sounding: noun, the act of measuring the depths or the heights
These soundings are short, not necessarily connected, and not in any order of importance.
On January 25, a federal appellate court, ruled that President Obama had violated the Constitution in making recess appointments to the National Labor Relations Board. Noel Canning v. NLRB. White House spokesman, Jay Carney, argued that the decision contradicted 150 years of practice by presidents of both parties. My only comment here is this: 150 years of practice is only relevant if the text of the Constitution is subject to interpretation by persons like the President who have sworn to uphold the Constitution. But if there is no room for interpretation of a clear text (and I submit that it is), 150 years of practice is not relevant.
Audacity of an Illegal Alien
Back in 1973, the U.S. Supreme Court held in a case called In re Griffths, 413 U.S. 717 (1973), that the rule of the Connecticut Supreme Court that barred non-citizens from practicing law was not necessary to maintain professional standards. Resident aliens were free to be admitted to the bar in every station in the Union.
So American clients can retain as a lawyer a man or woman who, though eligible to become a citizen, has not sought citizenship or has sought it and been denied it. And these facts are not something that the lawyer would put on his or her website. I object.
Now come individuals who have entered or remained in this country contrary to our laws (that is, illegally) and they seek admission to the bar asking a state supreme court to waive the requirement that they be morally fit. http://florida.mediatrackers.org/2012/10/02/florida-supreme-court-grills-attorneys-on-whether-illegal-alien-can-practice-law/ They chose to remain in this country knowing that they were doing so illegally. If admitted to practice, they would be bound to counsel clients on how to abide the law and court orders. How is this possible? Why was the admission of such an individual even an issue for the Florida Bar Association?
Do Nothing Congress? Or Do Nothing Right Congress?
You may have seen some reports in January after the last Congress (the 112th) about how little that Congress had done. The reports tried to quantify the 112th’s work, and compare it to previous Congresses, by such metrics as the number of laws passed. It reminds me of those annual reports we see of the number of bills -- 500, 600, 700 -- that get presented to a governor for signature or veto. Of course many laws are just a page long and involve changing punctuation to make the current law more clear.
But shall we applaud the work of Congress by the number of bills its passes? Or the number of pages of the bills? Or the number of words in the bills? Do we pay them like Charles Dickens got paid? Shall we similarly applaud the work of federal and state agencies by the number of regulations, the number of “big dollar” regulations, or the number of pages federal regulations occupy in the Federal Register? I think not.
Yet we could rightfully ask about issues the 112th Congress did not address, such as an annual budget (Senate Democrats to blame for this one), or about fixing border security and immigration. (No, the Obama Administration gets no credit for less border traffic because of Obama’s extension of the Great Recession.)
Or we could rightfully ask about Congress’ failure to repeal or amend such laws as the No Child Left Behind Act (which “forced” Secretary Duncan to issue waivers). Or repeal Obamacare when its promises are so unfulfilled – promises like: health care costs will decline, health insurance premiums will decline, you can keep your plan if you like it, the Administration will respect rights of conscience (Obama at Notre Dame, ’09), etc.), and “it’s not a tax.”
Or we could rightfully ask about Congress’ remarkable ability to write a law, a long, long law, that doesn’t address the core of the problem, such as Dodd-Frank’s non-treatment of Fannie Mae.
Spero columnist James M. Thunder practices law in the Washington D.C. area.