John Roberts, Thailand, United States discussed on Opening Arguments


The torture memo. Yeah. The torture memo guy, right? So he was right. An assistant attorney general under George W Bush. He was the guy who wrote the memoranda. That said, yeah. No, torturing perfectly constitutional. So an unlikely source to be sited on this show. Not a, you know, crazy, radical lefty, and and he's written. He's written an article for the Atlantic. It of course, has an error in it because at a significant and kind of ridiculous error because he still John you like, let's not, you know, the, we're not we're not hanging not like, look, waterboarding. The attorney general is totally fine. It's not that just that's his only topic. He writes on you, you you might think that you would you would be forgiven. If you thought that the only thing you cares about is inflicting pain on on human beings. But so I this because again, this is a voice of the right and not somebody right? He's not part of the never Trump right either. Right. Like, this is somebody who has been pretty silent this entire. Airtime, and he hears his take. Remember, I said that any valuating the F ERA. The question is what sort of weight, do you give to the precedent of United States versus heat? Here's using Alicea. This this case which. I think I found interesting. He says defenders of the president's decision to appoint Whitaker. My reliant in eighteen ninety eight supreme court decision. United States versus eaten which allowed for the temporary appointment of a vice consul in Thailand, quote for a limited time and under special and temporary conditions and of quote, namely, the illness of the council and the vast distance between the US and Thailand, this is basically the approach of the two thousand and three Justice department opinion approving the elevations an assistant office of management and budget director to acting director and the likely reasoning of the White House in appointing Whitaker, and again as a sidebar the at the time that he wrote this the actual oh LC. Memorandum defending Whitaker in twenty eighteen was released. So, you know, again, not not the world's best scholarship here. But again, he's still John you. But, but I would add that that that is in fact, the reasoning relied upon in that. Oh, Elsie memorandum. You continues elevating practical needs over constitutional. Meaning however is not usually an attitude adopted by conservatives, they generally believe that the original understanding of the constitution held by those who ratified it should govern Justice Clarence Thomas. The coast the courts most committed originalist, and again, I'm not sure I would agree with that. But whatever set out precisely the reasoning of this article in concurring opinion in last year's NLRB versus s w general which we talked about on the show which struck down the recess appointment of NLRB officer, nor is it the view of the supreme court, which is continued to demand that all federal officers. Meet the appointment clauses requirements. It is difficult to see John Roberts court finding that the acting attorney general responsible for all federal law enforcement in the nation amounts to the same sort of officer as a Feis consul struggling in the hinterlands of Thailand before the days of air flight instantaneous communications, so a little bit of rhetorical flourish there. The the interesting thing here is an again kind of getting in the mindset of originalist. Conservatives is not something I'm good at. So I was thankful to you to do this. I look at this, right? As the way any normal lawyer would right, which is okay. The question is does an appointment necessitate the appointments clause. What's the prior case law? Oh, look US eaten eighteen ninety eight says if it's for a limited time, you know, under special temporary conditions than it's okay. The F ERA says that it's for a limited time. In fact, it is mandated that it's no more than seven months by statute. So that looks to be reasonably controlling, but that's not how a ridge think originalists say, what does the constitution say? The constitution says you've got to go back and an. Anybody who's a principal? Officer must be appointed with the advice and consent of the Senate. And this eaten case created this really narrow exception under exigent circumstances. Which was you're stuck in the middle of Thailand in the nineteenth century and the US government. We gotta do something. So okay, right. Fair enough. We can do this one weird trick. So that you know, we don't lose our ability to negotiate with Thailand. But then we gotta get we gotta get a guy in there as quickly as possible..

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