I don’t know anything about the Constitution of the Republic of Korea. But this report new york times It reads like a test fact pattern.
firstThe acting president is refusing to make appointments to the Constitutional Court. And the opposition government is seeking to impeach the acting president for failing to make those appointments.
South Korea’s opposition lawmakers planned to vote Friday to impeach Prime Minister and Acting President Han Deok-soo, the latest turning point in a political crisis that has left a power vacuum in the country.
Mr. Han was appointed acting president earlier this month after the National Assembly impeached and suspended General Yoon Seok-yeol, who had militarized the country for the first time in 45 years, on December 14.
Now, with less than two weeks left in Mr. Han’s term as acting president, the main opposition party has also submitted a motion to impeach Mr. Han. The move comes after Han refused on Thursday to appoint three judges to fill vacancies at the Constitutional Court, which will decide whether to reinstate or dismiss Yun.
This is almost like a Merrick Garland scenario in reverse. But instead of the Senate refusing to hold hearings on Garland, the acting president is refusing to confirm the nomination.
secondDoes the Acting President have the following powers? duty To fill the void? At least in our system, the president has no obligation to appoint anyone. He just needs to keep his office open. I can’t speak in the Korean system.
thirdDoes the Acting President have the following powers? strength To fill the void?
The opposition party has urged Rep. Han to approve the nomination of a Supreme Court judge, but the ruling party, led by Rep. Yoon, has insisted that only the elected president has the authority to appoint Supreme Court justices. . . .
In a broadcast speech, Rep. Han announced that he would hold off on nominating a candidate until the opposition party, which includes small parties such as the People’s Power Party, to which Rep. Yoon belongs, and the Democratic Party of Korea, agree on whether to nominate a presidential candidate. As acting president, he had the authority to do so.
The acting president “must refrain from exercising the president’s own important powers, such as appointing constitutional bodies,” said Mr. Han, a career bureaucrat.
The United States has faced related problems since the death of President William Henry Harrison. Is Vice President John Tyler merely an acting president who can exercise all presidential powers? Or was he actually president? In South Korea, the ruling party says only the elected president can appoint judges. I think there is some sort of “officer” problem. Perhaps the analogy is whether a recess appointee can exercise all the powers of a confirmed officer.
fourthThis appointment is especially important because the nine-member Constitutional Court can decide whether to remove an impeached president from office. I believe that letting the courts decide whether to remove a president from office is a very dangerous decision. In fact, it is even more serious that the Acting President has the power to deny a court a quorum to remove the President.
The core of the issue is how the court will judge President Yoon’s impeachment. In order to remove Mr. Yoon, at least 6 out of 9 judges must vote in favor of impeachment. There are currently only six justices remaining on the Supreme Court after three retired earlier this year. This means that the impeachment could be overturned with just one dissenting voice in Prosecutor General Yoon’s trial, which is scheduled to begin on Friday.
At the Constitutional Convention, the issue of having all impeachment trials heard by the Supreme Court was discussed. One of the arguments against that option was that there would be too few judges. In contrast, there will be more senators to vote. Our framers were wise to abandon this proposal. And Tillman and I explained that if there was a vacancy in the Chief Justice’s seat, the Senate trial could be conducted by the chief associate judge.
fifthThe quorum rules in this court are very problematic. Removal presupposes that two-thirds of the votes of the entire court, not just those present, must be removed. However, with three judges retiring, only six judges remain. As a result, all six current judges would have to vote for removal. The president cannot be removed from office if even one judge refuses to participate. And what happens when another judge retires? It would be impossible to remove the president. By contrast, our Constitution requires a vote of “two-thirds of the members present,” not two-thirds of the total membership. Again, another win for the Framers.
sixthThe opposition party claims that the failure of the acting president to make the appointment is an act of rebellion.
Park Chan-dae, floor leader of the Democratic Party of Korea, told reporters that Rep. Han’s remarks were “not the remarks of an acting president, but of someone who acknowledged the civil war.”
The opposition party accused Han of helping Yun briefly declare martial law on December 3. National Assembly members accused Mr. Yoon of committing an insurrection by sending troops to the National Assembly to prevent a vote on martial law. To detain his opponent. The Constitutional Court has up to six months to decide whether to reinstate or dismiss Mr. Yoon.
Sound familiar? During the Section 3 debate, critics argued that President Trump’s failure to take specific steps to quell the Capitol riot was itself complicity in the insurrection. In other words, as Baude and Paulsen put it, they were aiding and abetting an insurrection. Seth Barrett Tillman and Me responded The president’s exercise of discretion by not taking a specific action is not in itself rebellion. In Korea, the opposition party claims that not appointing members of the judiciary is rebellion! Ask whether Korean law provides a clearer definition of insurrection than American law.
seventhPolitical parties don’t even agree on how many votes are needed to impeach an acting president! If there’s one thing that needs to be made clear, it’s the voting threshold. But that’s not the case in Korea.
In the case of Mr. Han, the ruling and opposition parties are differing on how many votes are needed for impeachment. The ruling party’s position is that since Han is acting president, the two-thirds threshold must be met. The opposition party argues that he can be removed from office with a simple majority vote, as stipulated in the constitution. Prior to the vote, National Assembly Speaker Woo Won-sik of the Democratic Party of Korea will make a decision.
Jin-ah Cha, a law professor at Korea University, said, “Because the acting president of Korea is not actually the president but only acts as the prime minister, one candidate must receive a majority of votes.” “
She also noted that this is the first time in U.S. history that an acting president has been impeached.
Thankfully, our framers have created clear standards for how many votes are needed for impeachment and removal. (It is more ambiguous how many votes a person must receive to be disqualified.) But whether a recess nominee can be impeached remains a question. Are such positions “United States Officers”? sorry. I couldn’t resist “The Officer’s Story.” Most people once stopped caring about this issue. Trump v. Anderson It has been decided. But “officer stuff” is important in the United States and other countries.
