Author Archives: Michael Froomkin

U.S. Constitution Article II, Section 3, cl. 2

Posted on November 6, 2020 by Michael Froomkin

U.S. Constitution Article II, Section 3, cl. 2 is having its moment in the sun. This clause says that the President

may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

Lots of folks are suggesting that if the Senate is being difficult about confirming Biden’s cabinet – as many expect it will be – the response to this piece of unprecedented Constitutional hardball, would be … more hardball.

The idea is that the Speaker manufactures a disagreement about adjournment between the House and Senate. Biden then prorogues Congress for, say, 11 business days. And during those 11 days — in full compliance with the rather arbitrary 10-day minimum for an intra-session recess imposed by National Labor Relations Board v. Noel Canning — Biden would then use his recess appointment power, Art II, Section 2, para 3:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Not a very Bidenesque thing to do, but it would teach Mitch McConnell not to jerk him around.

Note: By modern convention a ‘session’ of congress runs for a year from January to January the following year. So a commission that expires “at the end of the next session” would in the ordinary course last for the two-year life of the current Congress. I imagine it would take both houses to change that, but I don’t know for sure.

Posted in Law: Constitutional Law | 18 Comments

It’s Onion Time!

Posted on November 6, 2020 by Michael Froomkin

At times like these, we need America’s Finest News Source^TM:

Posted in Completely Different | Comments Off

An Inside Account of the Vote-Counting in Detroit

Posted on November 6, 2020 by Michael Froomkin

The mob tried to rule. But it failed.

(Imagine if the roles were reversed and it was ‘angry Black people’ crowding the tables. I bet they’d all be in jail, some with injuries….)

Posted in Law: Elections | Comments Off

Nothingburgers

Posted on November 5, 2020 by Michael Froomkin

So the prognosticators say Biden will win PA, and then it’s over. Nevada would be icing; Georgia would be a second helping. Arizona likely his too, although the math is a bit odd there.

At that point, the issue is whether the Trump forces have a colorable legal argument, and if not whether they have the stomach for insurrection. I can’t speak to their stomachs, but I can maybe speak to the legal issue, even though I am not by any stretch of the imagination an elections lawyer.

And so far, I’m not seeing anything. Indeed, the best summary I’ve seen of the Trump litigating position is this:

“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.

I understand the wisdom of the old saying, ‘nothing ventured, nothing gained” but in this case, I think it’s more a case for Prof. Billy Preston:

So far, these lawsuits look like desperation ploys, nothingburgers, perhaps filed with some hope that the Supreme Court is so partisan it will bail out the losers. But it’s not in the Court’s interest to do that: it can go eviscerate the New Deal, and the Great Society, plus any later add-ons, and can do it all quite happily without Donald Trump, especially if Mitch McConnell will block any legislation much less more fundamental reform that might get in their way.