The President’s Plan B Is Not Constitutional

Abcarian: Steve Bannon discovers the hard way that defying Congress is no joke

To start with, the new President should be cautious before implementing this reckless plan. It is entirely possible that the Supreme Court could declare the plan unconstitutional.

He might consider a Plan B — where he delegates a small portion of his powers to the legislative branch and leaves intact the rest while asking Congress to implement it.

For example, the President could simply propose an amendment limiting his powers so that his appointments to, and removal from, the Supreme Court could be subject to the usual rules that Congress will be able to review and reject any President’s appointments to or removals from the judiciary.

What would this mean? That we should expect a Supreme Court confirmation battle similar to those that have dogged President Obama’s Supreme Court nominees.

With a Plan B, the court could strike down the plan, thereby ending the need to find a way to implement it, which brings up yet another issue: Does it matter if the President takes the action without Congress?

The answer seems to be it does, because the President will have to work with Congress rather than against it.

We could even consider making the Constitution a little more complicated, which could get rid of the separation of powers.

For example, a constitutional amendment stating simply that the Supreme Court has the sole power to adjudicate controversies that arise in its jurisdiction would be sufficient.

And while the Constitution currently allows the President to fill all federal vacancies, the executive branch can also fill a vacancy by simply naming a person to the vacancy.

In other words, a person who fills a vacancy by nominating a person is no different than a President nominating a person to fill a vacancy. In fact, the Constitution’s separation of powers was intended to prevent this kind of thing.

We could also make that process somewhat harder to use. For example, we could force the President to nominate a person to some vacancy before he exercises the authority to fill the vacancy. This would mean that a sitting President cannot be a candidate for a lifetime appointment to the Supreme Court.

And this would take away the power

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