The Treasury Department finally has an Undersecretary for International Affairs. Lael Brainard, was confirmed yesterday by the full Senate by an overwhelming majority after a wait of more than a year.

Let's take this step-by-step. Brainard was nominated on March 24, 2009. Her nomination was held up by Senate Republicans because of problems with her tax returns, specifically a problem with her "home-office tax deduction." However, Senator Jon Kyl of Arizona was also worried about the expansion of internet gambling. On April 19, 2010 (two days ago), the Senate voted 84-10 for cloture on Brainard's nomination. The next day (yesterday), the Senate voted 78-19 to confirm Brainard.

This is a problem.

I understand that in the US political system, the US Senate's role is to "advice and consent" to the President's nomination. I understand that the minority party must exercise its power in creative ways to foil the efforts of the majority party. I also understand that you have limited options when the opposing party holds the presidency and large majorities in the House and Senate.

But really?

Brainard is nothing if not qualified. Her resume includes Deputy National Economic Advisor for President Bill Clinton; Vice President and Founding Director of the Brookings Institution's Global Economy and Development Program; Associate Professor of Applied Economics at MIT Sloan School; a White House Fellow; and a National Science Foundation Fellow. She isn't crazy, or a criminal. For the record, her husband, Assistant Secretary of State for East Asian and Pacific Affairs Kurt Campbell, was confirmed in June 2009, so the tax issues were not the reason. And finally, when you're confirmed by 78-19, there clearly wasn't that much worry over your nomination.

The House of Representatives today voted down H. Con. Res 248, a bill from Congressman Dennis Kucinich that would have directed President Obama “to remove the United States Armed Forces from Afghanistan.” The bill was defeated by a 356 to 65 margin, with some 189 Democrats and 167 Republicans joining forces against the bill. Along with Kucinich, other leading figures of the anti-war Left (and Right) joined to sponsor and support the measure, including Reps. Barbara Lee (D-CA) and Ron Paul (R-TX). Although well-intentioned, with this misguided resolution Congressman Kucinich is wrong on the law, wrong on the politics, and wrong on the policy.

First, what Rep. Kucinich is proposing is unconstitutional. Section 5(c) of the War Powers Resolution states that when “the United States Armed Forces are engaged in hostilities…without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.” Giving Congress the ability to overrule the executive through a concurrent resolution is known as a “legislative veto.” It was widely used (nearly 200 times) by Congress until 1983, when it was ruled unconstitutional by the Supreme Court in INS v. Chadha.

The Court ruled that overruling an action of the executive “requires action in conformity with the express procedures of the Constitution’s prescription for legislative action: passage by a majority of both Houses and presentment to the President.” A bill passed by one only House of Congress expressly violates the requirements spelled out in Article 1, Section 7 of the Constitution. A Court ruling a few months later ruled that even a legislative veto by two Houses of Congress is unconstitutional.

Even if one believes that Chadha was wrongly decided (which many do – see here and here) the constitutionality (or lack thereof) of the legislative veto is almost universally agreed upon. Even Congress’ own research service says that the legislative veto is “constitutionally suspect under the reasoning applied by the Court.”

Also, the War Powers Resolution only applies when Congress has not given “specific statutory authorization.” The “Authorization for Use of Military Force” passed on September 18, 2001 grants the president general authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001….” Regardless of one’s policy ideas, it’s difficult to make a legal argument against the war in Afghanistan. Invoking Article 5(c) of the War Powers Resolution is surely the wrong legal tactic to affect US policy.