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Monday, January 02, 2006
So Much for the President's Assent to the McCain Amendment
Marty Lederman
The President signed the Defense Appropriations bill on Friday. In his signing statement he did at least two notable things.
Comments:
Marty,
Happy New Year, and thanks again for your infatigable persistence in pursuing these issues! I have an extremely technical question referring to the court stripping intended by the President and the Graham/Kyl part of the Senate sponsors. It seems to me that Sec. 1405 (h) (2), which limits the review of Combatant Status Tribunals and Military Commission Decisions, constitutes the best argument against a retroactive application of the exclusion of habeas in Sec. 1405 (e) for other pending claims. If the drafters believed it to be necessary to explicitly provide for the retroactive application for the limitation of review of CSRTs and Military Commissions, and did not include this language into the effective date regarding the rest of the Act, may we conclude that the court-stripping does not apply there? I would argue we must. Thanks and best wishes, Andreas Paulus
Valuable as the detailed analysis is, the important part of what has happened is that the administration will be allowed to say for the cameras that Bush has signed this document, which is all the reporting most of our citizens will get on the matter, "Bush Signs McCain Amendment." This will "prove" that we don't torture, and that all the folks snapping at Bush's heels on that issue are really just dupes of the vast left wing conspiracy. The miniscule percentage of the populace that has the ability to parse the subtleties you offer, even after you have done the hard and valuable work you have done for us with this post, is far too weak, far too small. Which is to say, it's another game, set and match to the GOP.
with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates.
This sounds like a deepening Constitutional crisis to me.
There's no "constitutional crisis" until someone in the MSM says so -- the NYT, WaPo, LAT, Newsweek, Time, USNWR.
Someone. Anyone. Silence. Instead, what America gets is "the administration says it's legal, but its opponents question whether it goes to far." Blah, blah, blah. The last thing America is hearing from the MSM is "constitional crisis."
Judicial review is not the equivalent of judicial supremacy. So the Executive can construe the constitutional impact of legislation. So can Congress. So there may be a serious clash if the Court is Supreme in name only? Perhaps Congress should take the gloves off.
By the way, Judge Alito's recommendation of his pre-judiciary days with the Reagan Administration that the President should make a statement when he signs legislation regarding its meaning may have been taken to heart by George W. The door has been opened for Congress via the Judiciary Committee to seriously question Alito on this issue. Query: What if a President vetoes legislation with a statement concerning the constitutionality of the legislation and Congress then overrides the veto to enact it? Should the veto statement have impact on the meaning of the enactment?
Scalia famously ignores "legislative intent" outside the four corners of the statute; does anyone know if he's stated a view about "executive intent"?
This reminds me of the time Bush signed the McCain-Feingold campaign finance reform bill into law after making it clear that he thought it was unconstitutional. I wonder if his current legal theories would justify defiance of that law as well.
Snead, it seems to me that we have a constitutional crisis when the Supreme Court decides we have one. The media is more spectator than player in this one, although the timing of its revelations of executive overreach has been helpful.
In the debate leading up to the final adoption of the Graham-Levin compromise, Graham and Levin gave diametrically opposed descriptions of how the new law would affect pending habeas cases. That the President agrees with Graham is hardly news. What is more interesting is the utter failure of Sen. Graham to make any attempt at all to show that the requisites for a Suspension existed. One may try to argue that there was an Invasion, but one cannot argue that the Public safety requires that a series of lawsuits pending in the United States District Court for the District of Columbia -- all of which are stayed -- be dismissed with prejudice. There's certainly no Public safety benefit to be had from the dismissal of the Hamdan case -- the dispute is over what rules of procedure must be applied to his trial. Instead of arguing for the Public safety, Sen. Graham complained about (ridiculed really) some requests for interim relief made on behalf of particular prisoners. This might well have been good politics -- people are apparently disturbed by the district court's order permitting lawyers to show their client a DVD of the lawyer with the family members, to convince the client that the lawyers were not yet another set of government interrogators -- but it's not very good law, especially if you're trying to get one of the very few suspensions of the Great Writ in the history of the country.
A number of you are being unfair. The President has the veto power. If he doesn't like legislation, he can veto it. Where enacted legislation is ambiguous, the Executive gets to interpret it (or, execute it).
Given that Congress handed Bush ambiguous language, he can veto it if he doesn't like it (before it is law) or he can interpret it within reason (after it is law). This signing statement does no more than say, if it meant X, then I wouldn't have signed it and would have vetoed it, in which case it wouldn't be law; I signed it only because I reasonably interpret it to mean Y. All the executive has to do is point out that the language is ambiguoud and that the President would have vetoed it if it had clearly said X, so holding it to mean X after the fact would be stealing the President's veto from him, which violates the text of the Constitution and INS v. Chadha.
Welcome to the Brave Old World.
It's been centuries since anyone in the English-speaking world has seriously tried to peddle quod rex vult, lex fit as good law. I suppose we should all throw away our Federalist Papers at this point and invest in a good translation of Bossuet.
I think the McCain amendment leaves enough holes in it to drive a waterboarding form of interragation right through it with out the president having to "sign a finding". For what Senator McCain may have compromised on, there are certain matters this nation should not compromise on. What we call our collective values of what ever we believe in, must first be about human decency. And that is what the founding fathers also believed in, human decency. That new left National Review is going to have a harder time remaining "credible" with its defense of an "empirial presidency" that had never existed in history. And should not exist today.
Maybe I'm confused. Where in the constitution does it specify that the executive can modify or write legislation? The law as written is quite clear and it is my understanding that it is the president's sworn duty to uphold the law (not to choose to interpret it to suit his agenda).
I realize that Bush doesn't actually know anything about the law, but any first year law student can tell you that the Judiciary interprets the law based on what the legislature intended. If it is not clear what the law means, the judiciary is required to read the legislature's comments which explain what they were trying to say when they wrote the law. If there is still some question as to the meaning of the law, then the courts will look to what other courts thought it meant. The President has no role in interpreting the law.
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