T Nation

King George II


#1

Curious about your thoughts on this. I really liked this article, and I dig this writer. Its from TIME magazine.

We Don't Need a New King George

How can the President interpret the law as if it didn't apply to him?

A somewhat legal law is a little like a somewhat pregnant woman. At first blush, it seems like an absurdity. But President Bush disagrees. In the past five years, quietly but systematically, he has been arguing that the law doesn't always apply to him. How has he done this? By attaching "signing statements" that spell out his own attitude to bills he signs.

Previous Presidents have sporadically issued signing statements, but seldom and mainly as boilerplate or spin. Until the 1980s, there had been just over a dozen in two centuries. The President's basic legislative weapon, after all, is the veto power given him by the founders. He can use the power as leverage to affect legislation or kill it. But he cannot legislate himself or interpret the law counter to Congress's intent. Signing statements were therefore relatively rare instances of presidential nuance or push-back. In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105.

In five years, President Bush has already challenged up to 500 provisions, according to one tally--far, far more than any predecessor. But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive. Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That's how our democracy works, right?

Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.

He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Translation: If the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." That is, of course, a very strange idea--which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the President's view is utterly irrelevant. Alito seemed to concede that at the time, recognizing the "novelty of the procedure and the potential increase of presidential power."

Alito, of course, didn't foresee the war on terrorism. But put a war President's power together with the new use of signing statements, and Executive clout has been put on steroids. "If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived," argued Senator Lindsey Graham, a Republican from South Carolina.

As Graham shows, this isn't a Republican-Democrat issue. It's a very basic one. A President, Democrat or Republican, has every right to act unilaterally at times to defend the country. But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It's disturbing to think we may now be quietly installing a second one.


#2

Irish,

Are you also going to start a post titled "The Imperial Judiciary." After all, I think the Federal courts (including the Supreme Court) has legislated from the bench (in contraction to the Constitution) far more times in the past 40 years than President Bush's supposed flouting the law.

Are you going to berrate the Courts? Of course not, because the Courts have done the libeal's bidding and so you love it. Liberals cannot get their agenda past State Lesislatures or the Congress, so their favorite vechile is -- "let's sue in Federal Court" so a life-time appointed judge can find "emmanations from prenumbras..."

If you want to attack Bush, then surely you must attack the Courts, unless your beef has less to do with logic and more to do with liberal partisan politics.


#3

Let's be honest here... hereunto now, the Supreme Court has done a damned fine job of staying out of politics and interpreting the Constitution to the spirit in which it was written.

Conservatives are all to quick to call the Supreme Court a "liberal body", when ACTUALLY, on average they are quite centrist, or just to the right of center.

Give me an example PLEASE of how the Supreme Court has supported the "liberal" agenda.

Roe v. Wade? Oh right, the constitution didn't say anything about abortion. It did, however stipulate the right to life, which strictly speaking applies to "men", which was interpreted as "people"... you're not a person until you are born. before that you are an EMBRYO. The so-called "pro-life" argument relies heavily on scripture for support, which is obviously inadmissable as evidence in the courts of a nation which clearly devides religion and government.

Civil Liberties (oh crap, did I just use the "L" word?) Hmmm.... "life, liberty, persuit of happiness". "All men are created equal." Can't really argue with that, can you?

Honestly, are conservatives still so mired in their twisted modern interpretation of manifest destiny that they must force every other citizen of the nation to conform to their ideology? What harm does it do you if my gay friend gets married to his partner of twenty years? NONE. ...so why make a big fuss about it? If you're so quick to vouch for patriotism as your party line dictates, why eschew the idea of Liberty from your doctrine, and the very word from your vocabulary?

Bush's approval ratings continue to slide, and as they do, America will once more slip through the ever tightening grasp of the republican agenda. ...and for damned good reason. Don't defend a horrible president and a WAR CRIMINAL simply because he's "of your party" by attacking honest Democratic values. This "defend by attacking" BS isn't going to cut it much longer in the American political world - as a great man once said, "you can fool some people some of the time, but you can't fool all the people all of the time."

-Kristoffer


#4

Umm, you've got to be kidding me.

Just off the top of my head, look at any case decided by the New Deal USSC after it was intimidated by Roosevelt and his court-packing plan. Specifically, check out Wickard v. Filburn, and its entire line of precedents.

Then go look at the Warren and Burger courts, which were extremely good at discovering things that were somehow hidden amongst the penumbras and emanations of the actual words of the Constitution for 150 years before these wizened sophisitcates pulled them out.

But you seem to have Roe v. Wade on the mind, so lets talk about that one for a moment.

You obviously have no idea what you're writing about.

In Roe v. Wade, Harry Blackmun extended the Griswold line of cases to hold that the "right to privacy," which actually does not exist as such in the Constitution, barred the government from restricting a woman from placing an undue burden on a woman's ability to abort her fetus -- Blackmun originally set up a trimester system that fairly well restricted the government from passing laws restricting abortion rights during the first two trimesters, but that has been altered by later precedents, most notably Planned Parenthood v. Casey.

It is one of the ultimate examples of the USSC taking a legislative role from the bench -- it created a constitutional right out of the ether (instead of going through the very well delineated process of amending the constitution), and wrote a decision full of policy decisions - namely, setting up the trimester analysis.

Serious legal scholars, even those who support the effect of Roe v. Wade, agree that it was a horribly reasoned legal decision.

What are you blathering about? You've (sort of) taken phrases from the Declaration of Independence (which isn't the same as the constitution and actually does not have the force of law, but I'm sure you knew that) and laid them forth to prove what? Do you think the USSC authored those or something?

Those pesky conservatives -- they actually expect the constitution only to mean what it says, and if people wish to add rights to what are enumerated, that they might actually use the Amendment process specifically laid out in the Constitution to do so.

Because, you know, there was a point to writing the thing down...

You've done quite well at fooling yourself, apparently...


#5

You are right on several specific accounts, but have failed to address the SPIRIT of my post. (Ironic)Allow me to address some specifics.

Sure, I'll google them when I have a bit of spare time. - sounds like it could be worthwhile. I'm not a legal expert, but I have a deep love of history.

Perhaps setting up such a stringent set of guidelines was a bit of an extension of their designated power, but the purpose for that was to limit lawmakers ability to restrict abortion to say... the first 5 minutes of pregnancy. Lawmakers need CLEAR guidelines to work in, otherwise they take advantage of the system in which they work (as they should - it's their job). When clear guidelines aren't mandated by the Constitution, the USSC must look to the spirit in which it and this country were founded in order to make a decision. ...they did just that - the absolute logic behind it may have been a bit weak as aforementioned, HOWEVER, I think that the decision they made and the specifics of it WERE rooted in the spirit of the Constitution.

heh, obviously I know who authored the declaration of independence, and I also know that it does not technically have the force of law - I DO however know that it reflects the sprit and the many notions upon which this nation was founded.

Sure, the Supreme Court has made a few decisions that were a bit of a stretch. ...that doesn't make them a "liberal body", and it doesn't mean that they uphold a "liberal agenda". If anything, they've simply thwarted the Christian-conservative agenda, so you folks must've assumed that they're a bunch of dirty hippies trying to stick it to the man.

Your decision to attack a few specifics of my argument without addressing its spirit on the whole is rather telling. Again, the conservatives attack where they should defend and my questions go unanswered.


#6

It's hard to figure out what the point of your post is, other than you have strong feelings about some "conservative Christian" right-wing agenda that you don't like. The only specifics in your post were wrong, so if addressing them was nitpicking in your view I'm sorry -- but you've got to give me more to work with.

The USSC can't be said to have any particular agenda from a historical perspective any more than "the President" can -- it depends on the justices sitting on the court at the time. The Warren Court was very liberal -- and I mean that in a legal sense -- it did not feel it was constrained by the text of the Constitution. It was kind of pre-hippie though - maybe you'd think they were beatnicks or something...

And the New Deal Court was similarly legally liberal ("activist" is more the term) - especially when it came to allowing the government to regulate into areas the Constitution never contemplated via an exceptionally broad reading of the Commerce CLause power of Congress.

The Burger Court was as activist well, but not as much - though it did give us the gem of Roe v. Wade, unless I am misremembering -- Justice Blackmun was not among the leading legal minds ever to occupy the bench. The Rehnquist Court was largely centrist, and for now it looks as if the Roberts Court will be as well.


#7

Good points by BB, and he didn't even mention some more recent stuff like Kelo. But you're both avoiding the issue of the thread: the fact that this President thinks he's above the law, perhaps even moreso than Richard Nixon (who at least had some accomplishments to show for his term and change in office).


#8

Well thats the Republican mantra. Spin it into avoiding the question entirely.

Having the Supreme Court, nine judges, interpret the Constitution (while still at the mercy of Congree anyway) is a far different thing than one man writing additives into bills that give he, and he alone, exclusive powers, especially about torture.

I suspect the silence on this is because no one wants to address this issue.


#9

I don't know about the "thinks he's above the law" part. Essentially this is a showdown between the Executive Branch and the Legislative Branch over how far each branch's powers extend. The Bush Administration's positions aren't significantly different from his predecessors', and there are some very smart legal scholars giving him advice -- let's just say he didn't pull these arguments out of his own butt.

We'll see what happens with this whole thing -- personally, I will be very surprised if a Republican-controlled Congress really pushes the Administration on this.

What may happen in the end is that this Congress decides to amend FISA to except the NSA program (assuming, for the sake of argument, that the NSA program is even in technical violation of FISA -- for all the shouting, we still don't know enough about the program's details to know in what way, if any, it may "violate" FISA).


#10

Wow! What a great post!

Facts facts and more facts........................I wonder how they will twist these?


#11

Irish,

You are wrong on the silence and this issue of the Court has direct bearing on your post. If you are bothered by the President's so-called abuse of his power (which I completely disagree) then why are you not bothered by the Court's CLEAR overstepping of its bounds time after time after time, CREATING rights and laws that are simply NOT IN THE CONSTITUTION?

Your silence on this point is deafening.....


#12

What do you mean when you say the Supreme Court is "still at the mercy of Congree anyway"? I assume you meant Congress, but what did you mean by "at the mercy of"?


#13

Good points about the courts steveo. It's been said that liberals cannot win at the polls so they have turned to the courts to assist in pushing through their agenda. I think that is fairly evident in their coming unhinged about the courts slight shift to the right under GW.


#14

Bring Back Clinton (not Hillary)!


#15

So far not one liberal has taken me up on my bet.

If you guys are so sure that the President "broke the law" you wouldn't be afraid to accept a little wager.

My stance: SCOTUS will find his actions violated no law.

I'd be willing to bet.

Time to put up, or SHUT THE FU.. UP!!!

JeffR


#16

Good to see the neigborhood political troll came back. Was worried that you got lost.


#17

I remember when John Roberts was getting confirmed, he pointed out that Congress makes the laws (and yea that was a typo sorry), and so if they don't like how the Supreme Court rules, they should simply change the laws.


#18

Overstepping what bounds? They've been apointed to uphold the Constitution. Where haven't they done it? What cases are you talking about? Its obvious that I'm not versed in law, so individual cases are something I won't be able to respond to. But what movements are you talking about here? Where did they create rights?

As I said, a court of nine evenly divided is something I trust more than some president, be it a democrat or republican. Bush has given himself exclusive rights that should not be in the hands on any one man. Why even pass the anti-torture bill if he can overrule it? What the fuck was the point- to quell John McCain's moral judgement that torture is fucking wrong?


#19

Boston, you come at this from a lawyers' point of view, which is good to have.

But if it legal, does that mean it is right? Many laws have existed that were terribly wrong and offbase in this country. The ones I trust least are the ones giving the government such extensive powers of individuals.

The law should be changed if it decrees that this is legal.


#20

Well now, matters of "right" and "wrong" would be a very interesting discussion, but I think we'd need to agree on the starting point and the definitions for it to be a meaningful discussion.

One of the reasons we have laws is to do exactly that - to codify "society's" views on certain subjects. The stuff on which society agrees most strongly and holds most dear is (supposed to be) enshrined in the Constitution by a supermajority of the people. Regular laws are also a useful guidepost.

This whole thing is tricky precisely because people are disagreeing about the intersection between the Constitution and a law -- in an undefined area. It's further tricky because everyone is essentially talking out of his @$$ w/r/t the NSA program, because no one (no one doing the arguing/demogoguery, as the case may be, that is) really knows how it works or whether it actually conflicts with FISA.

It will be interesting as more details come out.