FacebookTwitter
Hatrack River Forum Post New Topic  Post A Reply
my profile login | register | search | faq | forum home

  next oldest topic   next newest topic
» Hatrack River Forum » Active Forums » Books, Films, Food and Culture » Bush, Executive Privilege and the War... with Congress? (Page 0)

  This topic comprises 5 pages: 1  2  3  4  5   
Author Topic: Bush, Executive Privilege and the War... with Congress?
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
I think he's attempting some weak humor based on your 'not' instead of 'nor' typo.
No. I'm demonstrating how incredibly annoying it is to have your words -- or laws -- completely subverted and reversed by someone who does not recognize your right to speak clearly in this regard. [Smile]

I could simply announce that we must "interpret" everything Dag says in light of my take on reality. What recourse, then, is available to Dag?

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
I could simply announce that we must "interpret" everything Dag says in light of my take on reality. What recourse, then, is available to Dag?
My recourse is simply to ignore your tiresome little quips until you want to participate honestly in this and to acknowledge that, whatever Pollyanna world you want to live in, in the real world: 1) statutory interpretation is HARD; 2)there are commonly accepted standards for doing to, although these standards can produce wildly different results; and 3) interpreting laws so as to avoid raising constitutional questions is one of the oldest and most widely accepted of those principles.

You might think you're clever, but you are smart enough to understand the difference in what I'm saying and your stupid little example.

For one, when you don't know what I mean, you can ask me. You can't ask Congress what they mean beyond the words of the statute - and it's the words of the stature that must be interpreted.

Let's look at the patent code for a minute (35 U.S.C):

quote:
101. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

...

103. Conditions for patentability; non-obvious subject matter

(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.

Are you going to pretend that what I said - even with my stupid typo - isn't clear compared to that?

What does "obvious" mean? What is "ordinary skill" and "the art to which said subject matter pertains?"

It requires interpretation. I'ts not clear. And the executive, as much as the judiciary, is responsible for interpreting it.

And this is the simplest part of the Patent Code.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
1) statutory interpretation is HARD; 2)there are commonly accepted standards for doing to, although these standards can produce wildly different results; and 3) interpreting laws so as to avoid raising constitutional questions is one of the oldest and most widely accepted of those principles.

Dag, the bulk of the signing statements mentioned in this thread are not issues where people are looking at the text and going, "Oh, gee, I'm not sure what 'obvious' means in this context." They're situations in which Bush looks at a clear and unambiguous law and says, "I don't believe that I, for various Constitutional reasons, have to do that."

Bush isn't confused by the law. He's not clearing up some matter of interpretation. He's saying, "I don't think Congress can require me to do this, so I won't."

There's no "HARD" there, especially not in capital letters. There's a solid difference in interpretation. You know how I feel about the whole "Imperial Executive" thing; I'd even do away with the executive branch if someone granted me a bunch of wishes. So when the issue boils down to whether or not the "unitary executive" position is a sound, moral, and sensible one or not, and when the court has been arguably packed with people who might well support just such an odious approach, you can understand why I'm advocating action within the legislature.

We're not talking about people niggling over the definition of "ordinary skill," mind you. I know you keep trying to bring it back to that, to present these as if they were part of some larger body of normal, healthy interpretations of law. But they're not "interpretations;" they're repudiations of law. They're very carefully parsed so as to be defensible -- the Bush Administration is good at nothing if not legal defensibilty -- but they're corruptive nonetheless. And, yeah, I know they're not unique in that regard -- but I suspect that they are unique in both boldness and volume.

quote:
My recourse is simply to ignore your tiresome little quips...
Except, of course, that Congress can't ignore the President. So the next step might be to appeal to the mod (assuming you didn't want to stop posting altogether). But if I picked the mod, how useful do you think that might be?

---------

You mentioned earlier that if one believed that the president and the Supreme Court were both hopelessly corrupted, that violent revolution might be a better solution. My argument remains that impeachment is both less bloody AND more respectful of the framework of the Constitution.

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
Tom: since your assertion is that the law is "clear and unambiguous" on the points Bush is making signing statements regarding, would you care to quote some of that "clear and unambiguous" law and a signing statement that interprets it in a way contradictory to what is stated? I'll start by only asking for two or three examples.

edit: please provide specific quotations, I'm not going to try and interpret which parts of laws or signing statements you're talking about. If there is some clear and unambiguous aspect of a law being interpreted in an impossible way, there will be direct quotations to that effect.

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
would you care to quote some of that "clear and unambiguous" law and a signing statement that interprets it in a way contradictory to what is stated?
I'll actually point to the one that's already been cited here, since it's a good example of both the sort of law I'm talking about and Bush's response.

Now, you can argue that Bush's "We shall interpret this law according to the Constitution" notation in the signing statement is somehow not a "we won't do this," but that's only because he didn't say, in writing, in that signing statement, "we won't do this." After all, "we'll interpret this law in accordance with the Constitution" isn't something you normally need to make explicit; it's pretty much a given that you're interpreting the law in accordance with the Constitution. It's only necessary to say that you're going to "interpret" the law if you believe -- or are at least going to assert -- that the law as written is unconstitutional in some way.

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
Dag, the bulk of the signing statements mentioned in this thread are not issues where people are looking at the text and going, "Oh, gee, I'm not sure what 'obvious' means in this context." They're situations in which Bush looks at a clear and unambiguous law and says, "I don't believe that I, for various Constitutional reasons, have to do that."
It's not just the law, but the constitution that has to be interpreted, Tom.

quote:
I'll actually point to the one that's already been cited here, since it's a good example of both the sort of law I'm talking about and Bush's response.
The unconstitutionality of a Congressional committee approval for spending funds is about as settled as these things ever get. Congress passed a clearly unconstitutional provision IF they meant actual approval, instead of notification.

It's not allowed. If you're all for separation of powers, why aren't you going on about this?

By the way, how are you saying that the Energy Policy Act of 2005 is unambiguous? It hasn't been linked - did you go back and read the bill?

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
Let's look at a specific section of this (link to whole bill):

quote:
SEC. 110. DAYLIGHT SAVINGS. (d)
Congress retains the right to revert the Daylight Saving Time back to the 2005 time schedules once the Department study is complete.

There are two ways to interpret this: either Congress means 1) it can pass a law, which the President can sign or veto, in order to revert; or 2) Congress can pass a resolution by majority in both houses and, without Presidential signature, Daylight Savings time will revert.

Both are perfectly reasonable interpretations. The first is absolutely unnecessary - Congress can alway pass a law to undo an existing law or treaty. One Congress cannot bind another.

The second happens to be blatantly unconstitutional. Now tell me why the President shouldn't clarify as he signs the bill that he thinks Congress didn't violate the Constitution.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
It's not allowed. If you're all for separation of powers, why aren't you going on about this?
I'm not "all for separation of powers." I'm generally opposed to powerful executives; I don't think we need a balance; I think we need a parliament.

quote:
By the way, how are you saying that the Energy Policy Act of 2005 is unambiguous?
Specifically, Section 365(e)(2) is relatively unambiguous. For that matter, Bush's reply to that section -- that it "purports to require" -- is pretty unambiguous, too. Congress is saying "you'll do the following." Bush is replying, "No, I won't. You quite literally can't make me."

And what worries me about this is that this sort of exchange, like other exchanges before it, can later be used as precedent for assuming even greater power by a future executive. "Look," they'll say. "Lincoln did this. And Bush did this. So clearly I have the authority to do this." The worst thing about that is that the Supreme Court has a tendency to look at exactly that sort of situation when making its determination; mistakes of the past become justifications for bad policies of the future.

----------

quote:
Now tell me why the President shouldn't clarify as he signs the bill that he thinks Congress didn't violate the Constitution.
Honestly? Because a better method of dealing with the same situation, which does not require "interpreting" Congress, is to either veto the bill or, when Congress attempts to exercise unconstitutional power, put it before the Supreme Court at that time.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
Let's look at this one:

quote:
SEC. 342(j)
(2) Report.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall submit a report to
Congress--
(A) assessing the effectiveness of granting
preferences specified in paragraph (1); and
(B) providing a specific recommendation on the
continuation of authority to grant preferences.

Congress is demanding a specific recommendation from the President. There's a clause in the Constitution that states the President shall "recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient." Congress has overstepped here.
Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
Congress has overstepped here.
According, certainly, to one interpretation of the Constitution. Why should the president get to make that decision without first having to obey it, or at least challenge it in court? Why should he be entitled to an "interpretation" that changes the entire nature of that section of the bill without vetoing the bill in whole (or in part, if we came up with line item vetoes)?
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
I'm not "all for separation of powers." I'm generally opposed to powerful executives; I don't think we need a balance; I think we need a parliament.

Fine. Then be honest about it and demand a Constitutional amendment. Don't backdoor it in by desiring criminal charges against someone for using a form of interpretation that has been expressly mandated by the Supreme Court.

quote:
Honestly? Because a better method of dealing with the same situation, which does not require "interpreting" Congress, is to either veto the bill or, when Congress attempts to exercise unconstitutional power, put it before the Supreme Court at that time.
Why is that better? It still requires interpreting Congress in order to determine if the bill should be vetoed. What you're asking for is impossible. You've yet to demonstrate that you appreciate at all the actual complexity involved here.

Congress (its legislation, specifically) must be interpreted. You've continually skipped over this point. Every section of that bill is open to multiple interpretations. There's no way to draft it otherwise. And some of those interpretations will be either clearly unconstitutional or be of doubtful constitutionality.

Quite frankly, I'd prefer it if the President didn't issue the signing statements, but instead acted as he believes is constitutional when the situation arises.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
According, certainly, to one interpretation of the Constitution. Why should the president get to make that decision without first having to obey it, or at least challenge it in court?
Why shouldn't he?

quote:
Why should he be entitled to an "interpretation" that changes the entire nature of that section of the bill without vetoing the bill in whole (or in part, if we came up with line item vetoes)?
Because I could probably find a couple hundred places where "shall" does not mean "must absolutely do." Implicit conditions on "shall" run rampant through the law, many of which were endorsed - indeed, created - by SCOTUS.
Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
Implicit conditions on "shall" run rampant through the law, many of which were endorsed - indeed, created - by SCOTUS.
I'd argue that this is an excellent example of bad precedent being used to justify bad policy. [Smile] When "shall" is "interpreted" to mean "shall never," something's broken.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
BlackBlade
Member
Member # 8376

 - posted      Profile for BlackBlade   Email BlackBlade         Edit/Delete Post   Reply With Quote 
quote:
Gee. Who would have thought that I would be arguing with Tom and agreeing with Blackblade?
Didn't realize we had a track record for dissent. [Wink]

I should point out that I don't think that impeachment of a president should ALWAYS be trumped by foreign policy, but Bush to me would have to be doing more then he is now for me to see impeachment as worth persuing in spite of some of the unintended side effects.

Posts: 14316 | Registered: Jul 2005  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
I'd argue that this is an excellent example of bad precedent being used to justify bad policy. [Smile] When "shall" is "interpreted" to mean "shall never," something's broken.
Why restate it? It's not interpreted as "shall never."

However, legislatures have a history of not reconciling existing laws with new laws, leaving courts in the position of deciding if a pre-existing law that mandates an exception to a new law should be treated as an exception or not. And that's only one of the times it's necessary.

For another type of example, if the laws is "Official Y shall do X when Z occurs," and sometimes doing X when Z occurs is unconstitutional, then it is assumed Congress meant for that to be an exception.

For example, Congress is fed up with drunk driving and passes a law, "If there is probable cause that any person authorized to access classified information has knowingly disclosed information which has properly been classified as top secret, the U.S. Attorney of the district in which such disclosure occurs shall seek an indictment from the grand jury of that district and, if such indictment is returned true bill, shall prosecute the person who has disclosed the information."

Pretty straightforward, right?

However, it would be unconstitutional to arrest or prosecute a congressman for disclosing such a secret on the House floor during deliberations. A U.S. attorney facing that "shall" is constitutionally required to not seek and indictment and to not prosecute if an indictment is returned.

The thing is, laws are written in light of these rules of interpretation (at least a large part of the time and when they're not being sloppy). And Congress is on good notice that this is how the laws are interpreted.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
*nod* I think where we disagree, then, is on which body should be "on notice" in this regard. I'm much happier requiring that the executive branch make a good-faith effort to prosecute a law as written, in its entirety, and then require a court intervention, than I am with the reverse. (Simply saying "I think X is unconstitutional, and thus won't do it," is not a "good faith" attempt to carry out a law, IMO.) Otherwise, we're essentially allowing the executive to make law.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
*nod* I think where we disagree, then, is on which body should be "on notice" in this regard. I'm much happier requiring that the executive branch make a good-faith effort to prosecute a law as written, in its entirety, and then require a court intervention, than I am with the reverse. (Simply saying "I think X is unconstitutional, and thus won't do it," is not a "good faith" attempt to carry out a law, IMO.) Otherwise, we're essentially allowing the executive to make law.
Fine, pass a constitutional amendment then. By all means let such a theory guide your voting behavior.

That's not how it works now, though: laws are written with the knowledge that such exceptions will be read in by both the judiciary and the executive, and, in fact, the executive is subject to serious liability for not doing that.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
Fine, pass a constitutional amendment then.
Why should that be necessary?

quote:
the executive is subject to serious liability for not doing that
Isn't it more correct to say "the government" is subject to liability? It's not like people are suing the executive branch specifically when they sue the United States.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
It should be necessary because the legal precendents of nearly the entire history of the US contradict it. And more practically, because the Supreme Court, the Executive, and the Congress all endorse the practice to at least some degree. If you want it to change, you're either going to have to work to replace all three branches of government in some way, or pass an amendment.
Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
Why should that be necessary?
Well, it's not, if you can get enough people to elect presidents who agree with you.

Otherwise, that's not how it's done, Tom, nor is there constitutional justification for doing it that way. Further, there have been cases requiring the executive to exercise this discretion, not just approving it. At the very least, get SCOTUS to back up your view.

Also, Congress writes laws in light of these rules of interpretation.

quote:
Isn't it more correct to say "the government" is subject to liability? It's not like people are suing the executive branch specifically when they sue the United States.
Not really. They are protected under qualified immunity, but that immunity can be overcome if the constitutional justification for the officer's actions aren't strong enough. A lawyer violating the speech and debate clause might have a hard time claiming qualified immunity.

The government would face liability as well, of course.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
If you want it to change, you're either going to have to work to replace all three branches of government in some way, or pass an amendment.
Like I said, impeaching the executive and slowly replacing the judiciary is a good start. [Wink]

------

quote:
They are protected under qualified immunity, but that immunity can be overcome if the constitutional justification for the officer's actions aren't strong enough.
But isn't that just as true of a situation in which the president has issued a "signing statement?" If -- for example -- we wind up prosecuting individual torturers for violating specific laws on the books banning torture, but they point to executive statements which indicate that the executive endorsed specific forms of torture as constitutional under his interpretation, they aren't any more shielded if SCOTUS disagrees with that interpretation than if that interpretation didn't exist in the first place, are they?
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
Impeaching the President isn't a good start, for several reasons.

1) he would never be impeached on those grounds, but on others, if he was impeached at all (which would be a stupid and wasteful move at this point, anyways).

2) whoever replaced him would be just as willing to have the President interpret statutes as not violating the Constitution. Part of executive power is interpretation of what is being executed, at least as it has been done at all levels of our government (and, I believe you will find, the government of every other world power) for quite some time.

And you aren't going to be able to replace members of the Supreme Court with people who think otherwise unless you also intend to persuade law schools to train lawyers differently, or convince a President to start appointing people without legal training to the SC.

Out of curiousity, how do you feel about mandatory minimum sentencing, or punishing police officers who use discretion when dealing with some offenses?

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
Oh, and lets be quite clear here:

Do you feel the President should be brought up on criminal charges via impeachment for doing things that have been part of the American legal tradition for centuries, that are commonly accepted as reasonable practice here and in many other countries, and that has been specifically advised to be sound practice (and even told to do so) by the Supreme Court? Furthermore, do you feel that these criminal charges are a better way of changing the legal system of the United States, despite having no binding precedent even if successfully prosecuted, than amending the Constitution?

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
how do you feel about mandatory minimum sentencing, or punishing police officers who use discretion when dealing with some offenses?
Again, I draw a distinction between "exercising discretion" and deciding, "Okay, we're just not going to enforce this particular part of the law, ever." There's a difference between "using discretion" and saying, "I believe this law is wrong, so I'm not actually going to try to get it changed but will instead simply tell people to ignore it."

quote:
Furthermore, do you feel that these criminal charges are a better way of changing the legal system of the United States, despite having no binding precedent even if successfully prosecuted, than amending the Constitution?
Somewhat unfortunately, yes. Because it would help remind Congress that they have the power and discretion to do it. I don't think anything else would help them remember that they're supposed to be wearing the long pants. Permitting the Executive Branch to tell them what is or is not "good law" is just laziness on their part, and is a good chunk of the reason for the abuse in the first place.

Because here's the thing: the changes I'm talking about would probably require an armed revolution before they'd happen otherwise -- not because that's the only way they could happen legally, but because sheer inertia and apathy will prevent them. I think impeachment is a considerably less ruinous alternative to that end, but still shocking enough to get the system unclogged.

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
not because that's the only way they could happen legally
But it's not the only way it could happen legally.
Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
Could you point out a place where Bush has said he isn't going to enforce a part of law?

And Congress hardly needs reminding they can impeach people. It has been done or nearly done several times in recent memory, and people repeatedly remind them in very noisy ways. What evidence do you have that Congress is in danger of forgetting they can impeach people?

As for it being a reason for the abuse, would you care to point out a single nation that is more than a minor power where the executive does not have discretion in executing laws?

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
But it's not the only way it could happen legally.
Yes, Dag. I know. That's actually specifically why I put that line in, in fact. [Smile] I just don't think that any of the other legal methods are ones that will be practical within our lifetime(s). I am, as you may have noticed, extraordinarily cynical about the ability of our government to recover from what I consider its enormously kludged-up position.

---------

quote:
Could you point out a place where Bush has said he isn't going to enforce a part of law?
I can point out lots of places he's said "we'll enforce this part of the law consistent with my understanding of the Constitution, which means we won't be enforcing it." His people aren't stupid enough to actually have him SAY the other bit. [Smile]

quote:
And Congress hardly needs reminding they can impeach people.
That's not what they need to be reminded of. They need to be reminded that the ultimate responsibility for good law lies with them -- and that the president serves at their discretion. They've blamed the president for bad law for too long without actually doing anything about it.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
and that the president serves at their discretion.
This is exactly the thing I want to avoid with your impeachment rationale. The President does not serve at Congress's discretion. Even though there's nothing to stop Congress from using impeachment in such a manner, it is not intended to be that.

A government based on an executive that serves at the legislature's discretion might be a good thing. It might be better than what we have now. But sneaking it in the way you want to is an end run around the agreed-upon procedures for altering our core framework of government.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
Chris Bridges
Member
Member # 1138

 - posted      Profile for Chris Bridges   Email Chris Bridges         Edit/Delete Post   Reply With Quote 
But the President does not legislate. The Supreme Court has already ruled against the line-item veto for violating bicameralism and presentment, why is this different?

If the President finds that any part of the law is unconstitutional, he should veto it. That part is fairly clear, being described in the Constitution in Article I, Section 7, Clauses 2 & 3. He should not be cherry picking the parts that the government will and won't follow as that puts him in the position of both legislator and final arbiter of law.

The McCain Detainee Bill set out to very clearly state that the US will not torture under any circumstances, and defined what physical methods may be used for prisoner interrogation by restricting them to the Army field guide.

President Bush' signing statement read as follows:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

If the President did not intend to ignore the Act if he felt justified, why bother to issue this statement at all?

Posts: 7790 | Registered: Aug 2000  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
As Dagonee notes, the President most definitely does not serve at their discretion in our form of government. I know you do not like our form of government, but that does not mean the form of government is magically changed to one you do like.

And, can you produce evidence the President has acted on your interpretation of his statements? It is extremely easy to impute smarmy purposes for anyone. One would usually hope grave criminal charges would involve proving them, at very least.

I agree the Congress could do a lot to shape up, but impeaching the President for things that are commonplace and have never been grounds for impeachment is not a very good way of going about it. In fact, it sounds like a way to ensure that most of the laws passed during that period are even worse laws than normal, and to get a President much more likely to avoid getting in the way of Congress passing bad laws (of course, this President hasn't been great on that record, so imagine what an even more accommodating President would be like!)

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
Chris Bridges
Member
Member # 1138

 - posted      Profile for Chris Bridges   Email Chris Bridges         Edit/Delete Post   Reply With Quote 
Signing statements may have been commonplace, but until fairly recently they were not used for constitutional challenges. With a few exceptions they were PR bits, for the most part. "I'm signing this! Yay me!" It was, among other things, Samuel Alito's memo in 1986 on how to start using them to intepret laws that really kicked off the "don't wanna, don't hafta" era of signing statements.
Posts: 7790 | Registered: Aug 2000  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
But the President does not legislate. The Supreme Court has already ruled against the line-item veto for violating bicameralism and presentment, why is this different?

If the President finds that any part of the law is unconstitutional, he should veto it. That part is fairly clear, being described in the Constitution in Article I, Section 7, Clauses 2 & 3. He should not be cherry picking the parts that the government will and won't follow as that puts him in the position of both legislator and final arbiter of law.

Or he can interpret the law in a constitutional fashion.
Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
can you produce evidence the President has acted on your interpretation of his statements? It is extremely easy to impute smarmy purposes for anyone.
One of the specific difficulties with Bush's use of signing statements is that they've often been on bills related to issues which, due to security concerns, are impossible to independently verify.

That said, can you put forward a reason to say "I will enforce this according to my interpretation of the Constitution" about a specific bill (as opposed to every bill) that would not amount to "I will not enforce this as written, because I think it's unconstitutional?"

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
That said, can you put forward a reason to say "I will enforce this according to my interpretation of the Constitution" about a specific bill (as opposed to every bill) that would not amount to "I will not enforce this as written, because I think it's unconstitutional?"
Yes. To send a continuing message to Congress to cut that crap out. Or to make it clear from the outset that this area may be problematic, which would allow Congress to react prior to the event in question.

The GAO report linked by Paul earlier found explicit examples of compliance with some laws for which such signing statements had been issued. SO it clearly doesn't only mean what you say it does.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
Chris Bridges
Member
Member # 1138

 - posted      Profile for Chris Bridges   Email Chris Bridges         Edit/Delete Post   Reply With Quote 
What is really being damaged is the American people's faith in their government.

Even if he never acts on that detainee bill signing statement, perception will be that he's ignoring what was seen as a clear cut "don't do it" directive from the legislature. The demand for secrecy at an unheard of level, the refusal to respond to subpoenas, the sheer number of constitutional challenge signing statements, the politicalizing of the appointed positions and the pressure for department heads to follow party loyalty lines and avoid any public statements that do not conform to the official ideology, along with the avoidance of nonvetted public appearances and the diminishing press conferences all suggests an executive that plans to follow his agenda despite Congress, the courts, or the American people.

It may be entirely legal and above board, although it's hard to tell when investigations don't get very far. It may not be an impeachable offense. But it is, in my opinion, a piss-poor way of running the country that not only lessens our government's effectiveness but establishes a powerful precedent for future presidents.

I can't point to chapter and verse, or present an iron-clad argument against the actions of this President. I can tell you that with every new signing statement or every political appointment chosen for loyalty over ability, I become more and more frightened for the future of my country.

Posts: 7790 | Registered: Aug 2000  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
To send a continuing message to Congress to cut that crap out.
While STILL saying "I will not enforce this as written," of course. Unless you think that it's "okay, you guys. I'll go along with you this once, but I just wanted to, y'know, voice my objections." Because -- and I don't mean to be sarcastic here, but I can't help it -- that's completely consistent with what we've seen from the Bush Administration. [Wink]

quote:
The GAO report linked by Paul earlier found explicit examples of compliance with some laws for which such signing statements had been issued.
But, see, that's the corrupting beauty -- and laziness -- of a signing statement that asserts your authority to "interpret" the meaning of a given law. You only need to ignore the law when it would actually inconvenience something you're doing; if you don't care whether or not your underlings shuffle paper back and forth on a less sensitive topic, you go ahead and let them be bound by it -- and then, when you run across a specific piece of paper you don't want shuffled, you can tell them, "it's unconstitutional to shuffle this piece of paper" and it goes away. That's actually one of the specific reasons I'd prefer a veto.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
While STILL saying "I will not enforce this as written," of course.
Not really. For example, knowing that Congress has asked for specific recommendations, the President might decide that giving them is necessary and expedient.
Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
Heck, he might even decide that giving them is still unconstitutional, but would go ahead and do it anyway out of the kindness of his heart. [Smile]
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
No, he wouldn't.
Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
But he might. You never know. "Gee, the American people would really like to know whom I invited to that Energy Task Force. Maybe I'll just, y'know, tell them."

If anything, the icy-cold conditions at the center of the Earth might solve our global warming problem for us. [Wink]

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
But he might. You never know. "Gee, the American people would really like to know whom I invited to that Energy Task Force. Maybe I'll just, y'know, tell them."
It wouldn't be unconstitutional to tell them.

You do know that the smilies don't actually make you seem nice, well-meaning, or funny, right?

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
quote:
You do know that the smilies don't actually make you seem nice, well-meaning, or funny, right?
Not that I'm an expert myself, but I'm almost certain there's some kind of rule preventing lawyers from offering advice concerning one's sense of humor. If there isn't, there absolutely should be.
Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
BlackBlade
Member
Member # 8376

 - posted      Profile for BlackBlade   Email BlackBlade         Edit/Delete Post   Reply With Quote 
And with that Tom drew his sword and rushed at Dagonee who brandished a lawyer's briefcase in a defensive manner. For Dag had questioned Tom's use of the forum graemlins.

But seriously, Dag, certainly the use of smilies is important in a forum as words can appear to be unduely hostile without them. We don't have tone of voice or facial expressions to cross reference in a forum.

Maybe you know something I don't but I take Tom's comments with smilies to be more friendly then the ones without.

edit: How else can we convey our sentiments in a forum if not with emoticons or by following every statement with <wink> *Smiles* etc? Simply trying to sound friendly in your diction by itself just does not work IMO.

Posts: 14316 | Registered: Jul 2005  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
I take Tom's (and this is specific to Tom) statements with smilies as much more hostile than those without them. They usually involve a concerted effort to refuse to address a significant element of the discussion or to make wildly exaggerated statements about the other person's position.

In short, he's almost always nicer, more well-meaning, and funnier when he doesn't use them. Usually because the lack of them is a good indication that he's really trying to be nice, well-meaning, and funny rather than just look like he is.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 124

 - posted      Profile for TomDavidson   Email TomDavidson         Edit/Delete Post   Reply With Quote 
Well, not quite.
In general, I use a smiley when I know there's a hostile or dismissive interpretation possible for what I'm saying, and want to acknowledge that -- while indicating that what I'm saying is not meant to be hostile or dismissive. When I'm intentionally hostile or dismissive, I'm generally disinclined to use a phrasing that could be interpreted more innocently.

It's not unreasonable for Dag, then, to associate them with hostile or dismissive statements, because that IS when I generally take care to use them; if, despite their presence, he chooses to interpret those statements in a hostile or dismissive way, it must certainly seem to him (or anyone else who does the same thing) that I use smilies to accentuate my hostility.

For my part, I intend a smiley to indicate "just kidding" or "you don't really need to take this part of the post seriously." I understand that this is anathema to Dag, especially when discussing issues he considers important, but frankly I wouldn't be able to have a conversation without interjecting things for humorous value that I intend to be taken lightly; I suspect that I would expire halfway through any remotely serious thread -- out of ennui, if not self-importance.

Posts: 37431 | Registered: May 1999  |  IP: Logged | Report this post to a Moderator
Dagonee
Member
Member # 5818

 - posted      Profile for Dagonee           Edit/Delete Post   Reply With Quote 
quote:
It's not unreasonable for Dag, then, to associate them with hostile or dismissive statements, because that IS when I generally take care to use them; if, despite their presence, he chooses to interpret those statements in a hostile or dismissive way, it must certainly seem to him (or anyone else who does the same thing) that I use smilies to accentuate my hostility.
Tom, it's not just the wording of the statements. It's the history of using them to actually dismiss.

To me, it appears that they are only associated with conversations in which you steadfastedly ignore important portions of the other sides case - portions that already explain away the usually absurd result you are attributing to the other side's positions in your smilied statements.

I don't have any problem with humor even in a serious thread, but your humor in these situations seems tactical, not humorous.

For example, despite the smiley, it was clearly a serious comment central to your point when you said "While STILL saying 'I will not enforce this as written,' of course. Unless you think that it's 'okay, you guys. I'll go along with you this once, but I just wanted to, y'know, voice my objections.'" I then presented reasons why there are other very possible interpretations than the one you've given them.

At this point, that hasn't been addressed except by your "humorous" statement. Hence, it seems as if you are using humor to dismiss.

Edit: to be clear, I'm talking about my perceptions of your use of smileys. I'm not doubting your intentions, and I'll try to keep them in mind.

Posts: 26071 | Registered: Oct 2003  |  IP: Logged | Report this post to a Moderator
Paul Goldner
Member
Member # 1910

 - posted      Profile for Paul Goldner   Email Paul Goldner         Edit/Delete Post   Reply With Quote 
First, I want to apologize for not getting back to this thread earlier, and then apologize again because I'm just skimming right now since I don't have time today, either, to deal with most of the stuff here. I have't dissapeard, I promise, I'm simply taking a 9 hour a day course that is an hour away from me last week and this.

Second,
" Even though there's nothing to stop Congress from using impeachment in such a manner, it is not intended to be that."

This is unclear. I can't remember which federalist paper it is, but at least one points out that impeachment can and should be used anytime the president or another impeachable officer starts behaving badly.

Within the constitution, the guidelines are obviously illegal behavior for the president, although it is "good behavior" for supreme court justices that determines whether they can keep their jobs. And I do think its important not to impeach unless an illegal action has been undertaken. Of course, I would argue that the president saying that a bill that contains "must" or "shall" language is advisory is enough of an illegal action for me to support impeachment.

Posts: 4112 | Registered: May 2001  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
I believe Dagonee has pointed out times the Supreme Court has interpreted "must" or "shall" as advisory.

And a cursory search produces the one I am fairly sure you are talking about: http://academic.brooklyn.cuny.edu/history/johnson/fedimpeachment.htm

quote:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.
Of course, keep reading. He is clear that

1. Impeachment is a criminal proceedings (not a purely civil one), for criminal offenses (he talks about how the weight of an impeachment conviction means that it is very careful the Senate consider not just the politics, but the actual violation).

2. The reason the Senate was chosen was an attempt to divorce the proceedings from politics as much as possible.

3. In the end, the whole discussion of impeachment is mostly a vehicle (and metaphor) to trash the anti-federalists for being nit-pickers.

And even if it were pointing out what you assert, a political polemic designed to persuade people to support the Constitution is not a final authority (though it should be considered). We know of debate at the convention on the issue. What went into the document states "high crimes and misdeameanors" (misdemeanors were more serious offenses then), not "doing things we don't like" or even "interpeting the law wrong, but in a way in a way supported by precedent and the Supreme Court".

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
fugu13
Member
Member # 2859

 - posted      Profile for fugu13   Email fugu13         Edit/Delete Post   Reply With Quote 
And unless he's actually acted on that interpretation, as Dagonee has pointed out there are several instances he hasn't (such as with providing reports to Congress), he hasn't even done anything legally wrong by the standards you have proposed. It doesn't much matter what he says, from a legal perspective, it matters what actions he takes. If he says something is advisory, but does it anyways, no violation has taken place. Signing statements are not law, and are not binding (though the President might not like it if members of the executive branch don't go along with them; his recourses are any that he normally has with executive branch employees not supporting the President's positions).

actually edit: I guess I hit reply, not edit . . .

Posts: 15770 | Registered: Dec 2001  |  IP: Logged | Report this post to a Moderator
Samprimary
Member
Member # 8561

 - posted      Profile for Samprimary   Email Samprimary         Edit/Delete Post   Reply With Quote 
Ahhhh. I love Google News snapshots.

quote:
The White House is also claiming executive privilege on e-mails on the firings sent by White House officials on Republican National Committee-sponsored accounts. Those documents also have been subpoenaed with a Tuesday return date, but Conyers agreed to give the RNC until July 31 to turn over the documents or explain why not.
quote:
President Bush has the legal right to claim executive privilege. However, if a potential criminal investigation can supply valid reasons for needing the materials in question, a claim of executive privilege is insufficient unless issues of national security are at stake.
quote:
What does this mean for the current standoff? Only time will tell, but it does not appear to bode well for the president. Discussions regarding the firing of Justice Department officials for partisan political reasons seem unlikely to be regarded by the courts as vital to protecting national security. Because lying to Congress and obstructing the proper administration of the law are crimes and because the Constitution gives Congress oversight responsibilities, it also seems unlikely the Courts will recognize a general claim of executive privilege as sufficient.
quote:
The Nixon case made clear the executive cannot decide unilaterally what is and is not privileged, as this administration seems to believe it can. The public's records should be public. As Wigmore instructed, public officials have the responsibility "to explain and justify their acts," or oppression and corruption is sure to follow.

Posts: 15419 | Registered: Aug 2005  |  IP: Logged | Report this post to a Moderator
  This topic comprises 5 pages: 1  2  3  4  5   

Quick Reply
Message:

HTML is not enabled.
UBB Code™ is enabled.
UBB Code™ Images not permitted.
Instant Graemlins
   


Post New Topic  Post A Reply Close Topic   Feature Topic   Move Topic   Delete Topic next oldest topic   next newest topic
 - Printer-friendly view of this topic
Hop To:


Contact Us | Hatrack River Home Page

Copyright © 2008 Hatrack River Enterprises Inc. All rights reserved.
Reproduction in whole or in part without permission is prohibited.


Powered by Infopop Corporation
UBB.classic™ 6.7.2