So on the West Wing this week, it turns out that presidential candidate and congressman Matt Santos (portrayed by Jimmy Smits) is also a pilot in the Marine Reserves. If you’re like me, about two days after you watched this episode, little bells went off in your head. How can a Congressman, a creature of the legislative branch, also be commissioned in the Marines (part of the executive branch)? What happened to separation of powers?
The operative clause in the US Constitution is Article I, 6, cl. 2:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
And I guess the only relevant case law is Schlesinger v. Reservists to Stop the War, where the Supreme Court decided 5-4 that neither citizens nor taxpayers had the standing to bring suit to contest the fact that a Congressman was also a military reservist.
This prompts two questions: One, who would have standing to challenge this kind of thing? Other Congressmen? Other reservists? And two, what other sorts of things can the government do that no one would have the proper standing to sue to challenge?
Just as a point of reference, the following are the charities I’m supporting this year through my employer’s United Way campaign. We’re able to designate any 501(c)(3) charities along with or instead of the United Way on our form, so I’m taking advantage of this.
Anyway, if you felt like kicking in a few dollars along with me, that would be cool.
…worries Brian Tamanaha, too:
How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?
Lessig seems to have passed that point after the Eldred decision:
I have spent more than a decade of my life teaching constitutional law—and teaching it in a particularly unfashionable way. As any of my students will attest, my aim is always to say that we should try to understand what the court does in a consistently principled way. We should learn to read what the court does, not as the actions of politicians, but as people who are applying the law as principle, in as principled a manner as they can.
[…]
These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?
Unfortunately, I don’t have any ideas on how to put the judicial-ideological genie back in the bottle.
You may have read today that Canada passed a law allowing same-sex marriage. The ‘final bill’ passed by a margin of 158 to 133. The stories I read about the process seemed to consider the bill’s final approval a done deal, but an aside at the end of the CBC news clip mentioned needing both approval from the Canadian Senate and “Royal Assent”.
Thus follows an interesting foray into the Wikipedia. It turns out that the Canadian Senate, the upper house of the Canadian parliament, is an appointed body of 105 members. I guess it rarely fails to approve lower-house legislation, deferring to the more democratic body. It’s been since 1991 that they failed to approve a lower-house bill. Apparently, the thing is regarded as something of a boondoggle, and indeed, two of the major political parties up there are calling for its abolition.
I’m generally a fan of upper houses, and their strange customs. The “sober second thought” function of an upper house is great, when properly exercised in a manner I agree with at the time.
When I heard the words “Royal Assent” I got all excited, because I thought that part of the job of the United Kingdom’s Queen was signing bills from Canada. It’s disappointing to learn, instead, that Canada’s got a Governor General who does the bill-signings. Right now, it’s a woman, and guess what her spouse is called? The Canadian Vice Regal Consort, which is possibly the most awesome title you could get by marrying someone appointed by the Queen on the advice of the Canadian Prime Minister.
So not only do Canadian gays get to have a governmental system that’s way more interesting than ours, they also will get to marry each other, assuming the rubber-stamp Senate and the rubber-stamp Governor General rubber-stamp the bill. Way to go, Canada!
Here are some things that are not just okay, but great, transgressive, brilliant, amazing, and should be entirely legal:
And, here is something that is awful, horrible, embarassing, exploitative, and should be illegal:
Anyone want to step up and explain the difference to me?
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