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Kellyanne Conway's Husband Sez:

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IJTSSG

Golden Member
Aug 12, 2014
1,098
267
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The NLRB is not a cabinet level position. It's an obvious weasel move by Trump when Senate approved individuals are available, Like Rosenstein & Francisco.

The intention is obviously for Whitaker to quash the investigation, given his past public pronouncements. It's an attempt to obstruct justice, a crime all by itself.
Irrelevant. Read what Justice wrote in that case.
 

IJTSSG

Golden Member
Aug 12, 2014
1,098
267
136
It definitely matters, at least from a legal perspective. As per the OP's article, a forced resignation is equivalent to firing someone.
Opinions vary, as do the legal rulings but this is the germane issue. Asking someone to do something is not forcing someone to do it. For practical purposes Sessions was fired, legally. . . maybe. Depends on the judge.
 
Jan 25, 2011
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Irrelevant. Read what Justice wrote in that case.
Not irrelevant. The AG reports directly to the president. He’s a principle. Read what Clarence Thomas wrote in that case.

I recognize that the “burdens on governmental processes” that the Appointments Clause imposes may “often seem clumsy, inefficient, even unworkable.” INS v. Chadha, 462 U. S. 919, 959 (1983). Granting the President unilateral power to fill vacancies in high offices might contribute to more efficient Government. But the Appointments Clause is not an empty formality. Although the Framers recognized the potential value of leaving the selection of officers to “one man of discernment” rather than to a fractious, multimember body, see The Federalist No. 76, p. 510 (J. Cooke ed., 1961), they also recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the Government, see id., at 513; 3 J. Story, Commentaries on the Constitution of the United States §1524, p. 376 (1833). The Framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked,” Chadha, supra, at 959, and they knew that liberty could be preserved only by ensuring that the powers of Government would never be consolidated in one body, see The Federalist No. 51, p. 348. They thus empowered the Senate to confirm principal officers on the view that “the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of ” the President. The Federalist No. 76, at 514; 3 Story, supra, §1525, at 376–377. We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency. See Bowsher v. Synar, 478 U. S. 714, 736 (1986).
 

Moonbeam

Elite Member
Nov 24, 1999
67,354
4,067
126
Imagine if you won the preside
I mean I think we already know what he's going to say, that Sessions resigned and was not fired. He will say this despite the fact that Sessions himself stated he resigned after being ordered to, which any rational person would construe as the same thing as being fired.

He will do this while in the other Tucker Carlson thread he will complain that people don't understand the obvious context of people saying 'we know where you live' and he will not note any incongruence between the two.
That is because the common denominator is in each case the presence of ego fear and the manifestation of rationalization to avoid feeling it.
 
Jan 25, 2011
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"The National Constitution Center is the first and only institution in America established by Congress to “disseminate information about the United States Constitution on a nonpartisan basis in order to increase the awareness and understanding of the Constitution among the American people.” The Constitution Center brings the United States Constitution to life by hosting interactive exhibits and constitutional conversations and inspires active citizenship by celebrating the American constitutional tradition.

Our nonpartisan mission is best expressed in our three goals: to serve the nation and the world as the Museum of We the People, a national Headquarters for Civic Education, and America’s Town Hall. We illuminate the constitutional debates that affect the lives of all Americans by hosting constitutional conversations on Independence Mall in Philadelphia and across a range of media platforms, and we inspire active citizenship by celebrating the American constitutional tradition. Our three goals can be summarized in three words: Visit. Learn. Debate.

As the Museum of We the People, the Constitution Center features hundreds of interactive exhibits, engaging theatrical performances, and original documents of freedom. As America’s town hall, the National Constitution Center hosts constitutional debates across a range of broadcast and digital media platforms. As a national and international center for civic education, the Constitution Center offers cutting edge constitutional seminars, discussions, course materials, and interactive and digital resources for students of all ages."
 
Jan 25, 2011
16,138
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"The National Constitution Center is the first and only institution in America established by Congress to “disseminate information about the United States Constitution on a nonpartisan basis in order to increase the awareness and understanding of the Constitution among the American people.” The Constitution Center brings the United States Constitution to life by hosting interactive exhibits and constitutional conversations and inspires active citizenship by celebrating the American constitutional tradition.

Our nonpartisan mission is best expressed in our three goals: to serve the nation and the world as the Museum of We the People, a national Headquarters for Civic Education, and America’s Town Hall. We illuminate the constitutional debates that affect the lives of all Americans by hosting constitutional conversations on Independence Mall in Philadelphia and across a range of media platforms, and we inspire active citizenship by celebrating the American constitutional tradition. Our three goals can be summarized in three words: Visit. Learn. Debate.

As the Museum of We the People, the Constitution Center features hundreds of interactive exhibits, engaging theatrical performances, and original documents of freedom. As America’s town hall, the National Constitution Center hosts constitutional debates across a range of broadcast and digital media platforms. As a national and international center for civic education, the Constitution Center offers cutting edge constitutional seminars, discussions, course materials, and interactive and digital resources for students of all ages."
I think Bill Clinton did the ground breaking for that didn’t he?
 

Maxima1

Diamond Member
Jan 15, 2013
3,333
652
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I think anyone with standing could easily win by challenging the distinction between "fired" and "resignation". But this goes deeper than the Vacancies Act. It makes a complete mockery out of the Appointment Clause. It's hilarious considering conservatives have argued incessantly that Mueller is a principal officer. Yet this new AG gets to slide right in without any confirmation in the Senate and proceed to shut down a highly significant investigation to the public?
 

Jhhnn

No Lifer
Nov 11, 1999
62,149
14,361
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It definitely matters, at least from a legal perspective. As per the OP's article, a forced resignation is equivalent to firing someone.
Sessions phrased it as by request, not as being forced. I figure he knew Whitaker was his replacement & approved, as well.
 

interchange

Diamond Member
Oct 10, 1999
7,506
2,174
136
Reading the actual vacancies act, I'm having trouble reading it to understand whether this appointment violated it. However, that's irrelevant if the Constitution conflicts with the vacancies act. It seems at least worthy of a legal challenge.
 

Greenman

Lifer
Oct 15, 1999
17,455
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I mean I think we already know what he's going to say, that Sessions resigned and was not fired. He will say this despite the fact that Sessions himself stated he resigned after being ordered to, which any rational person would construe as the same thing as being fired.

He will do this while in the other Tucker Carlson thread he will complain that people don't understand the obvious context of people saying 'we know where you live' and he will not note any incongruence between the two.
I believe his letter said "requested". Though I could be wrong.
 

fskimospy

Elite Member
Mar 10, 2006
72,596
23,707
136
Sessions phrased it as by request, not as being forced. I figure he knew Whitaker was his replacement & approved, as well.
If your boss came to you and said ‘I want your resignation on my desk at 5 o’clock’, you then asked to postpone it until Friday and they said no would you consider that getting fired? I know I would.

There is a legal principle where in some cases such a forced resignation is viewed as the same thing as a firing.
 

fskimospy

Elite Member
Mar 10, 2006
72,596
23,707
136
I believe his letter said "requested". Though I could be wrong.
It did say that but are we really saying that’s a meaningful difference? Like I said above if your boss says he wants your resignation that is technically a request but we all know what it really is.
 

Greenman

Lifer
Oct 15, 1999
17,455
2,666
126
It definitely matters, at least from a legal perspective. As per the OP's article, a forced resignation is equivalent to firing someone.
Is a requested resignation? It seems to me that the entire thing pivots on that. The guy could have said no.
 

Maxima1

Diamond Member
Jan 15, 2013
3,333
652
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Reading the actual vacancies act, I'm having trouble reading it to understand whether this appointment violated it. However, that's irrelevant if the Constitution conflicts with the vacancies act. It seems at least worthy of a legal challenge.
I say it really should be seen as "fired", but it's a moot point. The more important issue is that it is inconsistent with the Appointments Clause. AG is a really, really important position, and we have an investigation of incredible significance to the public that is tied to the president. There is no crisis either, and we could easily have those already confirmed by the Senate take the position. There needs to be scrutiny from the Senate. It's totally inconsistent with the clause if it isn't done.

https://www.vox.com/2018/1/30/16924764/trump-government-appointees-vacancies-act

Jen Kirby
What, exactly, is the Federal Vacancies Act? What does it accomplish?

Anne O’Connell
We’ve had statutes since basically the founding of the country to help fill in positions that haven’t been filled through the constitutional mechanism — you get appointed by the president and confirmed by the Senate — if you’re a really high-level officer, or what we call “principal officers.”


The Constitution says if you’re still an important person, but not quite as important as principal officers, we call you an “inferior officer.” The Constitution says the default is that those “inferior officers” are also appointed by the president and confirmed by the Senate.


But if Congress chooses otherwise, they can be appointed by the president alone, by the head of the department, or by a court of law.


There can be, both for principal and inferior officers who go through the Senate confirmation process, vacancies. These statutes help to fill those holes temporarily.

[...]

Just to throw a twist in all of this, there are some conservative judges who believe that the Vacancies Act is unconstitutional for these very top positions. Justice Clarence Thomas, for example.


He wrote a concurrence earlier in 2017 in the Southwest General case [involving the Vacancies Act] where he said the Vacancies Act with regard to “principal officers” — to the very top people — is unconstitutional based on the Appointments Clause.


So Justice Thomas believes you can’t have an acting Treasury secretary or an acting attorney general. He believes the only person who can serve in that position is someone appointed by the president and confirmed by the Senate.
 

interchange

Diamond Member
Oct 10, 1999
7,506
2,174
136
I say it really should be seen as "fired", but it's a moot point. The more important issue is that it is inconsistent with the Appointments Clause. AG is a really, really important position, and we have an investigation of incredible significance to the public that is tied to the president. There is no crisis either, and we could easily have those already confirmed by the Senate take the position. There needs to be scrutiny from the Senate. It's totally inconsistent with the clause if it isn't done.

https://www.vox.com/2018/1/30/16924764/trump-government-appointees-vacancies-act

Jen Kirby
What, exactly, is the Federal Vacancies Act? What does it accomplish?

Anne O’Connell
We’ve had statutes since basically the founding of the country to help fill in positions that haven’t been filled through the constitutional mechanism — you get appointed by the president and confirmed by the Senate — if you’re a really high-level officer, or what we call “principal officers.”


The Constitution says if you’re still an important person, but not quite as important as principal officers, we call you an “inferior officer.” The Constitution says the default is that those “inferior officers” are also appointed by the president and confirmed by the Senate.


But if Congress chooses otherwise, they can be appointed by the president alone, by the head of the department, or by a court of law.


There can be, both for principal and inferior officers who go through the Senate confirmation process, vacancies. These statutes help to fill those holes temporarily.

[...]

Just to throw a twist in all of this, there are some conservative judges who believe that the Vacancies Act is unconstitutional for these very top positions. Justice Clarence Thomas, for example.


He wrote a concurrence earlier in 2017 in the Southwest General case [involving the Vacancies Act] where he said the Vacancies Act with regard to “principal officers” — to the very top people — is unconstitutional based on the Appointments Clause.


So Justice Thomas believes you can’t have an acting Treasury secretary or an acting attorney general. He believes the only person who can serve in that position is someone appointed by the president and confirmed by the Senate.
Having him resign was clearly necessary to put this in play. I agree that this is likely not different than firing him, but at the moment there isn't clear evidence to show that his resignation was not voluntary albeit by request. Certainly there could be a legal argument against this qualifying as different than resignation as specified by the vacancies act in addition to the test for unconstitutionality as described. But until the Supreme Court tells us what the answer is, we won't know. Certainly looks like the pitch was significantly off the plate, but it's not a ball until the umpire calls it one.
 

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