Balkinization  

Tuesday, January 09, 2007

Let's Play "Junior Constitutional Lawyer"!

Marty Lederman

From yesterday's White House press briefing, my new favorite euphemism for "We can't be troubled by mere statutes":
Q: Do the Democrats or any of the opponents have the . . . authority to stop anything that the President is going to present? In other words, is he going to need to ask Congress to approve something?

MR. SNOW: Well, ultimately, anything you do has budgetary implications. I think there was a question earlier today, are we seeking resolutions, and that sort of thing -- and I want to wave you off of that. What you do have, though, is basically budget is policy. So Congress is going to be engaged in the appropriations and authorization process and, you know, through those, they're going to be debating a lot of things. And so that's sort of par for the course.

Q: But in terms of anything out of the Pentagon -- the troops, deployment, any of the programs we initiate -- the President, alone, has the authority to --

MR. SNOW: You know what, I don't want to play junior constitutional lawyer on this, so let's wait until we see what happens, if you have specific questions about constitutional authority. But, you know, Congress has the power of the purse. The President has the ability to exercise his own authority if he thinks Congress has voted the wrong way.
Bending over backwards to be fair, I suppose that in referring to "[the President's] own authority," Snow could simply have been referring to the veto power. In the context of the question (whether the President has the "authority" to deploy additional troops without congressional approval), of course, this would be a most generous assumption -- but if he were playing "junior constitutional lawyer," perhaps Snow's studied ambiguity would get him partial credit.

Comments:

Do you think it is even conceptually possible for a Congress to so burden the President with regulations that he cannot effectively do his job? Or is that a conceptual impossibility for you?
 

You know, if the veto power somehow limited the topography of the President's power, it would be in Article II. It's not. It's in Article I, where it is a check on the scope of Congressional authority in addition to the scope of Presidential power described in Article II.
 

@Mortimer: The president can't veto turning down a proposal to fund the troops. So what do you want to say that to say that the veto is an addition to the art II powers?

And yes I think it is constitutionally possible to "burden the President with regulations that he cannot effectively do his job". There is no solution to deadlock in the constitution. If Congress decides only to adopt military budgets if a large set of conditions is attached, the president vetoes, there's your deadlock right there.
 

The question was not what was constitutionally possible, but what was conceptually possible in the counterfactual world of Professor Lederman's theory. Professor Lederman's theory is not fully consistent with the Constitution. Learn to read.

As to your mention of deadlock, the question isn't whether the constitution creates inefficiencies: obviously it is intended to do so in certain cases. The question is whether certain inefficiencies that aren't created by the Constitution should be imposed on it by professors with underinclusive theories of constitutional interpretation.
 

mort: Do you think it is even conceptually possible for a Congress to so burden the President with regulations that he cannot effectively do his job?

When "the President" defines "his job" as the illegal and immoral occupation of sovereign nations, then my answer is, "Dear God, I hope so!" Likewise when "his job" is sending thousands more to fight and die in same.
 

mort: The question is whether certain inefficiencies that aren't created by the Constitution should be imposed on it by professors...

Here's a thought, Mortie, how's about making your identity public. Seems a minimum bid if you're gonna sling the personal attacks. (Oh, sure, I know it's not a personal attack, your _real_ point was the "underinclusive" part. Sure it was.) One more troll for the killfile.
 

Where was the personal attack?
 

"the question isn't whether the constitution creates inefficiencies"

Oh, so when you said "that Congress, by overriding the President's veto, can force the President to go to war with soldiers whose only weapons are plastic spoons" you were not taling about a possible inefficiency in the Constitution. Right.

I answered you're question. I said that it would be Constitutionally possible. Conceptual seems broader than constitutional. So your concept was already included. As long as your saying that you're smarter than me, at least get your logics straight, sweetie.
 

Mortimer Brezny:

Do you think it is even conceptually possible for a Congress to so burden the President with regulations that he cannot effectively do his job? Or is that a conceptual impossibility for you?

The Constitution allows (in theory) many things that are counter-intuitive, or possibly even wrong or stupid. In fact, it allows for itself to be replaced en masse by the verbatim constitution of the former USSR. It is not a "be-all and end-all" to prevent pernicious results (however defined or perceived). There was plenty of discussion in the adoption debates as to the sufficiency of the various provisions in warding off various undesirable situations, but at bottom, there has to be a fair reliance on the good sense and character of those that it encompasses. In fact, even were it perfect in its provisions, it still is nothing more than a piece of paper, and relies of people following it reasonably faithfully.

Yes, Congress can "burden" a president so much that the president cannot do his job; the remedy for that lies outside the Constitution itself in those cases where the Constitution doesn't specifically prohibit such behaviour. That's the nature of the beast; were the Constitution to get too much more specific on the constraints of Congress or of the president, one might argue that the Constitution itself had become a "burden" that prohibited the president (or Congress) from doing their jobs (at least for that specific situation)....

Cheers,
 

Oh, so when you said "that Congress, by overriding the President's veto, can force the President to go to war with soldiers whose only weapons are plastic spoons" you were not taling about a possible inefficiency in the Constitution. Right.

I answered you're question. I said that it would be Constitutionally possible. Conceptual seems broader than constitutional. So your concept was already included.


This really makes no sense. This is like your response to my comment the other day that the Democrats will be starting hearings to hold the President politically accountable. Your response was that Professor Levinson does not think impeachment should be used for trivial matters. Fine, but that has nothing to do with the hearings I was talking about, which will not be impeachment hearings.

I make myself quite clear above. The distinction is between inefficiencies purposely put in the Constitution, e.g., a requirement of a 2/3rd majority to override a veto, and those that theorists manufacture by interpreting the Constitution incoherently. My point is actually that a theorist's conception of the Constitution can be underinclusive (which I say above), so that the realm of his conceptual possibility is subsumed into that of constitutional possibility. In other words, the theorist's imagination is improverished. That was my entire point. It is why I say: "Or is that a conceptual impossibility for you?" Professor Lederman's interpretation of the Constitution is incoherent, i.e., it leaves things out of the Constitution that are actually there. I have been consistent in this regard. You can disagree, but to pretend I said something other than what I said is either childish or, yes, stupid.
 

Mort asks, at the top of the thread: Do you think it is even conceptually possible...Or is that a conceptual impossibility for you?

Anne's replies: yes I think it is constitutionally possible...

Thereafter Mort tries to pretend that Anne's answer doesn't denote clearly that such a possibility is easily conceived by Anne. C'mon, Mort, simple logic. Anne has answered clearly, not only is it conceptually possible it's easy to conceive within the constraints of the Constitution.

And I repeat, When "the President" defines "his job" as the illegal and immoral occupation of sovereign nations, then my answer is, "Dear God, I hope so!" Likewise when "his job" is sending thousands more to fight and die in same.
 

Thereafter Mort tries to pretend that Anne's answer doesn't denote clearly that such a possibility is easily conceived by Anne.

Actually, that's not true. What she conceives of is irrelevant to what I was asking Professor Lederman. Anne claims that she can conceive of deadlock in the Constitution. My response, already made above, is "the question isn't whether the constitution creates inefficiencies: obviously it is intended to do so in certain cases. The question is whether certain inefficiencies that aren't created by the Constitution should be imposed on it by professors with underinclusive theories of constitutional interpretation." In other words, an inefficiency that is actually there (as I note above, a requirement of a 2/3rds majority to override a Presidential veto, which, by the way, is in the text) is different than an inefficiency created by the theory you are using to interpret the Constitution.

This isn't that hard. Anne is claiming that she can conceptualize the inefficiency created by her own method of interpretation -- gee, of course you can. And a hallucinating person can see hallucinations; that doesn't mean the hallucinations correspond to external reality. Anne notes that "There is no solution to deadlock in the constitution" and seems to have the example of the President proposing a legislative package that Congress refuses to put through the process. The problem with that example, of course, is that in the absence of contrary statute, the President can simply take general appropriations and fund whatever he wants because Article II grants him that executive discretion. He doesn't need to veto Congressional inaction because Congressional inaction means the only bar on the Executive is the Constitution itself. The failure of Anne to envision this "solution" is what I am talking about. She thinks the President needs some sort of anti-veto to counter Congressional nonfeasance; he doesn't. The inefficiency that she thinks stymies the President is a byproduct of her flawed theory and nothing more.
 

@Mort: Anne is a male, a dude, masculine, from a country where Anne is a perfectly normal name for a man, probably statistically more common there than "Mort" is here. Just fyi and all. Doesn't make you look like a very attentive reader to have missed this point which has been made many a time.

mort: The failure of Anne to envision this "solution" is what I am talking about.

Then you have phrased your initial question very poorly indeed. Your actual question is asked-and-answered.

mort: Do you think it is even conceptually possible for a Congress to so burden the President with regulations that he cannot effectively do his job? Or is that a conceptual impossibility for you?

This is what you asked. It has been answered, despite being clearly a snarky rhetorical maneuver on your part rather than a legitimate question. Even your "[should] certain inefficiencies that aren't created by the Constitution be imposed on it by professors with underinclusive theories of constitutional interpretation" fails to be a legitimate question but rather a (baseless?) claim of inadequacy in Professor Lederman's analysis. Some folks just think in twists and turns. How about asking a question like, "Is Professor Lederman's analysis adequate, or underinclusive?" Clearly you feel the latter, but rather than asking a question which allows discussion you illegitimately presuppose this as a conclusion couched in a larger faux-question the purpose of which is actually none other than to camouflage the contentiousness of your claim. Does little-to-nothing for your credibility.
 

@Mort: Anne is a male, a dude, masculine, from a country where Anne is a perfectly normal name for a man, probably statistically more common there than "Mort" is here. Just fyi and all. Doesn't make you look like a very attentive reader to have missed this point which has been made many a time.

mort: The failure of Anne to envision this "solution" is what I am talking about.

Then you have phrased your initial question very poorly indeed. Your actual question is asked-and-answered.

mort: Do you think it is even conceptually possible for a Congress to so burden the President with regulations that he cannot effectively do his job? Or is that a conceptual impossibility for you?

This is what you asked. It has been answered, despite being clearly a snarky rhetorical maneuver on your part rather than a legitimate question. Even your "[should] certain inefficiencies that aren't created by the Constitution be imposed on it by professors with underinclusive theories of constitutional interpretation" fails to be a legitimate question but rather a (baseless?) claim of inadequacy in Professor Lederman's analysis. Some folks just think in twists and turns. How about asking a question like, "Is Professor Lederman's analysis adequate, or underinclusive?" Clearly you feel the latter, but rather than asking a question which allows discussion you illegitimately presuppose this as a conclusion couched in a larger faux-question the purpose of which is actually none other than to camouflage the contentiousness of your claim. Does little-to-nothing for your credibility.
 

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