There has been a lot of letter-writing recently on the topic of whether President Bush should renominate Jonathan Adelstein for another term as FCC commisisoner. All the Democrats and many Republicans on the Senate Commerce Committee think so. That's fine.

Without addressing the merits of Adelstein's bid for renomination, I have to say I was struck by Senator Byron Dorgan's statement (as reported by Tech Daily-subscription required) that the White House has been "arrogant" in its failure to renominate Adelstein because "this is not a seat that belongs to the White House."

With all due respect to the Senator, who does he think the seat belongs to? Last time I looked, the Communications Act said the President nominates FCC commissioners and the Senate gives its advice and consent. Surely the Senator is not suggesting that the seat "belongs" to the Senate Democrats simply because the Communications Act requires a bipartisan membership. Or even that the seat belongs to the Senate. There was a time in the not too distant past, when the Senate exercised its advise and consent responsibility with respect to the appointment of regulatory commissioners more consistently with the intent of the law and the Constitution by showing more deference to the president's appointment perogatives as Chief Executive.

As a practical matter, perhaps that bygone era is long gone. But Congress has yet to get around to amending the Communications Act to give itself the de jure power to appoint FCC commissioners that Senator Dorgan wishes to exercise de facto. Suffice it to say, if it ever does so, such an arrogation of executive power would be unconstitutional.

So, Mr. President: "Take back your seats!"