Supreme Court Justice Clarence Thomas questioned, in a concurring opinion affirming presidents have "At least presumptive immunity" for official acts, whether Special Counsel Jack Smith's office and appointment are constitutional in the first place.
Thomas explained that Garland's appointment of Smith to prosecute Trump may have been unconstitutional, noting he is "Not sure that any office for the Special Counsel has been 'established by Law' as the Constitution requires."
Thomas explained that while the Constitution permits "Heads of Department" - like Garland - to appoint inferior officers, it also requires the appointed office be "Established by Law." Thomas claims Garland "Did not identify any statute that clearly creates such an office" when appointing Smith to special counsel; Garland simply cited general statutes, "None" of which "Appears to create an office" for Smith.
Even if the office itself is constitutional, Thomas argues that Smith's appointment may not be.
"So, the Special Counsel's appointment is invalid unless a statute created the Special Counsel's office and gave the Attorney General the power to fill it 'by Law,'" Thomas argues.
The founders, weary of a power-hungry monarch that could - as the king did - both create positions and then fill those positions to carry out partisan objectives, "Broke from the monarchial model by giving the President the power to fill offices, but not the power to create offices," Thomas explained.
"As James Madison cautioned," Thomas continued, "'[I]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.
No comments:
Post a Comment