Interesting, because they are targeting something that the House voted in support of as well and there was an element of necessity to it.

If the Senate voted in support as well, then the application is moot, and US courts don’t hear moot cases.

There is a phenomenon called “malicious obedience” where a person taking instructions acts literally on those instructions while knowing that the actual effect would be at cross purposes to the intention.

I don’t expect the courts to insist that the executive exhibit that quality.

It’s important to remember law practice and politics are distinct. 

Staying on message in law is about finding the winning facts and winning argument and not digressing from that because you wish you could win with something else.

Law clients frequently think that the strongest point in their case is an area that is actually the weakest part of their case. 

Occasionally the critical fact in their case is something they think is of no particular importance.

The best client for accepting legal strategy is an organization I despise, the NRA.

They are notorious for picking fights they know they will win to get desirable precedents.

If the House wants a good precedent, they need to run the best case they can find.

It may well be some executive order that attracted no particular interest- exactly the kind of thing where people might get sloppy.

Whereas in hotly contested matters it is more likely that thought has gone in to explaining the need for an executive order.

So if there were say an executive order covering in part rules for importing cabbages, that kind of thing would be where I would dig first.  The kind of thing where if the bureaucrats draft it and put it in front of you and tell you it’s needed, you probably just sign it. 

Also areas like the recess appointments, where there was a tradition of doing that, so nobody scrutinized it for a long time although it was technically incorrect.

Long omnibus orders may also overreach due to the difficulty of carefully editing something very long.

Bear in mind any precedent they get will hold back Republican presidents too, and that’s a good thing.

So I hope they find something that won’t cripple policy and narrow executive powers a bit.

Between neo-con warmongers trying to bring armageddon and extremists that are even less rational, I fear any republican (which in my view includes Hillary Clinton or John Kerry) winning the presidency.

So something to keep them in check would be good.


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