Left-wing legal scholars and editorials at big national papers have suggested that the executive branch can no longer regulate water, land, and air quality because of a June 28 Supreme Court decision. In truth, the court simply returned the state of administrative procedure law to what it was before 1984. The truth is that the Clean Air Act and Clean Water Act are still in full effect, as are the regulations spawned from them to protect the environment .
Similarly, after Judge Aileen Cannon dismissed special counsel Jack Smith ’s classified documents case this week, the same legal left critics want you to believe the Justice Department has been stripped of its ability to enforce federal law. Again, don’t believe them. Cannon’s 93-page opinion is a master class in the application of constitutional and administrative law. Aspiring lawyers should study it as a model of unbiased jurisprudence.
Cannon begins her opinion where she should, with the text of the Constitution, which in this case is Article 2, Section 2, Clause 2, otherwise known as the appointments clause. “Officers of the United States,” the clause reads, whether “inferior” or “principal,” must be appointed by the president and confirmed by the Senate. It continues, “Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in heads of departments.”
“The Appointments Clause is more than a matter of etiquette or protocol,” Cannon wrote, quoting Supreme Court precedent, “it is among the significant structural safeguards of the constitutional scheme.” “Indeed,” Cannon continued writing for herself, “it is rooted in the separation of powers fundamental to our system of government and to the limitations built into that structure—all of which aim to prevent one branch from aggrandizing itself at the expense of another.”
Having identified the constitutional basis for the appointment of officers, Cannon reviewed the statutory powers granted to the president and attorney general by Congress — most importantly, 28 USC Section 541, which enables the president to appoint “by and with the advice and consent of the Senate, a United States attorney for each judicial district,” and 28 USC Section 543, which explicitly enables the attorney general to “appoint attorneys to assist United States attorneys when the public interest so requires.”
These statutes show that Congress knew how to vest the president and attorney general to appoint U.S. attorneys and assistant attorneys when they wanted. Importantly, Smith acknowledged that neither of these statutes can serve as a legal basis for his special counsel office.
Instead, he identified four other statutes passed by Congress that he claims constitute a legal basis for the existence of his office, but Cannon methodically reviews the text and history of each and convincingly establishes that none were intended to grant the attorney general a new source of appointment power.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
The rejection of Attorney General Merrick Garland’s power to appoint Smith as a special counsel does not limit the federal government’s ability to enforce the Espionage Act or any other federal law. As these pages have said before , former President Donald Trump is on tape admitting he mishandled classified documents. But that doesn't mean President Joe Biden may step outside the Constitution to prosecute Trump. The U.S. attorney for the Southern District of Florida is Senate approved and empowered to prosecute the same case that Smith did. As Cannon’s opinion shows, Garland can even appoint Smith as an assistant to help with the case.
What Garland and Biden may not do is create an independent office of special counsel that is neither inherent in Article 2 nor authorized by Congress through its Article 1 powers.
Most Popular
Comments / 0