Monday, October 19, 2009

As Jack says, it was inevitable

Professor Jack Balkin that is, writing in Balkinzation that it was inevitable that conservatives would concoct an argument that it is unconstitutional for Barack Obama to accept the Nobel Peace Prize:

Really, you can't make these things up. Ronald Rotunda and J. Peter Pham somehow convinced the Washington Post to give them space to explain why it's unconstitutional for our President to accept the Nobel Peace Prize.

Ron and Pete say that while Teddy Roosevelt and Woodrow Wilson won the Nobel Peace Prize while they were sitting presidents, that was different. Somehow. It’s probably because Barack Hussein Obama wasn’t born in the United States!

Ron and Pete say, really, it is because Roosevelt and Wilson got their prizes for what they did, whereas Obama’s award could only be for what he might do.

Well, that explains it.

Even though this is clearly a laugher for Balkin, he does analyze the issue, although not much analysis was required:

In short, Rotunda's and Pham's distinction between awards for past and future conduct makes little sense in practice, because foreign governments might often reward past behavior in order to influence future behavior. But their argument is wrong for another reason. The Emoluments Clause allows Congress to consent to awards from foreign governments. And Congress has consented to the acceptance of the award through the Foreign Gifts and Decorations Act, in which Congress consents to "decorations" (i.e., awards like the Nobel Prize) "when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States." The money for such a gift is accepted on behalf of the United States.

I have previously noted the use of the Washington Post Op-ed section to argue that President Obama's health care initiatives are unconstitutional. As in that case, I think the arguments here equally frivolous.

This episode has led me to two conclusions. First, the Washington Post Op-Ed section does not appear to have a lawyer on hand to keep it from embarrassment. It does not take much research to discover that the argument in this piece is frivolous. But no research was done.

Professor Balkin also says that modern conservatives are becoming increasingly unhinged.

We’ll have to see if Tenther Tim hops on this one like he did the claim of health care unconstitutionality.

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