Two Posts That Should Generate Discussion

[Annie]

As can be seen by the comment #'s, both interesting. Links at site:

http://volokh.com/archives/archive_2006_05_21-2006_05_27.shtml#1148515173

btw, the comments are well worth reading...



[Orin Kerr, May 24, 2006 at 8:03pm] 1 Trackbacks / Possibly More Trackbacks
Suggestions for More Congressional Hearings: News that the House Judiciary Committee is planning a hearing, "RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?", makes me think that VC readers probably have some suggestions for other hearings that the House of Representatives could hold.

For example here's an idea: "I BEG YOUR PARDON: Celebrating the vital role of Presidential pardons when members of Congress get into a wee bit of trouble with the law." Or how about this one: "JOB INSECURITY IN AMERICA: Do we really need to be reelected every two years, or can we be appointed for life like the Judges?"

More suggestions welcome in the comment thread.
30 Comments
[Eugene Volokh, May 24, 2006 at 7:54pm] 0 Trackbacks / Possibly More Trackbacks
Exactly What's the Constitutional Argument Against the Search of Rep. Jefferson's Office?

I confess I'm pretty puzzled by Speaker Hastert's theory here. I understand that the power to arrest, search, and prosecute Congressmen could be abused by the Executive. But I take it that Speaker Hastert isn't arguing that Congressmen can't be prosecuted, or even can't be prosecuted for bribery. (Actually, Justices Douglas, White, and Brennan seemed to take the latter view in United States v. Brewster (1972), at least as to the selling of legislative acts; but they lost, and I hadn't heard of anyone trying to revive this position.)

Is it that Jefferson could be prosecuted, but his office couldn't be searched? If so, what exactly is the constitutional basis for the distinction? For now, my tentative view is the same as Orin's -- there's no constitutional problem here -- but perhaps I'm missing something.

If you have some thoughts about the constitutional issue, either for or against the argument that the search was impermissible, please post them. Please stay away from general speculation about the politics or ulterior motives of the matter; such speculation may be quite interesting, but I just want to keep this particular discussion thread focused on the constitutional question.
25 Comments

 

[William Joyce]

Yeah, anyone claiming that "separation of powers" prevents what happened to Rep. Jefferson does not understand the concept. Separation of powers is about broader government function, not stuff like this. It would be like an FBI agent claiming that a judge can't sentence him to prison. Nonsense. Separation of powers basically means that any one of the three branches of the federal government isn't supposed to "act like" any of the others --- so, Congressman can't effect arrests, Presidential appointees can't sit in judgment, and so on.

But the fact that members of Congress --- including the speaker of the House (I'm sure a nice guy, but crap, he's a high school wrestling coach) wouldn't get this doesn't surprise me a bit.

 

[jillian]

As can be seen by the comment #'s, both interesting. Links at site:

http://volokh.com/archives/archive_2006_05_21-2006_05_27.shtml#1148515173

btw, the comments are well worth reading...



[Orin Kerr, May 24, 2006 at 8:03pm] 1 Trackbacks / Possibly More Trackbacks
Suggestions for More Congressional Hearings: News that the House Judiciary Committee is planning a hearing, "RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?", makes me think that VC readers probably have some suggestions for other hearings that the House of Representatives could hold.

For example here's an idea: "I BEG YOUR PARDON: Celebrating the vital role of Presidential pardons when members of Congress get into a wee bit of trouble with the law." Or how about this one: "JOB INSECURITY IN AMERICA: Do we really need to be reelected every two years, or can we be appointed for life like the Judges?"

More suggestions welcome in the comment thread.
30 Comments
[Eugene Volokh, May 24, 2006 at 7:54pm] 0 Trackbacks / Possibly More Trackbacks
Exactly What's the Constitutional Argument Against the Search of Rep. Jefferson's Office?

I confess I'm pretty puzzled by Speaker Hastert's theory here. I understand that the power to arrest, search, and prosecute Congressmen could be abused by the Executive. But I take it that Speaker Hastert isn't arguing that Congressmen can't be prosecuted, or even can't be prosecuted for bribery. (Actually, Justices Douglas, White, and Brennan seemed to take the latter view in United States v. Brewster (1972), at least as to the selling of legislative acts; but they lost, and I hadn't heard of anyone trying to revive this position.)

Is it that Jefferson could be prosecuted, but his office couldn't be searched? If so, what exactly is the constitutional basis for the distinction? For now, my tentative view is the same as Orin's -- there's no constitutional problem here -- but perhaps I'm missing something.

If you have some thoughts about the constitutional issue, either for or against the argument that the search was impermissible, please post them. Please stay away from general speculation about the politics or ulterior motives of the matter; such speculation may be quite interesting, but I just want to keep this particular discussion thread focused on the constitutional question.
25 Comments

Interesting comments. The separation of powers argument is a bunch of malarky. It doesn't hold up at all. They think they can do whatever they want and they're above the law. Maybe they should start obeying the laws they pass like the rest of us have to.

It's kind of cute, though, to watch them get all misty-eyed and make kissy face with each other... left and right singing kumbaya together.

Too bad it's on this issue and not on one that might actually do some good for the country.

 

[Annie]

Intersting comments. The separation of powers argument is a bunch of malarky. It doesn't hold up at all. They think they can do whatever they want and they're above the law. Maybe they should start obeying the laws they pass.

It's kind of cute to watch them get all misty-eyed and make kissy face with each other... left and right singing kumbaya.

Too bad it's on this issue and not on one that might actually do some good for the country.

Jillian, I feel sorry for you. I want to like you, just can't. Laterz.

 

[jillian]

I say I think dems and repubs should be held accountable for criminal activity and shouldn't be exempt because of their status and get that response? Interesting....

And don't feel sorry for me. I have a pretty terrific life (knock wood). Some people ain't meant to click.

 

[dilloduck]

Interesting comments. The separation of powers argument is a bunch of malarky. It doesn't hold up at all. They think they can do whatever they want and they're above the law. Maybe they should start obeying the laws they pass like the rest of us have to.

It's kind of cute, though, to watch them get all misty-eyed and make kissy face with each other... left and right singing kumbaya together.

Too bad it's on this issue and not on one that might actually do some good for the country.

Agreed---the idiots were all ready to gather thier wagons in a circle because they thought one of their own was being picked on. Ninnys !

 

[jillian]

Agreed---the idiots were all ready to gather thier wagons in a circle because they thought one of their own was being picked on. Ninnys !

Perfect word for them! Nothing more than the arrogance of power.

 

[Annie]

I say I think dems and repubs should be held accountable for criminal activity and shouldn't be exempt because of their status and get that response? Interesting....

And don't feel sorry for me. I have a pretty terrific life (knock wood). Some people ain't meant to click.

Yep, both sides no excuse on corruption, though I doubt we've glimpsed the tip in either case. On the other point, you're correct, not a crossover point. You would kiss the ardvaark that barked. I wouldn't.

 

[jillian]

Yep, both sides no excuse on corruption, though I doubt we've glimpsed the tip in either case. On the other point, you're correct, not a crossover point. You would kiss the ardvaark that barked. I wouldn't.

I agree on corruption. That's why I was kinda surprised by your response. I figured we'd see eye to eye on that one. Maybe I didn't articulate it well. Not quite sure what you mean by kissing the aardvark that barked, though. Sorry.

 

[Diuretic]

Well there's plenty of work ahead of the anti-corruption investigators. Small wonder the legislators are circling the waggons, they're shit scared that they'll be found out. Well at least we know know the sword has been put to the old saying, 'no honour among thieves', this lot are covering each other regardless of party affiliation