posted
I just read the article below which attempts to clarify what Judge Alito means when he says 'No one is above the Law." If this information is correct, Alito's confirmation would be a nail in the coffin of the Bill Of Rights.
quote:Alito and the Ken Lay Factor
By Robert Parry Consortium News Thursday 12 January 2006
The "unitary" theory of presidential power sounds too wonkish for Americans to care about, but the confirmation of Samuel Alito to the U.S. Supreme Court could push this radical notion of almost unlimited Executive authority close to becoming a reality.
Justice Alito, as a longtime advocate of the theory, would put the Court's right-wing faction on the verge of having a majority committed to embracing this constitutional argument that would strip regulatory agencies, such as the Securities and Exchange Commission and the Federal Communications Commission, of their independence.
If that happens, George W. Bush and his successors would have the power to instruct these agencies what to do on regulations and enforcement, opening up new opportunities to punish enemies and reward friends. The "unitary" theory asserts that all executive authority must be in the President's hands, without exception.
The Supreme Court's embrace of the "unitary executive" would sound the death knell for independent regulatory agencies as they have existed since the Great Depression, when they were structured with shared control between the Congress and the President. Putting the agencies under the President's thumb would tip the balance of Washington power to the White House and invite abuses by letting the Executive turn on and off enforcement investigations.
For instance, if the "unitary executive" had existed in 2001, Bush might have been tempted to halt the SEC accounting investigation that spelled doom for Enron Corp. and his major financial backer, Enron Chairman Kenneth Lay. As it was, the relative independence of the SEC ensured that the accounting probe went forward and the fraudulent schemes propping up the Houston-based company were exposed.
Direct presidential control of the FCC would give Bush and his subordinates the power to grant and revoke broadcast licenses without the constraints that frustrated Richard Nixon's attempts to punish the Washington Post company for its Watergate reporting. Bush also would be free to order communication policies bent in ways that would help his media allies and undermine his critics.
The Federal Election Commission, which oversees political finances, is another agency that would fall under presidential control. Hypothetically at least, influence-peddlers like Jack Abramoff who spread campaign contributions to corrupted lawmakers could get a measure of protection if the President didn't want the agency to pursue their violations.
War Powers
The "unitary executive" applies as well to the President's authority to interpret laws as he sees fit, especially in areas of national security where right-wing lawyers argue that the commander-in-chief powers are "plenary," which means "absolute, unqualified."
So, when Alito assured the Senate Judiciary Committee that no one, not even the President, is "above the law," that palliative answer had little meaning since under the "unitary" theory favored by Alito the President effectively is the law.
posted
Wow. An article filled with doom and gloom citing what Alito 'could' do... pushing radical notions that could come close to becoming a reality and he would put the right wing faction on the verge of things and if that happens..... they even have a Bush might have been tempted to...and a hypothetically at least! They sure have accurately covered all the bases on this one. Nothing like sounding alarm bells over 'coulda woulda shoulda' stuff. Articles like this one are pretty much pointless.
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posted
So, in other words, we shouldn't be worried that alito's judicial philosophy is of the sort that makes it much easier for the president to seriously abuse powers, because we don't have evidence that presidents would abuse their new found powers, since they don't as yet have those powers?
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posted
I would amend your statement slightly to say:
We shouldn't be worried that alito's judicial philosophy "could be" of the sort that "might" make it much easier for the president to "be tempted to" seriously abuse powers, because we don't have evidence that, "hypothetically" presidents "could come close to abusing" their new found powers, since they don't as yet have those powers "unless the Supreme Court sounds the death knell"?
See how it starts to fall apart? Maybe it's just a pet peeve of mine, but I dislike it when definite statements are made from an article that says nothing definite. The whole article is just a 'slippery slope' arguement about something that hasn't happened.
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posted
Except that alito's judicial philosophy IS of the sort that DOES make it much easier for the president to seriously abuse the powers of his office.
That doesn't mean presidents would abuse the new powers, but one historical example put forth of a president who tried to abuse the powers in a way that Alito's philosophy would allow is Richard Nixon. Similarly, we know president Bush has been crossing what many people see as a line by having the NSA listen in on conversations of american citizens without warrants... a process that, under Alito's philosophy, would be much easier, and there would be no congressional oversight.
I think you are reading more "woulds" "coulds" and "hypotheticallys" into the article then are really there.
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posted
As it is difficult to take power away from people who have it, it makes sense to ask these questions now rather than later.
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posted
The article does NOT state that his judicial philosphy IS of that sort at all. Just that it could be by the authors interpertation of Alito's record.
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posted
Sure, it's easy: I guess you missed where I said the author's interpertation of Alito's record? Robert Parry is hardly an unbiased 'journalist'. He has a very active anti-Bush agenda he is always pushing. You have to consider the source as well.
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posted
*nod* Yes, you do. But you are saying the article does not state that his judicial philosophy is the unitary theory. The article does, in fact, state that this is alito's philosophy.
Now, whether that is correct or not is a DIFFERENT question.
If you want to say the article is wrong, perhaps you could provide some evidence showing that alito does not, in fact, think that all the executive power belongs in the executive's hands?
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quote:For instance, if the "unitary executive" had existed in 2001, Bush might have been tempted to halt the SEC accounting investigation that spelled doom for Enron Corp. and his major financial backer, Enron Chairman Kenneth Lay.
This kind of sentence weakens his argument considerably. Bush's Justice Department - which is under the direct control of the President in a way the SEC is not, did, in fact, prosecute Enron. The innuendo here is fairly disgusting - Bush wouldn't have done anything if this unitary theory had been used to alter the SEC.
I'd like the critics of unitary theory to at least address "The executive Power shall be vested in a President of the United States of America."
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quote:For instance, if the "unitary executive" had existed in 2001, Bush might have been tempted to halt the SEC accounting investigation that spelled doom for Enron Corp. and his major financial backer, Enron Chairman Kenneth Lay.
This kind of sentence weakens his argument considerably. Bush's Justice Department - which is under the direct control of the President in a way the SEC is not, did, in fact, prosecute Enron. The innuendo here is fairly disgusting - Bush wouldn't have done anything if this unitary theory had been used to alter the SEC.
I'd like the critics of unitary theory to at least address "The executive Power shall be vested in a President of the United States of America."
The 'investigation' of Enron has not produced a trial and 'Kenny Boy' Lay is not in Jail. Martha Stewart was arrested convicted and served her sentence through the LONG time it has taken to 'do' Enron's investigation.
Of course Lay's longtime close ties to the current administration - Bush campaigned using an Enron corporate jet in his first campaign - have nothing to do with that. Posts: 337 | Registered: Nov 2005
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posted
I think the Enron investigation is a lot bigger and more complex than the Martha Stewart investigation. We're talking orders of magnitude more money, with many more people involved.
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Bush actually started domestic spying BEFORE 9/11, which - to me - undercuts his claim that it was done in extremis, while we were at war, and which undercuts his claim that the domestic spying was justified by the Patriot Act and other post 9/11 legislation.
quote:Bush Authorized Domestic Spying before 9/11 Friday 13 January 2006
The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.
The NSA's vast data-mining activities began shortly after Bush was sworn in as president and the document contradicts his assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.
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James Risen, author of the book State of War and credited with first breaking the story about the NSA's domestic surveillance operations, said President Bush personally authorized a change in the agency's long-standing policies shortly after he was sworn in in 2001.
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More than a dozen legal scholars dispute Moschella's legal analysis, saying in a letter just sent to Congress that the White House failed to identify "any plausible legal authority for such surveillance."
"The program appears on its face to violate existing law," wrote the scholars of constitutional law, some of whom worked in various senior capacities in Republican and Democratic administrations, in an extraordinary letter to Congress that laid out, point by point, why the president is unauthorized to permit the NSA to spy on Americans and how he broke the law by approving it.
"Even conceding that the President in his role as Commander in Chief may generally collect 'signals intelligence' on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA," the letter states. "Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim. The Supreme Court has never upheld warrantless wiretapping within the United States."
Additionally, "if the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA," the letter continues. "One of the crucial features of a constitutional democracy is that it is always open to the President - or anyone else - to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."
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Still, one thing that appears to be indisputable is that the NSA surveillance began well before 9/11 and months before President Bush claims Congress gave him the power to use military force against terrorist threats, which Bush says is why he believed he had the legal right to bypass the judicial process.
According to the online magazine Slate, an unnamed official in the telecom industry said NSA's "efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source reports that the NSA approached U.S. carriers and asked for their cooperation in a 'data-mining' operation, which might eventually cull 'millions' of individual calls and e-mails."
posted
I strongly suspect that most of the worst excesses in the Enron case will be found to be technically legal. Unethical, greedy, and uncaring of employees or stockholders, but legal.
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quote:Originally posted by twinky: I think the Enron investigation is a lot bigger and more complex than the Martha Stewart investigation. We're talking orders of magnitude more money, with many more people involved.
quote: Of course Lay's longtime close ties to the current administration - Bush campaigned using an Enron corporate jet in his first campaign - have nothing to do with that.
posted
It should be noted that executive power is not the only sort of power assigned in the Constiution. Thus giving the President all excutive powers does not necessarily mean he can do whatever he wants.
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posted
I read that the first time, Silkie. I'm no fan of Bush (to put it mildly), but I'm not American. You also aren't telling me anything I don't already know.
Your comparison between Martha Stewart and Enron is still invalid.
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quote:and 'Kenny Boy' Lay is not in Jail. Martha Stewart was arrested convicted and served her sentence through the LONG time it has taken to 'do' Enron's investigation. Of course Lay's longtime close ties to the current administration - Bush campaigned using an Enron corporate jet in his first campaign - have nothing to do with that.
The words of someone who knows next to nothing about white collar prosecution.
From the link above:
quote:Indictments, Defendants, and Investigations There are more than 29 defendants listed in a case filed by the federal government against Enron and its executives. Some of those suspected of wrongdoing are: · Jeffrey Skilling, former Enron president who served as CEO from February to August 2001 · Andrew Fastow, former chief financial officer who was in charge of LJM and has been indicted on 78 counts of conspiracy (he has pleaded not guilty on all counts) · Richard Causey, former chief accounting officer · Jeffrey McMahon, former treasurer · Ben Glisan Jr., former treasurer · Kenneth L. Lay, founder, former chairman, and former CEO of Enron · J. Clifford Baxter, former vice chairman, died of apparent suicide in January 2002 · Wendy L. Gramm, member of Enron’s Board of Directors and its audit committee · Gary Mulgrew, Greenwich Nat West bank employee, accused of defrauding his company through the LJM investment · Giles Robert Hugh Darby, Greenwich Nat West bank employee, accused of defrauding his company through the LJM investment · David John Bermingham, Greenwich Nat West bank employee, accused of defrauding his company through the LJM investment
quote:Former Enron CFO Andrew Fastow, the mastermind behind Enron's complex network of offshore partnerships and questionable accounting practices, was indicted on November 1, 2002, by a federal grand jury in Houston on 78 counts including fraud, money laundering, and conspiracy. He and his wife Lea Fastow, former assistant treasurer, accepted a plea agreement on January 14, 2004. Andrew Fastow will serve a ten-year prison sentence and forfeit US $23.8 million, while Lea Fastow will serve a five-month prison sentence and a year of supervised release, including five months of house arrest; in return, both will provide testimony against other Enron corporate officers.
Ben Glisan Jr., a former Enron treasurer was the first man to be sent to prison in the Enron scandal. He pleaded guilty to one count of conspiracy to commit security and wire fraud .
John Forney, a former energy trader who invented various strategies such as the "Death Star," was indicted in December 2002 on 11 counts of conspiracy and wire fraud. His trial was scheduled for October 12, 2004. His supervisors, Timothy Belden and Jeffrey Richter, have both pleaded guilty to conspiring to commit wire fraud and currently are aiding prosecutors in investigating this scandal.
Jeffrey Skilling was arrested on February 11, 2004, by the FBI. Kenneth Lay was indicted by a federal grand jury on July 7, 2004 for his involvement in the scandal. He pled not guilty in court on July 9. Both men are scheduled for trial in January 2006.
Now, please point to something concrete that should have been done to speed up this complicated trial.
posted
Inre corporate crime: legal only in the sense that the RepublicanCongress rewrote the laws to make the burden of proof for conviction MUCH more difficult to meet. Not only must an illegal act be proven, but it must be proven that the defendent knew that the act was illegal. So unless there is a long&substantal paper/email trail leading directly to the defendent boasting about committing an illegal act, the testimony of subordinates is likely be discounted via the idiot defense.
And the mens rea requirement isn't that they knew the act was illegal, but that the act being done had all the elements of the act made illegal by statute.
For example, if someone takes a briefcase that's not their own, it's no defense to say, "I didn't know it was illegal to take a briefcase that doesn't belong to me." It is a defense to say, "I thought the briefcase was mine." Technically the burden of proof is on the prosecution to prove the defendant didn't know the briefcase belonged to someone else.
In the corporate context, it's not a defense to say "I didn't know that misrepresenting securities information was a crime." It is a defense to say, "I thought my representation was accurate."
It's the same presumption of innocence on mens rea elements that we give to almost all criminal defendants.
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posted
Horse puckeys. Try "I didn't know it was illegal to speed." on a judge. Try "I didn't know it was wrong to torture..." without Dubya's "...but the Presidential counsel told me it was okay."
Knowlege of the law is legally presumed, and it is up to the defendent to prove otherwise via the insanity defense / etc.
Except when it comes to old exceptions for wealthy tax lawbreakers, and the newly created exemptions for corporate criminals.
quote:Horse puckeys. Try "I didn't know it was illegal to speed." on a judge.
No. But "I didn't know I was speeding because my speedometer is broken" is a defense, although it is also an admission of a different offense (improper equipment).
Would you like to respond to what I ACTUALLY said, aspectre?
Because it seems you didn't read it the first time, I'll post it again:
quote:For example, if someone takes a briefcase that's not their own, it's no defense to say, "I didn't know it was illegal to take a briefcase that doesn't belong to me." It is a defense to say, "I thought the briefcase was mine." Technically the burden of proof is on the prosecution to prove the defendant didn't know the briefcase belonged to someone else.
Knowledge of the law is presumed. Knowledge of the circumstance surrounding an act or the likely consequences of an act are not and must be proven beyond a reasonable doubt for the vast, vast majority of criminal offenses. The inaccuracy of a financial representation is a circumstance element of the offense.
I still await a cite of when a Republican Congress changed the mens rea requirement.
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quote:it is up to the defendent to prove otherwise via the insanity defense / etc.
By the way, the insanity defense was not an affirmative defense in federal criminal law until after the law passed in response to Hinckley's succesful insanity defense.
quote:Except when it comes to old exceptions for wealthy tax lawbreakers, and the newly created exemptions for corporate criminals.
There are crimes that require knowledge of the law prior to conviction. They are few and far between, and few of the securities laws have such a requirement.
But the vast majority of both state and federal criminal offenses have a mens rea requirement of either knowledge or recklessness with respect to the circumstance and consequence elements of the offense.
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posted
Dag....the speedomiter defence ISN'T a valid defence. I know from experience. It is an admission that you are possibly guilty of having improper eqipptment.
The law says that it is your responsibility as a driver to know how fast you are going, and your responsibility to properly maintain your eqiptment so insure you aren't speeding. If you fail in those responsibilities you are guilty by definition.
I understand that the laws aren't completely parellel, but even in the case you presented you would be guilty.
I have seen it happen myself, I was a witness for a friend who tried that defense and it failed horribly.
It is considered an automatic admmittance of guilt, as you can't refute the police officers estimattion of speed....since you have just admitted your equiptment was faulty.
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quote:The 'investigation' of Enron has not produced a trial
Now, please point to something concrete that should have been done to speed up this complicated trial.
While there have been many trials of lower echelon Enron executives "Kenny Boy" Lay has not gone to trial. I fully expect him to file for more time extensions, and then eventually to get a Presidential Pardon as Dubya goes out of office.
It pays to be buddies with the right people, even in a court of law. Laws are laws, but people enforce them, or don't.
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quote:It is an admission that you are possibly guilty of having improper eqipptment.
I specifically said that. However, I have specific experience that it is a defense, at least in some jurisdictions. I know many people who have gotten completely off if the speed they were going was consistent with traffic and they had documented AND fixed the speedometer.
Either way, aspectre's use of the example in the way he did is absolutely inapplicable to what I actually posted about mental knowledge.
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quote:While there have been many trials of lower echelon Enron executives "Kenny Boy" Lay has not gone to trial.
I still await any evidence that they could have speeded up Lay's trial.
Particularly since convicting the underlings in order to gain leverage to get them testify is almost necessary in any kind of enterprise-oriented (not just RICO) prosecution.
quote:I fully expect him to file for more time extensions, and then eventually to get a Presidential Pardon as Dubya goes out of office.
I fully expect you to continue to make baseless, unfounded accusations which you are utterly unable to support with evidence.
quote:It pays to be buddies with the right people, even in a court of law. Laws are laws, but people enforce them, or don't.
I guess you think it also pays to slander officials who are dilligently prosecuting more corporate offenses than any administration has before.
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posted
Some people wanted a lynch mob, Dagonee, not a trial. And if they didn't get a lynch mob, then justice has been bought.
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posted
The irony is that had they rushed to trial he'd have probably gotten off. Then we'd really hear about how justice was bought.
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quote:While there have been many trials of lower echelon Enron executives "Kenny Boy" Lay has not gone to trial.
I still await any evidence that they could have speeded up Lay's trial.
Particularly since convicting the underlings in order to gain leverage to get them testify is almost necessary in any kind of enterprise-oriented (not just RICO) prosecution.
I admit I am prejudiced against "Kenny Boy."
Anyone who will blandly urge his employees to buy Enron stock while at the same time divesting his own holdings of the company, in advance of the collapse of the company, is in my opinion not worthy of respect. He constructed an untouchable Nest Egg for himself and his wife, all the while knowing that his employees would lose their hard earned savings and retirement benefits in the pending crash.
quote:
quote:I fully expect him to file for more time extensions, and then eventually to get a Presidential Pardon as Dubya goes out of office.
I fully expect you to continue to make baseless, unfounded accusations which you are utterly unable to support with evidence.
I agree that the case is complex. Perhaps it is too complex:
quote: Lay is awaiting Jan. 30 trial on seven counts that relate to Enron fraud, including conspiracy to commit wire and securities fraud, perpetrating wire, securities and bank fraud, and making false and misleading statements to employees at a company meeting, as well as to banks, securities analysts and corporate credit-rating agencies. He is also to be tried separately on four other bank fraud counts that relate to his personal banking. Houston Chronicle
quote:Lawyers for Enron's former chairman Ken Lay and CEO Jeffrey Skilling, who are set for trial in January, face an unusual challenge: About 90 former Enron executives are labeled "unindicted co-conspirators." Most of them don't even know they're in this legal limbo. But defense lawyers told the trial judge last week that the situation is making it nearly impossible to find people willing to testify for the defense. USA Today
Given those circumstances, what will happen if it is found that Ken Lay cannot get a fair trial in Houston. I'd say that would mean maybe a change of venue, and another delay, wouldn't you? And what will happen if Lay is not able to get witnesses for his case, because the witnesses are all "unindicted co-conspirators." My sense is that would also mean a delay. So I doubt that much will come of that January court appearance, until these issues are addressed.
But you are the legal authority, what do you think?
quote:
quote:It pays to be buddies with the right people, even in a court of law. Laws are laws, but people enforce them, or don't.
I guess you think it also pays to slander officials who are dilligently prosecuting more corporate offenses than any administration has before.
I am not slandering the officials who are prosecuting Lay. I am saying that Kenny Boy and Dubya are old friends. Do you really think that Dubya would not consider a pardon for an old friend who is claiming he was duped, and is a victim? They have a lot of history together.
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posted
More about Alito and the "Theory of the Unitary Executive"
quote:Examples of Judge Alito's Expansive View of Executive Power:
As a Sitting Judge, Judge Alito Espoused the "Theory of the Unitary Executive," a Theory of Extreme Deference to the Executive Branch
In remarks he gave while a sitting judge in 2000 to the Federalist Society, Judge Alito stated his belief that "the theory of the unitary executive . . . best captures the meaning of the Constitution's text and structure." (Engage: The Journal of the Federalist Society's Practice Groups, page 12, November, 2001) Judge Alito described this theory as holding that "all federal executive power is vested by the Constitution in the President."
The "unitary executive" theory calls for a restriction of legislative and judicial power vis-a-vis the Executive branch and has been cited to limit, or even eliminate, congressional authority over federal regulatory agencies. Recently, this theory has also been used to defend the Bush Administration's domestic spying program, the detention of U.S. citizens as enemy combatants, and a White House legal memo defending torture.
Judge Alito cited the unitary executive theory in criticizing the Supreme Court's decision in Morrison v. Olson, which upheld Congressional authority to restrict the Attorney General's power to fire an independent counsel investigating alleged executive branch misconduct. 487 US 654 (1988). Judge Alito stated that "under the theory of the unitary executive, the constitutionality of this Act [the independent counsel statute] was questionable." (Engage, at 13) This casts Constitutional doubt on all independent enforcement agencies run by officials not removable by the President such as: the Securities and Exchange Commission, the Federal Communications Commission; the Federal Trade Commission, the National Labor Relations Board, and many other agencies which the Congress determined should be independent and have enforcement authority.
In an earlier speech to the Federalist Society, Judge Alito called the Morrison decision "stunning," said that the ruling "restricted the executive's constitutionally guaranteed appointment power," and described congressional checks on broad presidential power as "pilfering." 26 Am. Crim. L. Rev. 1667 (1989).
Furthermore, Justice Thomas referenced the "unitary Executive" in dissenting from the Supreme Court's decision to limit the President's power to detain U.S. citizens as enemy combatants. Hamdi v. Rumsfeld 542 U.S. 507, 581 (2004). Fact Check: Judge Alito and Presidential Power
quote:Do you really think that Dubya would not consider a pardon for an old friend who is claiming he was duped, and is a victim? They have a lot of history together.
I think it's obvious he wouldn't. Pardoning Lay would be a massive blow to the Republican party and to Bush's legacy in particular. Nice post, though-you dodge every point Dagonee makes and stick to, "But there's all these awful delays!"
There are lots of delays in major, complex, multi-billion dollar trials, Silkie. It's rare that a single one moves quickly. I'm no law-student, even I know that.
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quote:Anyone who will blandly urge his employees to buy Enron stock while at the same time divesting his own holdings of the company, in advance of the collapse of the company, is in my opinion not worthy of respect. He constructed an untouchable Nest Egg for himself and his wife, all the while knowing that his employees would lose their hard earned savings and retirement benefits in the pending crash.
I agree. He sucks.
quote:Given those circumstances, what will happen if it is found that Ken Lay cannot get a fair trial in Houston. I'd say that would mean maybe a change of venue, and another delay, wouldn't you? And what will happen if Lay is not able to get witnesses for his case, because the witnesses are all "unindicted co-conspirators." My sense is that would also mean a delay. So I doubt that much will come of that January court appearance, until these issues are addressed.
But you are the legal authority, what do you think?
That you've identified lots of reasons why this delay has occurred - reasons unrelated to bias or favoritism.
quote:I am not slandering the officials who are prosecuting Lay. I am saying that Kenny Boy and Dubya are old friends. Do you really think that Dubya would not consider a pardon for an old friend who is claiming he was duped, and is a victim? They have a lot of history together.
Now he's only going to "consider" it?
You've made two accusations in this thread: first, that "Lay's longtime close ties to the current administration" are somehow related to the length of time it has taken to start the trial against delay. Second, that Bush will pardon Lay before leaving office.
You've done a great job finding lots of other reasons for the delay in starting the trial, reasons which have nothing to do with the relationship between Lay and Bush. So not only is this charge unsubstantiated, you've provided lots of evidence suggesting it's wrong. Thank you.
As to the second, you haven't even tried to substantiate it. So I'll file it with the accusations from people - at least one of whom has posted in this thread - who assured us Bush would implement a draft by summer 2005 if elected.
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posted
As to the unitary theory, I'd still like the critics of unitary theory to at least address "The executive Power shall be vested in a President of the United States of America."
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quote:As to the unitary theory, I'd still like the critics of unitary theory to at least address "The executive Power shall be vested in a President of the United States of America."
I'm no lawyer, but try this:
The fact that legislative power is vested in Congress doesn't mean that each new US Congress starts from a clean slate and writes a new set of laws. Rather, the laws already on the books remain there unless revoked by further legislation.
The "anti-unitary" view might be that executive power should work the same way. Different features of the exec branch, like regulatory agencies, should continue to follow the guidelines of the President who established them until they're dissolved or changed by some kind of process.
The difference between this view and the unitary view is a matter of degree -- it depends on how hard you think it should be for future Presidents to undermine their predecessors.
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posted
There's some merit to that, assuming the process for implementing new guidelines is at least as difficult as the process for dissolving them.
I don't think it's constitutionally supportable, though. It's well settled that one Congress cannot bind a future Congress. If Congress acts, then contrary prior provisions are changed automatically. Typically, courts will strive to interpret a new law so it does not conflict with an old law unless Congress made the change explicit. In practice, this is pretty difficult to implement.
But, if the process of changing a prior presidential enactment is as difficult as making the enactment in the first place, then what you've proposed (as you stated in the last sentence) isn't incompatible with the unitary theory.
Plus, I think the unitary theory and it's criticisms are aimed more at legislative/executive balance than prior/current executive balance. So I'm not sure what you've suggested gets to the heart of the controversy.
Interesting historical note: Congress impeached (but did not convict) Andrew Johnson because he fired a cabinet member that Congress said he couldn't fire without their permission. This restriction was found unconstitutional 40 years later.
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posted
Well, there go my dreams of solving our nation's judicial problems.
Not sure what to do about this issue, but it seems clear to me that if the Alito view is taken all the way to its logical conclusion, our government will become unrecognizably different. And I pretty much like the way it works now. We have to find some way to go on being [slogan] a nation of laws, not men.[/slogan]
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posted
I think there is some confusion over what is actually advocated by the unitary theory. At it's simplest, it states that there are certain functions that are the sole domain of the executive, just as there are certain functions that are the sole domain of the judiciary or the legislature. The balance of power between branches include separation of powers and checks on the other branches. Both are important; the types of arguments that are raised to support an independent judiciary when Congress foolishly tampers with the courts are also applicable when Congress tampers with the independent executive. Andrew Johnson is a great case study of this.
At the extreme end of the unitary theory is the idea that the President can do anything he wants. I don't think anyone advocates this (although some pundits are describing Alito as if he does).
The real complaint isn't over whether some functions are reserved solely for the executive power of the President, but rather what those functions are.
The regulatory state makes the analysis difficult because it potentially usurps legislative power from the Congress and executive power from the President. For example, SCOTUS has disallowed Congress from granting unbounded regulatory power to individual agencies. The boundary is very fuzzy, but there comes a point where making regulations becomes law making. And SCOTUS won't allow Congress to delegate that power.
In the other direction, restrictions on the ability of the president to control executive agencies can usurp the executive power. SCOTUS has spoken even less clearly on this.
From my perspective, the problem arises because of the hybrid legislative/executive function within regulatory agencies. I'd love to see this constitutionally defined, but I'm not sure how I would do it if given the chance.
Posts: 26071 | Registered: Oct 2003
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Dag, I got off from driving without insurance because it was a mistake at my work (They didn't process an auto-pay properly) and because I had fixed the problem before going to court.
They gave me the benefit of the doubt, but they didn't have to.....I wasn't found not guilty because despite the reasons I WAS guilty, I had no insurance. The state police decided to drop the charges because it was a first offense and I had arranged other insurance....but the judge was clear.....if they had not chosen to drop those charges I would have been found guilty because it is MY responsibility to make sure those type of things were in order, and if they aren't it is MY fault because it is my car.
By definition, having faulty equipment (speedometer) prevents you from asserting any type of argument about the speed you were actually traveling. They may cut you a break, but in the legal sense you are guilty and they can fine you.
Posts: 15082 | Registered: Jul 2001
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Kwea, what you are describing ("it isMY responsibility to make sure those type of things were in order") is called strict liability. It is very rare for their to be strict liability for crimes which carry the possibility of jail time. This may account for the difference between what we've witnessed - at least one case I saw was a reckless charge for 20 over which could result in jail time. It was changed to speeding and the amount dropped to account for the error in the speedometer.
Regardless, aspectre's assertions about the mental state required for most corporate crimes is not correct, and mistakes about facts (not law) are often a valid defense against criminal charges.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by Dagonee: I agree. He sucks.
I'm glad we can agree on something.
quote:That you've identified lots of reasons why this delay has occurred - reasons unrelated to bias or favoritism. --- So I'll file it with the accusations from people - at least one of whom has posted in this thread - who assured us Bush would implement a draft by summer 2005 if elected.
So, big surprise, we don't agree.
Yes, there are good reasons that any trial this complex would be delayed. Even with these good reasons for delay they could have gone to trial long ago, if only to address those reasons in a timely fashion. It's not like those reasons were a surprise. Money and power are at least part of the reason why these issues haven't been sorted out yet.
As for my assertion that Lay will be pardoned - that is speculation on my part. I cannot prove or disprove something that has not happened yet. And neither can you. Time will tell.
It may not surprise you to know that I am also planted firmly in the middle of that group of nearly 60% of Americans who do NOT have a positive opinion of Bush.
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Because heaven knows that the American people can be trusted to always want what's best for them.
Posts: 16551 | Registered: Feb 2003
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quote:Even with these good reasons for delay they could have gone to trial long ago
You haven't even attempted to prove this, nor do you even know if it's true.
quote:It may not surprise you to know that I am also planted firmly in the middle of that group of nearly 60% of Americans who do NOT have a positive opinion of Bush.
I'm confused. Are you simply admitting your bias here? You say there are reasons for delay in this trial. You assert that it could have gone to trial long ago, but don't even bother to offer proof of this assertion or provide means by which the admittedly legitimate reasons for delay could be overcome.
Do you know what it takes to even put together this kind of indictment? Do you know what it takes to assemble a case that proves the elements of a conspiracy and 6 complex fraud counts in a way that 12 ordinary citizens can understand?
Your complaints about the way Lay's prosecution is being handled are simply not grounded in reality. You read an article about a couple of issues and blithely assume the trial won't start on January 30. It might not start then - many trials are delayed - but nothing in that article is unknown to the judge who set the schedule.
If it is delayed, somehow you use that as proof of Bush's duplicity. But the delay, if it occurs,will be the judges decision.
What it comes down to is that you are grasping at reasons to complain about Bush, loosely connecting it to the subject the thread was purportedly about and providing no backup for any of the accusations.
Which is fine if all you care about is getting some catharsis about Bush. If you care to actually convince people, you would be wise to come up with some proof, not post baseless accusations of your own, and not cite articles with their own baseless examples aimed at over-simplifying a complex legal question.
quote:As for my assertion that Lay will be pardoned - that is speculation on my part. I cannot prove or disprove something that has not happened yet. And neither can you. Time will tell.
Of course not. Of course, you're the one making slanderous accusations without proof, not me.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by Dagonee: As to the unitary theory, I'd still like the critics of unitary theory to at least address "The executive Power shall be vested in a President of the United States of America."
Apparently this situation is based on there being a disagreement between the writers of the constitution, about how much detail there should be in listing the powers of the Executive Branch, and how much was 'implicit' in the document without detailing those powers.
quote:The Constitution contains no provision expliciting declaring that the powers of the three branches of the federal government shall be separated. James Madison, in his original draft of what would become the Bill of Rights, included a proposed amendment that would make the separation of powers explicit, but his proposal was rejected, largely because his fellow members of Congress thought the separation of powers principle to be implicit in the structure of government under the Constitution. Madison's proposed amendment, they concluded, would be a redundancy.
And this thesis from Fordham University School of Law Faculty goes into some detail about the issues involved.
quote: The Article II Vesting Clause states that the executive power shall be vested “in a President of the United States of America.” As discussed later in this Article, a significant issue during the drafting of the Constitution was whether to have a unitary or plural executive. The Article II Vesting Clause may simply make clear where the executive power is being vested – in a unitary President – not the scope of that power.28 In other words, it may have been worded to address an issue that was specific to Article II.
Conversely, the “herein granted” language in the Article I Vesting Clause may serve to emphasize the limits of federalism on the national legislative power, a concern that would have been specific to Article I.29 Another possibility has been suggested by Professor Michael Froomkin. As he notes, there was a Congress already in existence at the time of the framing of the Constitution, so the “herein granted” language in Article I might have been designed to make clear that, from now on, Congress would have only the powers being listed. By contrast, the Founders might not have thought it necessary to use that language for the new executive and judicial branches.30 As a matter of text, these alternative interpretations are at least plausible.
Not only are there other explanations for the difference in wording of the Vesting Clauses, there is also a significant textual problem with construing the Article II Vesting Clause as conveying unenumerated powers. Article II expressly grants the President thecommander-in-chief power; the power to request written opinions from federal executive officers; the power to grant pardons; the power to make treaties; and the power to appoint a variety of officials. Article II also directs (and thereby presumably empowers) the President to receive ambassadors and take care that the laws are faithfully executed. Proponents of the Vesting Clause Thesis concede that many if not all of these specific grants and directives are encompassed within their construction of the phrase “executive Power” in the Article II Vesting Clause. Under their construction, however, the specific grants would appear to be superfluous, in contravention of the general presumption against redundancy.31 Furthermore, the Founders’ decision to list what they meant by “executive Power” would tend to suggest, pursuant to the expressio unius canon, that their list was complete, rather than merely illustrative.32
Proponents of the Vesting Clause Thesis attempt to address this textual problem by arguing that the delineation of some of the Article II powers, such as the treaty power and the appointments power, can be explained by the fact that the Constitution divides these powers with the Senate. It was necessary to list these powers despite the general grant of executive power in the Vesting Clause, the argument goes, in order to make clear that the President was not receiving exclusive control over these functions. Although not a divided power, a similar argument is made with respect to the commander-in-chief power: the Constitution gives Congress a number of powers relating to war, so the Founders needed to make clear that the President still had the commander-in-chief power.
This divided powers response is problematic, for two reasons. First, proponents of the Vesting Clause Thesis also maintain that any executive powers not specifically delegated to other institutional actors should be presumed to rest with the President. As Prakash and Ramsey argue, “the Constitution has a simple default rule that we call the ‘residual principle’: Foreign affairs powers not assigned elsewhere belong to the President, by virtue of the President’s executive power; while foreign affairs powers specifically allocated elsewhere are not presidential powers, in spite of the President’s executive power.”33 In light of that purported default rule, it is not clear why delineation was needed even of divided powers, since whatever was not given to the Senate or to Congress would presumptively remain with the President. Second, and more significantly, the divided powers response does not explain all of the Article II grants. Most notably, the power to require written opinions, the pardon power, and the ambassadorial receipt power all rest exclusively with the President, and yet they too are specifically delineated.
None of this resolves the issues, since there is disagreement among scholars as to who is 'right' and who is 'wrong' in their interpretation. Looks like James Madison was right... they should have detailed it out. I wonder if there is a surviving copy of his proposed amendment which detailed the Founding Fathers' Ideas of what should be the President's Executive Powers.
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So you admit Dagonee was right in pointing out that the disagreement over unitary theory is by no means as clear-cut as you originally suggested?
Posts: 17164 | Registered: Jun 2001
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quote:Originally posted by Rakeesh: So you admit Dagonee was right in pointing out that the disagreement over unitary theory is by no means as clear-cut as you originally suggested?
I believe that the concept of Unitary Theory is a subversion of our Constitution. Our Bill of Rights and the Constitution were intended to limit the powers of any one branch of government over any other branch. Having ANY one party or group in control of two or three branches of government defeats that purpose, and undermines our constitution.
I don't believe Bush has the executive right to amend laws at his whim, as he did with the recent McCain Bill, for instance. We are not a Monarchy. He is not a dictator. He is supposed to administer the law, not MAKE the law. If he doesn't like the law then it is his responsibility to introduce legislation to change the law, or in the case of the McCain Bill, to not SIGN it, but to veto it.
Yes, there are two sides to the battle over Executive priviledge. I side with those legal opinions that state that Bush broke the law when he signed Executive orders to avoid getting a warrent to spy on citizens. There is a split among legal scholars over it, and I don't agree with the Unitary Theory side. That is my opinion, and I have stated it before, and documented why.
As I have stated before, the power struggle we are watching has been ongoing for many years. The current actors in this drama came from Richard Nixon's Whitehouse - Cheney and Rumsfeld were members of that group - but it didn't begin there. This is all about turning the clock back (in terms of social agendas and services) to pre-New Deal times. Rumsfeld and Cheney and the other idealogs in the current administration are board members of powerful conservative organizations who subscribe to those ideals, and they are using their offices to implement them.
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quote:Having ANY one party or group in control of two or three branches of government defeats that purpose, and undermines our constitution.
This has nothing to do with the unitary theory whatsoever.
quote:I don't believe Bush has the executive right to amend laws at his whim, as he did with the recent McCain Bill, for instance.
That's not what he did at all.
quote: I don't agree with the Unitary Theory side.
There are many non-unitary formulations that support such actions.
I get the feeling you've lumped a whole bunch of criticisms you have of the Bush administration under the label "unitary theory." If that's the case, let me know and I'll stop interpreting what your saying as being about a legal theory of executive power.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by Dagonee: Of course not. Of course, you're the one making slanderous accusations without proof, not me.
Here we go again Dag. I refuse to argue with you about the Lay case. I am entitled to my opinions. You can call that slander if you want to. I call it freedom of speech.
Posts: 337 | Registered: Nov 2005
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