Legal issues regarding the "independent counsel"
There do seem to be a lot of them. Mark Levin raises the question of whether an independent counsel is an "officer of the United States," which under the Constitution requires appointment.... which can be by a Departmental head (here, the acting AG) IF the Congress allows it. But the independent counsel statute (and the Justice Department regulations on it) expired back in 1999. The statute and regs required Justice to apply to a federal court, with the court choosing and commissioning the independent counsel. It does sound like the IC is an "officer" of the US. If every US Attorney is such an officer (indeed, one requiring Senate confirmation) it's hard to see how an IC is not.
There may be a simpler issue. An agency can't just hire someone out of the air. It has to be for a position authorized by Congress, with the Office of Personnel Management riding herd. Violate that, and it sounds like a violation of the Anti-Deficiency Act, spending money for a purpose not appropriated.
Finally, the entire rationale for having an IC is that the Department of Justice has an conflict of interest on the issue. But, looking at the team chosen, it appears a majority of them work for DoJ, and the rest (with two exceptions) formerly worked for Justice. Indeed, the list starts off with the current Deputy Solicitor General and the current head of Justice's Fraud Unit.
How can a person declare that the DoJ has a conflict of interest such that it cannot ethically handle a matter, and then hire current DoJ employees to staff it?
UPDATE: I discovered the opinion of DoJ's Office of Legal Counsel, in 2007, entitled "Officers of the United States Within the Meaning of the Appointments Clause." At pp. 114-15 it discusses independent counsel. Note that at the time there was a statutory regime covering such counsel, which provided for their appointment by a court (permissible under the Appointments Clause), without any requirement of Senate confirmation:
"At the same time, the element of continuance, properly understood, also ex- plains why an "independent counsel" under the Ethics in Government Act of 1978, 28 U.S.C. ยงยง 591-599 (1982 ed., Supp V), undoubtedly was an officer, even though the position was, by the nature of its duties, temporary and largely case- specific. The Court in Morrison v. Olson, 487 U.S. 654 (1988), thought it "clear that appellant is an 'officer' of the United States, not an 'employee,'" citing Buckley's discussion of this distinction based on Auffmordt and Germaine. Id. at 671 n.12. Justice Scalia in dissent agreed, adding that none of the parties disputed this, the only question being whether the counsel was a principal or inferior officer. Id. at 715. Although the position of a particular independent counsel was temporary, the position was non-personal; it was not "transient," but rather indefinite and expected to last for multiple years, with ongoing duties, the hiring of a staff, and termination only by an affirmative determination that all matters within the counsel's jurisdiction were at least substantially complete; and it was not "incidental," but rather possessed core and largely unchecked federal prosecutorial powers, effectively displacing the Attorney General and the Justice Department within the counsel's court-defined jurisdiction, which was not necessarily limited to the specific matter that had prompted his appointment. See id. at 660-64 (opinion of Court), 667-68, 671; id. at 718 (Scalia, J., dissenting)."
DoJ's own OLC opinion concludes that the present independent counsel was unconstitutionally appointed. He is an officer of the US. An officer, according to the appointments clause, must be appointed by the president, with advice and consent of the Senate, "but the 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 the Heads of Departments." The law on appointing independent counsel has expired, and without such a law the head of a department has no power to appoint.
May 22
May 22, 2009, my fourth and last cancer procedure.
U of Nebraska prof convicted of vandalizing NRA official's house
Story here. Too bad it was only a misdemeanor. She's apparently part of a group that feels the other gun-hating organizations are insufficiently mentally disordered radical. So much for modern academia.
A real shocker....
Sen. Elizabeth Warren pledges not to accept any NRA contributions. I suppose people will now start to demand that Chuck Schumer and Hillary Clinton do the same.
It's probably significant that Fauxcahontas has not disavowed support from the Archery Trade Association.
Very funny footnote in an 11th Circuit decision
Some law professors submitted an amicus brief, and in the opinion got footnote 11:
"While we categorically reject the contention and supporting arguments of the amici, we do not mean to be unfair. The professors' brief does have good grammar, sound syntax, and correct citation form/"
FBI stops processing of NICS denial appeals
They stopped processing them back in 2015, due to a work overload.
Interesting thoughts on constitutional history and originalism
From Law and Liberty, Part One and Part Two.
The point I have regarding non-originalists is more legal/political than historical. Federal judges are, of course, unelected and given life tenure. They do not stand for re-nomination at any time. Indeed, it's unconstitutional for Congress to reduce their salaries. What's the rationale for having officials chosen and kept in office in such an un-democratic manner? It's that the judges, in theory, only execute the will of the people as expressed by folks other than judges -- by Congress, or the President, or the Constitutional Convention and the states that ratified its creation. That is, judges are passive implementors of other people's decisions, and thus can be kept outside the democratic process. If judging is seen as something else -- implementing policy, deciding what is best for the country, implicitly amending the Constitution (a measure that otherwise requires super-majorities in both Congress and the state legislatures) -- is there any reason to have a judiciary so insulated from democratic forces? The "living Constitution" begs the question of which human beings make it "live." And thus why those human being should be people never elected by anyone and given lifetime tenures in power. We'd be outraged at designating a "president for life," and denounce it as monarchy. How can we justify a system in which the Constitution's content would be dictated and amended by "judges for life"?
Hat tip to Joe Olson...
Mass killing in Australia
UPDATE: the the predictable response.
"The Chairman of Gun Control Australia Sam Lee said more needed to be done to tighten the nation's gun laws.
"I have never been more concerned about the state of our gun laws as I am now," she told Sunrise."
(As far as what the victim's father said ... I am appalled, but read it yourself.).
A growing problem...
especially when doctors study crime (gun crime), funded by grants from the antigun CDC:
"Many studies' results cannot be reproduced, scholars warn." They found that, of 53 medical studies, only 6 had reproducible results. "Not all irreproducible research is progressive advocacy; not all progressive advocacy is irreproducible; but the intersection between the two is very large. The intersection between the two is a map of much that is wrong with modern science."
From the executive summary: "Many common forms of improper scientic practice contribute to the crisis of reproducibility. Some researchers look for correlations until they find a spurious "statistically signicant" relationship. Many more have a poor understanding of statistical methodology, and thus routinely employ statistics improperly in their research. Researchers may consciously or unconsciously bias their data to produce desired outcomes, or combine data sets in such a way as to invalidate their conclusions. Researchers able to choose between multiple measures of a variable often decide to use the one which provides a statistically signicant result. Apparently legitimate procedures all too easily drift across a fuzzy line into illegitimate manipulations of research techniques."
Hat tip to Joe Olson.