If Cuccinelli is wrong, then so was Mueller
Mar 3, 2020 07:33:16 #
As reported by Fox News, U.S. District Judge Randolph Moss “ruled Sunday that one of the Trump administration's top immigration officials, Ken Cuccinelli, was unlawfully appointed to his post.”
The Fox News article is a bit off. The unlawfulness is not because of a statute, as the article claims, but because of the Constitution itself; specifically, the Appointments Clause (U.S.CONST.art. II, § 2, cl. 2). This is set forth in the first paragraph of the judge’s ruling.
The position to which Cuccinelli was appointed, as a matter of constitutional law, is that of a superior officer – and therefore the appointment to be lawful must -- must -- be approved by the Senate. Because the Senate did not approve the appointment, the judge (rightly) concludes, then the appointment is unlawful.
The judge rightly concludes that such agency actions are to be set aside as either void from the beginning or voidable by a judge. [p. 50-53]
But this is exactly the same argument that two law professors -- Steven G. Calabresi and Gary Lawson -- make in their law review article titled “Why Robert Mueller’s Appointment as Special Counsel was Unlawful.”
The professors stop short of discussing whether the actions taken by Mueller are void. But applying Judge Moss’ rationale, it appears they would be. Unless, perhaps, we have two systems of justice.
https://www.americanthinker.com/blog/2020/03/if_cuccinelli_is_wrong_then_so_was_mueller.html#ixzz6Fd2uaE5Y
The Fox News article is a bit off. The unlawfulness is not because of a statute, as the article claims, but because of the Constitution itself; specifically, the Appointments Clause (U.S.CONST.art. II, § 2, cl. 2). This is set forth in the first paragraph of the judge’s ruling.
The position to which Cuccinelli was appointed, as a matter of constitutional law, is that of a superior officer – and therefore the appointment to be lawful must -- must -- be approved by the Senate. Because the Senate did not approve the appointment, the judge (rightly) concludes, then the appointment is unlawful.
The judge rightly concludes that such agency actions are to be set aside as either void from the beginning or voidable by a judge. [p. 50-53]
But this is exactly the same argument that two law professors -- Steven G. Calabresi and Gary Lawson -- make in their law review article titled “Why Robert Mueller’s Appointment as Special Counsel was Unlawful.”
The professors stop short of discussing whether the actions taken by Mueller are void. But applying Judge Moss’ rationale, it appears they would be. Unless, perhaps, we have two systems of justice.
https://www.americanthinker.com/blog/2020/03/if_cuccinelli_is_wrong_then_so_was_mueller.html#ixzz6Fd2uaE5Y
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