Sensenbrenner's position on the firings of the 8 USA, in reply to my request.

[HereSince1628]

As you know Sensenbrenner is a senior member and former chair of the House Committee on the Judiciary. As such his opinion is important in understanding where the Republics are positioning itself. He is also my Congressional Representative.

Several weeks ago I requested by e-mail a statement of Mr. Sensenbrenner's office on his position on the firings. His reply includes an interesting bit on the rationale for the change in procedure added to the PATRIOT ACT renewal. If I read this correctly, Sensenbrenner favors complete deference to the Executive branch on US attorney appointments. He seem to not want to re-establish "the old system" which allowed interim appointments by the Judiciary. But, he seems to gloss over the matter of the "old system" also providing for Senate confirmation. Sensenbrenner states that the "old system" interferes with the President's plenary power. I probably should have but I hadn't realized previously that Sensenbrenner was a supporter of the Unitary Executive club.

I've retyped the body of his reply blow. You should assume all spelling/grammar errors are mine. Obviously events have gone beyond their position on March 22 when he prepared this statement. If anyone with an historical/legal/archival bent is interested I can scan the original on Monday and forward it. Please PM me to let me know.

- - - - - - - -

March 22, 2007

XXX XXXX XXXXXX
XXXX XX XXXX XX
Wauwatosa WI, 53213

"Dear XXX XXXXXX:

Thank you for contacting me regarding the eight U.S. Attorneys that were fired by Attorney General Gonzales. It is good to hear from you.

Under prior law, for almost two decades, the Attorney General was authorized to appoint an interim United States Attorney for 120 days. If a replacement was not nominated by the President and confirmed by the Senate at the end of 120 days, the chief justice of the federal district in which the vacancy occurred would appoint an interim prosecutor to serve until a permanent replacement was confirmed.

The USA PATRIOT Improvement and Reauthorization Act amended this provision to give the Attorney General the sole authority to appoint interim US Attorneys to serve indefinitely when vacancies occurred.

Notwithstanding the poor political judgment exercised by the Justice Department and its poor job of handling this controversy, the President's constitutionally assigned duties include complete control over executive branch appointments. The executive power must be vested in the President of the United States. This provision was not added to the PATRIOT Act to be abused by the Justice Department. Rather, it was added to correct a flaw in the law that permitted the judicial branch to appoint U.S. Attorneys.

You may be interested to learn that H.R. 580 has been introduced in the House. This bill would nullify the 2006 provision in the PATRIOT Act and revert to the old system. I believe that this legislation circumvents the Constitution and undermines the executive branch's power. The President must have control over all exercises of the executive power. That requires him to have plenary power to appoint U.S. Attorneys.

The fired U.S. Attorneys were cited for underperforming. For example, the U.S. Attorney's office in Southern California prosecuted fewer immigration cases in 2005 than it did in 2001 and 2002. Although I do not believe that the Justice Department has handled this controversy well, I do not support Congress dictating how executive branch officials are appointed. Moreover the judiciary can not exercise executive powers under the Constitution.

Thank you again for contacting me.

Sincerely,

Signed: Jim

F. JAMES SENSENBRENNER, JR
Member of Congress

FJS:apz"

[whistle]

1. Really, never expect anything from a Pig but a Grunt!

[Catshrink]

2. Wonder how Senselessbrenner would react to a Dem Pres

claiming such broad executive privileges as * is. I don't think he'd defend a dem pres as much, certainly not to the point of supporting, OMG, Clinton.

[tsuki]

3. If Tex doesn't want to do his job, then the mics and lights should

be turned out on him. How was he re-elected?

[izzie]

4. I think he is going a little over board on this

"this support Congress dictating how executive branch officials are appointed"--------- seems to be untrue on how things are done.------aLL Congress does is say they will go along with what the Pres. puts up with some input from each state. He makes it sound like this power is gone if it goes back how it was. Not true at all. Congress has the same power and so does the Pres. But the Pres. does not have more power than before.

[HereSince1628]

10. To be sure there is a subtle shift going on. More or less ignoring

the role of Congress and arguing in favor of complete freedom of the Executive to appoint any old partisan hack willing to prosecute the opposition party is DEADLY to the republic.

[izzie]

12. People seem to have missed placed the Congress in this

lawyer bus. It is like we have Lenin and the Cheka running things. It is scary to have this Pres. in control of the lawyers under the AG even more than normal that is. Can you figure out why so many people are so willing to let this and other nuts in the WH take over this country, It is beyond me. I CAN NOT GET MY KEY BOARD TO WORK RIGHT. tHE cAP LOCK HAS GONE NUTS THIS MORNING.

[undeterred]

5. I bet he's really happy just to get mail these days.

:hi:

[DCKit]

6. Undermine away Dems!!!!

It's not as if Bushco doesn't believe their power is unlimited.

Checks and balances are for pussies.

[Robbien]

7. If this Unitary Executive is such a great thing, why aren't they pushing

it. Go out in the public and say they want an all powerful executive and campaign on the issue.

They don't because they know the people wouldn't want it.

Plus, he is lying about Lam. But all GOPers seem to be ignoring the truth on that issue.

[loudsue]

8. What state is he from?

Sorry....I don't remember his state. Is there a chance of getting rid of him?

:kick:

[HereSince1628]

9. Wisconsin. He represents the Republican suburbs and exurban

areas.

[VP505]

11. Watch how fast

that Unitary Executive nonsense will change when a Dem gets elected in 08. Piggy Sensenbrenner will be among those squealing the loudest about how we can't have that, will be especially true should H. Clinton get elected.

[maine_raptor]

13. Absolutely fascinating reply!!!!!!!!

Check one a couple of quotes:

"the President's constitutionally assigned duties include complete control over executive branch appointments."

Complete Control?, Well then, does that mean the Senate should not confirm any Cabinet appointments?

"The executive power must be vested in the President of the United States. This provision was not added to the PATRIOT Act to be abused by the Justice Department."

Gee, isn't the Justice Department part of the Executive Branch? And therefore isn't he saying that the Executive Branch did the abusing?

Methinks, to paraphrase Harry Truman, if Mr Sensenbrenner ever read the Constitution, he didn't understand it.

Thanks for posting this, HereSince1628.

K&R

[onenote]

14. as a constitutional matter, both the "old" and "new" approaches are legal

Sensenbrenner needs to take a closer look at his copy of the Constitution. Article II, Section 2 vests in the President the power to nominate and, with the advice and consent of the Senate, various officers of the US; however, the provision contains the following express qualifier: "but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

US Attorneys are "inferior officers" -- that is, they are not either Supreme Court Justices or officers of the United States under the direct supervision of the President. The AG is an officer of the US; a US Attorney is not.

Thus, under the Constitution, it was perfectly lawful for Congress to delegate the authority to appoint interim US Attorneys to the district court for an indefinite period. By the same token, however, it also was perfectly legal under the Constitution to give this same power to the AG. It was however, a bad move from a public policy standpoint -- if us attorney positions are important enough to warrant confirmation by the Senate for a permanent position, then it makes no sense to allow this provision to be circumvented by allowing for an indefinite unconfirmed replacement. Allowing district court judges to make indefinite interim appointments attempts to strike a balance by providing a means of filling a vacancy that creates some incentive for the president to submit a replacement name for confirmation. It still would be better, imo, for the district court's appointee to have to go through a confirmation process and become a permanent replacement. Under such an approach, it is likely that the president would always take the iniative to seek confirmation of a replacement of his own choosing.

[radfringe]

15. send him a thank-you note for his response

and include a package of Kool-aid