not called a tax, but it didn't need to be relabeled a tax — "it stays as it was" — in order to make it constitutional. Relabeling was a special trick needed to conjure up federal power. We didn't need that trick to make it constitutional in Massachusetts.

That's enough to move Crawford on. She says: "Whatever it's called... it means that Americans, if they don't have insurance, are going to pay something, whatever they call it." What I'd jump on there is her use of the word "Americans." Romney was never involved in telling Americans what to do, only Massachusetters. Romney says:

You know, I made it very clear throughout my campaign and actually, while I was governor of Massachusetts, that the issue of the uninsured should be dealt with at the state level. And each state can create their own solutions to meet the needs of their people.

Think of the restraint it takes to stop there. Implied in that is: Hello? It was Massachusetts, the most liberal state in the country. What was I supposed to do? I worked with these people to give them something that suited their preferences, as liberals. This is the genius of federalism, that policies are designed at the state level. Massachusetts got a Massachusetts-style policy, and that's not going to be what other states get. It's not one-size-fits-all when you take the federalism — leave-it-to-the-states — approach, which is what I'm talking about. The federal law that the Supreme Court upheld foisted the most liberal state's preference on all of the states. That's what I object to.

Now, that's what I'd be tempted to say, but you can't say all that. It's blabby and defensive, and it's technical and weird. But he essentially said that, didn't he? He can leave it to others to expand into the Massachusetts-specific material.

Crawford goes on to challenge him about he statement — which appears on his website — that he would choose Supreme Court Justices who are like John Roberts. Does he maybe want to change that? Romney says:

Well, I certainly wouldn't nominate someone who -- I knew -- was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with. 

(He disapproved of his use of the word "violently.")

And he reached a conclusion I think that was -- not accurate and not -- an appropriate conclusion. But -- that being said, he's a very bright person. And I -- I'd look for -- individuals that have intelligence and believe in following the constitution.

A very bland answer. (Except for the violence.)

Crawford brings up her own journalistic scoop — that Roberts supposedly "switched his vote." "He was initially with the conservatives to strike down the heart of the law, the individual mandate, and then changed his mind to join the liberals to uphold it?" Romney says:

Well, it -- it gives the impression that the decision was made not based upon constitutional -- foundation but instead -- political consideration about the -- relationship between the branches of government. But we won't really know the answers to those things until the justice himself speaks out -- maybe some time in history.

See what he did? He got in there and took his shot: Roberts yielded to political pressure. But the punch is pulled. We get an "impression," but we don't "really know," and blah blah blah... maybe someday... history....

He made the harsh criticism and left us feeling that he wasn't harsh, that he was moderate and thoughtful and disinclined to get ugly. And yet, he was ugly enough to hurt.

The legal left sounds like Newt Gingrich?

A Wall Street Journal editorial says:

[T]he left has taken to mau-mauing the Justices by saying that if they overturn the [Obamacare] mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat....

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them. But what exactly did Gingrich say? The WSJ provides no link or exact quote, but I Googled it for you.

Here:

[BOB SCHIEFFER, on CBS’s “Face the Nation"]: [O]ne of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.
I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it. Now clearly since the congress has....

SCHIEFFER: What if he didn’t come? What if he said no thank you I’m not coming?

GINGRICH: Well, that is what happens in impeachment cases. In an impeachment case, the House studies whether or not — the House brings them in, the House subpoenas them. As a general rule they show up. I mean, you’re raising the core question — are judges above the rest of the constitution or are judges one of the three co-equal branches?

Like I said: big difference.

If you won't acknowlege the difference between people criticizing judges in words and Congress physically compelling them, you're not in a good position to credibly explain why striking down the Affordable Care Act should not be understood as judicial activism.

Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)

The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise. 

Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....

Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.

So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

Guess who rakes Obama over the coals for the abuse of executive power?

John Yoo.

Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers by making a recess appointment for Richard Cordray (whom I respect and have no problems with as a nominee) to head the new Consumer Financial Protection Bureau.

Yoo's key point is that it's up to the Senate to decide whether it's in recess:

Even with my broad view of executive power, I’ve always thought that each branch has control over its own functions and has the right — if not the duty — to exclude the others as best it can from its own decisions....

Yoo says that the Senate needs to defend itself from encroachments by the President, and that here it can refuse to support the agency in any way. But, more important, anyone who is affected by the new agency challenge could challenge the constitutionality of all of the agency's work.

However the courts would ultimately resolve the issue, the questionable appointment casts a pall over all the agency's work and, in an election year, tells us something about the way Obama understands the role of the President. So a third remedy for this power grasp — in addition to Senate resistance and court challenges — is for the GOP candidates to assail Obama for overreaching.

Let's see what those candidates do, because a big question — as the GOP chooses its candidate — is: Who is best at attacking Obama?

"House Panel Votes to Subpoena White House for Solyndra Records."

Fox News reports:

The White House immediately slammed the vote, saying it has "cooperated extensively with the committee's investigation by producing over 85,000 pages of documents, including 20,000 pages produced just yesterday afternoon."

"And all of the materials that have been disclosed affirm what we said on Day One: this was a merit based decision made by the Department of Energy," White House spokesman Eric Schultz said....

If all the materials you've chosen to disclose affirm the story you want to tell and the story is difficult to believe, isn't that a reason to look for more evidence? Who cares how many sheets of paper were produced so far? And if everything relevant has already been produced, why the sensitivity about the subpoena?

Rep. Cliff Stearns, R-Fla., who chairs the energy panel's investigations subcommittee, said the White House has been "stonewalling" on Solyndra, releasing some documents but not all.

"They feel that the inner circle of the West Wing is off bounds and we have no right to ask this information," Stearns told Fox Business News this week. "I think the American taxpayers deserve an answer."

"I mean, we're just talking about what happened on Solyndra. It's nothing to do with national security," Stearns added. "We're asking where the taxpayers' money went. And frankly, we're just trying to understand, did the White House actually push this (loan) out, knowing that it was going to fail?""

If the inner circle of the West Wing is off bounds, the White House will refuse to comply with the subpoena, but the subpoena forces the White House to take that stand, conspicuously, which will have a political effect of some kind.

"Obama Rolls Out a Jobs Plan That Doesn't Need Congress."

According to The Atlantic:

[Yesterday], Obama took a now-familiar path in adopting a program — this time a jobs and infrastructure effort--that can happen entirely within his domain. Obama directed several federal agencies to identify "high-impact, job-creating infrastructure projects" that can be expedited now, without congressional approval.

One week before he will make a major address to Congress on jobs, Obama is making sure they know he plans to move forward without them. The president has also directed the Education Department to come up with a "Plan B" updating the 2001 No Child Left Behind law in the absence of congressional action. The message to Congress is clear: Do your work or we'll do it for you....

Do your work or we'll do it for you....  Is that the tone Obama actually wants to take?

Why should Obama think in terms of what the Supreme Court might say about his power to single-handedly raise the debt ceiling?

Jeffrey Rosen wonders, noting that the Supreme Court would probably not hear the case.

And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs. If all the justices are true to their constitutional philosophies, the Court would rule for Obama by a lopsided margin.

In fact, it makes plenty of sense for Obama to refer to what the Court would say even if he doesn't believe the question will end up in court. Why shouldn't he act deferential to judicial interpretation when it's not obstructing anything he presently wants to do? It's exactly the right time to strike that pose if he thinks it's flattering.

Anyway, Obama left himself plenty of room to shake off the deference if and when he wants. All he said was: "I’ve talked to my lawyers... They are not persuaded that that is a winning argument." Not only could the lawyers later become persuaded, Obama could make his own decision disagreeing with his lawyers, and he could decide to rely on a reading of the Constitution that he believes is correct even if he's not persuaded it's a "winning argument."

Now, is it true that the Supreme Court would say the President can, on his own raise the debt ceiling? The constitutional hook for this power is "The validity of the public debt of the United States, authorized by law … shall not be questioned." Rosen says:

All four liberal Justices are committed to a vision of “living constitutionalism” that interprets the historical evidence broadly...

He says a bit more than that, but not much to find 4 votes for presidential power. Only one more needed.

What about the conservative justices? Here the divisions in the conservative ranks might become relevant. There are three distinct strains of legal conservatives on the Court: the tea party conservative, Clarence Thomas, the libertarian conservative, Anthony Kennedy, and the pro-executive power conservatives, John Roberts, Samuel Alito, and Antonin Scalia.

The tea party conservative, eh?

Of these five justices, Thomas is the only one whose judicial philosophy might lead him to side with Congress over Obama. As someone who believes that Congressional power over the purse should be construed strictly, Thomas might conclude that Article I gives Congress, and not the president, the power “to borrow money on the credit of the United States”—a power that it has exercised by establishing a debt ceiling. The debt ceiling doesn’t repudiate the debt or question its validity, Thomas might hold; it simply threatens default by prohibiting the president from assuming extra debt beyond what Congress has authorized. According to this argument, Obama’s unilateral decision to take on additional debt to avoid a government default would not represent debt “authorized by law,” as the Fourteenth Amendment requires, and therefore wouldn’t be justified by the Amendment.

Isn't it funny how this "tea party" philosophy just sounds like a fair reading of the text? But only Clarence Thomas is crackpot enough to do that! I added the boldface to highlight what to me seems like the obvious interpretation: No one is talking about questioning the validity of the debt! When you fail to pay debts, you're not claiming they aren't valid. Why wouldn't all the Justices say that? Why would that inapt clause take precedence over the specific and clear clause in Article I, listing among Congress's powers the power "To borrow Money on the credit of the United States"?

"The White House is now on the sidelines."

I haven't felt like linking to David Brooks in a long time, but this column about Obama's negotiating on the debt is pretty useful:

[T]he White House negotiating process was inadequate. Neither the president nor the House speaker ever wrote down and released their negotiating positions. Everything was mysterious, shifting and slippery. One day the president was agreeing to an $800 billion revenue increase; the next day he was asking for $400 billion more. Spending cuts that seemed to be part of the package suddenly seemed hollow. Negotiating partners disappeared.

It was phenomenally hard to figure out exactly who was offering what. Democrats in Congress were kept in the dark and were understandably suspicious. It was all a recipe for misunderstandings, hurt feelings and collapse.

... [T]he president lost his cool. Obama never should have gone in front of the cameras just minutes after the talks faltered Friday evening. His appearance was suffused with that “I’m the only mature person in Washington” condescension that drives everybody else crazy. Obama lectured the leaders of the House and Senate in the sort of patronizing tone that a junior high principal might use with immature delinquents. He talked about unreturned phone calls and being left at the altar, personalizing the issue like a spurned prom date.

Obama’s Friday appearance had a gigantic unintended consequence. It brought members of Congress together. They decided to take control.

And isn't that how it should be? Let Congress write the legislation. The President has a veto power to be exercised or not... after he is presented with the product of Congress's complicated work. Why should he be in charge at the front end, trapping legislators trapped in the territory of the White House — or Camp David! — using his power and prestige to humble them?

In fact, now — as Brooks notes — Boehner and Reid are presenting written proposals that we the people can look at and judge.

Boehner released a plan that involved statutory spending caps with an enforcement mechanism to make sure the cuts are real. Reid released a plan involving bigger long-term spending cuts, with much of the heavy lifting done by a bipartisan select committee. These two carefully coordinated plans are different, but they naturally fit together....

This should be a humbling moment for the White House, and maybe a learning experience. 

It shouldn't have to be called humbling. I think the President was trying to humble Congress. That shouldn't work and it didn't work.

A toast to separation of powers!

Laurence Tribe on the absurdly strained notion that the debt ceiling violates the 14th Amendment.

A NYT op-ed:

Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might... nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling....

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default....

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution....

Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?

Oh, how ploddingly boring Professor Tribe is! Vividly creative lawprofs have perceived that the 14th Amendment transformed the President into a dictator, and here comes Tribe with his gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in... empathy.

McConnell: "But I do think there is more of a tendency to pull together when the guy in the White House is on your side."

Senate Minority Leader Mitch McConnell, asked about “the isolationist streak of some in the Republican Party." The subject is Libya and the War Powers Act.

I’m not sure that these kind of differences might not have been there in a more latent form when you had a Republican president. But I do think there is more of a tendency to pull together when the guy in the White House is on your side. So I think some of these views were probably held by some of my members even in the previous administration, but party loyalty tended to mute them. So yeah, I think there are clearly differences and I think a lot of our members, not having a Republican in the White House, feel more free to express their reservations which might have been somewhat muted during the previous administration.

Thoughtful and honest, right? Is it also disturbing? Should members of Congress be expected to take a consistent position with respect to presidential power and the military? Or does the need for a check on the President justify the pressure from whichever party happens to be the opposing party?

"Imagine that a country launched a series of bombing attacks on the US to force one of our presidents from office..."

"... and that a second country provided millions of dollars in munitions, fired missiles at our cities via unmanned drones, and refueled the planes of our primary attacker so that they could bomb us more frequently. Would anyone doubt whether that second country was at war with us?"

"Supreme Court just ruled in favor of the Republicans on Budget Repair."

That's the word on the street.

(Talking about Wisconsin Supreme Court here.)

ADDED: Here is the opinion, which is based on the proper role of the courts in a system of separation of powers:

In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the court...  explained that the “judicial department has no jurisdiction or right to interfere with the legislative process. That is something committed by the constitution entirely to the legislature itself.” Id. at 467. The court held that “[b]ecause under our system of constitutional government, no one of the co-ordinate departments can interfere with the discharge of the constitutional duties of one of the other departments, no court has jurisdiction to enjoin the legislative process at any point.” Id. at 468. The court noted that “[i]f a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that, it does not in terms legislate but it invades the constitutional power of the legislature to declare what shall become law. This [a court] may not do.” Id.

... [W]hether a court can enjoin a bill is a matter of great public importance and also because it appears necessary to confirm that Goodland remains the law that all courts must follow.... Accordingly, because the circuit court did not follow the court’s directive in Goodland, it exceeded its jurisdiction, invaded the legislature’s constitutional powers under Article IV, Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act.

So Judge Sumi, asserting that the legislature had violated the law, herself violated the state constitution. Seeking to check the excesses of the legislature, she fell into judicial excess.

Obama issues a "signing statement" saying he won't follow the part of the budget bill that he thinks violates separation of powers.

Jake Tapper reports:

One rider [to the bill] – Section 2262 -- de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”

In other words: we know what you wanted that provision to do, but we don’t think it’s constitutional, so we will interpret it differently than the way you meant it.

Tapper notes that when he was running for President, Obama was very critical of the way President Bush used signing statements "in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.” And then-Senator Obama said he would "not use signing statements to nullify or undermine congressional instructions as enacted into law." Of course, Obama is President now.

Andrew Sullivan: "King Barack I."

Oh! The disillusionment!

Many of us supported this president because he promised to bring back the constitutional balance after the theories of Yoo, Delahunty, et al put the president on a par with emperors and kings in wartime. And yet in this Libya move, what difference is there between Bush and Obama? In some ways, Bush was more respectful of the Congress, waiting for a vote of support before launching us like an angry bird into the desert.

"Did you notice Obama kept using the words 'hope' and 'change' in the address on military action in Libya?"

That's an IM from my son Chris. Here's the text of the speech. 4 "hope"s. 9 "change"s.

What Meade noticed was the failure to talk about Congress. Searching the text, I see he said Congress once:

[N]ine days ago, after consulting the bipartisan leadership of Congress, I authorized military action to stop the killing and enforce UN Security Council Resolution 1973.

So... the leadership. Who, exactly? Boehner and Reid?

What I noticed was the implicit disrespect for George Bush:

In this effort, the United States has not acted alone....

When did we act alone? Is he trying to make us misremember what Bush did? 

Going forward, the lead in enforcing the No Fly Zone and protecting civilians on the ground will transition to our allies and partners, and I am fully confident that our coalition will keep the pressure on Gadhafi's remaining forces....

How clean and breezy, compared to what Bush did to Saddam.

And while the United States will do our part to help, it will be a task for the international community, and — more importantly — a task for the Libyan people themselves....

We .. had the ability to stop Gadhafi's forces in their tracks without putting American troops on the ground....

Of course, there is no question that Libya — and the world — will be better off with Gadhafi out of power. I, along with many other world leaders, have embraced that goal, and will actively pursue it through non-military means. But broadening our military mission to include regime change would be a mistake....

If we tried to overthrow Gadhafi by force, our coalition would splinter. We would likely have to put U.S. troops on the ground, or risk killing many civilians from the air. The dangers faced by our men and women in uniform would be far greater. So would the costs, and our share of the responsibility for what comes next.

The implicit comparison is to what Bush did in Iraq.

To be blunt, we went down that road in Iraq. 

Now, it's explicit.

We have intervened to stop a massacre... We will... work with other nations to hasten the day when Gadhafi leaves power. It may not happen overnight, as a badly weakened Gadhafi tries desperately to hang on to power. But it should be clear to those around Gadaffi, and to every Libyan, that history is not on his side. With the time and space that we have provided for the Libyan people, they will be able to determine their own destiny, and that is how it should be.

Isn't that what the United States said to the Iraqi people after the Gulf War?

Obama's Libya adventure does not fit the War Powers Resolution... and can only be supported by the most extreme view of presidential power.

Lawprof Bruce Ackerman explains:

After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.  

But... these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our "armed forces." The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed "attack," there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace....

The War Powers Resolution doesn't authorize a single day of Libyan bombing. But it does provide an escape hatch, stating that it is not "intended to alter the constitutional authority of the Congress or of the President." So it's open for Obama to assert that his power as commander in chief allows him to wage war without Congress, despite the Constitution's insistence to the contrary....

Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it's surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy....

The War Powers Resolution cedes power to the President in the very place where the argument for independent presidential power is strong: When there is a national security emergency. If you don't fit the War Powers Resolution, because it's not an emergency, the argument for independent power is at its weakest.

Here's the part of my diavlog with Bob Wright where we talk about this issue. Note how, challenged, Bob comes up with a generic neocon argument about how more democracy in the world is good for national security. I press him about how there needs to be an emergency to justify not including Congress in the decisionmaking. (I've let this clip go on a bit, so it's a little long, but I purport to tell you the whole story of constitutional law, so it's actually super-concise.)

David Weigel smugly mouths a most despicable theory of presidential power.

His post is titled "Why Obama Doesn't Need to Ask Congress Before Attacking Libya." He posits:

It's simple: Most of Washington doesn't want him to. To coin a phrase: If they want the president to do it, that means it's legal.

The allusion is to the famous Nixon quote (which was distorted for effect in ads for the movie "Frost/Nixon"): "When the President does it, that means it is not illegal." Why would Weigel repurpose that quote? Is he criticizing Obama? Nixon asserted that "in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we’re all talking about."

Does anyone argue that attacking Libya is needed to preserve the United States? But quite aside from that, Nixon was talking about the President stepping up and doing what he thinks is needed. That's entirely different from saying that a structural safeguard entrusted to Congress may be dispensed with whenever Congress doesn't feel like taking responsibility.

Now, possibly Weigel is thinking everyone knows Nixon was wrong — false, but let's assume it — and so presenting a theory in the Nixon format is a way of saying it's wrong. But I think that's way too subtle for Weigel to have intended. I think what he meant was to adopt a political pragmatism, which he imagines Nixon to have used. In that view, the President acquires power when Congress avoids its responsibility. Weigel continues in this vein [quoting Lindsey Graham, with apparent approbation]:

"I don't believe he needs to come to Congress. I'd gladly vote on what he did. I think it's inherent within the authority of the commander-in-chief to take such action."

Such action? What action? Helping out rebels in a foreign country where our national security is not at stake?

"We have been overly cautious, unnervingly indecisive. This thing melted down. I wish we would have acted sooner. I don't feel a need to bless this action before he took it. I'd be glad to vote on it afterwards."

Bless?  Glad? It's not about your feelings or Congress's avoidance of formal gestures. Either there is a serious constitutional safeguard here or there is not. If there is, it doesn't disappear because you are comfortable without it or because Congress holds back. If there is a constitutional safeguard, it is a permanent guarantee that goes to us, the people.