Balkinization  

Tuesday, October 16, 2007

The Bush Administration Defiles the Rule of Law

Brian Tamanaha

Frontline's expose on the Bush Administration's contempt for the rule of law, Cheney's Law, which aired this evening (with a contribution from Balkinization's extraordinary lawyer, Marty Lederman), is sobering and alarming.

We can set aside the left-right politics that usually stifles reasonable discussion of such matters. As the program shows, the Bush Administration's primary opponents were conservatives who occupied key positions in the Administration (A.G. Ashcroft, Acting A.G. Comey, O.L.C. head Goldsmith, FBI Director Mueller--not a weak liberal amongst them). This was not a political dispute, but a dispute over respect for the rule of law. On one side of the dispute were the Bush inner circle and its legal enablers, who saw law as no more than an irritating hindrance, to be avoided or manipulated as necessary; on the other side of the dispute were those in the Justice Department who took seriously a commitment to the rule of law, although they largely agreed with the goals of the Bush Administration.

The Bush Administration caved only when forced to by the threat of mass resignations, and following legislation by Congress, and even then it immediately turned around and spit at the law, using underhanded signing statements and classified O.L.C. memos to achieve its desires.

In its brazen conduct, the Bush Administration takes contempt for the rule of law to a new, disgraceful level.

Comments:

I agree that the Frontline program brought the various facts that we have been seeing over the past few months and years into a coherent focus. Vice President Cheney and his enablers, David Addington and John Yoo are shown for what they are... legal thugs.
Larry Rafferty
 

Brian writes, "On one side of the dispute were the Bush inner circle and its legal enablers, who saw law as no more than an irritating hindrance, to be avoided or manipulated as necessary...." As he well knows--this is the subject of his latest book--this is basically the "bad man," completely instrumentalist, view of law articulated by Holmes and, I dare say, adopted by many members of the legal academy and, in turn, many members of the practicing bar. The problem with any easy denunciation of the view is, of course, the fact that most of us believe that there are indeed circumstances where it is altogether reasonable to see (immoral or dysfunctional or simply very-much-out-of-date) laws as mere hindrances entitled to no great, if any, respect. FDR presumably saw the neutrality laws in this light, and one of the greatest attorney generals collaborated with him in manipulating the law to allow Lend Lease.

I bow to no one re disdain and disgust for the current administration, but I think it is too facile to dismiss those we disagree with as "legal thugs." They presumably believe that the US is faced with such a severe clear and present danger as to constitute the kind of "compelling interest" that justifies deviation for standard constitutional norms. We can attack that logic either by saying the danger isn't that great or by challenging the efficacy of the deviations in actually helping us meet the danger. (I suspect that both may be true.) But this is different from an argument that the law must always be followed, even at great cost to fundamental social interests.
 

I must respectfully disagree with my friend Sandy on two points here. First of all, Cheney and Addington are not simply "instrumentalists" who care nothing about the law. They sincerely and genuinely believe that the supreme law, the Constitution, empowers the President to disregard statutes and treaties.

Secondly, FDR did not share this view. He was, indeed, very hostile to the neutrality acts -- thought that they were absolutely wrong-headed and disastrous for the U.S. But he did not feel that he could disregard them. So instead, he worked diligently not only to find ways of working within their limits (albeit sometimes with very controversial, but public, statutory interpretations), but, more importantly, to bring Congress and the public on board to temper or repeal the acts. It is very hard to overestimate the remarkable, incremental daily efforts the FDR Administration made over a long period of time to slowly effect a change in the law. Which led to the Lend-Lease Act -- an amendatory statute. FDR did not assert the sort of preclusive Commander-in-Chief powers that Cheney and Addington advance.

Of course, that doesn't prove that they are right -- or wrong. But it's certainly not business as usual -- or business as FDR conducted it.
 

This is not a liberal v. conservative split, nor is it a split between those who respect the "rule of law" and those who do not. Rather, this is an essentially unsettled debate over the scope and separation of the constitutional powers of the President and Congress which has been raging on and off since the ratification of the Constitution.

The relative reach of presidential and congressional constitutional powers is not an element of our modern conservative and liberal ideological divide. Both liberals and conservatives have held expansive views of presidential power (Both Roosevelts, LBJ, Reagan and George II) while others have deferred to Congress (Coolidge, Eisenhower, JFK and especially Carter).

More to the point, there is a mistaken assumption among advocates of expansive or nearly unlimited congressional power that respect for the "rule of law" is synonymous to presidential submission to any statue which Congress enacts. This erroneous view misses the point.

In a debate over the scope and separation of the constitutional powers of the President and Congress, the only rule of law that counts is that established by the Constitution. Legislation is not superior law to executive orders under the Constitution. Rather, the question should always be: Does the Constitution grant Congress or the President the power to enact the legislation or make the executive order at issue?

No President need respect unconstitutional legislation nor must Congress defer to an unconstitutional executive order.

It is not "brazen" nor a "contempt for the rule of law" for a President to ignore unconstitutional legislation. Rather, only a brazen Congress with contempt for the rule of constitutional law enacts legislation which unconstitutionally exceeds its Article I powers and seeks to take away the Article II powers of the President.

Of course, the reverse is also true.

What makes this an interesting area is that the Constitution's dividing line between executive and legislative powers in not always clear. In his book "The Terror Presidency," Jack Goldsmith shared his difficulties finding that line which has never been definitively determined by the courts and which Goldsmith shows has moved significantly over time - from an expansive exercise of executive power under Lincoln and FDR to the a far more limited executive power today.

Yes Virginia, executive power under George Bush is still historically limited and does not even approach that of Lincoln or FDR. Rather, the current battle is whether executive power can return to where it was just a generation ago prior to 1974.

Claims that Mr. Bush has expanded executive power to some new high water mark do not have a basis in history.
 

"They presumably believe that the US is faced with such a severe clear and present danger as to constitute the kind of "compelling interest" that justifies deviation for standard constitutional norms."

I don't presume that at all, and I think you have to be fairly naive if you actually do.

Did you see the news stories recently? They began to trample the FISA laws BEFORE 9/11.

Hell, they STOLE the presidency from Al Gore in the first place. You know it. I know it. We all know it.

These people have no principles. I have no compelling reason to assume otherwise.
 

Many more comments and interviews at the links here, by the way:

http://www.pbs.org/wgbh/pages/frontline/cheney/etc/synopsis.html
 

and here:

http://www.pbs.org/wgbh/pages/frontline/cheney/themes/

and here:

http://www.pbs.org/wgbh/pages/frontline/cheney/etc/links.html
 

If Cheney and Addington believed they were acting in a constitutional manner, they would accept scrutiny by one of the other branches of government, which we used to call "co-equal". Their refusal to do so is convincing evidence of their malevolence.
 

Prof. Levinson:

The problem with any easy denunciation of the view is, of course, the fact that most of us believe that there are indeed circumstances where it is altogether reasonable to see (immoral or dysfunctional or simply very-much-out-of-date) laws as mere hindrances entitled to no great, if any, respect.

My anser to this is (sorry to repeat myself) this...

I don't care if the law is "dysfunctional" or "very-much-out-of-date". If you think that is the case, the strongest argument you can make for such is to willingly take the consequences for breaking the law. Students of Mahatma Gandhi know this. I was in Delhi about a week after the 50th anniversary of the death of Gandhi, and I'm not sure anything has touched me so much as walking through the Gandhi memorial there (sorry to have missed the brouhaha a week earlier, but perhaps for the best; such celebrations are not a time where much thought is put into what the person was actually saying....). Gandhi was a lawyer and knew what the laws both were and what the laws should be. I think it is a lesson all of us should heed.

Maybe that's what Yoo, Addington, et al. have in mind but I don't think so ... they're using any dodge in the book to prevent any account in a public forum of their actions and leaving the ultimate choice to the people.

Cheers,
 

"Bart" DePalma:

Legislation is not superior law to executive orders under the Constitution.

The executive is not empowered to make law.

Even the most tolerant decisions by courts on this matter say that the executive, in its administrative authority and/or empowered to make regulations under the APA or other congressional regulatory delegation, cannot exceed, much less contravene, the scope of the enabling legislation.

Cheers,
 

BTW, Prof. Lederman, good to see you on the program, even if for such brief time....

Cheers,
 

No President need respect unconstitutional legislation nor must Congress defer to an unconstitutional executive order.

This ignores implies an equivalence between the executive and legislative branches and between a statute and an executive order. Congress is a body of equals who decide by debate and majority vote. The executive is an authoritarian organization which functions from the top down. Congress's deliberations take place in public; executive deliberations take place in secret.

If Congress passes a law overruling an executive order, the law is public knowledge, and the President can challenge the constitutionality of such a law in court. The President is claiming authority to decide, unilaterally and secretly, whether a law unconstitutionally constrains him, break such a law in secret, prevent the courts from ruling on the constitutionality of his actions, and prosecute anyone who exposes him.

Which approach shows a greater respect for the rule of law?
 

As to the "Rule of Law," two thoughts come to mind:

1. In Charles Dickens' Oliver Twist, Mr Bumble upon being informed that "the law supposes that your wife acts under your direction" replies: "If the law supposes that, the law is a ass -- a idiot." (Besides coverture, think of other forms of slavery.)

2. The scene is in a hospital where a patient comes to visit an ailing W. C. Fields, observed him leafing through the Bible. The friend was curious as Fields was far from a religious man and asked him what he was doing. Fields responded: "Lookin' for loopholes."
 

I'm new to this site, so if this has been addressed before, please point me to the appropriate posts.

After watching "Cheney's Law," I am even more convinced that, given the Cheney-Addington view of executive power, there is no reason to believe that they feel that in a time of "extraordinary crisis" they should be compelled to obey the constitutional mandate for a peaceful transition of power at the expiration of Bush-Cheney's second term. I mean, why stop there/then?

My question is both a legal and a pragmatic/political one. Legally, what would have to happen if Bush declared either that presidential elections would be suspended because of the current state of emergency (or some future one prompted by an additional terrorist attack, extended military conflicts, etc.) or (for similar reasons) that he and Cheney would not hand over power to the new president/vice-president elected by the electoral college? And pragmatically, who would enforce the laws and how? Congress could legislate or the Supreme Court could rule but who would enforce this? The military? The Capitol police? The American people? The media? Private militias? Jack Bauer?

I am not a conspiracy theorist, but I have been thinking for some time that there is something like a 10-15% chance of a scenario like the ones outlined above. "Cheney's Law" has made me think that this chance is higher. Frankly, I feel certain that these questions have been discussed at the highest levels of this administration.

Am I alone in these fears?
 

arne langsetmo said...

"Bart" DePalma: Legislation is not superior law to executive orders under the Constitution.

The executive is not empowered to make law.


This is really a matter of semantics and not effect.

For example, the President may order that the CIA adopt one set of interrogation techniques and Congress may pass legislation ordering the CIA to adopt a different set of interrogation techniques. While the latter is what we would more readily call "law," both have the same effect - ordering CIA to perform or not perform an act.

Legislation does not automatically trump the executive order. Rather, the question here is whether the Constitution grants each branch the power to give its order and, if it grants both the power, which order prevails.

In this case, the Constitution grants both branches this power, but Congress prevails because Article I grants Congress the express power to set rules for captures.

A counter example is when the President ordered the creation of the TSP for the purposes of broad foreign intelligence gathering while Congress enacted FISA limiting foreign intelligence gathering to a much smaller subset.

In this case, Article II grants the President the power to conduct foreign intelligence gathering while Article I does not grant Congress the power to do so. Hence, the President prevails here.

The point here is that the Constitution decides the issues of the scope and separation of powers between the branches and is being largely ignored in this Frontline episode.
 

Article II grants the President the power to conduct foreign intelligence gathering

Article II of *which* constitution? Because I'm looking at the United States one, and it doesn't say that.
 

enlightened layperson said...

No President need respect unconstitutional legislation nor must Congress defer to an unconstitutional executive order.

This ignores implies an equivalence between the executive and legislative branches and between a statute and an executive order.


I am flat out arguing that the branches are coequal and that there is no default clause in the Constitution which states that legislation automatically trumps an executive order. Rather, the Constitution grants powers to each branch and the question is whether the branch at issue is acting within those powers.

Congress is a body of equals who decide by debate and majority vote. The executive is an authoritarian organization which functions from the top down.

So? What does this structure have to do with the Constitution's delegation of powers?

Congress's deliberations take place in public; executive deliberations take place in secret.

Hardly. Most decisions in both branches occur in private. The rest is largely political theater.

The President is claiming authority to decide, unilaterally and secretly, whether a law unconstitutionally constrains him, break such a law in secret, prevent the courts from ruling on the constitutionality of his actions, and prosecute anyone who exposes him.

The case law is clear that the President need not observe an unconstitutional statute and need not go to court before acting contrary to that illegal statute. Rather, Congress can go to court as the proponent of that statute if it thinks the statute is constitutional.

I would note that Congress has not even attempted to do so in our current separation of powers debates. Instead, Congress has enacted legislation which has removed much of the unconstitutional legislative and judicial direction of foreign intelligence gathering in FISA.

Which approach shows a greater respect for the rule of law?

Following the boundaries set in the Constitution.
 

Mr. DePalma-please cite the case "law" which holds "the President need not observe an unconstitutional statute and need not go to court before acting contrary to that illegal statute."

And please explain how it was determined to be "illegal" before going to court!

I am particularly interested in any cite to the Constitution which gives the President authority to "not observe an unconstitutional statute."
 

The case law is clear that the President need not observe an unconstitutional statute and need not go to court before acting contrary to that illegal statute.

And if you give the President unilateral and secret authority to decide which laws he does or does not think unduly constrain him, you effectively give him authority to disobey law at will. (And Anderson is quite right. Article II doesn't say a damn thing about espionage).
 

martin said...

Mr. DePalma-please cite the case "law" which holds "the President need not observe an unconstitutional statute and need not go to court before acting contrary to that illegal statute."

In 1994, the Counsel to the President drafted a
memorandum which gave the case law on this matter.

And please explain how it was determined to be "illegal" before going to court!

The Judiciary gets to make the final determination as to whether a statute is constitutional. However, nothing in the Constitution states that the elected branches cannot make their own determinations pending a court ruling. Indeed, to enforce the Constitution, the President must make these determinations.

Think about the implications of your argument that the President must enforce unconstitutional statutes until a court declares it unconstitutional after years of litigation. Imagine that Congress outlaws the Democrat Party and makes membership in that party punishable by death. Should the President start mass executions of Democrats pending a court ruling?
 

Enlightened Layperson said...

BD: The case law is clear that the President need not observe an unconstitutional statute and need not go to court before acting contrary to that illegal statute.

And if you give the President unilateral and secret authority to decide which laws he does or does not think unduly constrain him, you effectively give him authority to disobey law at will.


What secret authority? The Constitution is there for all to read.

Moreover, the President may only disregard unconstitutional statutes, not any he pleases.

(And Anderson is quite right. Article II doesn't say a damn thing about espionage).

Article II grants the President all executive powers and any commander in chief powers to the extent Congress is not acting pursuant to a power enumerated in Article I. The Constitution need not spell out every act which can be fairly said to be executive or military. It has given them all to the President with this broad grant of power.

Foreign intelligence gathering has always been an executive and military command power. There is no dispute over this in history or in the case law.
 

Think about the implications of your argument that the President must enforce unconstitutional statutes until a court declares it unconstitutional after years of litigation.
# posted by Bart DePalma : 10:39 AM


I'd rather think about how you made it through law school without learning about injunctions.
 

"In its brazen conduct, the Bush Administration takes contempt for the rule of law to a new, disgraceful level."

More than disgraceful, criminal.
 

I flinched just a tad as the narrator described the attacks of 9/11 as something "no one could imagine." Figuratively speaking, given just how montrous those events were, I suppose this works. (The G8 Summit in Rome two months earlier, which Bush attended, was "defended" with surface-to-air missiles and fighter jets in anticipation of just this sort of attack.)

But then the crux of this whole constitutional fracas was laid bare. On that day, the narrator described Cheney, in the bunker below the White House, deciding the United States would have to become "a country ruled by men and not by laws."

Also, seeing the loop of Cheney taking his oath of office was poignant -- swearing to protect against what he, Addington, Yoo, and all their apologists have become: domestic enemies of the U.S. Constitution.
 

Mr. Depalma-wow that memo is a masterpiece of sophistry. And I see no case cited therein which supports your proposition. If you can pull the case out, I'd appreciate it.

As for your hypothetical, well... let's return to the real world.

Bush voiced his opinion that the McCain-Feingold campaign finance law was unconstitutional, but he signed it anyway. (A seeming breach of his oath of office, but nevermind.)

Well the Supreme Court upheld it.

So now you have a statute that Congress passed, Bush signed, and the Supreme Court upheld.

Is it seriously your legal opinion that the next president (or even Bush himself for that matter) could refuse to enforce the McCain-feingold law?
 

Martin:

Is it seriously your legal opinion that the next president (or even Bush himself for that matter) could refuse to enforce the McCain-feingold law?

Exemplary!

Bush & Co. on McCain-Feingold:

"We think this bill is B.S. and executive agencies aren't required to follow it."
 

Think about the implications of your argument that the President must enforce unconstitutional statutes until a court declares it unconstitutional after years of litigation. Imagine that Congress outlaws the Democrat Party and makes membership in that party punishable by death. Should the President start mass executions of Democrats pending a court ruling?

Dilan has answered this better than I possibly could. (Don't have time to find the link now; will look later). But let me give it a shot.

There is a difference between passively leaving unenforced a law commanding the President to do what the Constitution forbids and actively violating a law that infringes on the President's constitutional prerogatives. It is not unconstitutional for the President to refrain from using his prerogatives to the full extent the Constitution allows.

The Constitution gives the President unlimited pardon power WRT Federal crimes. In theory, he has the consitutional authority to pardon every single person in the Federal corrections system. But it is prefectly constitutional for him to refrain from exercising this power. If Congress forbade the President from pardoning anyone who had given him a financial contribution of over a certain amount, this law would be unconstitutional. But it would be perfectly constitutional for the President to refrain from making such pardons until the law was formally struck down by the courts.

What secret authority? The Constitution is there for all to read.

Um, yes, but as you also commented, the scope of separation of the constitutional powers between the President and Congress has been raging on and off since the ratification of the Constitution and remains "unsettled" to this day. You are asking people to read the Constitution, always arrive at the same conclusion as the President as to what the delineation between branches is, and assume that the President is violating any statute that infringes on his authority, even if he never questions the constitutionality of such a statute.

Moreover, the President may only disregard unconstitutional statutes, not any he pleases.

Yes, but if the President gets to decide for himself which statutes unconstitutionally encroach on his authority and violate them without telling anyone, the practical effect is to give the President complete unilateral authority to decide whether to follow any particular law or not. Any clever constitutional sophist can come up with a reason any given statute is unconstitutional if the decision is not held up to any public scrutiny.

That being said, I think Professor Lederman is right. I have responded altogether too much to this provocation. As soon as I find Dilan's refutation, whenever Bart makes this claim, I will simply link to Dilan and leave it at that.
 

Martin said...

Is it seriously your legal opinion that the next president (or even Bush himself for that matter) could refuse to enforce the McCain-feingold law?

Up until the Courts hold the statute constitutional the President can refuse to enforce a statute which reasonably appears to be unconstiutional.

McCain Feingold sure fell in that category.

I was shocked when the Supreme Court held that McCain Feingold's censorship provisions were not a violation of the First Amendment.

However, once the Court has ruled that MF was constitutional, the President would be compelled to enforce the statute regardless of what the Constitution actually says.

Unfortunately, there are no checks and balances on the Court.
 

@ ragman:

Some of this stuff does start to sound a bit "tin-foil hat." But with this crew . . .

You are not alone.

I recall this essay by Ernest Partridge, A Republic, If We Can Keep It.

Recall, too, the alarm stirred up by DeForest B. Soaries, just before the '04 elections.
 

"Bart" DePalma:

"Bart" DePalma: Legislation is not superior law to executive orders under the Constitution.

[Arne]: The executive is not empowered to make law.

This is really a matter of semantics and not effect.


To those that want to pretend for rhetorical purposes that it is a "matter of semantics". Which some might cavil is just an objection on my part as to the semantics of "semantics". But they're not really interested in discussing in an honest fashion what is actually going on....

For example, the President may order that the CIA adopt one set of interrogation techniques and Congress may pass legislation ordering the CIA to adopt a different set of interrogation techniques. While the latter is what we would more readily call "law," both have the same effect - ordering CIA to perform or not perform an act.

Oh, we can make it simpler. Say that the CEO of a corporation tells you as an employee to do one thing, while there's a law that says that such an act is illegal. What result? And need I bring up Nürnberg?

Cheers,
 

"Bart" DePalma:

... there is no default clause in the Constitution which states that legislation automatically trumps an executive order.

There's a provision in the Constitution that says that "[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...." (U.S. Constitution, Article VI).

It is true that a law that is made contrary to the Constitution is no law at all, and it's effect is null and void. But there's no such provision for a law made which is in conflict with an executive order. If Congress makes a constitutional law, whether or not the executive disagrees, it is the law. If they make an unconstitutional law, it is null and void and without effect regardless of whether the executive loves it or opposes it.

The President is required to take an oath to uphold the Constitution, and to see that the laws are faithfully executed.

The founders placed law-making power in the hands of Congress for a reason ... perhaps they had a time-machine and found out we'd have a Dubya-The-Deciderator on our hands.

Cheers,
 

"Bart" DePalma:

The case law is clear that the President need not observe an unconstitutional statute and need not go to court before acting contrary to that illegal statute. Rather, Congress can go to court as the proponent of that statute if it thinks the statute is constitutional.

Just as an erstwhile criminal may act contrary to what they maintain is an illegal statute and be held blameless if their view prevails in court. That doesn't make them any less criminal if the courts rule against them. (See, e.g., the "sovereign citizen" whackjobs...)

Cheers,
 

Is presidential nullification suggested by signing statements?
 

Arne Langsetmo said...

It is true that a law that is made contrary to the Constitution is no law at all, and it's effect is null and void....If Congress makes a constitutional law, whether or not the executive disagrees, it is the law. If they make an unconstitutional law, it is null and void and without effect regardless of whether the executive loves it or opposes it.

Precisely!

While Article I limits Congress to powers enumerated in that provision, those enumerated powers are plenary and trump concurrent Executive or CiC powers.

The President's general Article II executive and CiC powers are plenary only to the extent that they fall outside of Congress' enumerated Article I powers.
 

Link to Dilan refuting Bart much better than I could ever hope to. Anyone wanting to read the whole debate just look here to see it all said and no need to repeat.
 

Bart Depalma wrote "In a debate over the scope and separation of the constitutional powers of the President and Congress, the only rule of law that counts is that established by the Constitution. Legislation is not superior law to executive orders under the Constitution"
------------
This is simply NOT correct. The Founding Fathers framed the Constitution specifically with the intention of limiting executive power, and the potential for its abuse. Legislation *DOES* take precedence over Executive Orders.
"But it is not possible to give to each department an equal power of self-defense. In republican government,the legislative authority necessarily predominates"
- Alexander Hamilton/ James Madison,The Federalist Papers#51 February 1788
 

modernleper said...

Bart Depalma wrote "In a debate over the scope and separation of the constitutional powers of the President and Congress, the only rule of law that counts is that established by the Constitution. Legislation is not superior law to executive orders under the Constitution"

This is simply NOT correct. The Founding Fathers framed the Constitution specifically with the intention of limiting executive power, and the potential for its abuse. Legislation *DOES* take precedence over Executive Orders.

Please point to the "But it is not possible to give to each department an equal power of self-defense. In republican government,the legislative authority necessarily predominates"

- Alexander Hamilton/ James Madison,The Federalist Papers#51 February 1788


Federalist 51 is an outstanding exposition on the necessity of dividing the powers of government between the states and federal government and then by further dividing the powers of the federal government between three branches so none may predominate.

Hamilton correctly observed that the legislature has the most power in a Republican system. A simple comparison of Article I with Articles II and III confirms this.

However, Hamilton is most certainly not arguing that the Constitution grants Congress all powers and the other two branches must defer to legislation regardless of whether it is grounded in an Article I power. Quite the contrary, Hamilton counseled:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
 

"Bart" DePalma is perhaps 40,000 feet to low:

[Arne]: It is true that a law that is made contrary to the Constitution is no law at all, and it's effect is null and void....If Congress makes a constitutional law, whether or not the executive disagrees, it is the law. If they make an unconstitutional law, it is null and void and without effect regardless of whether the executive loves it or opposes it.

Precisely!


No, "Bart". Your contention here is that if a preznit disagrees with a law, it has no force (and that if he agrees with a law, it does have effect, regardless of any Constitutional infirmity); that he is as qualified as Congress to make "law" (or to reject law [assuming no veto]), and that his determination is to be accorded some status above that of an accused criminal who has made the same "determination". I disagree, and I defy you to provide any evidence that the Constitution vests him any more right to ignore laws he disagrees with than the accused criminal. If anything, he has arguably less ability to flout the laws, as he has a duty to see that that the laws be faithfully executed as part of his job, unlike the accused criminal.

Cheers,
 

"Bart" DePalma:

However, Hamilton is most certainly not arguing that the Constitution grants Congress all powers and the other two branches must defer to legislation regardless of whether it is grounded in an Article I power....

No one has said that, "Bart". Favourite technique of yours, the "straw man". If you want to 'discuss' things here with other people rather than just flap your trap to the annoyance of all, why don't you try to address the actual arguments that others put forth?

Thanks in advance.

Here's the argument (from modernleper): "Legislation *DOES* take precedence over Executive Orders." This is the holding of Youngstown. Disagree if you like (and please do so on your own blog), but it is nonetheless good law and trying to pretend it is not is unseemly for a lawyer.

BTW, if you approve of that Hamilton quote you included above, how do you reconcile that with your absolutist views of certain (alleged) "plenary" preznitential powers (particularly in the absence of any explicit language to that effect).

Cheers,
 

Arne Langsetmo said...

[Arne]: It is true that a law that is made contrary to the Constitution is no law at all, and it's effect is null and void....If Congress makes a constitutional law, whether or not the executive disagrees, it is the law. If they make an unconstitutional law, it is null and void and without effect regardless of whether the executive loves it or opposes it.

BD: Precisely!

No, "Bart". Your contention here is that if a preznit disagrees with a law, it has no force (and that if he agrees with a law, it does have effect, regardless of any Constitutional infirmity)...


LMAO!

arne, you argue simply to be contrary. I agree with your point and you change my argument so you can post that we disagree.

I know this may harm your reputation in these precincts to be seen agreeing with me, but that is the fact. I do agree with your first statement and have never said that the President may nullify any law with which he disagrees.
 

"Bart" DePalma:

[Arne]: No, "Bart". Your contention here is that if a preznit disagrees with a law, it has no force (and that if he agrees with a law, it does have effect, regardless of any Constitutional infirmity)...

arne, you argue simply to be contrary. I agree with your point and you change my argument so you can post that we disagree.

Nonsense. Your contention is that the preznit has an independent power to determine for himself constitutionality (and to act accordingly). This implies that the gravamen of the infirmity is the preznit's disagreement. My contention is that laws are constitutional or unconstitutional regardless of the agreement or disagreement of the preznit (or you ... or me) and that we have exactly as much legal prerogative to make such a binding determination as does the preznit (which is to say "none"). That power is with the courts and the courts alone.

You have never made this claim, and to say you "agree" is simply dishonest.

I [...] have never said that the President may nullify any law with which he disagrees.

Nor did I say you did. What you did say is that the preznit can disregard laws that he thinks are "unconstitutional". I'd note that this would hardly be a defence to a prosecution brought against a act, found by a court to be illegal, on his orders. And the preznit may be impeached and then prosecuted and convicted himself for crimes regardless of the preznit's view of the constitutionality at the time. The preznit is not more empowered to ignore laws he thinks "unconstitutional" than a common criminal. Is that clear?

The view:

"NIXON: Well, when the president does it that means that it is not illegal.

"FROST: By definition."

has been refuted (despite your desperate attempts at CPR on that corpse).

Cheers,
 

Arne wrote:
If they make an unconstitutional law, it is null and void and without effect regardless of whether the executive loves it or opposes it.

If congress does pass on unconstitutional law (and it gets signed in), doesn't it have effect until the SCOTUS decides its unconstitutional? Constitutionally, isn't the authority to call constitutional fouls vested with the SCOTUS (someone ends up making the authoritative call, right)?
 

Sounds familiar...

Some of the most tense exchanges at the hearing centered on whether the president must strictly abide by provisions of the Foreign Intelligence Surveillance Act, a 1978 law that governs clandestine spying in the United States. Mukasey suggested that the president can ignore a law, including the surveillance act, if it unduly impinges on his constitutional authority as commander in chief during wartime.

"The president is not putting somebody above the law; the president is putting somebody within the law," Mukasey said. "The president doesn't stand above the law. But the law emphatically includes the Constitution."

 

"Bart" DePalma:

Sounds familiar...

[quoting account of Mukasey]:

"The president is not putting somebody above the law; the president is putting somebody within the law," Mukasey said. "The president doesn't stand above the law. But the law emphatically includes the Constitution."


I already pointed that out, "Bart". Three posts up.

Cheers,
 

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