Wednesday, January 7, 2009

Getting goofy over Gupta

Michelle Malkin takes some exception to the reports that President-elect Obama will nominate CNN's Sanjay Gupta as Surgeon General. I have no comment on the appointment itself, other than to chuckle at this statement in the Washington Post article on the matter:

"(Gupta) has asked for a few days to figure out the financial and logistical details of moving his family from Atlanta to Washington but is expected to accept the offer."

Which raises the question: do we really want as Surgeon General someone who does something as unhealthy as leaving a good life here in the ATL for the stress of the District?

My real issue with Malkin's piece, however, is this tidbit:

"I think conservatives should ask, why do we even have a Surgeon General, and why is it worth our tax dollars, and how constitutional is it anyway?”

She asks three questions; as you might expect, I'm here to answer the last one. The position of Surgeon General is not mentioned in the Constitution. Nor is the Attorney General. Nor is the Secretary of State. Nor is anybody in the Executive branch other than the President himself and the Vice-President.

Here is the relevant portion of Article II, Section 2:

"(The President) shall ... nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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. (Emphasis mine)."

So as long as the position of Surgeon General was established by law, it's constitutionally kosher.

What I find interesting about this piece of the Constitution is the invitation to Congress to let the President make appointments without their consent. Could they pass a law allowing the President to make a no-Congressional advice and consent pick for Secretary of State? Congress would probably never do such a thing, but it's an interesting hypothetical; is the position of Secretary of State an "inferior" officer? The knee jerk reaction is to say no; inferior must mean executive positions so low that Congress wouldn't care to review the selection. Then again, inferior could also reasonably be construed as meaning any position below the President and the VP. After all, there are about 1,700 judges on the various federal courts, and all but the nine on the Supreme Court are "inferior" according to Article III of the Constitution, which states:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The important point here is that there are lots of executive positions, but only the top two are mentioned in the Constitution. And there are lots of federal courts, but only the top one is mentioned in the Constitution. But the Constitution grants Congress the power to establish all other courts and executive offices.

And this they have done. Here, history fans, is New Jersey Representative Elias Boudinot, on May 17, 1789, proposing that the new nation establish Departments of "Finance, War, and Foreign Affairs." Or as we now call them, the Departments of Treasury, Defense, and State.

Not until 1870 did we have a Surgeon General, or as he was first called, a "Supervising Surgeon." That makes sense, given how backwards medicine was in 1789 the best that could have been hoped for at that early date was probably a "Gentleman in Charge of Leeches" (see Chapter 1 of Faigman, Laboratory of Justice: The Supreme Court's 200-Year Struggle to Integrate Science and the Law, 2004, and this poem by William Wordsworth.)

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