an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
So the President, as best I can tell, has repeatedly violated federal law by spying on American citizens in violation of the Foreign Intelligence Surveillance Act. The Congress, controlled by his own party, responds not by demanding an investigation into the matter, but rather by asking meekly whether it might amend the statute so that whatever the President has been doing (which he won't actually tell us) could become legal. The President says, not really necessary, don't you fools realize that when I act as Commander-in-Chief I can't violate the law? And if you insist that I did, well then, your laws are just plain unconstitutional. A Democratic Senator then stands up and argues that if the President broke the law repeatedly, he should be censured, if not impeached. Everybody else makes fun of him. At this point the Republicans, who lined up almost as one to impeach the previous (Democratic) president for lying about sex to a grand jury, while making impassioned speeches about the rule of law, are now delighted by this development, using the fact that the Senator is talking about censure as an opportunity to fire up their base.
So children, here's the moral of the story: If you are the President, feel free to violate the law, early and often. Just make sure you do it when your party controls all three branches of government. Because just as blood is thicker than water, party is thicker than law.
Take heart. The people may be ahead of their "leaders" on this one. A new poll shows a close plurality (46-44) in favor of censure. Among voters the numbers are 48-43 in favor. Among Republicans, 29 percent favor censure.
I am sure the President's support would evaporate drastically in the event of a court ruling that his actions were unlawful. The real key to the whole mess is getting judicial review of the merits.
The public actually has a much higher regard for the rule of law than it does for elected officials; for that matter, the public has a higher regard for the rule of law than elected officials do.
this is really amazing. the issue here is not about policy, its about who we are. we can choose the rule of law or we can choose the rule of men. i don't care who the president is, or what his motives are, he is subject to the law. that congress won't even investigate is shameful.
I think its possible that there are side effects other than weakening the rule of law. In the eyes of the rest of the world, its possible that the nation as a whole has come to appear more hypocritical, and I also think its possible that the president has lost a degree of trustworthyness before other nations, since he so openly violates the laws of his own nation.
Now the Saudi government is openly supporting a what GB calls a 'terrorist organization' (Hamas), and where once GB declared 'you're with us or against us', he is now silent. It just seems to me that along with a host of other things, openly disrespecting the laws of his own country has left him considerably wanting in the amount of leadership he can excercise in the world.
What rule of law? Show me a Democrat who actually cares whether a power they want the federal government to exercise is actually delegated to the federal government by the Constitution, and I'll start listening to whining about "the rule of law". Until you're willing to uphold the highest law of the land even when it says you can't do something you want to do, it's all just partisanship.
Oh, and Clinton SIGNED the law making that testimony manditory, in case you forgot. He who lives by the stupid law, should die by it.
How can Democrats and civil libertarians in either party stand by, while again the public's discomfit isn't being addressed? As angry as I am over GWB's lawlessness, incompetence, malfeasance, dictatorialism, etc., I think I am angrier over the Democrats' skirt of these matters, sans Feingold.
It's amazing that the public "gets it," but neither the opposition party nor the ruling party does. And, even though the Republican Congress could stop this imperialism in its tracks, if for no other reason than the law and its reflection of themselves,
More incredulous, I am still trying to understand why the opposition Democrats aren't just as edgy about all this as the public at large?
A solitary voice in the wilderness cries, the people clamor, and Congress (1) laughs over the idea that anyone would censure a miscreant, or (2) calls for discussion and investigation to confirm what's already known. The ruling party wants to rewrite law to allow the illegal activity to become legal, rather than hold the lawbreaker to account.
And so the imperial president, who has already shown his contempt for Congress, the Constitution, the balance of powers, public opinion, claims anew his doctrine of acting on his own authority as Commander of Everything. And everyone (sans Feingold) goes: La, de la, de la,
If Congress so amends FISA, does this suggest that Congress is using the Executive pardon power? Is there a "dormant" pardon power in Congress? Or is this merely a "Do-over"? And what about the specter of the consitutional take of the Senior Senator from PA?
There is no bar to giving retroactive effect to an ameliorative change in a staute. The Courts due it all the time. And legislatures too in response to sweeping opinions. Sometimes persons convicted under the earlier statute get compensated as well.