Outside Counsel

Back in the day Lawrence Tribe was pretty much universally regarded as the leading expert on American Constitutional Law. There's probably always been a chief Con Law maven at any given time: Gerald Gunther, Alexander Bickel, who knows who all else. I have Tribe's American Constitutional Law on my shelf right now. I bought it when I was in law school, and I'm sure I could have spent the money on something more practical. The problem with this treatise is that it endeavors to craft a coherent unified theory of American Constitutional jurisprudence. I suppose that's the goal of any commentary on any common law system, but it seems to me that it is a particularly vexed undertaking when one tries to accomplish this in an area that is chiefly political, without acknowledging the political realities that shape the actual outcomes. Sometime even Tribe just throws up his hands and admits that an outcome can't be explained any other way, but when that happens it is, to him, evidence that the outcome was wrong.

Lately Professor Tribe has been opining about the Trump administration, and it seems to me that I agree with him about what I consider to be the fundamental basis upon which the Constitution rests, which sort of surprises me. I have always approached Con Law with the understanding that it presumes that the persons engaged in the operation of governmental institutions will either do their jobs, or be compelled to do so by some alternative institutional force. By my lights- and I think Tribe would agree-- we are in a place where this norm is no longer the case, and that, in turn, is a Constitutional crisis.

Consider Article II, Section 2, Clause 2: "[The President] shall have Power, by and with the Advice and Consent of the Senate.... [to appoint] Judges of the Supreme Court. This seems clear enough: the President makes an appointment, which the Senate must approve. Ilya Somin, a libertarian Constitutional Law professor argues here that since the Constitution does not specify the means by which the Senate may withhold that consent, and since Article I provides that each house of Congress is free to adopt their own rules of procedure, Mitch McConnell was well within the law when he refused to hold hearings or a vote on Merrick Garland's nomination. This argument impresses me as flawed, since the language of Article II is in the imperative-- the President shall, by and with, but the real problem is that there is no mechanism to compel the acts which the clause describes. That looks to me like a Constitutional crisis.

A similar problem exists in Professor Tribe's argument here concerning impeachment. The power of impeachment is solely lodged in House. Does that mean that the House is compelled to move forward on impeachment under the present circumstances? I'm not so sure, but it appears that Tribe believes that the violation of longstanding norms is an argument in favor of that proposition.