Bench Memos

An Officer by Any Other Name . . .

It’s not just the conservatives who think Obama is instituting an “imperial presidency” anymore. Yale law professor Bruce Ackerman just described in the Wall Street Journal how the president’s appointment of Elizabeth Warren violates the constitutional requirement that administration officers be confirmed by the Senate. President Obama has dubbed her an “adviser,” but the name-switch can’t cure a constitutional defect. As long as she is still acting as an officer, i.e., giving not only advice but directives to the team of 30-40 people she leads (and “advice” that must be taken can hardly be merely advice), she must be confirmed as an officer. 

I like Elizabeth Warren. I studied bankruptcy under her in law school because I had heard she was one of the best teachers at Harvard, and she definitely lived up to her reputation. But this isn’t about whether Warren has good ideas for helping protect consumers in our current financial crisis. The president seems to think that when he finds a person or policy he likes (universal health care, for example) and perceives a serious problem, the Constitution should flex to allow his chosen solution. But that is not the American system of limited government. Let’s hope enough people on both sides of the aisle value our Constitution enough to stand up to this imperial president.

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