Speaking of arrogation of power

Fri Apr 6 17:42:33 PDT 2007

1. In response to Marty's first point, Sandy, for whom I have great
respect, started this thread off by saying:

"Yes, the Constitution allows for recess appointments, so Bush's
appointment is not an impeachable offense.  But it is the act of a
tinhorn dictator in a banana republic that disgraces any acceptable
notion of congressional consent."

Absent some recognition that President Clinton was a tinhorn dictator,
this sounds like a claim that what President Bush did in appointing Fox
was, at the very least unusual. And then Doug, for whom I also have
great respect, responded to Eugene's double standard / unilateral
disarmament argument by saying:

"There's something to that.  There would be more to it if this

Administration were just doing what others had done, and not

aggressively pushing (or tearing apart) the envelope on recess

appointments and nearly all its other claims of unilateral executive

power."

That sounds like a claim that what President Bush did was unprecedented.

2. In response to Marty's second point, he's right of course that it was
1973, not 1975. We had in fact, if I remember correctly, obtained a
peace treaty requiring North Vietnam to respect the South's sovereignty.
I'm not a military historian, but my sense is that with logistical
support and air support, the South Vietnamese army would have had a good
chance of defeating the invasion from the North. If we had appeared
ready to assist the South, the North might have honored the treaty.
Others may know more.

Mark S. Scarberry
Pepperdine University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, April 06, 2007 5:35 PM
To: conlawprof at lists.ucla.edu
Subject: Fw: Speaking of arrogation of power

Two minor responses:

1.  No one that I know of -- certainly no one on this list -- has so
much as suggested that the Fox appointment is unprecedented.  I have
argued that the practice since about 1982 has been a sea-change from the
practice from 1789 to 1982 -- see pages 6-12 of
http://balkin.blogspot.com/FranklinFinal.pdf -- but that brief also
explains that the abuse of the RAC expanded significantly in the Clinton
Administration and has accelerated even more so in this Administration.
It was unconstitutional under Reagan and Clinton, and it's
unconstitutional now.

2.  I'm genuinely curious:  Does anyone on this list sincerely believe
that we are within the "jaws of victory" in Iraq?  Or that we would have
prevailed in Vietnam were it not for Congress's funding cut-off (which
was in 1973, btw)?

	----- Original Message ----- 
	From: Scarberry, Mark <mailto:Mark.Scarberry at pepperdine.edu>  
	To: conlawprof at lists.ucla.edu 
	Sent: Friday, April 06, 2007 6:02 PM
	Subject: RE: Speaking of arrogation of power

	I held my tongue, as Eugene did, while list members sent in
posts that were much more political vilification than constitutional
analysis. Here is my response.

	With regard to whether the recess appointment of Ambassador Fox
was unprecedented, you may want to remember that President Clinton made
a recess appointment of James Hormel to be ambassador to Luxembourg,
after the nomination had been bottled up in committee. At the time, the
NY Times praised the recess appointment of Amb. Hormel; now, of course,
the NY Times deplores President Bush's recess appointment of Amb. Fox
(and others) calling it an "old political trick" and "an end run around
the Senate." For discussion of all of this (and a claim that Fox, like
Hormel, would have received majority support if a floor vote had been
permitted in the Senate) see James Taranto's Best of the Web feature for
today, http://www.opinionjournal.com/best/?id=110009909. 

	I also have to say that the various references by list members
to the Swift Boat Veterans having defamed Sen. Kerry were devoid of
specifics. As others have pointed out, the most effective SBV ad
consisted of videotape of Sen. Kerry broadly defaming American soldiers
by comparing their acts to those of Genghis Khan. As far as I know, no
one has claimed that the videotape was doctored, and the ad was very
pertinent to Sen. Kerry's request that American voters make him
commander in chief. Some of SBV's other ads included contested claims;
I'm not aware of any of them having been shown to be clearly false, but
in my view they were distasteful to the extent that they suggested Sen.
Kerry did not serve honorably and bravely while in Vietnam. I honor him
for that service. 

	 Speaker Pelosi and many of the other Democrats in Congress are,
in my view, acting very, very irresponsibly in undermining the
President's foreign policy efforts. Some of us think that with Gen.
Petraeus now in charge, there is a real chance for a positive result in
Iraq. Even ABC News is reporting that the yet-to-be-completed surge is
having a substantial positive effect. But even so some of us think that
we are on the verge of once again having defeat pulled from the jaws of
victory by a Democratic Congress, just as happened when the Democratic
Congress cut off funding in 1975 for aid to South Vietnam as the North
Vietnamese violated their treaty obligations and attacked the South.
Irresponsible and defamatory statements from people like John Kerry
hindered our efforts in Vietnam and helped to create that terrible
result. Amb. Fox's desire to help that message get out is, I think,
completely honorable. Of course, I also blame Presidents Nixon and
Johnson to some extent for setting up circumstances under which such an
action by Congress was possible in response to their actions (including
of course the Watergate crimes). Yet it was a Democratic Congress that
took the actions that led to the fall of South Vietnam and ultimately to
the killing fields of Cambodia and the mass exodus of boat people.

	It's fairly well-understood, I think, among experts on fighting
insurgencies (including Gen. Petraeus) that to defeat an insurgency
there must be a belief in the populace that you will stay as long as is
needed. Otherwise local support, including the intelligence on which
counter-insurgency efforts rely, will dry up, as the local populace does
not want to be in the position of having helped you and then being left
to the tender mercies of the insurgents when you leave. If the Democrats
believe we should leave Iraq, then they should vote to cut off funding
now, except for funds needed to complete a withdrawal. To set a
time-table for withdrawal next year, while leaving our forces in place
to suffer casualties, is to ensure failure and to render purposeless the
deaths and injuries of our troops between now and the withdrawal date.
But for political gain the Democrats in Congress will do this, rather
than take the possible political hit -- and the sure defeat -- they
would suffer if they called for a vote on immediate withdrawal. The
political cowardice and cynicism of the Congressional Democrats suggests
the wisdom of a constitutional approach that gives Congress the power to
authorize initiation of hostilities but the President the power to
determine how the hostilities will be waged.

	I intend to limit my posts from here on to matters clearly
within the list's core purpose. I hope others will do the same. If you
are angered by what I've said, then you've experienced what Eugene and I
and some others have experienced as we've read recent posts. Let's give
the political vilification a rest.

	Mark S. Scarberry
	Pepperdine University School of Law

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