PDA

View Full Version : Presidential Signing Statements


tiptap
04-17-2007, 03:07 PM
The Pulitzer prizes are out and the national prize went to the investigative reporting on Presidential Signing Statements.
http://www.boston.com/news/nation/articles/2006/04/30/bush_challenges_hundreds_of_laws/

Here is brief history of such signings. Started under the Reagan Administration as added to the published statements about bill then, crafted by Alito, it was used by Bush 1, Clinton and Bush 2 to admend the law. Sort of a line item veto over legislative action as opposed to expenditures.

http://en.wikipedia.org/wiki/Signing_statement

Should you want to read some of Bush 2's statements.
http://www.coherentbabble.com/signingstatements/signstateann.htm

And here get signing statements from the 20th Century.

http://www.presidency.ucsb.edu/signingstatements.php?year=1999



The trend has been from Reagan on to couch in obscure language to block the authority of Congress to interfere with the Executive Branch at the Executive Branch's discrimination.

tiptap
04-17-2007, 03:17 PM
Let's add this search to the forum of discussion

http://www.presidency.ucsb.edu/ws/index.php

It would include most of the Signings that include statements about Executive powers.

Baby Lee
04-17-2007, 03:18 PM
It gets worse, his fingers were crossed.

Seriously though, how is this anything more than an explicit enumeration of reservations any commander in chief already may harbor implicitly?

Mr. Kotter
04-17-2007, 03:19 PM
I would expect that if these signing statements are unconstitutional....as one could argue, they upset the Constituional balance of power between the branches of government...the Supreme Court will intervene at some point.

tiptap
04-17-2007, 03:36 PM
Well we know how Alito will vote right.

tiptap
04-17-2007, 03:42 PM
The reservations have started coming with specific mention of certain parts of the legislation and stating they specifically are to be dealt with at the Unitary Executive's understanding. The most glaring use is in regards to the McCain Act in response to Abu abuses and secret torture procedures. You have to look up the referenced provisions to see how narrowly the President wishes to interpret the intent of the legislation and somewhat contrary to the intent of the legislation to explicitly address.

Just VETO the bill if you don't like it. You don't get to pick and choose.

jidar
04-17-2007, 04:04 PM
Man am I glad when this Bush is gone.

Mr. Kotter
04-17-2007, 04:12 PM
The reservations have started coming with specific mention of certain parts of the legislation and stating they specifically are to be dealt with at the Unitary Executive's understanding. The most glaring use is in regards to the McCain Act in response to Abu abuses and secret torture procedures. You have to look up the referenced provisions to see how narrowly the President wishes to interpret the intent of the legislation and somewhat contrary to the intent of the legislation to explicitly address.

Just VETO the bill if you don't like it. You don't get to pick and choose.
Congress has the Congressional Record to record for posterity, any objections, qualifications, or reservations members of Congress have in voting as they may on a particular piece of legislation. It allows them, to place on the record, the context of their vote. Some would call it, covering-their-ass, rationalizations, or explanations. It allows members to add context to a simple vote.

Supporters of these signings statements argue they give the same sort of context to Presidential signings of such legislation. I'm not saying I agree, necessarily....but it is a rational argument.

It's rational in light of the out-of-context commentary offered by some historical revisionists and critics who are notorious for engaging in it...either in retrospectively trying to rewrite history, or even during campaigns or just simple public relations games....years, or even months after the actual signing.

patteeu
04-17-2007, 04:21 PM
Let's see, on the one hand we have at least one Supreme Court Justice and 4 Presidents coming from both parties endorsing the practice and on the other hand we have tiptap...

:hmmm: :p

Eleazar
04-17-2007, 04:21 PM
omgz teh bush is taking over the worldz

Amnorix
04-17-2007, 04:37 PM
IMHO they're unconstitutional. The President does NOT have permitted discretionary authority with respect to enforcement of the law, which is basically what the signing statements are designed to do, especially as "broadened" by Bush.

Conceptually, of course, the executive has the right to interpret ambiguities in the way that it deems best, but it does not have the power to sign a bill into law, but then say that it's going to ignore a few sections here and there, or that it believes that a few sections are unconstitutional and therefore unenforceable.

I despise this president and what he has done to the balance of power as between the legislative and executive branches.

Amnorix
04-17-2007, 04:39 PM
omgz teh bush is taking over the worldz

Honestly, in my humble opinion, he would if he could. He honestly thinks he's on some kind of mission or crusade to reshape the world in his image. And he can take this idea of his and shove it.

His arrogance and stupidity has set this country back years in terms of our finances, our international relations, and our domestic policies.

The one thing he did right was take out afghanistan and the Taliban. Other than that, his administration is littered with failures.

Mr. Kotter
04-17-2007, 04:47 PM
IMHO they're unconstitutional. The President does NOT have permitted discretionary authority with respect to enforcement of the law, which is basically what the signing statements are designed to do, especially as "broadened" by Bush.

Conceptually, of course, the executive has the right to interpret ambiguities in the way that it deems best, but it does not have the power to sign a bill into law, but then say that it's going to ignore a few sections here and there, or that it believes that a few sections are unconstitutional and therefore unenforceable.

I despise this president and what he has done to the balance of power as between the legislative and executive branches.I'll tell you what....IF these signing statements are unconstitutional; I'd bet dollars to donuts that the War Powers Act is even MORE so.....:)

Personally, if only one of the two are unconstitutional: it ain't this one.

Baby Lee
04-17-2007, 04:49 PM
IMHO they're unconstitutional. The President does NOT have permitted discretionary authority with respect to enforcement of the law, which is basically what the signing statements are designed to do, especially as "broadened" by Bush.

Conceptually, of course, the executive has the right to interpret ambiguities in the way that it deems best, but it does not have the power to sign a bill into law, but then say that it's going to ignore a few sections here and there, or that it believes that a few sections are unconstitutional and therefore unenforceable.

I despise this president and what he has done to the balance of power as between the legislative and executive branches.
I seriously don't get it. I don't get the anger. I don't get the concern.

They're not 'unConstitutional.' They're 'not Constitutionally recognized.'

At least you have a written memorialization of where he stands.

The president's discretion is guided by the Constitution, and his actions will be judged under the Constitution. Without these signing statements, he could govern EXACTLY as his does with the signing statements, and the only difference would be, from the standpoint of Constitutionality, that there is no longer a tangible memorialization of his thought processes to hang him with.

patteeu
04-17-2007, 04:56 PM
IMHO they're unconstitutional. The President does NOT have permitted discretionary authority with respect to enforcement of the law, which is basically what the signing statements are designed to do, especially as "broadened" by Bush.

Conceptually, of course, the executive has the right to interpret ambiguities in the way that it deems best, but it does not have the power to sign a bill into law, but then say that it's going to ignore a few sections here and there, or that it believes that a few sections are unconstitutional and therefore unenforceable.

I despise this president and what he has done to the balance of power as between the legislative and executive branches.

Congress loves to pass multi-faceted legislation and often passes legislation that is, in part, unconstitutional. When the courts strike down a law on constitutional grounds, they give themselves the option of striking down the entire law or trying to rehabilitate the law by striking only the unconstitutional portion or by interpreting the law in a way that makes it constitutional. Why shouldn't the Executive branch have equal authority to check the Legislative branch when they try to exceed their constitutional authority (especially when it is at the expense of the Executive)?

If Congress passed an extremely popular bill that included provisions to build a wall on the border, cut taxes on the middle class, subsidize alternative fuel research, and lower the cost of healthcare by reducing bureaucratic waste, fraud, and abuse at FDA, but they also included a provision that requires the President to get approval from the Speaker of the House before he can exercise his constitutional power to pardon, is his only choice to either veto the entire bill or become an accomplice in this unconstitutional revision of the pardon power? What if Congress were to override his veto, is he SOL on the pardon power then? Or would that be a reasonable situation in which the President could simply sign the law and ignore the unconstitutional provision requiring him to subordinate himself to the Speaker on matters of pardons?

BucEyedPea
04-17-2007, 05:01 PM
Let's see, on the one hand we have at least one Supreme Court Justice and 4 Presidents coming from both parties endorsing the practice and on the other hand we have tiptap...

:hmmm: :p
Come on patty, that doesn't mean it's valid. That's just appealing to authority and I don't know if other presidents are the correct authority on this. They may just want others to be able to do it.

Mr. Kotter
04-17-2007, 05:17 PM
Come on patty, that doesn't mean it's valid. That's just appealing to authority and I don't know if other presidents are the correct authority on this. They may just want others to be able to do it.
I guess we will find out then won't we? When the and if the Supreme Court, rightly, decides the issue. :)

patteeu
04-17-2007, 05:28 PM
Come on patty, that doesn't mean it's valid. That's just appealing to authority and I don't know if other presidents are the correct authority on this. They may just want others to be able to do it.

It was a joke, which is why I added the tongue. :)

Baby Lee made the primary argument for why there is nothing wrong with the signing statement itself.

Beyond that, is there really anything wrong with the general concept of the President protecting his Constitutional turf? You may have disagreements with the substance of a specific signing statement, but surely you don't have a problem with the general practice.

BucEyedPea
04-17-2007, 05:36 PM
It was a joke, which is why I added the tongue.

Baby Lee made the primary argument for why there is nothing wrong with the signing statement itself.

Beyond that, is there really anything wrong with the general concept of the President protecting his Constitutional turf? You may have disagreements with the substance of a specific signing statement, but surely you don't have a problem with the general practice.

I don't have a firm opinion on this yet. Although, I'm inclined to lean toward what Amnorix said to some extent. I doubt the matter may is as simple as black&white and these may go beyond protecting his turf ( especially the way Bush tends to view things). I be interested in reading more details and seeing more arguments. I'd just had expected to see a better argument from you on it as the chief ( pun intended) parser here. ( that is if my brain wasn't so fried as it is right now) I didn't get the joke apparently.

BucEyedPea
04-17-2007, 05:52 PM
I spoke too soon. I came in on this last page believing it was an old thread and didn't see the earlier arguments. My bad!

Adept Havelock
04-17-2007, 06:57 PM
Why shouldn't the Executive branch have equal authority to check the Legislative branch when they try to exceed their constitutional authority?


Because that's not how the founding fathers wrote it?

That's the job of the Judicial branch, not the Executive, AFAIK.

If you want to give the Executive branch that power, there's a process to do so.

tiptap
04-17-2007, 07:21 PM
If you have read the accompaning web sites one would find that so far the Supreme Court has ignored Presidential Signing Statements as related to Congressional intent and authority. The new use and publishing of the Statements in the U.S. Code Congressional and Administrative News, was entirely new to the publication of laws with the Reagan Administration. Up until then the Statements had been only a part of the Presidential papers and Executive collection. How is this not a preemptive attempt to legislate. This most likely arose from a divided government with different political parties occupying the Congress and Whitehouse.

This is what makes the Bush 2 use so different is that there is emnity with his own party's work in Congress. It is much more the intent to fashion the legislation as the Presidency submitted instead of what was legislatively passed.

The default condition is to assume what is passed is Constitutional. There is no immediate declaration that this law is unconstitutional and certainly not by the President. That only comes as issues are raised in the courts. Additionally we already had a strong ruling that line item vetoes are unconstitutional because the President has only two options; sign the bill or veto by sending it back. That will easily apply to this situation as well.

BucEyedPea
04-17-2007, 07:57 PM
Because that's not how the founding fathers wrote it?

:clap:

For the strict constructionists/originalists:


Article I Section 7 Procedure ofr Passing Laws
2. How bills become laws
Every bill which shall have passed the House of Reps and the Senate shall, before it becomes a law, be presented to the President of the United States; if he approves he shall sign it, but if not he shall return it, with his objections, to that house in which it shall have originate, who shall enter the objections at large on their journal, and proceed to reconsider it.


Silent? I don't get it. It seems pretty straightfoward on what is to be done.
According to this FindLaw Dean article, who I respect as a principled conservative, Bush is using these as line item vetoes, not to mention the excessive amount of challenges. All fitting in with his "unitary executive" theory. In 1988 the Supreme Court held that line item vetoes are unconstitutional: Clinton v. New York. The High Court also said a president had to veto an entire law. The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. (see above)


I read this months ago but couldn't remember it well. So I dug it up again.
It is a good read with a lot more specifics regard to past use and Bush's use as well as how it could recoil on him eventually.
http://writ.news.findlaw.com/dean/20060113.html

BucEyedPea
04-17-2007, 08:13 PM
The default condition is to assume what is passed is Constitutional.
I believe there is a presumption of constitutionality.

2001 - 23 signing statements in 2001
2002 - 34 statements, raising 168 constitutional objections;
2003 - 27 statements in 2003, raising 142 constitutional challenges,
2004 - 23 statements in 2004, raising 175 constitutional criticisms.
Total: 505 constitutional challenges to passed laws in his first term

Logical
04-17-2007, 08:13 PM
Nice thread

Mr. Kotter
04-17-2007, 08:15 PM
:clap:

For the strict constructionists/originalists:




Silent? I don't get it. It seems pretty straightfoward on what is to be done.
According to this FindLaw Dean article, who I respect as a principled conservative, Bush is using these as line item vetoes, not to mention the excessive amount of challenges. All fitting in with his "unitary executive" theory. In 1988 the Supreme Court held that line item vetoes are unconstitutional: Clinton v. New York. The High Court also said a president had to veto an entire law. The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. (see above)


I read this months ago but couldn't remember it well. So I dug it up again.
It is a good read with a lot more specifics regard to past use and Bush's use as well as how it could recoil on him eventually.
http://writ.news.findlaw.com/dean/20060113.htmlSilence by the Constitution on an act of the President (that is otherwise not illegal), is now construed as a grey area constitutionally speaking. Presidents are empowered to "carry out" or enforce the laws passed by Congress. If the President and his side can make a case they are CLARIFYING ambiguities in the law--as they see them, they could convince the Court there is nothing improper about them.

For the Record, most laws are pretty damn ambiguous. THINK about it. Many require a large degree of interpretation by the Executive branch. The argument can be made that the President is merely stating his "interpretation" up front. Unless the signings statements are direct contradictions of some specific provision in the law, I think it could fly.

Some view this as a "loophole" similar to the "necessary and proper" clause of that Congress has driven a Mack Truck through.

I suspect the Courts will have to decide.

Ultimately, the Courts decisions will come down to whether they view them, as you have said, as "line items vetoes." OR whether they will accept that these signings are not (in the language of Article II) "objections," but rather "interpretations" or "clarifications." If they view them as a form of line-item vetoes, they'll rule against the President; if not, they'll allow them to stand.

I believe there is a presumption of constitutionality....Exactly. FWIW, Clinton used it some too.

BucEyedPea
04-17-2007, 08:40 PM
Silence by the Constitution on an act of the President (that is otherwise not illegal), is now construed as a grey area constitutionally speaking.

As a strict constructionist/originalist I don't necessarily agree with this. Certainly it's not an absolute but on this one it clearly says what IS to be done—and nothing more. Seems to me that things can be extra Consitutional...ya' know additives. Seems it's more generally true that there is no say and no authority in the matter other than one wanting his way...as a matter of strict construction anyway.

Presidents are empowered to "carry out" or enforce the laws passed by Congress. If the President and his side can make a case they are CLARIFYING ambiguities in the law--as they see them, they could convince the Court there is nothing improper about them.
As a general statement I could agree, but not as it would specifically apply to each and every case. McCain torture law is one.

For the Record, most laws are pretty damn ambiguous. THINK about it. Many require a large degree of interpretation by the Executive branch. The argument can be made that the President is merely stating his "interpretation" up front. Unless the signings statements are direct contradictions of some specific provision in the law, I think it could fly.
Well shame on them for writing them that way, although one can never anticipate every scenario. I won't disagree that even the Constitution has its murky points that could have been better written.

Some view this as a "loophole" similar to the "necessary and proper" clause of that Congress has driven a Mack Truck through.
I don't get what the loophole is here? Seems more like Bush's loophole based on his idea of the "unitary exec." He's using this to be above the law; not to enforce it.

Besides "necessary and proper" to a strict constructionist/originalist says this relates to carry out the "enumerated powers" too. We all know that idea fell by the wayside in the 1930s. For those in my camp, unconstitutional principles abound today. Both sides share the blame for this.

I suspect the Courts will have to decide.
Be interesting to see what they use or if they see this as a line item veto.

alnorth
04-17-2007, 09:08 PM
Although specific examples of bad signing statements could probably be found, I dont believe the general idea of the signing statement is automatically unconstitutional in and of itself.

To illustrate, here was the explanation from the Clinton administration for why a signing statement can be valid.

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.

The president is sworn to defend and uphold the constitution. One of his primary duties is to enforce the law, of which the constitution is paramount. Someone said that newly-passed legislation should be automatically assumed constitutional until ruled otherwise. Says who? A mere citizen can decide a law is unconstitutional and deliberately break the law. If the courts agree, there is no punishment. (Obviously you'd better be right when you challenge constitutionality as a random Joe.)

The courts may be the final arbiter, but to say that all laws must be assumed constitutional until struck down is rediculous. A president could simply refuse to enforce a law he feels to be defective without telling anyone why, just leaving it as a mystery to stew and quarrel about until his administration is finally forced to explain themselves in court.

With a signing statement, there is no ambiguity, he is giving notice that the law is defective as written and either had to be clarified to be made workable, or is not workable at all. If you dont agree and you can find an injured party who can bring suit you can proceed directly to court to force his administration to respect that particular law.

This IS NOT a line-item veto. A line item veto (if constitutional itself) nullifies a law to an extent that can not be challenged by the court. A signing statement is a written opinion which most certainly can be challenged and nullified by the court. However, if the written opinion is correct, as far as the courts are concerned, he saves them the trouble of drafting the opinion themselves, and we didnt have to wait months for the law to be properly ignored or modified after a successful lawsuit.

tiptap
04-17-2007, 09:37 PM
Yes I see the Judicial arm of the government is always interested in surrendering its authority in matters of interpretation of the Constitution. After all the President is all knowing in what might be wrong with any legislation in advance of anyone even being wronged enough to challenge it in court.

I don't take Clinton's lawyers line any bettor than any of the Republicans. It shortcircuits the process that is suppose to take time and process not words and supositions of infringement.

alnorth
04-17-2007, 10:00 PM
Why do you insist that the courts are surrendering even the tiniest iota of their authority?

Take a law signed in December 2008, just a few weeks before Bush's successor takes office, that is clearly unconstitutional, but due to political bias, the congress and president make it law anyway. Is the new president supposed to be a dumb unthinking beast, robotically enforceing a clearly unconstitutional law? To me, that president would be violating his oath of office to enforce the highest law in the land.

If he is wrong, let the courts overrule him. Or, if the congress and president believes a bad law is perfectly legal and constitutional and they incorrectly enforce it, let the courts overrule him. The courts are the final arbiter, but they ARE NOT the ONLY arbiter when we lack any direction at all. The courts can only review when a party is damaged and has an ability to bring a lawsuit, they cant be in a consultative role with the congress, nor can they reach out and grab a law to strike down.

Take a law that is constitutional, but its written so poorly, it can be interpreted in one of two diametrically opposed ways. In this situation, the president MUST pick an interpretation. The only thing a signing statement here does is lay it out in writing and for the permenant record why they picked an interpretation, for someone else to challenge if they see fit. This doesnt change the fact that the president could have chosen not to issue a signing statement, and then proceed to do whatever he wants anyway for a reason locked away only in his own mind until challenged in court.

When your dealing with vague law with no direction from the courts, rather than a bad thing, the signing statement actually shows better judgement and responsibility to the people rather than giving absolutely no explanation at all.

Mr. Kotter
04-17-2007, 10:09 PM
Yes I see the Judicial arm of the government is always interested in surrendering its authority in matters of interpretation of the Constitution. After all the President is all knowing in what might be wrong with any legislation in advance of anyone even being wronged enough to challenge it in court.

I don't take Clinton's lawyers line any bettor than any of the Republicans. It shortcircuits the process that is suppose to take time and process not words and supositions of infringement.

All of what you say may be true.

However, the inconvenient fact remains: the world and government today have become so completely and utterly complex....that to expect the courts to arbitrate each and every one of these situations, on a case-by-case basis.....is laughable.

Either they will declare the practice unconstitutional; or they won't....because they see sufficient checks and balances in place, so as to maintain the balance of power between the branches. For instance, if Congress objects...they can pass a new law; if the courts see a egregious violation that is out of the bounds of acceptable Presidential signing statements....they can STILL declare individuals situations "unconstitutional" based on individual merit.

It will depend what they view as constitutionally permissable....and, perhaps, most "efficient" for them.

Logical
04-17-2007, 10:22 PM
On the actual subject I am sure that the Presidents have abused this on occasion, but for the most part I don't think we should get rid of the Exec Orders based on the occasional abuse. I think the Supreme Court needs to slap them down in those cases.

alnorth
04-17-2007, 10:23 PM
On the actual subject I am sure that the Presidents have abused this on occasion, but for the most part I don't think we should get rid of them based on the occasional abuse. I think the Supreme Court needs to slap them down in those case.

Preferably with a great amount of humiliation and scorn for those presidents who show the worst judgement in signing statements.

Mr. Kotter
04-17-2007, 10:41 PM
Preferably with a great amount of humiliation and scorn for those presidents who show the worst judgement in signing statements.

Similar to the way they slapped down Nixon...and Clinton...

for their abuses of "executive privilege." :thumb:

Taco John
04-17-2007, 10:52 PM
The one thing he did right was take out afghanistan and the Taliban. Other than that, his administration is littered with failures.


He didn't even do that right... (http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=18f795d4-fcc4-478a-991d-1b15d70baa27&ParentID=4fc84e55-d7bc-432a-931d-9670057db9b0&)

But if he would have, that would have been a good thing.

Taco John
04-17-2007, 10:57 PM
Why shouldn't the Executive branch have equal authority to check the Legislative branch when they try to exceed their constitutional authority (especially when it is at the expense of the Executive)?


Because the Framers never gave the executive that power. They gave it to the judicial system.

Let's see, we have the Framers of the Constitution, the most relevant document in the history of the world...

...and on the other hand we have patteeu.

Taco John
04-17-2007, 11:03 PM
Here is a decent article on the topic:


The Founding Fathers and Executive Power

By RICHARD R. BEEMAN

We find ourselves at a moment when Americans are bitterly divided on the question of the constitutional limits of presidential power. It is certainly not the first time in our nation's history when the issue has presented itself. From Andrew Jackson's "war" on the Bank of the United States to Abraham Lincoln's suspension of habeas corpus during the Civil War to Franklin D. Roosevelt's attempt to pack the Supreme Court to Harry S. Truman's attempted seizure of the country's steel mills to Richard M. Nixon's incursions on civil liberties in the name of "national security," we have a long history of American chief executives' seeking to expand their powers in the name of the "public good."

I am old enough to have lived through the last two of those presidential controversies, and I will confess that the current controversy over presidential power whether over the ability of the president to issue "signing statements" that allow him to implement only selected parts of a bill enacted by Congress or the legality of ordering electronic surveillance on his authority alone — seems to me both more serious and more seriously compromised by partisanship on both sides than anything I have experienced in my lifetime. In this climate of confusion and consternation, perhaps an appeal to the wisdom of the founding fathers might provide us with some perspective.

In fact, the task of discerning the "original intent" of the 55 men who took part in the framing of the U.S. Constitution is tricky business indeed. Not only did the delegates disagree on virtually every important subject that came before them, but they also frequently shifted their positions on those issues over the course of the convention. Nor is the task of discerning the "original meaning" of the words finally inscribed on the final draft of the Constitution, signed by 39 of the delegates on September 17, 1787, much easier. Such was the experimental nature of the new government that emerged from the convention that concepts so central to our contemporary understanding of the Constitution — "federalism," "commerce," "necessary and proper" — were subject to a multitude of meanings among those who were asked to add their assent to the document. In no case is this uncertainty and confusion more evident than in the matter of "executive power."

The first sentence of Article II of the Constitution is both remarkably simple and maddeningly vague. "The executive Power shall be vested in a President of the United States of America." But what did "executive power" mean? James Wilson and Gouverneur Morris, of Pennsylvania, were outspoken in support of a strong executive capable of giving "energy, dispatch, and responsibility" to the government. Toward that end, they urged their fellow delegates to give the president an absolute veto over Congressional legislation. At the other end of the spectrum, Roger Sherman, of Connecticut, spoke for many delegates when he declared that the "Executive magistracy" was "nothing more than an institution for carrying the will of the Legislature into effect." This led Sherman to the conclusion that the president could be removed from office "at pleasure," any time a majority of members of the legislature disagreed with him on an important issue.

There were other issues that divided the delegates. Many wanted not a single but a plural executive; Edmund J. Randolph, of Virginia, believed that a single, powerful president would constitute "the foetus of monarchy," and he, along with his Virginia colleague George Mason, refused ultimately to sign the Constitution, in part because of their fear of excessive executive power. Still others thought the executive should be elected by the state legislatures or by the governors of the states, a mode of election that would have made the president a broker among the varying interests of the state governments.

James Madison kept changing his mind. His initial version of the "Virginia Plan" called for the president to be elected by and answerable to the national legislature. Although supposedly one of the foremost proponents of the doctrine of separation of powers and checks and balances, he muddled things by proposing a merging of the executive and judicial powers in a "Council of Revision," composed of both the president and a "convenient number of the National Judiciary" and empowered to "examine every act of the National Legislature before it shall operate." Madison gradually came around to the idea that the executive and judicial functions should be separated, but he continued to argue in favor of some form of presidential election by the Congress up until the final days of the convention. After reading Madison's notes on the debates in the convention, one gets the sense that his eventual acquiescence to the idea of an electoral college as the method of presidential election was marked as much by weariness as by enthusiasm.

The framers' conception of the president's powers in time of war was even fuzzier than their conception of his power in the domestic realm. On the one hand, virtually all of the delegates agreed that the power to declare war should rest with Congress. On the other, many delegates, when they endorsed the decision to substitute the word "declare" instead of "make" war among Congress's powers, did intend to give to the president, as commander in chief, considerable discretion as to how actually to carry out the conduct of a war. But the ambiguities persist. No one in the convention ever ventured to draw a precise line between the authority of Congress and that of the president in time of war, but there was at least a vague understanding that the decisions both to go to war and about how to conduct a war were ones in which both branches of government had a part. Not only did Congress, with its power over the purse, have the ability to control military appropriations, but it also possessed, by the language of Article I, Section 8, the power to "make Rules for the Government and Regulation of the land and naval Forces." These ambiguities have presented formidable obstacles to determining the limits of presidential power even during those times when our nation has been engaged in a war formally "declared" by Congress; the obstacles are obviously even greater when a nation is engaged in a metaphorical "war against terror."

Whatever the differences among the framers of the Constitution about the nature of presidential power or about the precise relationship between the president and the legislative and judicial branches of government, nearly all Americans agreed on what they did not want their president to be. Memories of the tyranny of King George III shaped virtually every debate on the issue of presidential power, with even the strongest supporters of a powerful executive taking great pains to emphasize the Constitution's many checks on a unitary exercise of presidential power. Wilson, for example, insisted that "the only powers he conceived strictly executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the legislature." Madison was of the same mind, believing that the president's powers should be "confined and defined." To do otherwise, he reasoned, would bring upon the country "the Evils of elective Monarchies."

There was only one person in the Constitutional Convention who argued unequivocally for an aggressive and expansive definition of presidential power, and it is no accident that the opinions of that person — Alexander Hamilton — are the ones most often cited by those who advocate an open-ended definition of presidential power.

Current proponents of the aggressive use of presidential power in the war against terror, for example, are fond of citing Hamilton's Federalist Paper No. 70, in which he declares that "Energy in the Executive" is "essential to the protection of the community against foreign attacks" as well as to "the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." What Hamilton's contemporary admirers fail to note, however, is that his views on an "energetic executive" found no support whatsoever from any of his fellow delegates in the Constitutional Convention. In a five-hour speech on June 18, Hamilton proclaimed that "the British Govt. was the best in the world," and he urged the delegates to do everything possible to emulate it. Since the new nation lacked a hereditary monarch, the best Americans could do, Hamilton argued, was to appoint their chief executive for life and to give him sweeping powers that would enable him to withstand the pressures of popularly elected legislatures.

Hamilton's conceptions of the presidency — driven by a concern for order and security rather than for the preservation of personal liberty — were far removed from those of every other delegate on the convention floor. In the words of Connecticut delegate William Samuel Johnson, Hamilton's five-hour soliloquy was "praised by everybody [but] he has been supported by none." More important, his thoughts on executive power were entirely at odds with the spirit that moved Americans to declare their independence from Britain. Whatever disagreements and confusion may have existed among the founding fathers, they did share a common understanding that the new American government was to be one of limited powers in which no single branch, and no single person, could lay claim to unilateral authority.

It may not be possible to discern with precision either the "original intent" of the founding fathers or the precise "original meaning" of the words on the document they crafted, but if we are seeking to comprehend their general understanding of the limits of executive power, then it is best to regard Hamilton as an exception to be avoided, not an authority to be cited in defense of extraordinary uses of presidential power. As George W. Bush ponders his place in the history of the American presidency, he might be better served if he paid less attention to the words of Hamilton, an avowed admirer of monarchy, and more attention to the overwhelming majority of founding fathers who greatly feared the evils of an "elective monarchy."

Richard R. Beeman is a professor of history at the University of Pennsylvania and is currently at work on a book on the Constitutional Convention of 1787.

Source (http://64.233.167.104/search?q=cache:X_RAfNAjLmEJ:chronicle.com/weekly/v52/i28/28b01201.htm+Framers+executive+power&hl=en&ct=clnk&cd=6&gl=us)

alnorth
04-18-2007, 12:25 AM
Because the Framers never gave the executive that power. They gave it to the judicial system.

Let's see, we have the Framers of the Constitution, the most relevant document in the history of the world...

...and on the other hand we have patteeu.

Again, the president has no final say on interpretation, he can be overruled by the courts. However, absent any direction from the courts, he has to use some interpretation when dealing with vague law. The president cant just speed-dial Chief Justice Roberts every time he has a question on a new law.

There is absolutely no loss of power by the judicial branch in any way, shape, manner, or form whatsoever. There is also no loss of power by the legislative branch, they had their chance to write clear easily interpreted and constitutional legislation. Their failure to do so, leading to interpretation they dont like can only be blamed on themselves, and can be corrected by them at any time.

If a prior president foolishly or maliciously cedes away executive power by agreeing to a law restricting his power, what is the difference between a future president writing down his constitutional reasons for ignoring it until overruled, and a president who ignores it for secret reasons only contained within his own mind until overruled?

If a law is so horribly written that it can be interpreted any one of 4 different opposing ways, what is the difference between a president writing down his reasons for choosing one of the 4 possible interpretations until overruled, and a president who implements one of the 4 interpretations for secret reasons only contained within his own mind until overruled?

If a law appears to be clearly unconstitutional in part or in whole to the president (perhaps signed by the last president, so you can hardly blame him for signing) and there is no guidance yay or nay from the courts, what is the difference between the president writing down his constitutional reasons for ignoring it until overruled, and a president who ignores it for secret reasons only contained within his own mind until overruled?

Amnorix
04-18-2007, 05:01 AM
I seriously don't get it. I don't get the anger. I don't get the concern.

They're not 'unConstitutional.' They're 'not Constitutionally recognized.'

At least you have a written memorialization of where he stands.

The president's discretion is guided by the Constitution, and his actions will be judged under the Constitution. Without these signing statements, he could govern EXACTLY as his does with the signing statements, and the only difference would be, from the standpoint of Constitutionality, that there is no longer a tangible memorialization of his thought processes to hang him with.


It's horribly poor form. If he thinks it's unconstitutional, he should veto it. If he doesn't, he should enforce it, and let the Courts decide whether it's Constitutional or not.

The Constitution puts the responsibility of deciding what's unconstitutional on the Courts. Not necessarily in an exclusive fashion, as the legislature and executive need to think for themselves to draft and pass laws that ARE Constitutional to begin with, to the extent they can.

But the President should NOT be in the business of undermining the law by determining that they are unconstitutional.

The executive is the ONLY brach of the government that has the ability to enforce the law. If he doesn't enforce it, because he doesn't feel like it, who will? Congress doesn't have an FBI branch or any other method to enforce any law at all. Neither does the judiciary.

Amnorix
04-18-2007, 05:38 AM
Congress loves to pass multi-faceted legislation and often passes legislation that is, in part, unconstitutional. When the courts strike down a law on constitutional grounds, they give themselves the option of striking down the entire law or trying to rehabilitate the law by striking only the unconstitutional portion or by interpreting the law in a way that makes it constitutional. Why shouldn't the Executive branch have equal authority to check the Legislative branch when they try to exceed their constitutional authority (especially when it is at the expense of the Executive)?

Because (1) laws aren't drafted in a vaccum, the executive has input too, and (2) the President can veto the law and say "fix section 18, cuz I think it's unconstitutional", and (3) the Constitution gave the COURT the authority to strike down laws as unconstitutional, not the President to randomly enforce the laws he likes and ignore the ones he doesn't. And if they override him, fine, he enforces it.

He can't cherry-pick the laws he wants to enforce. And I tend to hate slippery slope arguments, but it starts with "this one is clearly unconstitutional, so I won't enforce it." Sooner or later, it becomes "this one isn't clear either way, but I don't care for it, so forget it." And I don't know if it goes further, but I already don't like it a bit.

If Congress passed an extremely popular bill that included provisions to build a wall on the border, cut taxes on the middle class, subsidize alternative fuel research, and lower the cost of healthcare by reducing bureaucratic waste, fraud, and abuse at FDA, but they also included a provision that requires the President to get approval from the Speaker of the House before he can exercise his constitutional power to pardon, is his only choice to either veto the entire bill or become an accomplice in this unconstitutional revision of the pardon power? What if Congress were to override his veto, is he SOL on the pardon power then? Or would that be a reasonable situation in which the President could simply sign the law and ignore the unconstitutional provision requiring him to subordinate himself to the Speaker on matters of pardons?

The correct procedure here is to issue the pardons, and let Congress take him to court over it.

Please note that there is a singularly important distinction here -- what you've suggested is something where the Congress tries to take away something he can do. In such event, if he thinks it is unconstitutional, he can try to do it anyway, and then it can go to Court.

The situation I am MUCH more worried about is "I refuse to enforce XYZ portion of the law". In that instance, NOTHING will happen. And it's unclear to me whether the Courts even have standing in light of the fact that there may not be a a true "case or controversy" requiring resolution in the absence of action.

Further, it's absurd and a complete waste of resources for Congress to take the President to court to EVERY time the President does this. Do you really want the Feds to spend hundreds of thousands, if not millions, of high-paid lawyer time for them to battle it out over every one of these?

Amnorix
04-18-2007, 05:40 AM
For clarity, I'm not worried about loss of the Court's power here. I'm worried about MORE assumption of power (at the cost of the Congress,r eally), by the executive branch, as well as a general abuse of power potential that I see.

And to be honest, if something is VAGUE in a new law, then I don't have a problem with the President saying "this seems unclear, but I think it means THIS".

I do think, to the extent it's been used (and I havent' studied it) that any declaration that a portion of a law is unconstitutional and therefore won't be enforced, is absolutely incorrect.

patteeu
04-18-2007, 06:22 AM
Because that's not how the founding fathers wrote it?

That's the job of the Judicial branch, not the Executive, AFAIK.

If you want to give the Executive branch that power, there's a process to do so.

:BS:

The founding fathers didn't make the SCOTUS the final arbiter of the constitution, the SCOTUS tried to make the SCOTUS the final arbiter of the constitution.

patteeu
04-18-2007, 06:26 AM
If you have read the accompaning web sites one would find that so far the Supreme Court has ignored Presidential Signing Statements as related to Congressional intent and authority. The new use and publishing of the Statements in the U.S. Code Congressional and Administrative News, was entirely new to the publication of laws with the Reagan Administration. Up until then the Statements had been only a part of the Presidential papers and Executive collection. How is this not a preemptive attempt to legislate. This most likely arose from a divided government with different political parties occupying the Congress and Whitehouse.

This is what makes the Bush 2 use so different is that there is emnity with his own party's work in Congress. It is much more the intent to fashion the legislation as the Presidency submitted instead of what was legislatively passed.

The default condition is to assume what is passed is Constitutional. There is no immediate declaration that this law is unconstitutional and certainly not by the President. That only comes as issues are raised in the courts. Additionally we already had a strong ruling that line item vetoes are unconstitutional because the President has only two options; sign the bill or veto by sending it back. That will easily apply to this situation as well.

More :BS:

Read the constitution and find the provision that prohibits the President from drawing conclusions about the constitutionality of a law and acting accordingly to interpret the law in a way that salvages it. It's not there.

I don't know the details of every instance in which the current President has identified what he considers to be an unconstitutional provision in a law and I certainly don't know what he's decided to do about it. It's very possible that I might disagree with some of his specific choices in this regard, but when it comes to defending the Constitution, the President is not subordinate to the other two branches of government.

patteeu
04-18-2007, 06:30 AM
I believe there is a presumption of constitutionality.

Where?

patteeu
04-18-2007, 06:40 AM
Because the Framers never gave the executive that power. They gave it to the judicial system.

No they didn't. John Marshall did.

Let's see, we have the Framers of the Constitution, the most relevant document in the history of the world...

...and on the other hand we have patteeu.

Haha. Of course, it's funnier if it's true.

patteeu
04-18-2007, 06:49 AM
The Constitution puts the responsibility of deciding what's unconstitutional on the Courts.

?

The executive is the ONLY brach of the government that has the ability to enforce the law. If he doesn't enforce it, because he doesn't feel like it, who will? Congress doesn't have an FBI branch or any other method to enforce any law at all. Neither does the judiciary.

There are so many laws on the books that it would take an executive branch of tens of millions to enforce them all with equal vigor. That's impractical. Every President in our history has made policy decisions about where to emphasize their enforcement efforts.

patteeu
04-18-2007, 07:04 AM
Because (1) laws aren't drafted in a vaccum, the executive has input too, and (2) the President can veto the law and say "fix section 18, cuz I think it's unconstitutional", and (3) the Constitution gave the COURT the authority to strike down laws as unconstitutional, not the President to randomly enforce the laws he likes and ignore the ones he doesn't. And if they override him, fine, he enforces it.

He can't cherry-pick the laws he wants to enforce. And I tend to hate slippery slope arguments, but it starts with "this one is clearly unconstitutional, so I won't enforce it." Sooner or later, it becomes "this one isn't clear either way, but I don't care for it, so forget it." And I don't know if it goes further, but I already don't like it a bit.



The correct procedure here is to issue the pardons, and let Congress take him to court over it.

Please note that there is a singularly important distinction here -- what you've suggested is something where the Congress tries to take away something he can do. In such event, if he thinks it is unconstitutional, he can try to do it anyway, and then it can go to Court.

The situation I am MUCH more worried about is "I refuse to enforce XYZ portion of the law". In that instance, NOTHING will happen. And it's unclear to me whether the Courts even have standing in light of the fact that there may not be a a true "case or controversy" requiring resolution in the absence of action.

Further, it's absurd and a complete waste of resources for Congress to take the President to court to EVERY time the President does this. Do you really want the Feds to spend hundreds of thousands, if not millions, of high-paid lawyer time for them to battle it out over every one of these?

I disagree with #3 above as I've already mentioned.

The bolded sentence endorses much of (if not all of) what the President has been doing. In most of the signing statement cases that I'm aware of (which admittedly is a tiny fraction of the hundreds that have apparently been issued), this is exactly what the President is doing. In the most publicized signing statement, i.e. the one dealing with limitations on detainee treatment, the President's position is that he will follow the law to the extent that it doesn't take away what he views as his constitutionally granted powers to prosectute the war. It's exactly the same as the pardon example except that (a) it isn't as clear that this power is actually granted to the President by the constitution, and (b) the language of the statute is far less clear than the pardon requirement I made up in my hypothetical.

I do think there is some merit to the argument that some of you have made that the President's first action when he sees a law that he considers unconstitutional should perhaps be to veto it with an explanation. But I have two problems with that. First, in many cases, the unconstitutionality is not unavoidable but instead only potential, depending on how an ambiguous provision is interpretated. In these cases it makes all the sense in the world that the President should interpret the bill in the way that is least constitutionally offensive. Second, this approach contains very similar problems to the ones you raise in your last paragraph. The government could very well be brought to a complete halt with the President vetoing everything and the legislature refusing to make the changes that the President would sign without reservation.

patteeu
04-18-2007, 07:07 AM
I do think, to the extent it's been used (and I havent' studied it) that any declaration that a portion of a law is unconstitutional and therefore won't be enforced, is absolutely incorrect.

I'm sure the President has over-reached in some cases, but then so does the Congress when they pass unconstitutional laws (sometimes despite knowing that they are likely to be struck down when they pass them). For some reason, no one ever seems outraged when Congress exceeds their constitutional authority in their efforts to push the envelope of their constitutionally granted powers.

Mr. Kotter
04-18-2007, 07:12 AM
I'm sure the President has over-reached in some cases, but then so does the Congress when they pass unconstitutional laws (sometimes despite knowing that they are likely to be struck down when they pass them). For some reason, no one ever seems outraged when Congress exceeds their constitutional authority in their efforts to push the envelope of their constitutionally granted powers.

And remember, few Americans were outraged when FDR over-reached so many times that at least eleven of his proposals/programs that became legislation were struck down by the Court.

Of course, public opinion and one's own view of the current occupant of the White House, colors whether one views it as "over-reaching" or a reasonable and legal action.

Amnorix
04-18-2007, 10:15 AM
:BS:

The founding fathers didn't make the SCOTUS the final arbiter of the constitution, the SCOTUS tried to make the SCOTUS the final arbiter of the constitution.


Actually, the key point here is that they succeeded. I agree that the Founders were split on this, and that some believed that each branch should decide the constitutionality of issues relevant to them on their own.

But the SC basically won this battle long ago. Might as well be asking about the right of states to secede. :)

Amnorix
04-18-2007, 10:16 AM
No they didn't. John Marshall did.

Very successfully too, I might add.

You can't rewind 200 years of time as if it didn't happen.

Amnorix
04-18-2007, 10:19 AM
?



There are so many laws on the books that it would take an executive branch of tens of millions to enforce them all with equal vigor. That's impractical. Every President in our history has made policy decisions about where to emphasize their enforcement efforts.


Yes, but the act of the President writing his thoughts on the matter sends a clear signal, to those in and out of the executive branch, regarding his expectations.

Let's say that President Doobie decides the drug laws are unenforceable because he can't find a specific provision in the Constitution that allows them. He is a strict constructionist after all...

So he issues a statement to that effect on a piece of unimportant legisltation relating to narcotics control.

That message goes out to everyone. Including the wannabe criminals, as well as the law enforcement officials.

Obviously, a relatively absurd example, but the point remains.

Amnorix
04-18-2007, 10:24 AM
I disagree with #3 above as I've already mentioned.

The bolded sentence endorses much of (if not all of) what the President has been doing. In most of the signing statement cases that I'm aware of (which admittedly is a tiny fraction of the hundreds that have apparently been issued), this is exactly what the President is doing. In the most publicized signing statement, i.e. the one dealing with limitations on detainee treatment, the President's position is that he will follow the law to the extent that it doesn't take away what he views as his constitutionally granted powers to prosectute the war. It's exactly the same as the pardon example except that (a) it isn't as clear that this power is actually granted to the President by the constitution, and (b) the language of the statute is far less clear than the pardon requirement I made up in my hypothetical.

I do think there is some merit to the argument that some of you have made that the President's first action when he sees a law that he considers unconstitutional should perhaps be to veto it with an explanation. But I have two problems with that. First, in many cases, the unconstitutionality is not unavoidable but instead only potential, depending on how an ambiguous provision is interpretated. In these cases it makes all the sense in the world that the President should interpret the bill in the way that is least constitutionally offensive. Second, this approach contains very similar problems to the ones you raise in your last paragraph. The government could very well be brought to a complete halt with the President vetoing everything and the legislature refusing to make the changes that the President would sign without reservation.

here's my fundamental problem with your approach.

Let's say that 100% of the Congress and judiciary all agree that President Nazihead (who succeeded BushBaby), who has decided to institute torture that would make the secret services of Egypt, Russia and Israel blush, but is doing it at Guantanamo, is doing something horribly bad and wrong.

Using your signing statement philosophy, there is NO WAY Congress, even if 100% united, could stop him. Carry it further -- Congress sues him in court and says we passed a law, over his veto, to stop torture of foreign nationals at Guantanamo, but he's still doing it, based on this signing statement thing.

The judiciary says "yep, that's a law, you gotta stop".

Under MY theory, he shouldn't have issued the signing statement to begin with, and Congress should have the power to make that kind of conduct illegal. Then, the judiciary also has the power to order the President to stop.

Underr YOUR theory, he has every right to continue, because the signing statement is valid and, moreover, the executive branch can interpret the Constitution for itself, and it's view is just as valid as the judiciary's.

At this point, you have completely lost your checks and balances, and you might as well crown the guy King Nazihead. Good job.

THAT is what I dislike here. SEVERELY dislike.

patteeu
04-18-2007, 10:26 AM
Actually, the key point here is that they succeeded. I agree that the Founders were split on this, and that some believed that each branch should decide the constitutionality of issues relevant to them on their own.

But the SC basically won this battle long ago. Might as well be asking about the right of states to secede. :)

For practical purposes, that's true, but even so, that longstanding precedent doesn't preclude the kind of turf protection that the President is doing with these signing statements. If the President is wrong in his decisions to assert what he believes are his constitutionally granted powers, someone can take him to court and the courts can perform their longstanding, self-proclaimed, extra-constitutional role as final arbiter. :)

Mr. Kotter
04-18-2007, 10:27 AM
Actually, the key point here is that they succeeded. I agree that the Founders were split on this, and that some believed that each branch should decide the constitutionality of issues relevant to them on their own.
But the SC basically won this battle long ago. Might as well be asking about the right of states to secede. :)They succeeded, alright.

Unless Congress or the President decide to challenge them. :)


In which case, they'll have to publicly and for posterity explain their "reasoning." Which may give them pause to go out on a limb.....especially when some of their colleagues disagree with their interpretation.

If they do that, and they get a majority to support their view....fine. Then their ass is out their for the whole world to see that that Nine Emperors on the SC have no clothes (see many Warren Court decisions which are still laughed at in many circles, and many decisions which have SINCE been narrowed.)

Amnorix
04-18-2007, 10:27 AM
I'm sure the President has over-reached in some cases, but then so does the Congress when they pass unconstitutional laws (sometimes despite knowing that they are likely to be struck down when they pass them). For some reason, no one ever seems outraged when Congress exceeds their constitutional authority in their efforts to push the envelope of their constitutionally granted powers.


Indeed -- I've recently read that legislators sometimes will vote in favor of an abortion or other highly controversial law that they don't really favor because it's good politics and they KNOW the Court will strike it down.

Just read that the other day, actually. A fascinating thought that hadn't occurred to me, but upon analysis, is very likely true.

I don't support anyone going beyond the bounds set for them by the Constitution. I suspect we'd disagree on the scope of federal power, however, vis-a-vis that of the states.

patteeu
04-18-2007, 10:32 AM
here's my fundamental problem with your approach.

Let's say that 100% of the Congress and judiciary all agree that President Nazihead (who succeeded BushBaby), who has decided to institute torture that would make the secret services of Egypt, Russia and Israel blush, but is doing it at Guantanamo, is doing something horribly bad and wrong.

Using your signing statement philosophy, there is NO WAY Congress, even if 100% united, could stop him. Carry it further -- Congress sues him in court and says we passed a law, over his veto, to stop torture of foreign nationals at Guantanamo, but he's still doing it, based on this signing statement thing.

The judiciary says "yep, that's a law, you gotta stop".

Under MY theory, he shouldn't have issued the signing statement to begin with, and Congress should have the power to make that kind of conduct illegal. Then, the judiciary also has the power to order the President to stop.

Underr YOUR theory, he has every right to continue, because the signing statement is valid and, moreover, the executive branch can interpret the Constitution for itself, and it's view is just as valid as the judiciary's.

At this point, you have completely lost your checks and balances, and you might as well crown the guy King Nazihead. Good job.

THAT is what I dislike here. SEVERELY dislike.

The Congress always has the ultimate check on the Presidency with it's power to impeach.

What's the check if the Congress and Supreme Court both agree that the President's power to pardon can be limited by congressional action?

Cartman
04-18-2007, 10:45 AM
...THAT is what I dislike here. SEVERELY dislike.


What you seem to SEVERELY dislike here, is any attempt to rein in an activist approach to the judiciary. :)

BucEyedPea
04-18-2007, 11:57 AM
Where?
Are you asking me where this is in the Constitution?
I think you are so I will answer as such.

I was not saying this is in the Constitution per se.
Just that's been the standard operating procedure to leave statutes on the books until challenged by someone. Perhaps, this is not the best way to operate. Perhaps the burden should be shifted to the govt more. I wouldn't be against that. Just that's how it's been.

patteeu
04-18-2007, 12:03 PM
Are you asking me where this is in the Constitution?
I think you are so I will answer as such.

I was not saying this is in the Constitution per se.
Just that's been the standard operating procedure to leave statutes on the books until challenged by someone. Perhaps, this is not the best way to operate. Perhaps the burden should be shifted to the govt more. I wouldn't be against that. Just that's how it's been.

Fair enough.

BucEyedPea
04-18-2007, 01:04 PM
Yes, but the act of the President writing his thoughts on the matter sends a clear signal, to those in and out of the executive branch, regarding his expectations.

Let's say that President Doobie decides the drug laws are unenforceable because he can't find a specific provision in the Constitution that allows them. He is a strict constructionist after all...

So he issues a statement to that effect on a piece of unimportant legisltation relating to narcotics control.

That message goes out to everyone. Including the wannabe criminals, as well as the law enforcement officials.

Obviously, a relatively absurd example, but the point remains.
If that Dean article is correct, Bush isn't even doing that. His writings are brief, broad and make no attempt to cite what Constitutional authority they are based on. Your example gives him too much credit.

patteeu
04-18-2007, 01:46 PM
If that Dean article is correct, Bush isn't even doing that. His writings are brief, broad and make no attempt to cite what Constitutional authority they are based on. Your example gives him too much credit.

Here is his latest signing statement:

Today I have signed into law H.R. 5946, the "Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006." The Act sets a firm deadline to end overfishing in America; contributes to replenishing America's fish stocks; strengthens enforcement of America's fishing laws; and implements inter-national agreements on fishery management and the protection of polar bears.

The executive branch shall construe provisions of the Act that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments or international organizations in a manner consistent with the President's constitutional authority to conduct the Nation's foreign affairs, including the authority to determine which officers shall negotiate for the United States with a foreign country, when, in consultation with whom, and toward what objectives, and to supervise the unitary executive branch. Such provisions include subsections 609(c) and 610(b) of the High Seas Driftnet Fishing Moratorium Protection Act, as enacted by section 403 of the Act; section 408 of the Act; and section 505 of the Marine Mammal Protection Act of 1972, as enacted by section 902 of the Act.

Subsection 505(a) of the Marine Mammal Protection Act of 1972, as enacted by section 902 of the Act, purports to condition the authority granted to the President to make appointments upon prior consideration of recommendations from particular sources and purports to limit the qualifications of the pool of persons from whom the President may select appointees in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the positions. Also, provisions of the Act, such as section 303A(c)(6)(D)(i) of the Magnuson-Stevens Fishery Conservation and Management Act, as enacted by section 106 of the Act, purport to give significant governmental authority of the United States to individuals who are not appointed in accordance with the Appointments Clause of the Constitution. The executive branch shall construe these provisions in a manner consistent with the Appointments Clause.

The executive branch shall construe section 510 of the Act, relating to notifications regarding certain entry and transit of specified portions of the United States Exclusive Economic Zone, in a manner consistent, to the maximum extent permissible, with treaties to which the United States is a party and other international obligations of the United States.

Sounds fairly specific to me.

You can read all of the signing statements here (http://www.coherentbabble.com/signingstatements/signstateann.htm) although I won't vouch for the annotations or the analysis.

BucEyedPea
04-18-2007, 03:28 PM
The one you chose is. I only took a quick look at your link because there must be at least 600 signings by now, however I saw others that were brief nor specific enough. For instance his belief in the CE to use force. He believes it's right of the executive to use force and that's it. There's more to that point alone, than that. Webb's basis for his challenge is that the earlier resolution is no longer valid. IIRC correctly, that's because most of what was stipulated in it was not true. Nice to see, a group of conservatives (AFA) in there wanting to restore Constitutional balance.

tiptap
04-18-2007, 04:04 PM
Here is his latest signing statement:



Sounds fairly specific to me.

You can read all of the signing statements here (http://www.coherentbabble.com/signingstatements/signstateann.htm) although I won't vouch for the annotations or the analysis.

To be fair to the quotes and their intent you might include the pertinent sited parts of the legislation. For example the intent of the legislation is not to just limit over fishing but to restore healthy populations. The President choices to ignore the legislated intent to restrict oversight to those who have this consideration first as scientifically determined and not from the fishing industry interests. Suddenly it matters little the legislation intent if the executive branch chooses to install without regard to that focus. This is exactly the case with the EPA recent ruling when the Executive Branch chose not to consider carbon dioxide as a regulated emission. It is true the states won and so should indicate to the Executive Branch their responsibility. So we have on part of the Executive Branch to eschew the intent based upon Unitary Executive citings. It is quite Unilateral, that is true. We haven't got into the references to international fishing treaties and the focus asked for by the legislation.

patteeu
04-18-2007, 04:48 PM
To be fair to the quotes and their intent you might include the pertinent sited parts of the legislation. For example the intent of the legislation is not to just limit over fishing but to restore healthy populations. The President choices to ignore the legislated intent to restrict oversight to those who have this consideration first as scientifically determined and not from the fishing industry interests. Suddenly it matters little the legislation intent if the executive branch chooses to install without regard to that focus. This is exactly the case with the EPA recent ruling when the Executive Branch chose not to consider carbon dioxide as a regulated emission. It is true the states won and so should indicate to the Executive Branch their responsibility. So we have on part of the Executive Branch to eschew the intent based upon Unitary Executive citings. It is quite Unilateral, that is true. We haven't got into the references to international fishing treaties and the focus asked for by the legislation.

First, I was completely fair to the quotes as I provided them in their entirety and provided a link to the source.

As for your example, I'm afraid I'm not following you, but I'm guessing that the gist of this is that the President's statement was indeed specific enough for you to track down what he means by it.

alnorth
04-18-2007, 05:40 PM
The President choices to ignore the legislated intent to restrict oversight to those who have this consideration first as scientifically determined and not from the fishing industry interests.

The legislative intent here, whether good, bad, noble, or arbitrary, is completely irrelevant. The congress attempted to tell the executive branch who they are and are not allowed to appoint to enforce this law. Aside from some posts that require consent, they simply cant do that. The fact that the president signed it does not prevent him from refusing to follow a small portion of the law that is unconstitutional by his interpretation. If that interpretation is wrong, let an impacted party sue him in court.

Mr. Kotter
04-18-2007, 05:53 PM
.... If that interpretation is wrong, let an impacted party sue him in court.
Quoted, italicized, bolded, and enlarged....for truth. :D

FDR didn't let a little thing like 11 cases being overturned by the court stop him from bringining us the welfare state.

tiptap
04-21-2007, 06:39 AM
So, I've changed my mind. On sober second thought, it occurs to me that when I find myself in enthusiastic agreement with "White House insiders" and the National Review that Alberto Gonzales disgraced himself yesterday, I may have missed something important. Assuming the president watched so much as 10 minutes of his attorney general being poleaxed by even rudimentary questions from the Senate judiciary committee, it strains credulity to believe that Gonzales still has Bush's "full confidence."

Until you stop to consider that the president wasn't watching the same movie as the rest of us and that Gonzales wasn't reading from the same script. Perhaps what we witnessed yesterday was in fact a tour de force, a home run for the president's overarching theory of the unitary executive.

The theory of the unitary executive is a radical vision of executive power in which the president is the big boss of the entire executive branch and has final say over everything that happens within it. At its core, the theory holds that Congress has very limited authority to divest the president of those powers. An expanded version of this theory was the legal predicate for the torture memo: "In light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas. … Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

One of the key issues in the early battles over unitary executive theory was the president's firing power. In its first incarnations, the notion of a unitary executive shored up the president's claim that he was entitled to fire executive officials—including the independent counsel and agency heads—as the mood took him.

If you watch the Gonzales hearing through this prism (and in this White House, even the bathroom windows look out through that prism), they were a triumph. For six impressive hours, the attorney general embodied the core principles that he is not beholden to Congress, that the Senate has no authority over him, and that he was only there as a favor to them in their funny little fact-finding mission.

Consider how Gonzales rebuffed Republican Sen. John Cornyn when he suggested a future Senate hearing about the convictions of two Texas border patrol officers. (That's executive branch business, son.) Consider the attorney general's inability to explain why Kyle Sampson pushed ahead with a plan to do away with Senate confirmation for U.S. attorneys, if as he claimed, Gonzales didn't approve it. (That's between me and the president and Kyle Sampson, son.) Consider Gonzales' skirmish with Democratic Sen. Chuck Schumer over who bore the burden of proof at the hearings. (How can there be a burden of proof when you have no authority to sit in judgment over me, son?) And listen to him tell Republican Sen. Charles Grassley: "I'm here to provide what I know, what I recall as to the truth in order to help the Congress help to complete the record."

Finally, consider this telling colloquy with Republican Sen. Lindsey Graham:

I tried to have dialogue with the Congress, to try to be as forthcoming as I can be, to reassure the Congress. I've tried to inform the Congress that I don't have anything to hide. … I didn't say no to the document request. I didn't say, "No, you can't interview" to my internal staff. … I've done—everything I've done has been consistent with the principle of pursuing truth and accountability.

This man was doing the Senate a favor by showing up at all. Turning over documents? He deserves a medal!

This record reflects either a Harvard-trained lawyer—and former state Supreme Court judge—with absolutely no command of the facts or the law, or it reveals a proponent of the unitary executive theory with absolutely nothing to prove. Gonzales' failure to even mount a defense; his posture of barely tolerating congressional inquiries; his refusal to concede that he owed the Senate any explanation or any evidence; his refusal to even accept that he bore some burden of proof—all of it tots up to a masterful display of the perfect contempt felt by the Bush executive branch for this Congress and its pretensions of oversight. In the plainest sense, Gonzales elevated the Bush legal doctrine of "Because I said so" into a public spectacle.

Viewed in that light, Gonzales did exactly what he needed to do yesterday. He took a high, inside pitch to the head for the team (nobody wants to look like a dolt on national television) but hit a massive home run for the notion that at the end of the day, congressional oversight over the executive branch is little more than empty theatre.

http://www.slate.com/id/2164751?nav=tap3

Here is an examle of an Imperial Presidency headlined by Unitary Executive argument and the assertion that the Presidents only oversight is Impeachment. It is only "comity and only to notify Congress" that the Whitehouse informs the Congress at its pleasure.

tiptap
04-21-2007, 07:04 AM
That Unitary Executive as ascribed by this Presidency, is at odds with the Duty of the Legislature to "make rules and regulations for the land and Naval Forces." With the responsibility explicitly stated that the "President is to take Care that the Laws be faithfully executed."

Unitary Executive was seen as a means to limit Presidencial Powers not a rationalization to advance them. It simply means that the the President can not recluse himself from responsibility in failings (like appointing a War Czar to blame) but it does not give him authority to act independently of Legislative intent.

Amnorix
04-21-2007, 06:04 PM
Pat -- short of impeachment, if 100% of the Congress (or perhaps, more relevant, 67% of each house) agreed that we should withdraw from Iraq NOW, would they be able to mandate that?

patteeu
04-22-2007, 06:49 AM
The theory of the unitary executive is a radical vision of executive power in which the president is the big boss of the entire executive branch and has final say over everything that happens within it.

LMAO

Boy, that's radical! [/sarcasm]

patteeu
04-22-2007, 06:53 AM
That Unitary Executive as ascribed by this Presidency, is at odds with the Duty of the Legislature to "make rules and regulations for the land and Naval Forces." With the responsibility explicitly stated that the "President is to take Care that the Laws be faithfully executed."

Unitary Executive was seen as a means to limit Presidencial Powers not a rationalization to advance them. It simply means that the the President can not recluse himself from responsibility in failings (like appointing a War Czar to blame) but it does not give him authority to act independently of Legislative intent.

You don't know what you're talking about. Your War Czar comment is particularly ridiculous.

No one has argued that anything gives the President the authority to act independently of Legislative intent unless the Legislature exceeds it's own constitutional authority in it's attempts to control him.

patteeu
04-22-2007, 07:12 AM
Pat -- short of impeachment, if 100% of the Congress (or perhaps, more relevant, 67% of each house) agreed that we should withdraw from Iraq NOW, would they be able to mandate that?

I don't know the answer to that. It seems to me that it would be logical for the Congress to be authorized to undeclare war since they are the branch charged with declaring it in the first place, but I don't know whether that's the best interpretation of the Constitution on that point or not. My uninformed guess would be, yes they could.

I don't necessarily agree with all of the President's readings on what his authority under the Constitution is. In fact, I think he's been quite aggressive and is most likely over-reaching in some areas. My main argument is that in the general sense, I think the Unitary Executive theory is valid in that any legitimate function of the executive branch should be under the control of the President and that that control should not be something that the other branches of government can subordinate to other exective branch officers or to other officials outside of the executive branch.

I think that signing statements are useful recordings of the President's thoughts on this point and give us notice that a potential constitutional disagreement is occurring between the executive branch and the Congress. I think it's wrong to just assume that the President's position is always wrong when these disagreements arise.

I also think that while we should be concerned about the President exceeding his Constitutional authority, we should be equally concerned about Congress exceeding theirs. It seems that we have come to treat Congress passing unconstitutional laws as an acceptable part of the process these days instead of condemning it in the same way that many now condemn potential abuses by the President. It would be interesting to look back at the legislative history and see how many laws each Senator and Congressperson has sponsored that were later found to be unconstitutional. But nobody cares about that.

tiptap
04-22-2007, 08:37 AM
Where does the Constitution mention Unitary Executive?

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This clause 18. It gives executive authority. As does clause 16

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


And NO WHERE does the term Unitary Executive exist in Article 2 or anywhere else in the Constitution. The term is a theory proposed and supported by Alito, Roberts and Scalia (and maybe Thomas) that is meant to make the Executive branch exclusive to executive oversight. And yet the Constitution spends considerably more time on the Legislative branch, and sets this up first (Article 1), as the primary focus of governing and explicitly states it has a part in executive action.

I use to think divided government by parties across WH and Congress was good but the result is a power grab by the WH in order to blunt Congressional authority.

patteeu
04-22-2007, 09:43 AM
Where does the Constitution mention Unitary Executive?

Where does the constitution mention Judicial Review? Where does it mention the Filibuster? Where does it mention the Separation of Church and State? Where does it mention a Right to Privacy? Where does it mention that Flag Burning is Free Speech? Where does it endorse Affirmative Action? etc. etc. etc.

The issue isn't whether the words "Unitary Executive" are mentioned in the constitution. The issue is whether the concept is embodied in the constitution. Assuming that you agree, the first sentence of Article II, section 1 is where the concept is presented:

The executive power shall be vested in a President of the United States of America.

That doesn't mean that the executive power not otherwise diverted by the Congress is vested in the POTUS, it means ALL of the executive power is vested in the POTUS.

-----------------------------------------

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This clause 18. It gives executive authority. As does clause 16

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


And NO WHERE does the term Unitary Executive exist in Article 2 or anywhere else in the Constitution. The term is a theory proposed and supported by Alito, Roberts and Scalia (and maybe Thomas) that is meant to make the Executive branch exclusive to executive oversight. And yet the Constitution spends considerably more time on the Legislative branch, and sets this up first (Article 1), as the primary focus of governing and explicitly states it has a part in executive action.

You are misreading the constitution my friend. Article 1 defines the limits of Congress's ability to make laws, but it does not give Congress a role in the execution of those laws. Nor does it empower them to infringe on Article II powers granted directly to the executive branch (ie. the President).

The fact that Article 1 deals with the legislature and Article 2 deals with the executive does not make the legislature superior to the executive. There is nothing in the Constitution that indicates such a thing.

I use to think divided government by parties across WH and Congress was good but the result is a power grab by the WH in order to blunt Congressional authority.

Here we go. As long as Republicans controlled both branches, divided government was good. Now that we have divided government, we need democrat control of both. Haha. Predictable.

Your rationalization is flimsy since the so-called power grab represented by this administration's embrace of the Unitary Executive theory has been going on throughout their term, not just since the democrats took control of Congress.

tiptap
04-22-2007, 06:46 PM
Well it states the legislatures can set up their own rules within each house. So that filibuster is part of the Senate is within the structure voted on with each new Congress is constituted. Technically the whole process could be scuttled but that means that there would be quite a bit time just spent in instituting procedures. It is the Senates decision.
Judicial Review, I guess you are referring to SC ability to rule on Constitutional issues. That did arise from Marshall efforts to raise the role of the SC. Constituted within the Constitution and only court instituted under the Constitution (Congress gets to set up all other courts as of section 9) it position about the Constitution seems pretty clear.

Separation of Church and state comes from a specific admendment. If you mean the degree of separation to include that government cannot display or include religion then that is a discussion of degree. The degree of separation has ebbed and flowed. Though people understood all along the government could not establish a religion with the admendment passage.

So what we are talking about is the degree that executive and executive effort is vested in the Presidency as opposed to legislating by choosing to ignoring legislative bills rather than challenging in the courts or vetoing them. Both are options for the President. Choosing to edit the the legislation suddenly doesn't constitute executive processes but legislative ones. The Pres. can suggest laws but he can't writer them. And clearly an editor's pen of red cross outs is clearly legislative. Constitutional decisions are to be referred to the SC.

This process clearly was part of the Clinton response to divided government as well. The surprise is how this process was accelerated by this present President when the Congress was Republican clearly indicating that this President is interested in Unitary Executive idea to include Imperial decisions about laws.

patteeu
04-22-2007, 07:34 PM
Well it states the legislatures can set up their own rules within each house. So that filibuster is part of the Senate is within the structure voted on with each new Congress is constituted. Technically the whole process could be scuttled but that means that there would be quite a bit time just spent in instituting procedures. It is the Senates decision.
Judicial Review, I guess you are referring to SC ability to rule on Constitutional issues. That did arise from Marshall efforts to raise the role of the SC. Constituted within the Constitution and only court instituted under the Constitution (Congress gets to set up all other courts as of section 9) it position about the Constitution seems pretty clear.

Separation of Church and state comes from a specific admendment. If you mean the degree of separation to include that government cannot display or include religion then that is a discussion of degree. The degree of separation has ebbed and flowed. Though people understood all along the government could not establish a religion with the admendment passage.

All of these require interpretations of Constitutional provisions. Interpretations of various degrees of reasonableness, depending on your POV. The Unitary Executive Theory is no different.

So what we are talking about is the degree that executive and executive effort is vested in the Presidency as opposed to legislating by choosing to ignoring legislative bills rather than challenging in the courts or vetoing them. Both are options for the President. Choosing to edit the the legislation suddenly doesn't constitute executive processes but legislative ones. The Pres. can suggest laws but he can't writer them. And clearly an editor's pen of red cross outs is clearly legislative. Constitutional decisions are to be referred to the SC.

This process clearly was part of the Clinton response to divided government as well. The surprise is how this process was accelerated by this present President when the Congress was Republican clearly indicating that this President is interested in Unitary Executive idea to include Imperial decisions about laws.

It's not a legislative process for the President to assume that the legislature is only legislating within the bounds of it's constitutional authority when he interprets their legislation. (Wow, four variants on the root word "legislate" in a single sentence. That's got to be worth something. Possibly negative rep.)

We aren't talking here about the President arbitrarily rejecting a provision within a larger bill that he believes the Congress has clear authority to pass. For example, if Congress passes a law that regulates the interstate trucking industry by setting a maximum weight limit and a maximum speed limit, the President couldn't use the Unitary Executive theory to refuse to recognize the speed limit portion of the law.

tiptap
04-22-2007, 09:07 PM
(Wow, four variants on the root word "legislate" in a single sentence. That's got to be worth something. Possibly negative rep.)

We could accuse you of reading to much Heidegger if you were German.

Adept Havelock
04-23-2007, 02:53 PM
We could accuse you of reading to much Heidegger if you were German.


Heidegger, Heidegger was a boozy beggar who could think you under the table.

.
<object width="425" height="350"><param name="movie" value="http://www.youtube.com/v/m_WRFJwGsbY"></param><param name="wmode" value="transparent"></param><embed src="http://www.youtube.com/v/m_WRFJwGsbY" type="application/x-shockwave-flash" wmode="transparent" width="425" height="350"></embed></object>

tiptap
04-30-2007, 08:45 PM
http://news.nationaljournal.com/articles/070430nj1.htm

Here we have been talking about unitary executive notion. Yet we have the Attorney General authorizing two aides to be fully in charge and SECRETLY undisclosed in the termination of other political appointments at the Justice Dept. beyond the District Atts. If seems particulary interesting to claim Unitary Executive authority but then to go to great lengths to disguise the input from the White House and from where in the White House the criterea originated.

I am sure White House is always asking for placement of people. That is different than seeking to remove and replace people based upon political considerations.

patteeu
04-30-2007, 08:51 PM
http://news.nationaljournal.com/articles/070430nj1.htm

Here we have been talking about unitary executive notion. Yet we have the Attorney General authorizing two aides to be fully in charge and SECRETLY undisclosed in the termination of other political appointments at the Justice Dept. beyond the District Atts. If seems particulary interesting to claim Unitary Executive authority but then to go to great lengths to disguise the input from the White House and from where in the White House the criterea originated.

I am sure White House is always asking for placement of people. That is different than seeking to remove and replace people based upon political considerations.

There is nothing incompatible between the two ideas at all. The Unitary Executive concept does not imply that there can be no delegation.

tiptap
05-01-2007, 07:23 AM
There is nothing incompatible between the two ideas at all. The Unitary Executive concept does not imply that there can be no delegation.

This is a false understanding of Unitary Executive. The founding fathers discussion about a single President was to insure that there was no deflecting of responsibility by the Executive branch. Here lies an attempt to hide such authority being handed off to the WH in the Justice Dept. The WH makes no public display of their intent to politicize the process but at every opportunity seek to increase the Executive involvement without oversight.

Congress has always been willing to give the WH itself freedom from oversight excepting crime, but the cabinet represents a part of government that is responsible to both parts of the government.

patteeu
05-01-2007, 08:58 AM
This is a false understanding of Unitary Executive. The founding fathers discussion about a single President was to insure that there was no deflecting of responsibility by the Executive branch. Here lies an attempt to hide such authority being handed off to the WH in the Justice Dept. The WH makes no public display of their intent to politicize the process but at every opportunity seek to increase the Executive involvement without oversight.

Congress has always been willing to give the WH itself freedom from oversight excepting crime, but the cabinet represents a part of government that is responsible to both parts of the government.

If by "[t]his is" you mean your post, then I'd agree that it's a false understanding.

The Unitary Executive theory is really fairly simple. The President is in charge of the executive branch. He can make all the decisions himself or he can allow others to make them. The cabinet work for the President and cannot be directed by Congress. They answer to Congress only because Congress has a legitimate oversight function that the SCOTUS has interpreted to mean they have the power to compel testimony, but they don't take direction from Congress except to the extent that Congress can direct the entire executive branch through the Presidency.