Bush doesn't appear to be doing anything that previous Presidents aven't already done (see page six), but the scope and scale do trouble me. There also doesn't appear to be a clear rememdy on how issues like this should be handled. Can a judicial review force him to comply?
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posted
Hopefully that'll change with Democrats in charge.
Otherwise it's hardly surprising, Bush has gathered more power to himself than any president since the Roosevelts.
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quote:requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.
I find these three especially disturbing.
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It's nice to see more attention being paid to "signing statements," although it's long overdue.
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Y'know, there was this really funny article in the Onion circa 2000. It had a picture of Bill Clinton dressed in grand military style with a caption something along the lines of "Clinton Names Self Grand Dictator for Life."
It was really funny, but the more and more weird vibes I get from Bush, the more concern that the farce above might be prophetical, if only for a different president.
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I don't think he should be impeached just for the signing statements themselves. They're just his opinions as a 'Constitutional expert' (boy that's hard to say with a straight face).
When he actually violates the law by using one of these, then I support impeachment proceedings. And I've seen multiple suggestions saying he might have done just that, so I'd like to see more on it, but signing statements, as originally intended, to express Presidential disagreement with a bill, is fine. They have no weight of law, despite what THIS president might think, they're essentially just dissenting opinions.
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Suppose the Supreme Court decides 5-4 that the President's action was unlawful, with no majority decision and interlocking plurality, concurring, and dissenting opinions. If it's necessary, suppose the justice lineup is Scalia, Ginsburg, Stevens, Thomas, and Souter in the majority and Kennedy, Alito, Roberts, and Breyer in the minority.
Would you support impeachment then?
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I suppose it would depend on their suggested remedy. Let's say they decide it's unlawful. What happens next?
As I understand it, there is no practical way to force an uncooperative President to stop "interpreting" laws in a manner directly contrary to their written intent without actually impeaching him. Is that incorrect?
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quote:As I understand it, there is no practical way to force an uncooperative President to stop "interpreting" laws in a manner directly contrary to their written intent without actually impeaching him. Is that incorrect?
No, it's not. We've discussed this extensively in the past.
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quote:Originally posted by Dagonee: Suppose the Supreme Court decides 5-4 that the President's action was unlawful, with no majority decision and interlocking plurality, concurring, and dissenting opinions. If it's necessary, suppose the justice lineup is Scalia, Ginsburg, Stevens, Thomas, and Souter in the majority and Kennedy, Alito, Roberts, and Breyer in the minority.
Would you support impeachment then?
Yes, I would. All that would do is bring official charges against him, and then there would be a trial.
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posted
So, criminal charges for someone who used a statutory or constitutional interpretation that the leading experts on the constitution couldn't agree on. That's...astounding. Moreover, there are probably a dozen Presidents who should have been impeached by those standards.
And hundreds or thousands of members of Congress who, were the same type of standard applied to them, should have been kicked out of office.
posted
To clarify: I would be comfortable impeaching a president for using excessive signing statements without even bringing the Supreme Court into it at all.
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There is a common canon of construction called "avoidance of constitutional doubt" that states that a statute should, if possible, be interpreted in a manner that avoids raising a constitutional issue.
Note that this is "avoids raising" - a far lesser standard than simply interpreting a statute so that it is not unconstitutional.
This canon is used frequently by the Supreme Court - it's not an off-the-wall, fringe legal theory, but a centerpiece of statutory construction.
Note that this presupposes the existence of doubt. It also presupposes that the Executive will interpret the law when deciding how to execute it and that it will rely on canons such as this one.
The President - and his officers - have a specific duty to interpret the Constitution. There is an entire office at DoJ whose job it is to present the President's interpretation of the Constitution to the courts.
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An impeachment charge is a criminal charge? Isn't the only penalty removal from office?
How is a decision with "no majority decision and interlocking plurality, concurring, and dissenting opinions" parsed into 5-4, or whatever the numbers might be?
Also, a technical note before the argument has it's inevitable devolution:
quote: impeachment is analogous to indictment in regular court proceedings, trial by the other house is analogous to the trial before judge and jury in regular courts.
With that out of the way, I would be comfortable supporting impeachment and conviction in Dag's hypothetical. Of course, I'd be more comfortable with a more clear-cut or unanimous verdict.
In any case, I think specific instances of laws being broken are more compelling politically than the over-arching issue of signing statements. The big three are: violation of the 4th Amendement and FISA, use of torture, and false intelligence leading to war with Iraq.
The last two are certainly debatable, and have been here and elsewhere. But President Bush has explicitly admitted violating FISA with the warrentless NSA domestic wiretaps.
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posted
He's not going to be impeached. Give it up. This administration has been (IMO) inethical and amazingly power-hungry, systematically breaking down or side-stepping every form of oversight possible that might constrain the President, but any illegalities are nebulous and difficult to prove. Mainly what he and his crew have been doing are the same things other presidents have done, just on a grander and more focused scale. Other presidents have sidestepped Congress for political expediency; this one appears to be determined to set up an elected monarchy.
The answer is for Congress to systemically restore oversight as much as possible, and for the voters to put in a president who will restore the rest. Keep bringing charges against this adminstration to try and keep down the worst of the excesses, but don't expect Any actual punishments to happen.
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quote:Note that this presupposes the existence of doubt. It also presupposes that the Executive will interpret the law when deciding how to execute it and that it will rely on canons such as this one.
I submit that there is a clear and obvious difference between "interpret" and "disregard," and that Bush is doing the latter. And, moreover, as we've discussed, there is no remedy for the latter but impeachment. We don't even require a Supreme Court ruling on this; if Congress decides that the President is overstepping his authority -- which, IMO, he clearly is -- Congress has the ability to remove the President from office without even contacting the Supreme Court. And should use it.
Frankly, Dag, I'm baffled by your support of this kind of power-grab. Why doesn't it infuriate and disappoint you? Do you see over 700 signing statements -- many of which directly subvert and/or contradict the law to which they're attached -- as setting a good precedent to which lawyers will later be able to refer when defending future executive abuses?
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quote:The President - and his officers - have a specific duty to interpret the Constitution.
And Congress has a specific duty to impeach Presidents who abuse this power in order to commit what Congress considers to be high crimes and misdemeanors.
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So what, then, would you see happen? You suggest, if I'm following you, that you would oppose impeachment unless it were backed by a unanimous decision of the Supreme Court. And you agree that impeachment is the only remedy for this behavior. And I think we're agreed that this Supreme Court would never rule unanimously on a topic like this. So...?
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quote:And you agree that impeachment is the only remedy for this behavior.
No I don't. I've said so in this very thread. (I just noticed that you phrased the last question in the negative, so I understand the confusion.) Impeachment is not the only remedy.
For one thing, a non-unanimous decision by the Supreme Court is a remedy to the specific interpretation. It's been invoked many times in the past, and it will be again.
Finally, there are certain governmental "wrongs" that are meant to be corrected politically. The use of signing statements - as opposed to the individual actions later justified by them - is one of them. As is Congressional insertion of "legislative history" into the Congressional record that is later used to decide cases such as this one.
quote:And Congress has a specific duty to impeach Presidents who abuse this power in order to commit what Congress considers to be high crimes and misdemeanors.
And calling a government official's discretionary act that essentially amounts to a difference of opinion about what the law actually is a "crime" is a horrible precedent. It's also antithetical to the entire history of statutory construction and judicial review.
The Supreme Court recently decided a case that means the USPTO has been granting illegal patents for a good 20 years. The court didn't change the law - it said that this was what the law had always said. Should those examiners be convicted of crimes or fired?
Should prosecutors and judges who oversaw the conviction of criminals based on evidence that was later excluded be convicted of crimes?
The issues here are extraordinarily complex. I'd like to see people at least acknowledge the complexity before advocating criminal proceedings against someone.
I have yet to see such analysis on this board from anyone supporting impeachment.
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posted
In essence, if we are going to make the extraordinary move to a system with something akin to no-confidence votes, I want that move to be based on a amendment to the Constitution. This would be a substantial modification of the basic framework of our government, and the mechanism for such changes are well-defined.
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quote:I have yet to see such analysis on this board from anyone supporting impeachment.
That's because "get rid of Bush" isn't a very complicated thing.
It's funny. When our government makes laws or does things outside the law that are distasteful to, say, try and thwart terrorism, we get a lot of "ends don't justify the means" talk.
Apparently that talk don't walk very far.
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quote:And calling a government official's discretionary act that essentially amounts to a difference of opinion about what the law actually is a "crime" is a horrible precedent.
Allowing a government official to justify crimes by saying "I interpretted the law to say my actions are okay" is also a horrible precedent.
The trouble is that the difference between "justifying a crime" and "difference of opinion about what the law actually is" can be a matter of judgement.
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posted
Incidently, a better solution to this would have been to NOT reelect Bush in 2004... and to reject those who support his policies in 2008...
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quote:Allowing a government official to justify crimes by saying "I interpretted the law to say my actions are okay" is also a horrible precedent.
The trouble is that the difference between "justifying a crime" and "difference of opinion about what the law actually is" can be a matter of judgement.
Sure. But when the decision by SCOTUS on the subject is 5-4, it's far more likely that it's a "difference of opinion" than "justifying a crime."
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posted
I acknowledge the complexity of using the signing statements issue for impeachment. I'll have to think about this more, I'll be back later.
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quote:And calling a government official's discretionary act that essentially amounts to a difference of opinion about what the law actually is a "crime" is a horrible precedent.
Do you really think that Bush's signing statements are simple differences of opinion about what the law "actually is?"
quote:The Supreme Court recently decided a case that means the USPTO has been granting illegal patents for a good 20 years. The court didn't change the law - it said that this was what the law had always said. Should those examiners be convicted of crimes or fired?
Well, in that SPECIFIC case, yes. You also know how I feel about our completely corrupted patent law.
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quote:Do you really think that Bush's signing statements are simple differences of opinion about what the law "actually is?"
Yes. See Article VI, Paragraph 2 of the Constitution. Interpreting a law so as to be consistent with the Constitution is a perfectly valid way to determine what the law is.
quote:Well, in that SPECIFIC case, yes. [Wink] You also know how I feel about our completely corrupted patent law.
I can't tell how much of this is the joke. Are you saying that executive employees and officers who interpret the law using the rulings of the Federal Circuit, which has been given the prime interpretive function of the patent laws, should lose their jobs or be convicted of crimes? Or were you simply commenting on our patent law in a humorous manner?
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Forum: Bush should be fired. Dag: You need to present exactly, in legal terms, why. Forum: Why are you defending him? Dag: I'm not, I'm just pointing out that "Bush should be fired" won't get far in court. Forum: Don't you think he should be fired? Dag: I haven't said either way, I've said [insert previous quotes]. You need proof, precedent, and actual law to fire him. Forum: So you really don't think he should be fired?
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Well, I actually don't think he should be fired for the signing statements. Perhaps some applications of the signing statements would call for impeachment. I haven't seen a case presented to me that would make me seriously consider it.
The incident in my mind that has the strongest potential for impeachment was Hamdi's continued imprisonment. However, once the Supreme Court ruled that his indefinite detention was not unconstitutional and was, in fact, authorized by law, any case for impeachment based on Hamdi deflated.
Even without the SCOTUS ruling, though, I don't think that rose to the level of impeachable offense. Had Bush ignored the Court's ruling regarding process, I might change my mind.
The Hamdi ruling itself is enough to convince me that the non-FISA compliant wiretaps are not an impeachable offense, even if they are illegal, under the principles of qualified immunity.
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quote:Dag: I'm not, I'm just pointing out that "Bush should be fired" won't get far in court.
My point here is that we don't even need to go to "court." We can impeach him RIGHT NOW, for pretty much any reason we come up with -- and the signing statements are a perfect example of the sort of abuse of executive power that Congress should use impeachment to punish. Unless we're going to try to take all 700 signing statements to the Supreme Court as they come up -- and the ones involving national "defense" will NEVER come up, because no one CAN know about them to bring them to court -- there's no practical way besides impeachment to address this. There's absolutely no reason to define why, "in legal terms," Bush needs to be impeached -- because it doesn't remotely matter.
quote:Interpreting a law so as to be consistent with the Constitution is a perfectly valid way to determine what the law is.
And you honestly believe that this is what Bush is doing when he negates a signed law?
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quote:Originally posted by Lyrhawn: Hopefully that'll change with Democrats in charge.
I doubt it. But I suspect the press will refrain from mentioning it.
quote:Originally posted by Lyrhawn: Otherwise it's hardly surprising, Bush has gathered more power to himself than any president since the Roosevelts.
He's a disaster. If I had to do it over again, I'd probably still vote for him, given the alternative, but he's absolutely horrendous. He's like Abraham Lincoln all over again. L'etat c'est moi.
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quote:My point here is that we don't even need to go to "court." We can impeach him RIGHT NOW, for pretty much any reason we come up with -- and the signing statements are a perfect example of the sort of abuse of executive power that Congress should use impeachment to punish. Unless we're going to try to take all 700 signing statements to the Supreme Court as they come up -- and the ones involving national "defense" will NEVER come up, because no one CAN know about them to bring them to court -- there's no practical way besides impeachment to address this. There's absolutely no reason to define why, "in legal terms," Bush needs to be impeached -- because it doesn't remotely matter.
Yes, it does. Using the impeachment power without even identifying the crime would be a direct violation of the Constitution. Sure, there's absolutely no way to stop Congress from doing this. It's a curious position for you to be advocating though: using a definite violation of the Constitution (impeaching for other than high crimes and misdemeanors) in order to correct a possible violation.
quote:there's no practical way besides impeachment to address this
This is not true.
quote:
quote:Interpreting a law so as to be consistent with the Constitution is a perfectly valid way to determine what the law is.
And you honestly believe that this is what Bush is doing when he negates a signed law?
I've already answered your question.
On a side note, stop with the cross-examination as to whether I "really believe" what I'm writing.
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posted
I haven't said that one needs to present it in legal terms. I have asked that the crime be identified and that people at least demonstrate a basic understanding of several facts:
1) All three branches are charged with interpreting the Constitution and the statutes passed by Congress. 2) The government undertakes activities that are later held to be "illegal" in some way ALL THE TIME. See Miranda. See Mapp. See the most recent patent case. 3) An interpretation that is ultimately held to be incorrect by the Supreme Court is not indicative of a crime or wrongdoing under almost all circumstances.
Further, this is not just a political opinion. The standards for impeachment are high crimes and misdemeanors. That is a legal question. It's not about what should be illegal (which is a political question). It's about what is illegal.
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quote:Yes, it does. Using the impeachment power without even identifying the crime would be a direct violation of the Constitution.
I think the definition of "high crime and misdemeanors" is flexible enough to accomodate clear abuses of power without requiring that those abuses be identified as specifically illegal to the satisfaction of a court, especially since a) Congress serves as the court for this purpose and b) the slow establishment of erosive precedent makes it harder and harder to trust the court to define clear lines of power correctly.
quote:I've already answered your question.
If you don't believe that this is what Bush is doing, why is what he might hypothetically be doing remotely relevant?
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quote:The standards for impeachment are high crimes and misdemeanors. That is a legal question.
It is. However, it's not one that requires that a specific law be broken.
edit: A member of the executive branch inappropriately encroaching on the power of the legislative branch, as is suggested in the case of the signing statements, is well within the accepted use of "high crimes and misdemeanors".
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Would it be legal and binding, Dag, to pass a law requiring that "interpretations" of a law identified at signing still enforce all the specific requirements of the law?
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quote:It's a curious position for you to be advocating though: using a definite violation of the Constitution (impeaching for other than high crimes and misdemeanors) in order to correct a possible violation.
"Definite violation" or "difference of opinion about what the law actually is"?
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posted
Thanks for the clarification. In my opinion, any and all presidents should have to follow the same laws as every other citizen. If a president re-interprets a law to have a different effect, every person prosecuted under that law so far should be re-prosecuted. If it becomes evident that a president may be re-interpreting laws for personal gain, I think a trial is warranted to find out.
Otherwise, I really don't understand a lot of what was talked about in the article or this thread, only because my understanding of the law is elementary.
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vonk, One of the major issues (there are many, but I'm focusing on this one) with the signing statements is those dealing with oversight. Congress has authorized the President to do certain things with the explicit condition that he must subject the programs he sets up to do these things to oversight. He has responded with saying "My interpretation of this law is that I get to do these things and I don't have to submit to any oversight."
Congress is explicitly and implicity granted a great deal of oversight powers over the activities of the Executive branch. Much of the justification that the Bush administration has offered for having the ability to reject this oversight seem to many to be flimsy at best.
There are three avenues of recourse. The Congress could take it to the Supreme Court, which could make a (as I understand it, unenforcible, absent one of the other two as teeth) ruling on it. They could use the power of the purse string to bring this dog to heel. Or they can impeach him.
---
For many people, the issue is not just one of this specific situation, but rather of the precedent it sets. We are troubled by the idea that future Presidents will use Congress's inaction in this instance as justification for moving the line as to acceptible behavior on their part.
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quote:If you don't believe that this is what Bush is doing, why is what he might hypothetically be doing remotely relevant?
I do believe that is what he is doing.
Sheesh.
quote:Would it be legal and binding, Dag, to pass a law requiring that "interpretations" of a law identified at signing still enforce all the specific requirements of the law?
I can't even imagine how you would word such a bill, let alone what it would mean.
It also depends on what you mean by enforce. Whether or not to prosecute a crime is a decision given to the executive. In general, no constitutional or legal violation occurs if the executive declines to prosecute a specific offense.* It would be perfectly legal for a U.S. attorney to not prosecute any violations of a particular law. (As a side note, it would be perfectly legal and appropriate for the President to fire such a U.S. Attorney, although this is only relevant in at most two of the U.S. attorneys fired late last year.)
The President cannot refuse to expend certain type of money allocated in a certain way, and if it declines to exercise regulatory authority in a certain way, there are statutory mechanisms to force it to do so. A President violating a court order resulting from such a case would be committing a crime. The President not regulating prior to such a court case would not.
*The exceptions involve certain reasons for not prosecuting - for example, the victim was black or the U.S. Attorney received money.
quote:It is. However, it's not one that requires that a specific law be broken.
It is one that requires an articulation of the high crimes and misdemeanors. Tom is refusing to do that. "Abuse of power" lacks both specificity and descriptiveness.
quote:"Definite violation" or "difference of opinion about what the law actually is"?
Hey, I'm the one who said that Congress couldn't be stopped from doing this. It's Tom that's insisting on a legal remedy to a political problem.
quote:A member of the executive branch inappropriately encroaching on the power of the legislative branch, as is suggested in the case of the signing statements, is well within the accepted use of "high crimes and misdemeanors".
No, it's not. A specific instance of circumvention of the law might be, but not merely issuing a signing statement.
Until someone deigns to reconcile this with the complexities of statutory interpretation, I'm done discussing this.
I've now brought up several specific instances demonstrating how difficult statutory interpretation is and how doing it wrong is generally not considered a crime. The only response to date has been one flippant remark by Tom.
Tom's standards would have allowed the impeachment and conviction of at least a dozen Presidents. If applied to Congress, hundreds or thousands would need to be removed (or have been removed) from office.
This means that Tom's standards are represent a radical shift from the existing constitutional framework defining the structure of our government. His standards amount to either an at-will removal by Congress of the President or a much higher standard of accountability for interpretative functions as a prerequisite to remaining in office.
Such a radical departure demands that the mechanism for altering the structure of our government be used.
Posts: 26071 | Registered: Oct 2003
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quote:There are three avenues of recourse. The Congress could take it to the Supreme Court, which could make a (as I understand it, unenforcible, absent one of the other two as teeth) ruling on it. They could use the power of the purse string to bring this dog to heel. Or they can impeach him
They can demand the materials they want from him via their oversight functions and then take steps as needed if he fails to deliver. The steps can include any of the enforcement mechanisms you've provided.
If the Congress is asking for something beyond its constitutional prerogatives, the President has the right - the duty, even - to contest that. So far, the President has altered his policies in response to Supreme Court rulings.
Congress could also pass laws with specific non-severance provisions, so that if the President won his court battle to declare the particular form of oversight unconstitutional, the powers granted would be revoked as well.
There are many things short of impeachment that can be done.
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You also know how I feel about our completely corrupted patent law.
