pageok
pageok
pageok
Patriot Act Audits and Article II Powers:
In his signing statements for the Patriot Act reauthorization, President Bush included the following statement:
  The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.
  The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.
  By way of background, Section 106A and 199 impose auditing requirement on access to business records and national security letters under FISA. They each require the Inspector General of the Department of Justice to "perform a comprehensive audit of the effectiveness and use, including any improper or illegal use" of these authorities going back to 2002 and then prospectively up for a few years. Section 756(e)(2) is a bit different. It involves a provision of the reauthorization that has nothing to do with terrorism --- it involves grants for programs on how to reduce the use of methamphetamine among pregnant and parenting women offenders. Specifically, the provision requires DOJ to "submit a report to the appropriate committees of jurisdiction that summarizes the results of the evaluations conducted by recipients and recommendations for further legislative action."

  Generally speaking, executive signing statements such as this have been common in the Bush Administration. Some influential lawyers in the Administration believe that Congress has only limited ability to interfere with the executive branch, and such statements express the Administration's intent not to follow provisions that its lawyers believe interfere with executive power. In most cases, we don't know what the statements mean: the executive branch announces that it is taking a position based on its view of Article II, but never discloses exactly what that position is.

  I wonder if this case will be a bit different. This isn't my area, so I hope some experts will correct my impression if I'm wrong, but it seems to me that we'll eventually know the executive branch's view in this situation. Congress has required DOJ to conduct audits and file reports, and we'll presumably learn the executive branch's view of the law when it refuses to comply in whole or in part with Congress's requirements. Whether that will lead to a legal challenge to be resolved in court is another matter, of course.

  Thanks to Marty for the link to the signing statement.
Steve:
This is hardly the first time this situation has come up in the five years that Bush has been issuing signing statements saying he reserves the right to ignore the law. For example, the Pentagon has routinely ignored Congressional mandates for progress reports on the Iraq war. I assume it's obvious that the GOP majority took no action in these cases to suggest that they do, in fact, regard Congress as a co-equal branch, which is why most people haven't heard of them.
3.10.2006 4:09pm
Dave:
I'm not optimistic that the report to Congress will be either complete or true. Bush and Justice keep their true views (as distinct from their "official" views) hidden even from themselves, as I noted in the last thread.

Still, it will be interesting to see what Justice decides is the most strategic version of the Article II to present to Congress. They don't want it to be too weak, because then their past and future lawbreaking would be, well, illegal. But if it's too strong, it might provoke a backlash.

On the other hand, backlash against executive power grabs don't seem to have much effect in this country.

Dave
3.10.2006 4:10pm
Bruce Wilder (www):
Where there's smoke, there's fire.

The President is guilty of something fairly serious, but we do not know what, and are meant not to find out anytime soon.

In the meantime, impeachment is regarded as too "extreme" and Bush's psychological and physical deterioration continues apace. The real test of the political parties and the Congress will come, not as a result of legal or political processes, which are clearly paralyzed, but when Bush actually begins to break down visibly in public.
3.10.2006 4:50pm
ThomasL (mail):
The practice of the Bush administration, as I see it, is to issue a signing statement if there is a conceivable circumstance (even if unlikely) that would result in an invasion of the executive's power.

In this case, the statement, it seems to me, does no more than indicate, in advance, that the executive won't comply if it determines at some future time that compliance with the law would violate the separation of powers.

We wouldn't get a disagreement, then, unless and until there were such a determination (and even then only if the Congress didn't concur).
3.10.2006 4:53pm
Daniel San:
In light of that signing statement, if the administration now produces an audit, does that amount to a concession by the administration that it must do so. In order to preserve its Article II position, wouldn't the Administration to better to say something along the lines of, "The requirement that we furnish audits is a violation of Article II. We are producing these audits, not because we are required to but in a spirit of comity." Once the Administration says, "here is the audit you required," it concedes that Congress has the power to require it to produce an audit.
3.10.2006 5:03pm
Steve:
How is Congress supposed to exercise any oversight of the Executive Branch at all, if it can't even require an audit?

If the Executive can ignore not only substantive legal requirements but oversight requirements as well, then it quite literally is above the law.

I simply cannot believe this theory in its most extreme form is taken seriously by anyone other than monarchists.
3.10.2006 5:06pm
byomtov (mail):
it seems to me that we'll eventually know the executive branch's view in this situation.

I guess I don't understand your point.

It seems to me we already know the executive branch's position: They'll do as they damn well please, no matter the law.
3.10.2006 5:15pm
Anonymous Liberal (mail) (www):
Orin,

The President has signed into law amendments to FISA on several occasions now, the most recent being yesterday. My question is this: why haven't they issued a signing statement which specifically addresses FISA's exclusivity provision, § 2511(2)(f)? After all, that's the provision the white paper suggests is unconstitutional (at least if interpreted in the most obvious way). Do they think that would be too provocative? Is it because the amendments they've signed into law don't specifically deal with that section of FISA? It seems to me that every time the President signs an amendment to FISA into law, he is at least implicitly reaffirming the validity of the non-amended sections. I'm surprised they don't feel a need to issue some sort of disclaimer saying that, by amending FISA, they do not intend to reaffirm the constitutionality of the non-amended provisions. Maybe that's just too Orwellian even for them.
3.10.2006 5:23pm
A.S.:
Congress has required DOJ to conduct audits and file reports, and we'll presumably learn the executive branch's view of the law when it refuses to comply in whole or in part with Congress's requirements

Who says the Bush Administration is not going to comply with those requirements? The point is to put down a marker, so that if, for some reason, sometime in the future, he did want to refuse to comply, the President could point to the signing statement and say "look, the Executive Branch said right from the very beginning that it could refuse to comply when it wants to".

It seems to me no different than, e.g., the War Powers Act. Even if the President thinks the notice provisions of the War Powers Act are an unconstitutional infringement on the President's power under Article II, President's have always followed them. And when the President informs Congress of military action, the statement says that the notice is "consistent with" the notice requirement of the War Powers Act, instead of "pursuant to" the WPA.

Similarly, here, I'm sure the Bush will perform the audits and provide the notice. And Bush will say he is doing so "consistent with", but not "pursuant to", the requirements of the Patriot Act reauthorization.

The issue would only come to a head if the President didn't perform the audits. And I don't see any evidence the Bush won't perform them. Saying that he has the power to refuse to perform them is a completely different matter than actually refusing to perform them.
3.10.2006 5:29pm
A.S.:
Is it because the amendments they've signed into law don't specifically deal with that section of FISA? It seems to me that every time the President signs an amendment to FISA into law, he is at least implicitly reaffirming the validity of the non-amended sections.

Why?

It seems to me that one could challenge the constitutionality of the exclusivity provision of § 2511(2)(f) without upsetting all of FISA. Or is there something about § 2511(2)(f) that you think makes it not severable from the rest of FISA?
3.10.2006 5:35pm
Anonymous Liberal (mail) (www):
It seems to me that one could challenge the constitutionality of the exclusivity provision of § 2511(2)(f) without upsetting all of FISA. Or is there something about § 2511(2)(f) that you think makes it not severable from the rest of FISA?

I don't know, I would argue that doing away with the exclusivity provision effectively renders FISA meaningless. Optional rules aren't particularly effective.

But that's neither here nor there. The administration has sought and secured a number of important amendments to FISA in the Patriot Act, but they never even attempted (at least as far as I know) to have the exclusivity provision amended or repealed. When you sign an amendment to a law, aren't you implicitly acknowledging that the law, as amended, is constitutional (at least in your opinion)? Or in Bush World, if you sign an amendment to a law, aren't you implicitly acknowledging that that those sections of the law, as amended, which are not singled out in the signing statement are constitutional?
3.10.2006 5:47pm
A.S.:
Seems to me that if you sign an amendment, you think the amendment is constitutional. Not some unrelated part.

If I sign an amendment to the burglary law, am I signaling that the entire criminal statute is constitutional, such that I can't challenge the constitutionality of capital murder? I don't think so.
3.10.2006 5:57pm
Wintermute (www):
I'm glad to note more people have seen enough of this behavior. While I wouldn't expect the courts to decide an interbranch conflict on some "waiver" of the President in signing a bill without such comment, I would ask why Bush didn't just decline to sign the bill, or further, didn't veto the bill, in which case a veto explanation is required by the Constitution.

Our work is to deal with our legal system as crafted by our representatives; but I remind that we do not need a revolution to resolve conflicts -- we have elections. And one is coming in November....
3.10.2006 6:28pm
JunkYardLawDog (mail):
Is the point of the signing statement referring to the Unitary Executive that the Congress doesn't have the Power to tell the President whom in the executive branch shall perform an audit and report back to congress? If the congress has the constitutional authority to command that the President do an audit (which I'm not saying they do have or don't have), wouldn't it be true that the Congress wouldn't be empowered to specify whom it is in the executive branch that must do the work and report back? Isn't the Unitary Executive theory that only the President has the authority to tell members of the executive branch what to do, and only the President has the authority to decide what executive branch duties to delegate and to whom?

inquires the "Dog"
3.10.2006 7:52pm
JRDickens (mail):
OK...dumb question time.

One of the above commentors said something about the congress practicing "oversight" of the executive branch. I read Article 1 and Article 2 of the US Constitution and couldn't find anything about it in there with the exception of the impeachment part. That was the only thing I saw that had anything to do with oversight. Maybe the advice and consent part, but that's it. Likewise, the executive seems to have little or no oversight of the legislative branch either except to mediate disagreements between them.

Now for my stupid question.

If the US President must be native born, were the presidencies from Washington to Taylor unconstitutional?
Most were born under the Crown of England, a few under the Articles of Confederation, but none were born United States citizens.
3.10.2006 10:30pm
Kipli:
JRDickens -

I don't know the history of how the term "oversight" has been used in this context, but I think there is more evidence based on the Constitution that Congress can tell the Executive what to do than there is that the Executive can act on his own (to ignore Congress).

From Article I, Section 8: The Congress shall have power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Article II does say that the Executive "shall take Care that the Laws be faithfully executed." I would think that includes legislation that he himself signs into law and that requires him to report back to Congress.

Article II says nothing about the Executive having the power to create a Department of Homeland Security or Department of Defense or any other Federal Executive Department; those powers are exercised by the Congress. In so doing, I think it opens the door for "oversight" in the form of legislation (e.g., Congress passes a law requiring someone to issue a report to them).
3.11.2006 10:55am
smc78 (mail):
JRDickens--

I think you missed the second part of the requirement...

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President
3.11.2006 11:23am
Medis:
The cynic in me thinks this is all about impeaching President Clinton when she tries to emulate her predecessor.
3.11.2006 11:23am
KMAJ (mail):
Most misstate what unitary executive is and is not. It is the theory that allows the executive branch to protect itself from incursions by the legislative branch, primarily. It is borne from the Founding Fathers concerns about the legislative branch's tendency to 'usurp all power into its vortex' as being the most serious threat to the system of government they set up. Unitary executive is referenced in Federalist 40, I believe, if I remember right. It is NOT about dictatorship as pejoratively portrayed by some.

Prof. Christopher Kelley has written an excellent analysis of The Unitary Executive and Bush, including signing statements.
3.11.2006 11:41am
A Blogger:
The Dog,

The meaning if the unitary executive is classified. No one outside Article II can be trusted with this information.
3.11.2006 3:00pm
Medis:
KMAJ,

Did you actually read all of Professor Kelley's paper? A few excerpts:

"In the fourth section, I will conclude with a discussion of the unitary executive and what it means for those who are not just interested in presidential power, but also are interested in our constitutional system of separation of powers. In particular, I will discuss the power of precedent to executive branch actions, and why it is important for us to not only pay attention to what has been happening within the executive branch but also to explain why it is important to challenge presidential unilateral action."

"Through the use of presidential signing statements, executive orders, and memoranda, the Bush administration has often governed unilaterally when faced with political and/or constitutional obstacles. While the 'Modern Presidency' fails to explain such aggressive use presidential power, the unitary executive does not. I would expect that the theory will continue to be developed through the remainder of Bush’s second term in office, particularly as he comes to be seen more of a lame duck as the political spotlight moves on to the 2008 election. We only need to recall the dramatic use of executive power in the waning days of the Clinton administration to guess what the end of the Bush presidency will look like."

"And the danger in this is that unilateral actions taken by a president that go unchecked establish a precedent for the benefit of future presidents. And when a precedent is established, the courts are reluctant to find the action unconstitutional if it has gone unanswered by the Congress. Thus for the current Congress, while it may be seen as a plus to have a co-partisan in the White House who aggressively asserts constitutional power, the problem occurs in the future when their political fortunes turn and a Democrat comes to occupy the White House. Then any chance to check the presidency is difficult since a pattern has been established."

Professor Kelley is not defending the President's tendency to act unilaterally. He is trying to help the readers of his paper understand why the President is doing that, and he is warning them about the dangers of letting the President's unilateral actions go unchecked, even if one happens to be a co-partisan of the President.

You might want to think a bit about that, KMAJ.
3.11.2006 3:24pm
margate (mail):
The Bush administration's signing statements, of the kind, Orin (through Marty) quoted in his post is nothing more than these people's legalistic way of saying "we'll execute the law passed by Congress, except when we don't." It's no more complicated than that.

Gee, we're so luck Dick Cheney became VP when he did . . . just in time to restore the monarchical presidency.
3.11.2006 5:54pm
KMAJ (mail):
Medis,

I did read it, and presented it solely because it was not a positive affirmation, as most would expect me to post. That I posted Kelley's link does not mean I agree with everything he put forth, but it was not a propaganda piece with skewed intent. Wikipedia cites him as both support and critic. So I might surmise you only chose to take excerpts which support your position, while ignoring those that didn't.

If I had sought to post only support, I would have provided links to three of Vanderbilt Prof. Christopher (not John) Yoo's and Northwestern Prof. Steven Calabresi's four part treatise on the history of the Unitary Executive. They were supporting the unitary executive while Clinton was president, so they are not Bush supporters. Here are links to three if you are interested:

"The Unitary Executive During the First Half-Century," 47 Case W. Res. L. Rev. 1451 (1997) (with Steven G. Calabresi) (no link available)

THE UNITARY EXECUTIVE DURING THE SECOND HALF-CENTURY

Presidents throughout the period from 1837 to 1889 persisted in opposing almost all congressional attempts to infringe upon their sole power to execute the laws. With the exception of one loose statement by John Tyler that was never acted upon and a few wartime laws
limiting the removal power that President Lincoln did not have the energy to block, every president during this fifty-two-year period vigorously defended the unitary executive.


The Unitary Executive During the Third Half-Century, 1889-1945 with Laurence Nee, U.S. District Court for the Eastern District of California

The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.


The Unitary Executive in the Modern Era, 1945-2004 with Anthony Colangelo, Cleary, Gottlieb, Steen &Hamilton

The record shows that presidents from Harry S. Truman through George W. Bush consistently defended the unitariness of the executive branch, vitiating any claim that a custom of allowing congressional incursions on the unitary executive has emerged. In fact, the episodes discussed herein eloquently illustrate both the legal and the normative arguments supporting the unitary executive.


My personal views on the Unitary Executive are more in line with C. Yoo's, Calabresi's, Alito's and Prof. Ronald Cass, Dean Emeritus of Boston University School of Law:

The Theory: For Real

Of course, the theory of the “unitary executive,” as Judge Alito has explained ad nauseam, has nothing at all to say about the scope of executive power. It has nothing to say about how that power is granted or how it is checked.

Instead, the theory says that “the executive power shall be vested in the President of the United States.” Those are, in fact, the words of the first clause in Article II of the Constitution. This means that the President is in charge of the executive branch and that executive power is to be given to people who work for – and are in important ways controlled by – the President. This means that Congress can’t pass a law, even with the President’s approval, giving executive authority to people who work for Congress or for the courts.

Taken seriously, the theory of the unitary executive would require some reorganization of the “independent” agencies, especially the Federal Election Commission and the US International Trade Commission, the two agencies most insulated from presidential control and most subject to legislative control. Taken seriously, the theory would have invalidated the Independent Counsel law, upheld in Morrison v. Olson over the prescient dissent of Justice Scalia. Democrats drafted the law in the 1970s and vigorously supported the law when it was challenged in the 1980s, but by the late 1990s they were reading verbatim from Scalia’s critique. Go figure.


I have stated in the past, I am more concerned about the legislative branch, as the Founding Fathers were, absorbing too much power into their vortex. Without some form of the unitary executive, the executive branch becomes the weak sister of the tri-partite system of government. Once that happens, this country and Constitutional form of government will cease to exist, the executive branch will become a figurehead. The DPW affair, which Bush bungled badly, is evidence of the legislative branch screwing up just as badly and no means of checking them.
3.11.2006 7:24pm
Just an Observer:
KMAJ: My personal views on the Unitary Executive are more in line with C. Yoo's, Calabresi's, Alito's and Prof. Ronald Cass, Dean Emeritus of Boston University School of Law

I think those views you cite are not in accordance with each other.

Alito in particular has identified himself with a much more modest definition of "unitary executive" than Yoo does. While Alito took pains at his hearing to explain that the concept had little to do with scope in the separation-of-powers context -- as reflected in the passage from Cass you quoted -- for Yoo the "unitary executive" concept has very much to do with expanding the scope of presidential power.

As a war-powers matter in particular, Alito -- like Chief Justice Roberts -- cites the mainstream principles of Justice Jackson's Youngstown concurrence as the correct analytical framework. Yoo, by contrast, rejects the applicability of Youngstown to the the major controversies of our time -- torture, surveillance, detention, etc. -- and essentially ignores the landmark case.

I have little doubt that if Yoo's radical theory of executuve power were presented squarely to the Supreme Court for decision, Alito and Roberts would join an overwhelming majority in rejecting it.
3.11.2006 10:26pm
Just an Observer:
KMAJ,

Oops, I apologize for my error. I now see you were citing Cristopher Yoo, not John Yoo. I should have read more closely.
3.11.2006 10:30pm
KMAJ (mail):
JaO,

No problem, I have misread many times in my life. I find the C. Yoo and Calabresi treatises persuasive as well as Cass's short explanation/opinion, especially his one point about the presidents signature on unconstitutional legislation does not make it constitutional. That every president since FISA has stated FISA could not infringe on inherent executive authority, it could be reasonably argued they were all standing up for the unitary executive.
3.12.2006 12:50am
marghlar:
KMAJ,

It seems as if the FISA signing statements are really a different issue than whether there is a unitary executive. Isn't the issue really whether the President is vested with Article II authority such that Congress can't strip him of that authority? In other words, isn't this more about the constitutional separation of powers than it is about the constitutional internal structure of the executive branch?

Even if the executive was not unitary, it seems like the argument could be made that the president's commander-in-chief power is vested such that Congress can't take it away. Or by contrast, one could say that the executive was unitary, but that it didn't possess sufficient Article II warmaking authority that Congress couldn't validly prohibit the sort of conduct at issue in the NSA domestic surveillance.

Maybe I'm missing something here...
3.12.2006 2:14am
Just an Observer:
KMAJ: That every president since FISA has stated FISA could not infringe on inherent executive authority, it could be reasonably argued they were all standing up for the unitary executive.

I doubt your assertion as a matter of fact. Could you please cite the statements you are referring to from each of these presidents?
3.12.2006 9:06am
Medis:
KMAJ,

You "surmised" that I selectively quoted Kelley and as a result distorted his views. Please provide the quotes from Kelley to back up your claim.

Also, I note that Kelley specifically discusses C. Yoo and Calabresi, although he does not enter the existing debate about their arguments. He also describes in detail how Clinton (building on efforts by Reagan and the first President Bush) used the "unitary executive" theory to enhance his own power. He then goes on to detail the ways in which the current President Bush has surpassed Clinton and all of these other former Presidents. It is specifically in light of these developments that Kelley warns of the dangers of letting President Bush go unchecked for the remainder of his second term.

I realize that you cite the Framer's concerns about legislatures for the proposition that anything which enhances President Bush's power, no matter what the Constitution itself actually says on the matter, must be a good thing. But I again urge you to take a serious look at Kelley's argument, because it is really targeted at partisans just like you.
3.12.2006 11:53am
KMAJ (mail):
Medis,

I would be joining you, if I did not see FISA as just such an incursion that the Founders were warning about. Second, I stated that Kelley supported the unitary executive, not Bush. Please do not conflict the two. I also stated I do not agree with every point he made.

To be specific, were Bush asserting a right and/or implementing a plan for wholesale domestic spying, I would be firmly and vocally in opposition. That is NOT what the NSA program is, as far as we know. I do not believe in pre-emptive legislation, which is what FISA is. It crosses the line, in my opinion, between preemption and prevention, as well as quite possibly unconstitutionally intruding on separation of powers.

Kelley's criticism errs in its evaluation of executive authority Bush is trying to claim or the level it approaches. It does not reach the level Truman tried to claim in Youngstown for domestic authority. Much of the perceived executive authority, claimed by critics, is not due to actual executive branch authority, but due to the same party being in control of the legislative branch. Were democrats in control of Congress, one can reasonably argue, that executive authority would be greatly lessened. The legislative branch still maintains all the tools necessary to check the executive branch without FISA, with control of the purse being the most effective, as well as the ability to bring impeachment charges for criminal activity. Hence, my view of FISA as a usurpation of vested executive branch powers and realistic concerns about the legislative branch being the greatest threat to the Constitution and our system of government.
3.12.2006 4:40pm
Just an Observer:
KMAJ,

I note that you never responded when asked to support your misstatement "that every president since FISA has stated FISA could not infringe on inherent executive authority, [so] it could be reasonably argued they were all standing up for the unitary executive." In fact, AFAIK, no president before George W. Bush has made such a claim about FISA.

It seems to me that the FISA controversy does not even fit within the modest definition of "unitary executive" in which you say you believe -- as exemplified by your quote from Cass above. That definition specifically excludes the scope of executive authority, but rather focuses on such matters as the extent to which independent agencies and special counsels can be carved out of whatever executive authority does exist.

Interestingly, the treatise you cite by Christopher S. Yoo, Steven G. Calabresi and Anthony Colangel, The Unitary Executive in the Modern Era, 1945-2001, does not even mention FISA.

Ironically, it seems that I was accidently correct above when I said you really are supporting the much more radical definition of "unitary executive" advanced by John Yoo with respect to war powers. It is that theory from which Samuel Alito correctly distanced himself at his hearing, which has gained no traction in the courts, and which Bush's lawyers now are afraid to argue in court with regard to FISA because they know they would lose.

It seems that the only definition of "unitary executive" that matters to your partisan purpose is whatever is convenient to paper over Bush's violation of the law.
3.12.2006 6:01pm
KMAJ (mail):
JaO,

Look up Carter's A.G., Warren Bell's testimony on FISA, where he told Congress that:

"while the measure doesn't explicitly acknowledge the 'inherent power of the president to conduct electronic surveillance,' it 'does not take away the power of the president under the Constitution.'"
================
Reagan's EO 12333 claims executive authority in warrantless foreign intelligence gathering "a foreign power or an agent of a foreign power."
=================
Clinton Asst AG Gorelick testimony:

"It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

"...does not restrict the president's ability to collect foreign intelligence necessary for the national security."
==============
The above quotes have been cited in many articles, counterclaims of out of context are often based on ambiguous other phrases of adherence to existing law while ignoring adherence to the Constitution, which can sometimes be competing or conflicting in interpretation. In the Gorelick quotes, she later claimed the statements were referencing presidential authority prior to 1994, but attached the qualifier it left unanswered whether that congressional action trumped the president's "inherent authority" by stating "The Clinton administration did not take a position on that."

What it boils down to is no president has issued any statement that cedes executive authority to legislative fiat. That any president legally could or would do so is constitutionally extremely questionable. To do so would make the Article II's vesting clause and oath of office irrelevant. Such assertions would require one to proscribe to an assumption that the Founder's were negligent and erred in those assignations instead of the assumption that they were deliberately included in the article to prevent such incursions. The Federalist Papers and Constitutional Congress debates seem to uphold the latter position.
3.12.2006 6:10pm
KMAJ (mail):
JaO,

I should have known your divergence from 'ad hominem' would not last long. Forgive me for not addressing your post in a manner you consider timely, but I do have a life outside responding to you. Amusing that while you went off on your ad hominem attack, I was in the process of responding. Your lugubrious penchant for ad hominem and puerile need to claim to define my positions for me is quite hackneyed and pretentious. I should have expected no less. Mea culpa.
3.12.2006 6:22pm
Just an Observer:
KMAJ,

1) Griffin Bell was not a president, but an attorney general. I am aware that he expressed that opinion during hearings before FISA was enacted.

But his boss, President Carter, signed the final version of FISA, which explicitly repealed existing statutory language deferring to inherent executive power and replacing it with FISA's procedures as the "exclusive means" for conducting lawful foreign-intelligence surveillance. Carter's signing statement said that resolved the matter:

The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive’s authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism.


2) You cite Reagan's executive order 12333, which implements FISA. Nowhere does it say the president has surveillance authority outside of FISA and Title III.

2a) You left out any reference to George H.W. Bush. Doesn't he count as one of "every president since FISA?"

3) Jamie Gorelick (also not a president) was referring to physical searches in the out-of-context quote you cite. Yes, the Clinton administration did conduct an unwarranted physical search of Aldrich Ames' premises, but physical searches were not covered by FISA at the time. In fact, Gorelick and the Clinton administration later supported the amendment of FISA that now does cover physical searches.

The best you can say about Gorelick is your quote that "The Clinton administration did not take a position on that." That hardly supports your claim that President Clinton "stated FISA could not infringe on inherent executive authority." He stated no such thing.

[You really need to stop believing those distorted versions of history from "many articles" in Powerline. At least, you should not expect others to believe them.]

The bottom line: Contrary to your misstatement of fact above, no president other than George W. Bush "has stated FISA could not infringe on inherent executive authority."
3.12.2006 6:43pm
KMAJ (mail):
JaO,

The AG office presents the positions of the administration. Are you asserting they have the authority to make independent positions that are not in accordance with the president's view ?

Your position makes the error of assumption, as your bottom line can also be rephrased that no president "has stated FISA could infringe on inherent executive authority". You seek to adhere to the agressive interpretation, instead of the passive, thereby ignoring the constitutional question of whether a president can sign away constitutionally assigned authority.

It took more research for H.W. Bush, this article article clearly denotes his position on 'inherent authority' during the Ford presidency:

Washington, D.C., February 4, 2006 - Despite objections from then-Secretary of Defense Donald Rumsfeld and then-CIA director George H. W. Bush, President Gerald Ford came down on the side of a proposed federal law to govern wiretapping in 1976 instead of relying on the "inherent" authority of the President because the "pros" outweighed the "cons," according to internal White House documents obtained through the Freedom of Information Act and posted on the Web today by the National Security Archive at George Washington University.
3.12.2006 7:22pm
Just an Observer:
KMAJ,

Your original assertion was explicitly about statements made by presidents.

I am saying that what AG Griffin Bell said during Q&A at the hearing was not the same thing as a statement by his boss, the president. In any event, Bell's opinion was superseded by President Carter's own signing statement at the time he signed the enacted version of FISA.

Your latest citation is actually an example of how subornidates might disagree with their president: George H.W. Bush, in his capacity as CIA director, disagreed with his boss, President Ford. You can find no evidence that the elder Bush, as president, said he was not bound by the law.

The fact is that until the incumbency of George W. Bush, not president has made the claim to have inherent power to conduct surveillance outside the "exclusive means" of the act.

Ford and Carter affirmatively endorsed the legislation; neither Reagan, Bush 41 nor Clinton disputed the legal truth that they were bound by FISA. It is of no import that the last three presidents issued no statement embracing FISA; it is sufficient that they complied without objection.

Your original assertion "that every president since FISA has stated FISA could not infringe on inherent executive authority" remains false across the board.

More important than mere words are actions. George W. Bush is the first president actually to violate the law in question.
3.12.2006 7:52pm
KMAJ (mail):
JaO,

Now you engage in semantic argument. Stating themselves or through subordinates is the same. They all clearly believed in inherent authority of the executive.

You then seek to shift the debate to 'bound by the law'. I doubt you would find any president who would deny that. You then further weaken your argument with unsubstantiated claims of violation. That is unless you know of some court proceeding that noone else knows about that found him guilty.

You also avoid the constitutional question of whether a president can sign away vested constitutional power. The executive branch is the ONLY branch whose oath, as well as the 'protect and defend' clause, is in the original Constitution. Why ? Because the legislative branch's first loyalty is to the states or districts that elect them. They are not national representatives. It is also why the legislative branch does not have vested powers. The judicial branch also has vested powers but has not protect and defend clause. Why were the executive and judicial branches vested and not the legislative branch ? Because the Founding Fathers did so to prevent the legislative branch from encroaching, as they feared they would.

Why are many in the legal profession so entrenched in their positions ? I proffer they have been taught under the jurisprudence that has prevailed since the radical shift that occurred since FDR. They are so rooted in that thought process, the ability to think outside the box is anathema. It is probably no different than the legal consensus before FDR caused the radical shift, they were most likely just as vehement in their disagreement with any legal doctrine that was different than what they had been taught. Any who do not adhere to what they are taught are demeaned and labelled cranks or radicals.

In that regard, the journalism profession is no different. They shun those who do not walk in line. The new media has given an avenue that prevents the wholesale censorship of alternative thought that used to exist. The vanilla one-size fits all news we grew up with is no longer. Similarly, alternative legal thought has a vehicle to be heard. Indoctrination is much harder now, information is no longer easily restricted and opposing views can not be dismissed and subverted. Without the new media, Kerry would have probably been elected, as the old media did their best to undermine Bush. Twenty years ago, Rathergate would have never been exposed.
3.13.2006 12:11am
Just an Observer:
KMAJ: You then seek to shift the debate to 'bound by the law'. I doubt you would find any president who would deny that.

President Bush does deny that he is bound by the terms of FISA, asserting that his Article II powers trumps the statute. That is rather what the debate is all about. What else did you mean when you said ""that every president since FISA has stated FISA could not infringe on inherent executive authority?"

KMAJ: You then further weaken your argument with unsubstantiated claims of violation. That is unless you know of some court proceeding that noone else knows about that found him guilty.

The NSA surveillance violates 10 USC 2511 on its face, because that provision holds that FISA is the "exclusive means" by which foreign-intelligence surveillance may be lawfully conducted. (This is a different provision than 50 USC 1809, which provides criminal sanctions.)

The court proceeding that would test this question does not involve criminal guilt or innocence, only whatever arguments Bush might make as a matter of law to vindicate his claims in press releases, letters and other PR activities pretending the government's activity is lawful.

Laughably, you now claim that because Bush won't submit his constitutional claim to judicial review, it must be correct. If, as you suggest, FISA is somehow unconstitutional, the president need only make that case in court.

Of course, Bush shrhinks from bringing such a test case because his lawyers know he would lose.
3.13.2006 9:28am
Just an Observer:
Correction: 10 USC 2511 in my last post should read 18 USC 2511
3.13.2006 9:31am
Medis:
KMAJ,

FYI,

Article I, Section 1: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Article VI: "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution . . . ."
3.13.2006 9:38am
Medis:
JaO,

You asked KMAJ: "What else did you mean when you said 'that every president since FISA has stated FISA could not infringe on inherent executive authority?'"

This is one of the longstanding ambiguities in the typical Article II arguments offered by the pro-Administration folks. It is never quite clear what they mean when they use the verb "to infringe" in this context (or what they mean when they use similar verbs, like "to limit", "to encroach on", "to interfere with", and so on). Of course, they don't like to use verbs like "to govern" or "to regulate" (let alone "to provide standards and procedures for"), perhaps for obvious reasons.

Anyway, obviously, any law, rule, regulation, standard, or procedure that is relevant in any way to an exercise of power arguably "infringes", "limits", encroaches on", or "interferes with" the exercise of that power. So if they really mean that Congress cannot do any of those things to the President's ability to exercise some particular "inherent" Article II power, then they necessarily mean that the President cannot be bound by law in any way when exercising this power. Faced with that implication, however, they usually claim that is not what they are actually saying.

So, it is very difficult to extract any sort of principle or intelligible rule from all of this--which is probably intentional. Indeed, the basic claim seems to be that the determination of whether the President has to obey any particular law should be done on an ad hoc basis--and that it is solely the President and his agents who get to make that determination.

Of course, that sounds an awful lot like just another way of saying that the President is not really bound by law at all. But it seems like their goal is to avoid stating as much explicitly, and to deny that is an implication of what they are saying. And they want to do all this without having to state any sort of principle or rule that would actually limit their ability in the future to defend the President's right to ignore more laws as he sees fit.
3.13.2006 1:43pm
KMAJ (mail):
Medis,

You mischaracterize when you use the pro-administration designation. It would be more accurate if you used pro-executive branch, and even that would be slightly misleading. My position is not predicated on who or what party occupies the office. My arguments center on areas that are not purely domestic, where the legislative branch has higher standing, or purely foreign, where the executive branch has a higher standing, but on the areas that tend to blur that designation. Youngstown, was a heavily domestic case, thus the reason for Truman's defeat in that case. Had the legislative branch passed a law that allowed him to take that action, he would have been upheld.

The NSA case is vastly different, it is not strongly domestic in orientation or purpose. Unlike almost all cited cases, this case is a wartime one. Unlike Keith, this is not about spying on domestic anti-war groups. The main aim of the program is not prosecution or criminal investigation, intelligence gathering to prevent future attacks is its primary goal. Yes, the courts have acknowledged the overlap between terrorism and criminal activity, and that prosecution is thus a tool in the arsenal of prevention, it is that distinction that makes this issue one of considerable debate, but not one of settled law.

It seems you like to attempt to extend stated positions on the NSA issue and cast a wide net to apply to other issues. While it is certainly your right to do so, it does not create an accurate picture, instead it is a debate tactic that is intended to lessen other opinions, not by factual presentation, but by demeaning innuendo.
3.13.2006 3:19pm
Just an Observer:
Medis,

Your comments remind me that this thread has strayed somewhat from its original topic, which was the effect of presidential signing statements. This general subject and its close cousin, "unitary executive" theory, exhibit an ambiguity similar to what we witness in the FISA controversy.

On all these matters, it seems to me, the key is the availability of judicial review. If a President wants to challenge the constitutionality of some statute as applied, and does not exercise a veto but deliberately ignores some statutory provision, the ambiguity does not fester so long as the courts decide that controversy.

The danger with signing statements, particularly as they have evolved in the current administration, is that they may threaten unilateral nullification of some statutory provision in ways that may never even be disclosed, let alone presented for adjudication. The danger is compounded when such extralegal acts occur under cover of secrecy. How will we even know if the President does violate the recently enacted anti-torture amendment?

In turn, this engenders and depends upon a lack of good faith within the Office or Legal Counsel. Instead of developing an objective opinion on what the law is, the mission of that DOJ office seemingly has morphed into one of extreme advocacy, helping the President get away with as much as possible.

I expect that sort of lawyering from a mafia defense attorney; I expect greater respect for the rule of law at the highest levels of government. Real constitutional government depends on some minimal level of honor and good-faith compliance, which we may no longer enjoy.
3.13.2006 3:49pm
KMAJ (mail):
Medis,

Do you deny that the assignation of powers in Article I and Article II are presented differently ? Enumerated and unenumerated ?

All legislative powers herein granted shall be vested ...

The executive power shall be vested ...

The phrase 'herein granted' puts a far different weight and restriction on the powers of the legislative branch consistent with the Founders concerns about the legislative branch. No where in the Constitution is it stated the president can sign away its authority and be held as binding in perpetuity. One could validly argue it is the executive branch's responsibility to defy unconstitutional acts by the legislative branch under his oath 'to protect and defend the Constitution'. The Constitution does not proscribe the manner in which such defense of the Constitution should be undertaken, only that it MUST be protected and defended.

It is my contention, that the current engagement between the legislative branch and executive branch over the NSA issue is exactly how our government was envisioned to work by the Founding Fathers. That the courts should only be enjoined if an unbreachable impasse is reached, and not until then. That does not preclude private groups from filing lawsuits if they can establish standing.

Your citing Article VI only strengthens my argument, because it is ONLY the executive branch whose oath is spelled out in the Article that assigns its authority. As such, because the Congress adopted the words of the presidential oath, it does not have the constitutional force of the executive branch oath of office. They could just as easily have written a totally different oath for Congress, as they originally did, and still been legitinmate. The executive branch's oath is enshrined in the Constitution under the executive powers specific Article II.
3.13.2006 3:51pm
Medis:
KMAJ,

As an aside, I think "pro-Administration" is descriptively accurate for those who have consistently endorsed all of the Administration's positions and arguments on this issue. Perhaps some of these people would be doing the exact same thing if this was the Hilary Clinton Administration, but that is not a proposition that we can put to the test at this juncture.

Anyway, your post is representative of what I called an "ad hoc" approach. People adopting this approach enumerate various facts of this case (at least as known), and claim that these facts support the President's choice to ignore the law. Noticeably absent is any intelligible principle explaining why these particular facts should be determinative. Similarly, noticeably absent is any intelligible limiting principles. Rather, we just get the enumeration of the facts and the conclusion, and the ipse dixit that the facts support the conclusion.

Your post is also representative of the stock pro-Administration answer to any request for intelligible principles that would extend beyond this case. The stock pro-Administration position is that we should limit our discussion to these particular facts, leaving other issues to be dealt with if and when they arise (or, if and when we find out that they already did arise). This, of course, is the approach Gonzales took in the Senate hearing and his followup letter, and it has been a standard approach for the pro-Administration folks in the discussions here.

As I noted, this general resistance to intelligible limiting principles, plus the general sentiment that the Executive Branch should be making these decisions unilaterally (eg, without seeking legislation or judicial determinations), is equivalent to rejecting the very idea of the Executive Branch being bound by law. But the pro-Administration folks obviously don't want to come out and admit that, which makes sense--such admissions could be politically damaging.

Or maybe some of the pro-Administration folks just don't understand that an ad hoc approach coupled with the absence of institutional checks is equivalent to no rule of law at all. But imputing such a failure of insight to them would hardly be more charitable than imputing to them the desire to avoid politically-damaging admissions. So, I have chosen the latter interpretation in the spirit of charity.
3.13.2006 4:06pm
Medis:
JaO,

Indeed, and I think the points are related. What does "law" mean when the people nominally subject to the law are also trying to be the sole judge of whether they have obeyed the law? I'd suggest that the very idea of objective legal analysis depends on anticipating that the relevant legal issues will be considered at some point by a neutral tribunal.

KMAJ,

We cross-posted.

Of course, I agree that it is noteworthy that Congress is vested only with enumerated powers. That is one of the ways in which the Framers did in fact seek to limit the legislature of the United States, and I'd be happy to start our inquiry with the question of whether FISA fell within the enumerated powers of Congress.

But of course that has nothing to do with the argument you offered. You claimed that Congress did not have "vested" powers under the Constitution, which is false. In general, your arguments have nothing to do with the scope of the enumerated powers of Congress. Rather, you simply cite the Framers' wariness of legislatures for the general proposition that Congress overstepped its bounds in FISA. But you make no attempt to refer to the limits on Congress that actually appear in the real (rather than imagined) text of the Constitution.

Similarly, you imagined this notion that "[t]he executive branch is the ONLY branch whose oath, as well as the 'protect and defend' clause, is in the original Constitution. Why ? Because the legislative branch's first loyalty is to the states or districts that elect them. They are not national representatives." You are now claiming it is important that Article VI does not "spell out" the oath that the members of Congress must take, and are simply ignoring the fact that the substance of the oath that members of Congress must take under Article VI directly refutes your claims.

Frankly, however, we long ago established that the actual text of the Constitution is irrelevant to your views on what the Constitution says. I briefly cited the portions of the Constitution which contradicted your claims, but I didn't expect it to actually make a difference to you.
3.13.2006 4:26pm
Medis:
On reflection, that last post was a little too heated and largely off topic. I apologize to KMAJ and any other readers.
3.13.2006 4:48pm
KMAJ (mail):
Medis,

Respectfully, I ask you to research the history of the Congressional oath of office. Article VI says 'support', not 'protect and defend'. They are not synonymous and that is because of the differences in the positions and how they are elected, they do not have national constituencies. The congressional oath did not contain 'protect and defend' until the Civil War. The original oath, enacted in 1789, was only 14 words: "I do solemnly swear (or affirm) that I will support the Constitution of the United States." And was not part of the Constitution, nor was the judicial oath of office in the Constitution, but was part of the Judiciary Act of 1789.

No apologies necessary, I have a thick skin as well as a thick head. I think (my opinion) that the enumerated powers of Congress are interpreted too broadly as a result of a radical shift in jurisprudence during FDR's presidency. Society went along with that shift due to the influence of the Great Depression. Without Watergate and Vietnam, FISA would not exist. Societal attitudes have shifted in the last 25 years. There is no doubt in my mind that the Founding Fathers would be rolling over in their graves at some of the FDR and on rulings, as well as over Wilson's 16th Amendment. They were classical liberals, not progressives or modern liberals. The expansion of government is also where I have my strongest criticisms of Bush. The only saving grace is that if Gore or Kerry were elected it would have been even bigger and we would have become Europe Jr., the lesser of two evils scenario. The prescription drug bill, CFR and education spending, three areas he adopted Clinton's triangulation strategies. The first to effectively remove it from the political debate in 2004, the other two because he was reading the political winds. I do trust that he is using the NSA program as he says he is, to protect and defend this country from another terrorist attack. I do not believe the hysterical cries alleging JFK, LBJ and Nixon style abuses.
3.14.2006 5:06am
Medis:
KMAJ,

There is a disconnect in your reasoning. Yes, the exact text of the congressional oath is not mandated in the Constitution. But the substance of their oath IS mandated--they must swear or affirm to support the Constitution of the United States.

You originally argued that the lack of a congressional oath in the Constitution was evidence for your assertion that "the legislative branch's first loyalty is to the states or districts that elect them. They are not national representatives." But in actuality, the "first loyalty" of the members of Congress under this oath is to the Constitution OF THE UNITED STATES. Accordingly, the members of Congress cannot place their loyalty to their states or district over their loyalty to the national Constitution, because under Article VI they must swear or affirm otherwise.

Your new emphasis on the difference of verbs--that the President is required to swear to "preserve, protect and defend" the Constitution, whereas Congress need only sweat to "support" the Constitution--is absolutely irrelevant to your original claim about to what both the President and members of Congress must be loyal. In each case, their oath binds them to be loyal to the Constitution, even if it does so with different words.

In short, your claim about the "first loyalty" of the members of Congress is DIRECTLY CONTRADICTED by the constitutionally-mandated content of the oath that they must take. But once again, we established long ago that the text of the Constitution is irrelevant to your claims about the Constitution.

Indeed, as your last post makes clear, here is how your arguments proceed:

(1) You consult your intuition about what the Framers would have wanted. Conveniently, it turns out that you never have any doubt that the Framers would have wanted the same things that you want.

(2) You assert that the Constitution reflects the desires of the Framers. The actual text of the Constitution is irrelevant to these assertions.

But do you seriously expect anyone else to find such arguments persuasive? Obviously, if someone shares your exact same intuitions about what the Framers would have wanted as well as your disregard for the actual text of the Constitution, then they might follow along with these arguments--but such people did not need persuading in the first place, because they are already identical to you.

If you want to persuade anyone else, however, you will need to get serious about providing real textual support for your claims about the Constitution. Of course, I understand why you don't like doing that--it turns out that the text often is not very supportive of your views, and in fact often contradicts your views.

So, we are left with your constant repetition of your unsupported claims about what the Framers would have wanted. Suffice it to say that we understand your conclusions, but until you can summon up something to support those conclusions, we aren't going to accept your ipse dixit.
3.14.2006 11:01am
KMAJ (mail):
Medis,

Au contraire, you semantically mired argument is the one that eschews the text of the Constitution. Thee support phrase in Article VI exactly points out they first loyalty is to their state or district. Were it any stronger, they would have to bow to federal interests over the interests of those who elected them. It was not until the Civil War and the threat of secession that Congressional members were bound by oath to profess 'loyalty' to the Constitution and to protect and defend it.

Clearly, by any contextual reading, the Constitution gave the sole enumerated authority to 'protect and defend' to the executive branch. No act of legislation or changing of the words of the congressional oath can usurp that Article II authority without stepping into unconstitutional territory. You like to claim context when it suits your purpose, but enagage in sleight of hand when it does not.

The signing statements are nothing more than a mechanism to protect executive branch authority from legislative branch incursions by recognizing their equal right to interpret the Constitution. Or are you saying the legislative branch can dictate to the executive branch how they can interpret ? The grand conspiracy theories of some Machiavellian intention is merely pandering to emotionalism by reductio ad absurdum.
3.14.2006 1:58pm
Medis:
KMAJ,

(1) It simply makes no sense for you to claim that the "first loyalty" of members of Congress is to their state or district when the oath they swear is to the Constitution of the United States. That claim is also a complete non sequitur from the difference in verbs you note, because the subject of the oath is still the same--the Constitution of the United States. Frankly, I doubt even you think any of this makes sense--I think you have just been scrambling for something to say ever since you got caught making things up.

(2) Neither the President nor Congress has the final say on how to interpret the Constitution. Interpreting laws is ultimately a judicial function, and the judicial power of the United States is vested in the Supreme Court.

And that last point is actually relevant to this thread. As Kelley and others have observed, part of what is new about President Bush's version of the "unitary executive" is his attempts to avoid any sort of judicial review of his legal and constitutional claims.

For example, lawyers serving under Clinton, in offices such as the OLC, also used to argue that the President had the authority to refuse to enforce an unconstitutional law, and that he could do so even before a court had declared the law unconstitutional. But they also argued that since the Supreme Court had the ultimate authority to interpret the Constitution, the President's responsibility was to predict to the best of his ability whether the Supreme Court would hold that the law was unconsitutional. And once the Court did reach a relevant judgment, the President was bound to abide by that decision. These additional principles placed important limits on the President's sua sponte power to refuse to enforce potentially unconstitutional laws.

But President Bush and the lawyers who work for him (at least the ones he listens to) have apparently abandoned these limiting principles. Now, apparently the idea is that the President gets to determine for himself what the Constitution says. And he gets to do so as a matter of first impression, not as a good faith attempt to predict the judgment of the Supreme Court. And apparently they now believe it is fine for him to attempt to avoid any sort of contrary judgment by the Court. And most ominously, some defenders of the Administration have hinted that if the Supreme Court reached a contrary judgment, the President could ignore that judgment, at least as long as he had popular support.

Again, as Kelley and others have noted, President Bush's desire for unilateral control over the issue of unconstitutional laws, as memorialized in signing statements and as embodied in many other efforts, is a serious threat to the constitutional separation of powers. Accordingly, anyone who sincerely cared about these issues should be concerned that in the name of unilaterally correcting perceived overstepping by Congress, the President is himself overstepping his constitutional boundaries by taking on the functions of all THREE branches of government.

But, to anticipate your response--I'm sure you have no doubt the Framers would have wanted the President to decide all these matters for himself. After all, they were wary of legislatures, which necessarily implies that they were not wary of executives, right? So, why not weaken Congress by concentrating all power in the hands of the President? How could anyone possibly object to that?
3.14.2006 3:11pm
KMAJ (mail):
Medis,

Nice rant. My position is very narrow and pertains to the NSA issue only. That you seek to assert some wider scope only muddles the issue. That you cite Clinton without providing any specific cases where he declared something unconstitutional and brought a case before the Supreme Court to verify his declaration makes it a strawman argument. You seem to see the signing statements as some conspiracy to hoard all power into the executive branch rather than a protective device for executive branch authority under the Constitution.

You cannot make your argument about the oaths in good faith, neither the judicial nor legislative branches oaths are in the assigned powers sections, Articles I, II, and III, of the Constitution. I do not think it was by accident but by design. For you to try to claim equivalence does not pass muster.

And your crystal ball as to my thoughts is batting zero, you might want to get a new one. Maybe legal minds have a problem grasping the complexities of war because they are so entrenched in the deliberative thought process necesssary for legal work. You want to lose a war, let a deliberative body have too much influence in the operation of it. The Founding Fathers understood this very well.
3.15.2006 1:25am
Medis:
KMAJ,

You say: "My position is very narrow and pertains to the NSA issue only. That you seek to assert some wider scope only muddles the issue."

Again, the failure to provide limiting principles is itself an indication of how much power the President and his proponents are trying to concentrate in his hands.

You say: "That you cite Clinton without providing any specific cases where he declared something unconstitutional and brought a case before the Supreme Court to verify his declaration makes it a strawman argument."

I'm actually referring to arguments made by, among others, Walter Dillinger, as quoted in the memo by Byron Cunningham. Incidentally, you might want to look up what a "strawman argument" is.

You say: "You seem to see the signing statements as some conspiracy to hoard all power into the executive branch rather than a protective device for executive branch authority under the Constitution."

Again, see the Kelley piece you cited yourself for a description of how President Bush's use of signing statements fit into a general practice of attempting to act unilaterally. Incidentally, you might want to remember that you once said "Prof. Christopher Kelley has written an excellent analysis of The Unitary Executive and Bush, including signing statements."

You say: "You cannot make your argument about the oaths in good faith, neither the judicial nor legislative branches oaths are in the assigned powers sections, Articles I, II, and III, of the Constitution. I do not think it was by accident but by design. For you to try to claim equivalence does not pass muster."

Once again you are changing arguments. Again, the simple and unavoidable fact is that all three branches must swear or affirm an oath to the Constitution, and that is enough to refute your original claim. As for this new argument, the reason this clause appears in Article VI is that it is not specific to either Congress or the judicial branch, and applies to state officials as well.

Most importantly, perhaps, it also applies to the executive branch. Again, the whole clause is: "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution."

Are you saying that the other officials in the Executive Branch (besides the President) also are not bound to be loyal to the national government? Because they take an oath under the same clause as members of Congress and the judicial branch.

Incidentally, it might be worth remembering the general subject matter of Article VI. Article VI is about the legal status of the Constitution. Immediately before this oath clause, it provides: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." It therefore could not be clearer that the oath taken by members of Congress, as well as by all judicial and EXECUTIVE officials, is designed to ensure that their "first loyalty" is to the Constitution of the United States.

Finally, you say: "And your crystal ball as to my thoughts is batting zero, you might want to get a new one."

I originally said: "But, to anticipate your response--I'm sure you have no doubt the Framers would have wanted the President to decide all these matters for himself. After all, they were wary of legislatures, which necessarily implies that they were not wary of executives, right? So, why not weaken Congress by concentrating all power in the hands of the President? How could anyone possibly object to that?"

And you said: "Maybe legal minds have a problem grasping the complexities of war because they are so entrenched in the deliberative thought process necesssary for legal work. You want to lose a war, let a deliberative body have too much influence in the operation of it. The Founding Fathers understood this very well."

I think my "crystal ball" worked perfectly.
3.15.2006 8:43am
Medis:
KMAJ,

Incidentally, I forgot to mention that I agree that it is significant that the President alone has his Oath of Office specifically enumerated in the Constitution. But you seem to think an oath of office functions as a grant of power. Of course, that is not the function of an oath of office. Rather, the function of an oath of office is to BIND the office-holder in some way--in other words, to LIMIT the office-holder's exercise of the powers of that office.

In that sense, the fact that the Framers saw fit to specifically enumerate the President's Oath of Office is not indicative of a desire to grant him extra powers. Just the opposite--it is indicative of their desire to place specific limits on the President's exercise of his powers.

So, the relevant question is: How does the presidential oath bind the President? Or, in other words, how does the President's Oath of Office limit the exercise of his powers?

As always, the text is the place to start. The full Oath is this: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

For the most part, this Oath of Office is unsurprising and fairly standard. But one thing is notable: the President does not swear to "preserve, protect and defend the United States," as one might have expected from the chief executive of the United States and Commander in Chief of the armed forces. Rather, the President swears to "preserve, protect and defend THE CONSTITUTION OF the United States."

That is actually an extraordinary and elegant addition to the President's Oath of Office. With the insertion of those three words, the Framers provided that even in times of war or other national emergency, the President's "first loyalty" would remain to the CONSTITUTION, and not to the nation itself.

And in so doing, they ensured that even during times of crisis, our nation would remain a "republic"--a nation in which everyone, even the head of state, is subject to the rule of law. Of course, the Framers were indeed well aware that many political theorists had argued (and indeed continue to argue to this day) that republics are too weak to survive such situations, and that in such situations nations need a strong man with broad powers to lead them.

But their grand experiment, as embodied in the President's Oath of Office, was to see if republic was in fact stronger than those political theorists imagined. Indeed, that republican experiment is an essential component of the Constitution as a whole, and by binding the President to preserve, protect and defend the Constitution, rather than the nation, they explicitly limited the President's exercise of his powers, at all times, within the scope of that republican framework.

So, in short, the manifest purpose of enumerating the President's Oath of Office was to ensure that the President would remain subject to and bound by the Constitution. That in turn ensured that we would remain a republic at all times, even during war or other national emergencies.

And frankly, it is nearly Orwellian that some people argue that the President's Oath of Office has the exact opposite effect. To get there, they not only have to reverse the purpose of an oath of office, but they also have to ignore those crucial three words. But that is their general pattern of constitutional argument: they start with the result they want, and then argue that the Constitution supports that result, regardless of what the Constitution itself might say.
3.15.2006 10:02am
KMAJ (mail):
Medis, you constantly do that. You like to add the Constitution part of the oath but conveniently leave off 'against all enemies foreign and domestic'. That is a rather significant part. And, instead of binding, it can also be seen as an affirmation. That you choose to interoret it as you do does not mean that is the only valid or legitimate interpretation. Contextually, the argument does not put your claim of equivalence on sound footing. Even Article VI does NOT even infer protecting and defending against all enemies foreign and domestic. No matter how you parse it, simply saying 'support' does not even approximate the scope of protect and defend. That is a semantic stretch of epic proportions.
3.15.2006 10:40pm