DEMOCRATS IN DISARRAY: Sanders supporters revolt against superdelegates. Remember, Hillary had the superdelegates sewn up in 2008, too, until she didn’t anymore.
But isn’t it funny to see Sanders fans so upset that the delegates he worked so hard to win are being . . . redistributed to someone else?
GOVERNMENT’S JUST ANOTHER WORD FOR THE THINGS WE CHOOSE TO DO TOGETHER (CONT’D): Examining the EPA’s Role in #FlintWaterCrisis and #AnimasRiverSpill: An ugly picture of “Rule by Bureaucracy.”
EU AND THE BREXIT: The Quiet Rebellion Of Conservative England: Among the early daffodils and neatly trimmed hedges of the Tory heartlands, grassroots party members are growing angry at David Cameron over Europe. “We are paying too much into the EU and we are not getting enough back.”
FLASHBACK: Robert Zubrin: The Truth About DDT and Silent Spring. Probably of new relevance in the Zika era.
Excerpted from his book, Merchants of Despair: Radical Environmentalists, Criminal Pseudo-Scientists, and the Fatal Cult of Antihumanism.
THE NEW YORK TIMES’ BRENT STAPLES POSTS A LOW, DISGRACEFUL TWEET:
My response:
His reply, which is exactly what I expected:
Truly a disgrace, particularly for someone who purports to be a first-rank journalist.
UPDATE: And this remains evergreen, alas:
You know, no one has done more to make Obama a failure at his big selling-point than black journalists like Staples.
ANOTHER UPDATE: 2009 Flashback: First President in US History to Have Voted to Filibuster a Supreme Court Nominee Now Hopes for Clean Process. “President Obama’s expressed hope today in his weekly address ‘that we can avoid the political posturing and ideological brinksmanship that has bogged down this (Supreme Court nomination) process, and Congress, in the past’ runs against another historical first for the 44th president: his unique role in history as the first US President to have ever voted to filibuster a Supreme Court nominee. So while there is little indication Republicans intend to filibuster President Obama’s nominee for the Supreme Court, Judge Sonia Sotomayor, the GOP will likely invoke the President’s unique history whenever he calls their tactics into question.”
ASKING THE IMPORTANT QUESTIONS: Does Yoga Need Its Own Athleisure Line?
WE NEED MORE INNOVATION, NOT LESS: The Politically-Motivated Assault On Medical Innovation.
LIFE IN THE ERA OF HOPE AND CHANGE: Milo Yiannopoulos: ‘Outright Terrifying’ That Facebook Teamed Up with Government to Censor Users.
It’s not just Facebook we’re talking about. They own WhatsApp and they own Instagram. And WhatsApp and Instagram are two of the companies that are winning the short messaging war–that are winning the war for Millennial attention and for Millennial users. Twitter lost that war. Twitter only really appeals to media people: people like you and people like me. We want to kind of keep in touch with our peers. And then some of our fans who are, like, really really keen might sign up for a Twitter account just to see our witty sayings or whatever clever lines we toss off on the way to the train station in the morning. But primarily, Twitter has lost that war. Snapchat, Instagram, WhatsApp–these are the networks that have billions of users. These are the networks that are getting young users, and Facebook owns two of those three.
The other thing to bear in mind is that Facebook so far has a really really bad track record when it comes to free speech. And not just a bad track record censoring different political opinions like Twitter does. Facebook’s moves are even more sinister, in a way. Facebook has teamed up with governments to censor certain political opinions that the incumbent party doesn’t like. In Germany, for instance, Facebook has teamed up with Angela Merkel to censor reasonable, respectable, mainstream concern about mass Muslim immigration–or just about mass immigration in general–and has started removing this stuff and classifying it as “hate speech.” It is effectively slandering its own users saying that their perfectly reasonable points of view constitute “hate speech” and that they’re not going to be allowed on Facebook, and Facebook has promised the German government that this stuff will be removed within 24 hours. That is outright Orwellian. That is outright terrifying.
They don’t even pretend not to be evil.
THIS ISN’T A BAD LIST, but it leaves off some of my faves, like Long’s Drug Store. And if you’re talking steamed sandwiches, how can you ignore Sam & Andy’s? Sure the one in Farragut doesn’t quite match the old one on the Strip, but still. The Best Classic Eats Around Knoxville.
“ONE OF THE WEIRDER ENGINE SWAPS WE’VE SEEN:” A Skyline-Powered Triumph TR6 is an Excellent Sleeper.
DONALD TRUMP IS SO DUMB HE DOESN’T KNOW WMD WERE FOUND IN IRAQ.
Read the whole thing.
Related: The Ego Has Landed: Why Trump Damaged Himself Last Night.
AT AMAZON, Lightning Deals Galore. There are new deals every hour, so keep checking!
Related thoughts from Seth Barrett Tillman.
SHOCKER: Guess Who is Pro-Gun? Survey of College Professors Shows Surprising Views on Gun Ownership.
This is what winning a cultural war looks like. But don’t get cocky!
SHOCKINGLY, IT’S SUPPOSED TO BE FROM THE WORLD’S GREATEST COMMUNICATOR: ‘Moonshot’ Metaphor on Cancer Is a Failure to Communicate.
PAUL RAHE: Scalia’s Passing: A Reminder of the Stakes.
TOM MAGUIRE: The Next Supreme Court Nominee. “Yes, Obama was in the minority when the cloture motion to end debate failed by 72-25. Joining him on the short end were Hillary Clinton, Joe Biden and John Kerry (Sanders joined the Senate in January 2007). We can expect a lot of phony posturing from these folks about how the President’s choice deserves an up or down vote.”
He also reminds us that the Kennedy nomination was seen — rightly — as a Reagan surrender. I still think Doug Ginsburg would have made a great Justice.
COULD OBAMA MAKE A RECESS APPOINTMENT TO REPLACE SCALIA?: The answer appears to be “yes,” because (once again), the GOP-controlled Senate voluntarily has left itself vulnerable to the exercise of such presidential power. Article II, section 2 of the Constitution gives the President power to fill vacancies “during the recess of the Senate”:
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.
There’s a lot of misinformation out there. For example, a report by Fox News mistakenly focuses on the Adjournment Clause of Article I, section 5, which merely states that neither House of Congress may adjourn for more than three days without the consent of the other. The Fox News reporter wrongly concludes:
[S]o long as both the House and Senate haven’t jointly agreed to “adjourn” for a stretch longer than three days, then there appears to be no way the president could make a recess appointment.
But the House and Senate are not operating under those circumstances right now. Both bodies of have adjourned until later this month for the President’s Day recess.
The Senate last met on Thursday. When doing so, it approved a “conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution to get in sync with the Senate. The House is out until Tuesday, Feb. 23.
So, the House and Senate will not be meeting in the coming days. This is an adjournment and is not challengeable in court the way the NLRB recess appointments were because both bodies have agreed with each other to adjourn.
Whether the House of Representatives is in adjournment is irrelevant to the Recess Appointments Clause power. The only salience of the Adjournment Clause is that, in NLRB v. Noel Canning (2014), the Supreme Court looked to the Adjournment Clause as relevant evidence in its quest to ascertain a minimum period of time for determining the meaning of a “Recess of the Senate” in the Recess Appointments Clause. Specifically, the Court concluded:
The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess-appointment power. . . .
If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. And a recess lasting less than 10 days is presumptively too short as well.
Thus, a Senate recess of fewer than 3 days is not enough to trigger the President’s recess appointment power; the Senate’s recess must be at least ten days in duration.
So how long is the Senate’s present recess? It began on Friday, February 12, with the passage of S. Con. Res. 31 which states:
That when the Senate recesses or adjourns on any day from Thursday, February 11, 2016, through Saturday, February 20, 2016, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand recessed or adjourned until 12:00 noon on Monday, February 22, 2016, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; . . .
Sec. 2. (A) The Majority Leader of the Senate or his designee, after concurrence with the Minority Leader of the Senate, shall notify the Members of the Senate to reassemble at such place and time as he may designate if, in his opinion, the public interest shall warrant it.
A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly 10 days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised.
Under S. Con. Res. 31, the only way to recall the Senate back into business before February 22 is with the “concurrence [of] the Minority Leader of the Senate,” Harry Reid (D-NV). Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia. But should President Obama try use this particular 10-day recess to replace Justice Scalia, the replacement would only be constitutionally permitted to serve until the end of the next session– i.e., until the end of the 1st session of the 115th Congress, which would be sometime in early January 2018. [H/T to Mike Rappaport and Casey M for noting this, as my original post referenced the end of the current session].
But there is another potential wrinkle. Specifically, the Congressional Record of February 12 shows that Senate declared that it would be in pro forma session (where a member of the Senate gavels in and gavels out every few days), declaring:
A unanimous-consent agreement was reached providing that when the Senate completes its business on Friday, February 12, 2016, it adjourn, to then convene for pro forma sessions only, with no business being conducted on the following dates and times, and that following each pro forma session, the Senate adjourn until the next pro forma session: Monday, February 15, 2016, at 11:00 a.m., and Thursday, February 18, 2016, at 9:00 a.m.; and that when the Senate adjourns on Thursday, February 18, 2016, it next convene at 3:00 p.m., on Monday, February 22, 2016, unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand adjourned until 3:00 p.m., on Monday, February 22, 2016.
Notice, however, that the pro forma status of the Senate’s recess is made conditional: “unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand [sic] adjourned until 3:00 p.m., on Monday, February 22, 2016.”
This matters because if the Senate is in pro forma session, the Noel Canning majority agreed that such pro forma sessions will block the president’s recess appointment power:
We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.
Unfortunately for the GOP Senate, however, the GOP-controlled House agreed to S. Con. Res. 31 on February 12 without objection. This means that under the plain language of S. Con. Res 31, the Senate is “in recess”–and not in pro forma session.
If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.
MY USA TODAY COLUMN: Antonin Scalia left us wisdom in dissent.
IN THE MAIL: How to Talk to Anyone: 92 Little Tricks for Big Success in Relationships.
Plus, today only at Amazon: STIGA Triumph Table Tennis Table, $299.99 (37% off).
And, also today only: Best Sellers by Tina Fey, James Patterson, and More, $1.99 & Up.
TAXPROF ROUNDUP: The IRS Scandal, Day 1011.
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