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John Yoo on the Intent of the Framers:
In a New York Times op-ed defending the Bush Administration's approach to Executive Power, John Yoo makes the following claim:
[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.
Any ideas as to what historical evidence supports this claim?
Humble Law Student (mail):
I always understood this checking power to be negative in nature. If Congress passed a law the President considered unconstitutional, the President could just refuse to execute his or her duties under the law. Likewise, if a court made a ruling that required certain actions on the part of the executive he or she could once again refuse to comply through inaction.

I'm not so sure about Yoo's claim that the President can inherently commit certain acts because the President feels that Congress (through law) or the Courts (through a decision) are unconstitutionally constraining him or her.

On the other hand, couldn't we all agree that if Congress, say, passed a law forbiding the President from exercising some indisputably executive function and the law was upheld by the courts, the President could still act in the manner forbidden, because the prohibition is just plain wrong?
9.17.2006 5:40pm
RMCACE (mail):
Humble,

That situation has occurred, although I wouldn't think of it as precedent. Andrew JOhnson violated the Tenure of Office Act when he fired Edwin Stanton.
9.17.2006 5:45pm
Humble Law Student (mail):
RMCACE,

Yah, thanks, I think that was the situation I was thinking off when I wrote my comment (I just didn't want to take the time to dig it up).

Broadly, speaking, isn't the principle fairly indisputable? How it applies, of course, is a different question.
9.17.2006 5:55pm
Chris Bell (mail):
Of course, the Tenure of Office Act was later held to be unconstitutional. (But not until after AJ was impeached.) It makes you wonder if there is any way that a President could "challenge" a law he thought was unconstitutional short of breaking it. There's obviously the veto, but the Tenure of Office Act was passed over Johnson's veto. Could the President file suit against Congress? Do we even want the court's dealing with this?

John Yoo, on the other hand, has a blind eye turned towards the idea that Congress could possibly be correct. What do you mean we can't torture people?
9.17.2006 5:56pm
boonelsj (mail):
I'd be more willing to accept Yoo's claim if Art. II, Sec. 3 of the Constitution read: "he shall take Care that the Laws be faithfully executed [unless those Laws be wrongheaded or obsolete]." The absence of such a qualifier seems like a problem to me.
9.17.2006 5:58pm
Jiffy:
No, we could not agree. For one thing, your hypothetical is internally contradictory--it states that the statute strips the President of an "indisputably executive power" but then proposes that the two other branches of government DO dispute it. I don't understand why the President should have the ability to ignore the views of the other two branches just because he thinks they are "plain wrong."
9.17.2006 6:01pm
Humble Law Student (mail):
Jiffy,

Perception doth not reality make. For an easy example, say Congress passes a law that strips the President as the commander in chief of the military and SCOTUS somehow upholds it. Can the President only acquiesce?
9.17.2006 6:08pm
Justin (mail):
There's also a difference between "wrongheaded or obsolete" and "unconstitutional" - see Clarence Thomas's dissent in Lawrence, something that I had thought conservatives appreciated.
9.17.2006 6:15pm
David M. Nieporent (www):
No, we could not agree. For one thing, your hypothetical is internally contradictory--it states that the statute strips the President of an "indisputably executive power" but then proposes that the two other branches of government DO dispute it. I don't understand why the President should have the ability to ignore the views of the other two branches just because he thinks they are "plain wrong."
Can't the Supreme Court "ignore the views of the other two branches" if it thinks that these branches are "plain wrong"? Doesn't it implicitly do that every time it strikes down a law passed by Congress and signed by the president?
9.17.2006 6:22pm
Humble Law Student (mail):
Justin,

I completely agree. No matter how "obsolete" a law is(assuming that is the only problem with the law), that would never be sufficient reason by itself for the President to disregard the law.
9.17.2006 6:23pm
Bruce Wilder (www):
"On the other hand, couldn't we all agree that if Congress, say, passed a law forbiding the President from exercising some indisputably executive function and the law was upheld by the courts, the President could still act in the manner forbidden, because the prohibition is just plain wrong?"

No, I don't think we can agree on such a silly, self-contradictory proposition.

If something really were "plain wrong", Congress would not pass it into law and the courts would not uphold it.

The rule of law cannot long survive a general implementation of the authoritarian impulse behind the desire to make an exception for "plain wrong". In a Republic, officials, including the President, have to be willing to accept as constraints on their own behavior, the views of others, when those views have been duly enacted into law.

That's not to say that persuasion is not a critical lubricant. The checks and balances are there to encourage and preserve rational deliberation and persuasion as central processes in the making of law and policy. The courts are constrained from arbitrary acts, by the necessity of persuading the President and the People of the legitimacy of their opinions and decisions. The President is constrained by the necessity to persuade Congress to appropriate money and enact laws. Congress is constrained by the difficulty of forming majorities, and the requirement that laws express general principles and policies, rather than simple, executive directives.

Corruption and authoritarianism combine to threaten the functioning of the whole system.

If the Congress' authority to pass law has any meaning, then Congress has as much authority, subject to the limits of the Constitution, to pass a bad law as a good one. And, the President is as constrained to enforce a bad law as a good law. Traditionally, we've used judicial review and the Constitution's general principles to allow the judiciary to sometimes declare unconstitutional laws, which are also bad laws. But, the presumption remains that some bad law is, nevertheless, Constitutional.

John Yoo's assertion could be read as a commonplace. Certainly, the President is commissioned to make his State of the Union recommendations to Congress, and to require written reports from the heads of Departments. He is authorized to appoint Judges, as well as Department Heads, subject to the Advise and Consent of the Senate. And, of course, the President can veto legislation, subject to Congressional override. In those limited ways, the President is fully authorized to try to get bad or obsolete laws revised.

The difficulty arises when Yoo goes beyond the commonplace interpretation to assert that the President can do more than propose and dutifully execute the law. Can the President void a law, ignore a law, violate a law with impunity? Can the President spend money not appropriated by Congress? Can the President make war not declared or otherwise authorized by Congress?

Is the "Commander-in-chief" a virtual dictator, bound in action only by such constraint as his discretion regarding necessity should afford?

If this latter, admittedly extreme interpretation is attributed to Yoo's assertion, then it becomes an absurdity, which can have no historical support. The Founders made a Republic, with a President bound by law, whether he likes the law or not. But, the very fact that Yoo speaks of Congress and the Courts checking an overreaching President suggests that this extreme interpretation, however popular with Yoo's critics and political opponents, is not entirely appropriate.
9.17.2006 6:33pm
Consigliere (mail):
Orin's question has not been even addressed thus far in the comments. I myself have no idea what Yoo is referring to.
9.17.2006 6:46pm
Bruce Wilder (www):
"Can't the Supreme Court "ignore the views of the other two branches" if it thinks that these branches are "plain wrong"? Doesn't it implicitly do that every time it strikes down a law passed by Congress and signed by the president?"

Not exactly. There's an institutional process involved, in which the Court resolves a dispute. To me, the phrase "plain wrong" implies that there can be no legitimate dispute.

Inevitably, there are all kinds of conflicts and disputes in government, which must be resolved by some kind of institutional process of decision-making, in which deliberative reason and persuasion play a critical role. The whole point of having a complex structure of government institutions and processes and checks and balances is to preserve the critical role of deliberative reason and rational persuasion in resolving disputes and conflicts into policy and governance.

My objection to admitting a general "plain wrong" exception in outlining the constraints on Presidential authority would be that it short-circuits the system.

The only area where the President has any "plain wrong" authority is in the pardon power. The President, under the Constitution, has a legally unconstrained power to pardon. Even that little opening scares me.
9.17.2006 6:50pm
Greedy Clerk (mail):
Consigliere, you state "Orin's question has not been even addressed thus far in the comments. I myself have no idea what Yoo is referring to."

Orin asked, "Any ideas as to what historical evidence supports this claim?"

Let me lay out that historical evidence, from the Constitutional Convention and the Federalist papers:


When ,

because . .

the .

and . The President , insofar as

it.




See. It's quite obvious in light of the above evidence. Naturally, I had to redact portions of it, because the Constitutional Convention and the authors of the Federalist papers classified that evidence and neither the Court or Congress can have access to it. The states secret doctrine, moreover, forbids us from asking any further questions.
9.17.2006 6:54pm
Humble Law Student (mail):
Bruce,

You wrote,

If something really were "plain wrong", Congress would not pass it into law and the courts would not uphold it...


Are you joking? Either the Constitution has some objective content that can be violated by even an agreement by two of the three branches, or the Constitution itself does not exist outside of the pronouncements of the judiciary and Congress (in our example). Furthermore, need I recount American history to list examples of the Congress and the courts (with many times the consent of the executive) implementing laws that we would consider plainly wrong?

Another point, maybe my term "plainly wrong" is a bit ambiguous. I am attempting to apply some sort of objective context to it. Its fair to say that Congress wouldn't pass a law that is plainly unconstitutional to itself. But maybe its understanding is wrong? Isn't that what happens everytime it passes a law that SCOTUS finds unconstitutional? Your argument really is nonsensical. Obviously, some sort of objective context must be applied. The question is, can some sort of objective context exist outside of judicial pronouncements - a question that has been around since Marbury v. Madison. Of course, the court has said that it is the ultimate arbiter of what is Constitutional. But is that really so true? There are examples of Presidents refusing to follow court orders or pronouncements. If the court says the President can't exercise his commander in chief powers, must the President just acquiesce?
9.17.2006 7:06pm
Tom Holsinger (mail):
As RMCACE noted, the best known example is the Tenure of Office Act, whlch was ignored (aka violated) by every President from the date of its enactment to date it was found to be unconstitutional.

The most recent example, AFAIK, took place during the past administration when President Clinton ignored (aka violated) the War Powers Act concerning Kosovo.

This goes to Congressional overreaching. There were many, many examples of a President ignoring judicial decisions during the Lincoln administration. I am not aware of more recent examples of a President ignoring judicial decisions.

The judicial branch can certainly overreach in theory, such as by granting a peremptory writ to Osama bin Laden commanding the President to surrender the United States to Al Qaeda.
9.17.2006 7:13pm
Ron Hardin (mail) (www):
If Congress doesn't like what the President does, they can remove him from office. So he's not exactly a dictator.

Congress in turn is constrained by the voters in the next election.

So the President's powers are ultimately limited by the people.
9.17.2006 7:17pm
M. Lederman (mail):
Well, John's formulation is ridiculous. There's virtually no support for the notion that the founders, or any other serious observer since then, has thought that the President could ignore statutes because he finds them "wrongheaded or obsolete." That's the exercise of a dispensing power that's plainly impermissible.

On the other hand, the President can, in rare cases, refuse to enforce statutes that he considers unconstitutional, at least where he does so publicly -- subject to public debate and checks and balances -- and where his constitutional interpretation is sincere and reasonable.

But the problem here is the substantive constitutional views that John has advised the President to adopt. He opined that any law that limits the President's discretion on how to fight against enemies -- including enemies of the President's choosing -- are unconstitutional. Ergo: FISA, the Torture Act, the UCMJ, the 60-day-limit of the War Powers Act, the War Crimes Act, the McCain Amendment, etc., are all unconstitutional.

But they're not. And because they're not, the President should enforce them and/or act to get them amended. (And to the extent he thinks they are unconstitutional, he should say so publicly, and almost always take his case to court.)
9.17.2006 7:46pm
Former Republican (mail):
As far as the Supreme Court essentially ignoring Congress's intent every time it declares an act unconstitutional, as I understand it the Court can only adjudicate live controversies that make it to that appellate level. That seems to be a serious limitation on the Court's ability to "act" in the same way that Congress and the President can act.
9.17.2006 7:51pm
frankcross (mail):
The sentence I find remarkable in the editorial is this:

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap.

He would assign concededly legislative power to the executive branch.
9.17.2006 7:52pm
Mark Field (mail):

Can't the Supreme Court "ignore the views of the other two branches" if it thinks that these branches are "plain wrong"? Doesn't it implicitly do that every time it strikes down a law passed by Congress and signed by the president?


It's one thing for "the least dangerous branch" to claim judicial supremacy. It's altogether different for the most dangerous branch to claim "executive supremacy". I think the latter is euphemism we can all understand and reject.

Personally, I think judicial supremacy is defensible in certain cases, but that's a contentious area with lots of disagreement. Very respectable authorities -- Jefferson and Lincoln, for example -- have suggested that each branch has equal authority to judge constitutionality. But nobody, ever, has even argued that the President can dispense with the laws. Until John Yoo.
9.17.2006 8:17pm
Tom Holsinger (mail):
Lederman,

Tell that to President Clinton about Kosovo. He ignored the War Powers Act.

Or is it only Republican Presidents who are subject to the WPA?
9.17.2006 8:19pm
Third Party Beneficiary (mail):
On the subject of "judicial supremacy", it might be added that if the Supreme Court strikes down a statute as unconstitutional, Congress and the states can enact a constitutional amendment to override that decision (as was done with the national income tax). If the President begins refusing to follow laws that have been enacted by Congress and approved by the Supreme Court, those bodies have no power to correct the problem short of impeachment. (And, of course, one might point out that if we're positing a President who is already ignoring duly enacted laws, what will compel him to participate in the impeachment proceeding?)
9.17.2006 8:38pm
Greedy Clerk (mail):
On the other hand, the President can, in rare cases, refuse to enforce statutes that he considers unconstitutional, at least where he does so publicly -- subject to public debate and checks and balances -- and where his constitutional interpretation is sincere and reasonable.

Exactly. As Marty notes, the law must be unconstitutional, and John Yoo knows this yet he chose to use the words "wrongheaded or obsolete." Likewise, the Supreme Court cannot refuse to enforce or recognize a law if it finds it "wrongheaded or obsolete"; it can only do so if it finds it unconstitutional. The assertion that the President can ignore laws that he does not agree with, solely because he finds them "wrongheaded or obsolete" is absurd, and is cuts against both fundamental principles of rule of law in all countries and two hundred years of constitutional tradition in this country specifically. John Yoo is a dangerous little man, espousing dangerous little ideas, and the fact that conservatives take him seriously is disturbing.

In fact, what is most ironic here is that Clarence Thomas was the only Justice to buy John Yoo's absurd unitary executive argument in Hamdi (not Hamdan), yet it is Clarence Thomas who has time-and-again stated that he is constrained to uphold laws that he finds "wrongheaded or obsolete" (of course, by saying this, Justice Thomas is abdicating his role to determine whether the laws in question are not just "wrongheaded or obsolete" but whether they are unconstitutional. His dissent in Lawrence is such an example: he just asserts that the law is "silly" but does not explain why it is nevertheless constitutional. In fairness to him, however, he joined Justice Scalia's dissent which did explain why Scalia thought it was constitutional (I disagree with Scalia's dissent, but nevertheless think he did not abdicate his judicial role and did attempt to explain how such an egregious deprivation of liberty without due process could be constitutional).
9.17.2006 8:50pm
Greedy Clerk (mail):
If Congress doesn't like what the President does, they can remove him from office.

And your point is . . . ?!?

Just because Congress can impeach and convict the President for failing to carry out his constitutional duty to take care that the laws of the United States are executed does not mean that the President's failure to execute this duty is constitutional until he is removed. . . . . Stated otherwise, the President's actions are not "constitutional" until he is removed from office. We should, and until this Presidency have, expect our President to act constitutionally, and not to shove his finger at Congress and essentially say "impeach me if you don't like it."
9.17.2006 8:53pm
Tom Holsinger (mail):
Third Party,

The general rule is that any two branches of government can gang up on the third. You are spinning wild hypotheticals.

The interesting part comes when one branch ignores separation of powers concerning one, but not both, of the other branches. The Tenure of Office Act is the best known example.

Currently the judicial branch is clearly infringing on the President's war powers. At some point a President will push back big-time. My take is that we'll at least end up with the end of life terms (i.e., federal judicial terms in the vicinity of 16-25 years - even Justice Breyer says 25 years for Supreme Court justices would be appropriate) and perhaps retention elections of some sort.

I do expect that the reaction will also include a President educating the public about jury nullification.

The event forcing this will be another mass fatality terrorist attack at home.
9.17.2006 8:55pm
Greedy Clerk (mail):
Tell that to President Clinton about Kosovo. He ignored the War Powers Act.

Or is it only Republican Presidents who are subject to the WPA?


No thread here is not complete without some Republican trotting out their most loved "defense" of President Bush: "Clinton did it."

In this case, it is completely inapt. I do not recall one of the top Clinton advisers writing an op-ed saying that Clinton's actions in Kosovo were justified because the War Powers Act was "wrongheaded or obsolete." Rather, President Clinton asserted that his actions in Kosovo were consistent with the War Powers Act, and in the alternative that the War Powers Act is unconstitutional (a position that every President before him took).
9.17.2006 8:57pm
Dilan Esper (mail) (www):
I think Lederman's position is way too solicitous of the desires of Presidents to violate the law.

If Congress sends the President an unconstitutional law, he has an obligation to take care that the laws are faithfully executed by vetoing it.

If Congress passes the law over the President's veto, the President should bring a court case challenging it and should obey the decisions of the courts.

If Congress passes a generally constitutional law and the President, after signing it, realizes that it may be unconstitutional as applied to a particular situation, the President should, again, bring a court challenge.

In no situation does the President have the power or the right to disobey laws that pass the two houses of Congress and are signed by the President, passed into law without Presidential signature, or passed over a Presidential veto.
9.17.2006 8:58pm
Greedy Clerk (mail):
Tom Holsinger -- the fact that you are using big words does not mean that what you are saying is not mumbo-jumbo. See also Marty Peretz.
9.17.2006 8:58pm
Tom Holsinger (mail):
I love the distinction some are drawing between a President refusing to enforce a statute on the grounds that it is unconstitutional vs. that it is wrong-headed and obsolete. Lots of statutes are violated, aka ignored, because they are obsolete. Recent discussions of the technological obsolescence of some parts of FISA come to mind.
9.17.2006 9:03pm
FMS:
Allowing an executive to merely override Congress whenever the President finds appropriate would unquestionably contravene the Founders' desire to prevent a monarchical executive.

Such authority would constitute a second level of veto for which there is no override.
9.17.2006 9:15pm
Justin (mail):
Tom, the difference is being drawn because it matters and is important. But your argument is neither here nor there, and smugness itself is not an argument.

If something like FISA, which was specifically a restriction on Presidential power, is "clearly" obsolete so that nobody would expect the President to follow it, then his ignoring it would be one thing. If he thought it was obsolete, informing Congress and the people of the United States of that point would so be required.

But something that is a constraint on Presidential power does not become obsolete because it becomes inconvenient. Nor can the President rely on this excuse when his hand is caught in the cookie jar, with an original expectation that nobody would find out about his little poops on the Constitution.
9.17.2006 9:20pm
Tom Holsinger (mail):
Justin,

FISA did not envisage mass all-digital electronic communications.

Law is not the real world. It is part of the real world. It is constrained by the real world.

In the context of a President's war powers concerning enemies abroad, politics trumps law.

Most here are stretching legal arguments beyond the plausible boundaries of legal discussions.
9.17.2006 9:26pm
Third Party Beneficiary (mail):
"The general rule is that any two branches of government can gang up on the third. You are spinning wild hypotheticals."

I hardly see how it is a "wild hypothetical". Bush is two-thirds of the way there already -- he has claimed (and exercised) the perogative to unilaterally ignore laws that he deems overly restrictive of his authority and has actively avoided judicial review of that conduct through a variety of means. If the Democrats through some extremely unlikely set of circumstances end up controlling both houses of Congress and, even more unlikely, commence impeachment proceedings against Bush, are you confident that he would actually submit to those proceedings?


"Currently the judicial branch is clearly infringing on the President's war powers."

I'm curious how you find such an infringement "clear". If anything, the judicial branch has been far too craven and deferential to assertions of presidential authority in the context of national security for far too long.
9.17.2006 9:27pm
Tom Holsinger (mail):
Third Party,

Non-citizen enemy combatants captured and held abroad are not protected by the Constitution.
9.17.2006 9:34pm
Andrew J. Lazarus (mail):
I myself find the Second Amendment obsolete, as the framers lived before the invention of truly accurate handguns, telescopic sights, automatic and semi-automatic weapons, and so on. I fully support President Hillary Clinton's announcement that the Second Amendment must henceforth be reinterpreted as referring to cuticle scissors, although even those still may not be carried aboard aircraft.

I don't think Tom Holsinger will be as free with the meaning of "obsolete" in this example, but you never know. </snark>

The idea that the political process invests the Leader of the Nation with the power to trump law is associated with fascist political philosophy. Holsinger seems to have gotten caught in a time-space warp.
9.17.2006 9:42pm
Andrew J. Lazarus (mail):
Non-citizen enemy combatants captured and held abroad are not protected by the Constitution.
The question here is not only about the Constitution, but about whether they are protected by laws enacted and treaties ratified as prescribed by the Constitution. There is a very good case—indeed, a winning case, if you will&mdashthat so-called enemy combatants (which, at the moment, is "anyone that the President calls an enemy combatant") are protected by the Geneva Conventions, the International Convention Against Torture, and the implementing laws thereof (also McCain Amendment, etc.).

What ever happened to Congress's Article One powers, e.g., "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water". Obsolete, I guess.
9.17.2006 9:50pm
Ersatz:
In the context of a President's war powers concerning enemies abroad, politics trumps law.

No. The U.S. Constitution and the due process of the law cannot be sacrificed for political expediency. I am frankly amazed that someone could argue the opposite.
9.17.2006 9:54pm
Third Party Beneficiary (mail):
"Non-citizen enemy combatants captured and held abroad are not protected by the Constitution."

Very true and the SCOTUS hasn't said that they are. Hamdi concerned an American citizen; Rasul concerned non-citizens held within US jurisdiction, i.e., Guantanamo Bay:

By the express terms of its agreements with Cuba, the United States exercises "complete jurisdiction and control" over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. 1903 Lease Agreement, Art. III; 1934 Treaty, Art. III. Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Tr. of Oral Arg. 27. Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship.

Rasul, 542 U.S. 466.
9.17.2006 9:57pm
Greedy Clerk (mail):
Most here are stretching legal arguments beyond the plausible boundaries of legal discussions.

More mumbo-jumbo. . . What the hell does that mean??? People, don't bother with this Tom guy -- he is most probably a left wing dude playing a caricature of a right-winger.
9.17.2006 10:08pm
Tom Holsinger (mail):
Third Party,

You seem to think the Supreme Court is infallible.

A Supreme Court ruling that a statute is Constitutional does not make it so outside the legal sphere.

The McCain-Feingold bill is currently the leading example of this. It flat out violates the First Amendment.

The people of the United States are the ultimate authorities as to what is and is not Constitutional. They can and have bent each of the three branches of the federal government to their will on this.

Slavery used to be Constitutional. Prohibition used to be Constitutional.
9.17.2006 10:08pm
Greedy Clerk (mail):
Andrew -- Congress' Article I powers are just too vague for right-wingers. They all rely on a very clear provision of Article II which nullifies all of Congress's powers during "war", which states in full: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

Clearly that clause, the Commander-in-Chief clause, overrides all of Congress's Article I powers. Every right-winger at National Review Online tells me so. Mark Levin, who some conservative bloggers say should be on the Supreme Court, explains that that clause makes it clear that neither Congress nor the Judiciary should have any say in how the President conducts anything even remotely related to a "war." If they say it, it must be true! I can't wait for a Democratic President to use his/her Article II Commander in Chief powers to confiscate David Kopel's guns.
9.17.2006 10:15pm
Greedy Clerk (mail):
Prohibition used to be Constitutional.

It still is.

You mean to say that Prohibition used to be mandated by the Constitution. Big difference. You have no idea what the big words you are using mean, but hey I am just using trivial distinctions.
9.17.2006 10:17pm
Bruce Hayden (mail) (www):
Not surprisingly, the two sides we have seen on FISA lined up exactly as expected here. Those opposed to the President's actions there are adament that he has to obey all laws, regardless of merit.

From a pragmatic point of view, I would ask, and how are you going to make him do so? It still comes down to impeachment.

Also, since FISA was brought up here, let me point out that this wasn't a law passed over Bush's veto, but rather one signed into law by someone who is now an avowed enemy of his administration. Having to conform to a law passed by the other party, etc. is morally (but maybe not legally) different from having to conform to one passed while in office.

Also, the treaty angle is a bit misleading, as it appears that when a treaty is signed by a president and confirmed by the Senate, it appears to have a super-legal effect. But then, you get into the question of who gets to interpret it. Maybe the Supreme Court. Maybe not.
9.17.2006 10:17pm
Andrew J. Lazarus (mail):
I've had trouble with certain Supreme Court decisions, but between SCOTUS and Tom Holsinger as the arbiter of constitutionality, I'm going with SCOTUS.

Slavery became unconstitutional as a consequence of the Thirteenth Amendment. The authority of Congress to mandate total Prohibition became unconstitutional as a consequence of the Twenty-first Amendment.

If George W. Bush wants a Constitutional Amendment authorizing an executive dictatorship for the duration of the War on Terror (i.e., until hell freezes over), he is welcome to try. It worked for Palpatine. As it is, Bush can't even get members of his own party to withdraw the United States from the Geneva Conventions (by "clarifying" them).
9.17.2006 10:18pm
David M. Nieporent (www):
Justin:
But something that is a constraint on Presidential power does not become obsolete because it becomes inconvenient.
Nor on legislative power. If only liberals would apply the (correct) principle you state to the New Deal and its progeny, instead of prattling about a "living" constitution.


Greedy Clerk:

1. Thomas's dissent in Hamdi had nothing to do with any "unitary executive theory." The fact that the first two words appear briefly does not mean they were the basis for his opinion. His opinion was a separation of powers opinion, not a unitary executive one.
2. Judicial restraint implies that courts presume laws constitutional; a judge does not need to explain why one is. It is up to those who find it unconstitutional to explain why. Calling it "silly" is not failing to determine whether it was unconstitutional.
3. There is certainly no obligation in the "judicial role" which requires that a _dissenting_ judge explain his reasoning. The idea that every justice who dissents must write an opinion explaining it is a rather ahistorical proposition.
4. Given that Thomas in fact did explain his reasoning, and you admit that when you concede that he joined Scalia's dissent, you are simply being dishonest when you claim that he "abdicated" anything. He did not. He fully explained it by joining Scalia.
5. Moreover, he explained it again in his own opinion: "I 'can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy."
9.17.2006 10:22pm
Grover Gardner (mail):
"FISA did not envisage mass all-digital electronic communications."

FISA was updated in October 2001, via the Patriot Act. At that time President Bush stated:

"We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists...This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones."
9.17.2006 10:27pm
Andrew J. Lazarus (mail):
Greedy Clerk, as a nitpick, the 18th Amendment was passed (as I understand it) because Commerce Clause law at the time would not have allowed Congress to prohibit alcoholic beverages within a single state.

I'm at all not sure that would still be true.
9.17.2006 10:28pm
Bruce Hayden (mail) (www):
Also note that the president's oath of office is unique: "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."

Compare this to the one required of everyone else: "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".

No mention in either one of obeying the laws of the country. Also, the president's oath would seem to give him some leeway here, if he believed that he was defending the Constitution by disobeying a law, that would seem within his oath, at least.
9.17.2006 10:29pm
David M. Nieporent (www):
The authority of Congress to mandate total Prohibition became unconstitutional as a consequence of the Twenty-first Amendment.
You would think so -- but since Congress has arrogated to itself the power to prohibit every other drug, it's hard to see why alcohol would be any different; the 21st, after all, merely repeals the 18th -- it doesn't explicitly ban the federal government from prohibiting alcohol.
9.17.2006 10:34pm
Andrew Hyman (mail) (www):
On September 11, 2006 the New York Times published an editorial stating (emphasis added):

The Supreme Court is supposed to strike down laws that are unconstitutional or OTHERWISE FLAWED. Clearly, all nine justices, from across the political spectrum, believe this, since they all regularly vote to strike down laws.


Apparently, Yoo believes that the President can also strike down laws that are merely flawed (i.e. wrongheaded). Now that both the President as well as the Supreme Court are above the law (according to Yoo and the editors of the NY Times respectively), would all you people please stop objecting every time the executive and judicial branches break the law? Get with it, already.
9.17.2006 10:43pm
Grover Gardner (mail):
"Those opposed to the President's actions there are adament that he has to obey all laws, regardless of merit."

Putting aside the "stopped beating your wife yet" spin at the end, the short answer would be yes. Most people seem to think that the notion of a President obeying all laws is a pretty good one.

"From a pragmatic point of view, I would ask, and how are you going to make him do so? It still comes down to impeachment."

Not at all. There's always the Barney option.

"Having to conform to a law passed by the other party, etc. is morally (but maybe not legally) different from having to conform to one passed while in office."

Maybe it would be easier to have two sets of laws, one for Democratics and one for Republicans.
9.17.2006 10:52pm
triticale (mail) (www):
An example more specific to President Clinton would be his failure to see to the carrying out of the provisions of the Theater Missile Defense Act.
9.17.2006 11:18pm
Evelyn Blaine (mail):
Come on, people. Of course there's plenty of authority for the proposition that the executive can ignore outdated or unwise laws in the exercise of his duties. There's Goddard v. Hales, for instance. Black-letter law right there. And what about R. v. Hampden? Or the Five Knights' Case?

Oh, wait ...
9.17.2006 11:25pm
Evelyn Blaine (mail):
Sorry, it's Godden v. Hales.
9.17.2006 11:27pm
Justin (mail):
Andrew,

If you want to take the NY Times out of context, that's fine. But you might get away with it easier if you don't simultaneously give us the context that shows taht the NY Times did not mean what you claim it meant.

Clearly, the NY Times was referring to "otherwise flawed" in a legal, rather than policy-oriented sense.
9.17.2006 11:29pm
Andrew Hyman (mail) (www):
Justin,

You baffle me. I took the NY Times out of context, while simultaneously giving the context?

And, you think that the Supreme Court has power to strike down laws that are somehow legally flawed even though such laws are entirely constitutional?

Unbaffle me if you can.
9.17.2006 11:32pm
M. Lederman (mail):
NOTE to Orin: Please return to orinkerr.com and the land of moderated comments!

Tom writes that President Clinton "ignored the War Powers Act" in Kosovo.

That's wrong. The Clinton Administration did not disclaim the constitutionality of the War Powers Act. (I assume Tom's referring to the 60-day limit.) And the governing OLC opinion at that time (written in 1980, and in effect until John Yoo unilaterally and sub silentio overruled it in 2001) concluded that the WPR was constitutional.

What the Clinton Administration concluded, instead
, was that the May 1999 emergency supplemental appropriation for military operations in Kosovo constituted authorization for continuing hostilities after the expiration of the 60 days under section 5(b) of the War Powers Resolution, i.e., that Congress had authorized the continuing use of the armed forces. See http://www.usdoj.gov/olc/final.htm. Whether that statutory construction was correct continues to be a matter of great dispute. But our office did not assert any power to ignore WPR section 5(b).
9.17.2006 11:33pm
Mark Field (mail):

No mention in either one of obeying the laws of the country. Also, the president's oath would seem to give him some leeway here, if he believed that he was defending the Constitution by disobeying a law, that would seem within his oath, at least.


Article II specifically states that, as one of the President's duties, he shall"take care that the laws be faithfully executed". In general, if he believes a law is unconstitutional, he should ask the courts for such a determination. Bush has, very obviously, refused to do that.
9.17.2006 11:34pm
Medis:
John Yoo has gone way around the bend.

And I am highly amused at the people trying to defend Yoo's claptrap. I particularly liked the argument that because the Presidential Oath merely requires him to faithfully execute his office, and doesn't specifically re-enumerate all of the constitutional duties associated with his office (such as his duty to take care that the laws be faithfully executed), all of those other constitutional duties are rendered optional.

Where do people come up with this stuff?
9.17.2006 11:39pm
Medis:
Andrew,

Suppose the NYT did argue that judges should invalidate "wrongheaded or obsolete legislation" (I haved no idea if they actually argued that, but let's assume arguendo they did).

Would that be any less crazy than John Yoo's argument? Why can't I think they are all nuts?
9.17.2006 11:42pm
Andrew Hyman (mail) (www):
They ARE all nuts, Medis.
9.17.2006 11:43pm
Medis:
BTW, I also found the argument highlighted by frankcross amazing ("Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap.").

For one thing, FISA was in fact revised by the USA-PATRIOT Act. But more generally, based on the advice of John Yoo and others like him, the President has done everything he can to keep Congress from performing these very duties. So, it is highly amusing to be that Yoo now blaims Congress for this failing, and uses it as an excuse for the President acting in this way.
9.17.2006 11:50pm
Andrew J. Lazarus (mail):
Yoo's statement is absurd and follows in the footsteps of something Orin Kerr quoted before, about complete supremacy of the executive branch in wartime.

So, if President Hillary decides that in time of war Bush's tax cuts were "wrongheaded", can she merely direct the IRS to ignore that law?

The mind boggles, both at the original claim, and the foolish attempt to wrap some American vocabulary around the most primitive form of dictatorship.
9.17.2006 11:51pm
Medis:
Andrew H.,

Having now read that NYT editorial, I can say with some confidence I have no idea what they meant by "flawed".

But seriously, what is your point? We now have other people in this very thread endorsing Yoo's ideas, but the fact that Yoo is not alone doesn't mean he is right.
9.17.2006 11:57pm
Andrew Hyman (mail) (www):
Medis,

I never said that the statement by Yoo blockquoted by Orin is right. On the contrary, I said he's as nuts as the New York Times. That's my point.
9.18.2006 12:00am
Humble Law Student (mail):
Let's redefine this argument. I think "most" of us can agree can the President can't just ignore laws that are obselete. Ideally, the President would ask Congress to change or repeal the law in question.

Now to a discussion of what is unconstitutional. Does the "constitutionality" of a law depend solely on the pronouncements of the Supreme Court? If Congress passed a law, which SCOTUS upheld, that removed the President as the commander in chief of the armed forces, is there some notion of "unconstitutionality" that the President could appeal to? Does the Constitution ever have any meaning beyond Supreme Court interpretations (even if directly contrary to the plain text) My example may be a bit extreme, but I'm curious as to the answers.
9.18.2006 12:06am
Grover Gardner (mail):
"It is a bend around which the New York Times has gone too."

Hmmmm.

1) NYT editorial page, used to wrap mullet the next day.

2) Deputy Attorney General who helps write Patriot Act and authors influential memos concerning legality of torture and extent of presidential powers.

To paraphrase a catchy song, which of these things is not like the other?
9.18.2006 12:28am
Andrew Hyman (mail) (www):
Alas, the NYT editorial page is not ONLY used to wrap mullet.
9.18.2006 12:40am
Grover Gardner (mail):
"Alas, the NYT editorial page is not ONLY used to wrap mullet."

So you're saying the two are comparable?
9.18.2006 12:52am
Medis:
Andrew H.,

I still don't see what point you are trying to make.

Humble Law Student,

Suppose the President issued an order tomorrow, telling all of our armed forces in the Middle East to lay down their weapons and surrender themselves to Bin Laden. Could he do that as Commander in Chief?
9.18.2006 1:01am
Andrew Hyman (mail) (www):
Yoo wrote:

[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress....


This was not a very smart thing for a law professor to say, but it was not any worse than what we get from the NYT editorial page, which is, after all, a primary mouthpiece and/or trumpeter for the liberal establishment.

But did Yoo mean that the President can simply ignore wrongheaded or obsolete legislation? Not exactly. Yoo also wrote (in the same article):

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap.


Professor Yoo seems to be primarily advocating a gap-filling role for the president. He also may have had in mind instances when wrongheaded or obsolete legislation begins to impinge upon the President's constitutional powers. Whatever Yoo may have meant, the quote I provided from the Times is an accurate reflection of the liberal establishment's view that the Supreme Court is not limited by the Constitution as to which laws the Court may strike down. The view of the liberal establishment is that the Court should decide what the law should be, and that the Court should create a common law superceding statutory law, and that the Court should not recognize laws that lack what the Court deems a moral basis. That's my take, anyway.
9.18.2006 1:21am
jgshapiro (mail):
If the president can ignore laws that he thinks are wrongheaded, query what the point is of Congress overriding a presidential veto? Why would the framers have given Congress the power to override a veto? No president would veto a bill he found to be "right-headed," therefore according to Yoo, all presidents (and by extension, all executive branch agencies and employees) must have the authority to ignore any law passed over a presidential veto.

And furthermore, all presidents must also be allowed to ignore laws signed by their predecessors with which they disagree -- which laws can be declared either wrongheaded or obsolete (or both).

If you think about it, Yoo's claim is one of stunning arrogance. It means that any president can ignore any law governing any part of government at any time merely by asserting that it is wrongheaded (or obsolete). So why pass laws in the first place, except to govern private conduct? They wouldn't bind any governmental actor anyway.

What is the difference between Yoo's conception of government and a government "of men and not of laws?"
9.18.2006 1:26am
Medis:
Andrew,

So your point is to that this one line in a NYT editorial represents a view held by some monolithic "liberal establishment"?

I guess it was all just political chaff, then. I was confused, because although we have frequently disagreed, usually you have something substantive to contribute to these discussions of important legal matters.

Incidentally, it is an interesting notion of "gap-filling" that allows a President to sua sponte "repeal" existing laws. Seems more like "gap-making" to me.
9.18.2006 1:35am
Lev:

Article II specifically states that, as one of the President's duties, he shall"take care that the laws be faithfully executed". In general, if he believes a law is unconstitutional, he should ask the courts for such a determination.


How would he do that, ask for an advisory opinion?


Now to a discussion of what is unconstitutional. Does the "constitutionality" of a law depend solely on the pronouncements of the Supreme Court? If Congress passed a law, which SCOTUS upheld, that removed the President as the commander in chief of the armed forces, is there some notion of "unconstitutionality" that the President could appeal to? Does the Constitution ever have any meaning beyond Supreme Court interpretations (even if directly contrary to the plain text) My example may be a bit extreme, but I'm curious as to the answers.


Officially, all laws passed by Congress and signed into law by a President are constitutional, unless and until they are ruled unconstitutional by the highest court to hear a case over them, and all Presidential actions are constitutional unless and until they are ruled unconstitutional by the highest court to hear a case over them or by Congress in an impeachment and trial.
9.18.2006 1:39am
Medis:
Lev,

"Officially" in what sense?
9.18.2006 1:41am
Andrew Hyman (mail) (www):
Medis, Professor Kerr was quoting one line in a New York Times op/ed, so I quoted one equally absurd line in a New York Times editorial. Why is Kerr's line substantive, but my line isn't?
9.18.2006 1:41am
Medis:
Andrew,

It is not the line in the editoral which is unsubstantive (although I still have no idea what the NYT was trying to say, so I'm not sure what substance they intended it to have).

Rather, I am suggesting your snark about the "liberal establishment" contributes nothing of substance to our discussion of John Yoo's statement.
9.18.2006 1:45am
Andrew Hyman (mail) (www):
Medis, the NYT was apparently trying to say exactly what people like Justice Kennedy have been saying for years: that the Court should decide what the law should be, that the Court should create a common law superceding statutory law, and that the Court should not recognize laws that lack what the Court deems a moral basis.

Professor Yoo may or may not have a similar message: that the President should decide what the law should be in matters of war, that the President should create a law of war superceding statutory law, and that the President should not recognize laws that lack what he deems consistent with national security. However, I still am not sure what Yoo was trying to say, so I'm not sure what substance he intended his remark to have.
9.18.2006 1:52am
Andrew Hyman (mail) (www):
I meant "consistency" instead of "consistent."
9.18.2006 1:53am
Lev:
Medis

I don't understand your question.

Congress passes a bill, president signs it into law - it is officially constitutional until a court rules it is unconstitutional, and it isn't officially unconstitutional until the highest court to rule on it finally rules that it is unconstitutional.

President takes an act. It is officially constitutional until a court rules it is unconstitutional, and it isn't officially unconstitutional until the highest court to rule on it finally rules that it is unconstitutional, or, alternatively, Congress decides it was unconstititional and makes that official by impeachment and removal from office.

This isn't rocket science.
9.18.2006 2:00am
Medis:
Andrew H.,

I find it fascinating that you got all that out of two words ("otherwise flawed"). Your powers of perception would humble me, except for the fact that you seem to have been confused by all those extra words John Yoo used.

But maybe Yoo's point would have been more clear to you if Yoo had simply written, "The President doesn't have to do what Congress or the courts say if what they say is unconstitutional or otherwise flawed."
9.18.2006 2:01am
Medis:
Lev,

Actually, I really don't know what you mean by your use of the word "officially". It might not be rocket science, but so far I'm not sure what you have in mind.
9.18.2006 2:04am
Andrew Hyman (mail) (www):
Yes, it would have been much more clear. I mean that sincerely. If Yoo had said that, Medis, then it would be crystal clear he was not merely referring to gap-filling or to unconstitutionality.

In other words, if Yoo had said what you suggest, then it would have been celar he was arguing that the President should decide what the law should be in matters of war, that the President should create a law of war superceding statutory law, and that the President should not recognize laws that lack what he deems consistency with national security.

Wouldn't that have been obvious to you, if Yoo had said, "The President doesn't have to do what Congress or the courts say if what they say is unconstitutional or otherwise flawed"?
9.18.2006 2:08am
Medis:
Andrew,

If Yoo had written simply that, I'd have no idea what he meant. Fortunately--for clarity's sake, not the sake of his credibility--Yoo wrote a lot more than that.

But please don't let me distract you from your vital commentary on the "liberal establishment", seeing as how it is oh-so-relevant to this topic.
9.18.2006 2:12am
Andrew J. Lazarus (mail):
I think I've found the historical material that was requested.
9.18.2006 2:22am
Lev:
Medis

Officially - in the law. What other "officially" is there when it comes to constitutionality? The Volokh Conspiracy?
9.18.2006 2:27am
Medis:
By the way, aside from Andrew's tea-leaf-reading, there may indeed be something relevant in that other NYT editorial. It points out that a recent study reported that while the "liberal" Justices more often voted to invalidate state laws, the "conservative" Justices more often voted to invalidate federal laws. Couple that with the recent op-eds from the likes of Professor Yoo and Judge Posner, and it becomes clear that a failure of judges to leave lawmaking to the legislators is not exactly a liberal-only phenomenon.
9.18.2006 2:30am
Andrew Hyman (mail) (www):
Medis, suppose Professor Yoo had said what you suggest: "The President doesn't have to do what Congress or the courts say if what they say is unconstitutional or otherwise flawed." Then, his meaning would have been far more clear than the meaning of the sentence quoted in Professor Kerr's post: "the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress."

In the latter quoted sentence, it's not clear if Yoo is referring merely to checking unconstitutional legislation, and/or filling gaps in gap-riddled legislation. In contrast, the former sentence plainly refers to defying legislation that is constitutional, which is a completely different matter than checking unconstitutional legislation and/or filling gaps in gap-riddled legislation.

This is really a pretty simple point, and I'm surprised you've decided to make a stink about it. We could, of course, examine other things that Yoo has written (as I began to do above), and/or we could examine other things that the "liberal establishment" has written (as I did not begin to do above), but really that's not necessary, is it? So, let's not.
9.18.2006 2:33am
Andrew Hyman (mail) (www):
P.S. Medis, you're fantasizing if you think that voting to invalidate laws necessarily signifies a failure of judges to leave lawmaking to the legislators.
9.18.2006 2:36am
Medis:
Lev,

Sorry, that still isn't clear to me ("officially--in the law").

Maybe you can spell out some of the implications of what you think that means.
9.18.2006 2:37am
Medis:
Andrew,

Your "gap-filling" hypothesis is, frankly, complete nonsense, as I already pointed out above.

You are probably better off sticking with your sophisticated commentary of the "liberal establishment".
9.18.2006 2:40am
Jay Myers:

John Yoo makes the following claim:

[T]he founders intended that wrongheaded or obsolete
legislation and judicial decisions would be checked
by presidential action, just as executive overreaching
is to be checked by the courts and Congress.

Any ideas as to what historical evidence supports this claim?


I certainly can't think of any justification. Wrongheaded or obsolete legislation is still legislation and, aside from exercising the veto, the President is bound by oath and law to dutifully enforce all federal legislation. Besides, according to the living constitution theory only the Supreme Court can undo "wrongheaded or obsolete legislation and judicial decisions" according to whim.
9.18.2006 2:43am
Medis:
Andrew,

By the way, I realize I am giving you an unusually hard time. But I know you are an intelligent person capable of meaningful commentary, and it disappoints me that rather than use that intelligence to critique Yoo, you are instead using it to throw out political chaff, both by trying to deflect the conversation to off-topic complaints about the "liberal establishment", and by arguing that Yoo was somehow being unclear about his central thesis.

Shame on you, Andrew. You are choosing to be a political hack.
9.18.2006 2:43am
Andrew Hyman (mail) (www):
My gap-filling hypothesis was that Professor Yoo seems to be primarily advocating a gap-filling role for the president, when he says the following:

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap.


I cannot imagine any reasonable person reading the last four words of this quote, and concluding that it is "complete nonsense" to suppose that Professor Yoo may be primarily advocating a gap-filling role for the president.
9.18.2006 2:46am
Lev:
Medis

I already did.
9.18.2006 2:47am
Medis:
Andrew,

Your hypothesis is contradicted by that very quote. Yoo refers to Congress "avoiding its duty TO REVAMP OR REPEAL OUTMODED PARTS OF BYGONE LAWS," and then says we have need the executive branch to "fill in THAT GAP."

He is not referring to filling gaps in the legislation, and you darn well know it. He is referring to actually amending or repealing parts of existing laws, and the "gap" is what he feels is Congress failing to do that.

Shame on you, Andrew. You don't need to be this way.
9.18.2006 2:50am
Lev:
THE PRESIDENT AND THE LAW


The New York Times echoes the remark of Mr. Brooks in saying of the President: "But it can scarcely be unlawful for him to perform an act in violation of an unconstitutional law, which is simply no law at all; and until the validity of this law shall have been decided by the Supreme Court the question of the President's guilt or innocence can scarcely be entertained." That is to say, if the President vetoes a bill, and it becomes a law despite the veto, the President may set it aside until the Supreme Court declares it to be valid. Now if the President is not bound by the law, nobody else is; and the Times declares that no law is binding, even if passed by a two-thirds vote of Congress, until the Supreme Court has approved it.
9.18.2006 2:50am
Medis:
Lev,

I'm sorry, but I can't identify any specific implications in your prior posts. And by specific implications, I mean things like: what specific legal rights, obligations, immunities, liabilities, and so on, occur at what points, given what you are claiming?
9.18.2006 2:53am
Medis:
Lev,

That Harper's Editorial is interesting because it indicates there was a debate over the standing of purportedly unconstitutional laws between Harper's and the NYT back in 1868. I'm not sure if it has ever been resolved.

So far, I'm also not sure what support you have for the proposition: "President takes an act. It is officially constitutional until a court rules it is unconstitutional." Nor am I yet sure what that means.
9.18.2006 3:02am
Lev:
Medis

I really don't understand your apparent inability to understand.

When Congress passes a bill and a president signs it into law, is it constitutional? When Congress passed McCain Feingold and BTY signed it into law, was it constitutional?

The answer is yes. As a law properly enacted, it was officially, in the law, constitutional.

When did any part of McCain Feingold become officially, in the law, unconstitutional? Only when its provisions were challenged in court, and held by a court to be unconstitutional, but only to the extent it was held to be unconstitutional, and only to the extent the highest reviewing court held held it to be unconstitutional. Those provisions held to be unconstitutional by the highest reviewing court are, officially, in the law, unconstitional. All other provisions remain, officially, in the law, constitutional because either a-the highest reviewing court said they were, or, b-the provisions having been properly enacted into law were not challenged.

When do any set of acts by a president become officially, in the law, unconstitutional? Only when the acts are challenged in court, and held by a court to be unconstitutional, but only to the extent they are held to be unconstitutional, and only to the extent the highest reviewing court held held them to be unconstitutional. Those acts held to be unconstitutional by the highest reviewing court are, officially, in the law, unconstitional. All other acts remain, officially, in the law, constitutional because either a-the highest reviewing court said they were, or, b-the acts having been performed by the president in his official duties were not challenged, or c-Congress did not impeach, convict, and remove him from office for having performed unconstitutional acts. Choose whatever set of presidential acts you wish, invading Grenada, provoking the Cuban missile crisis, sending tsunami aid to Indonesia.
9.18.2006 3:06am
David M. Nieporent (www):
Mark:
Article II specifically states that, as one of the President's duties, he shall "take care that the laws be faithfully executed".
Indeed. And the Constitution is the highest law; that's the one he first has to make sure is faithfully executed. A law that conflicts with the constitution isn't a law at all, and hence is not encompassed by the provision you quote.
In general, if he believes a law is unconstitutional, he should ask the courts for such a determination.
That may be the prudent thing to do (*), but nothing in the Constitution relegates the presidency to a mere ministerial office. He is not required to blindly enforce a law merely because the courts haven't yet ruled upon it. Laws against (say) flag burning didn't become unconstitutional the days that Johnson and Eichman were handed down; they were always unconstitutional, and hence void ab initio.

(To clarify, I am talking solely of unconstitutional laws here, not "wrongheaded" or "obsolete" ones.)


(*) Although query whether he can actually do that in most cases; except insofar as a law infringes on the power of the executive, does he actually have standing to do so?
9.18.2006 3:08am
Andrew Hyman (mail) (www):
Medis, I already said that Orin's quote from Yoo was "not a very smart thing for a law professor to say," and that it may even have been "nuts" if Yoo was suggesting a presidential power to defy constitutional statutes. That is hardly hackery on my part.

What does seem like hackery, however, is to deny that the "liberal establishment" (e.g. the NY Times) has said things that are at least as idiotic. Is it not idiotic to say that SCOTUS can strike down laws that are constitutional?

As to Yoo's sentences that you most recently mentioned, they are:

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap.


Yoo was nuts if he was suggesting a presidential power to defy constitutional statutes. But, if outmoded laws are inapplicable to contemporary circumstances, then the President most certainly has some power to fill in that gap. By the same token, he has power to defy laws that are so outmoded as to infringe upon his legitimate constitutional powers.

At worst, Yoo is just as nuts as the NY Times.
9.18.2006 3:10am
K Ashford (mail):

Also, the president's oath would seem to give him some leeway here, if he believed that he was defending the Constitution by disobeying a law, that would seem within his oath, at least.


Problem.

The Constitution says (in so many words) that the Constitution (and other laws of the land) are determined by the judicial branch. If the President is to defend the Constitution, then he also has to defend the part of it which says that the courts, not the President, decide what the Constitution means.
9.18.2006 10:08am
Medis:
Andrew,

I'm sorry, but your snark about the "liberal establishment" is just political chaff.

And you keep writing "if Yoo was suggesting . . . ." There is no "if". It is exactly what he is saying.

Lev,

I'm sure you think I am being obstinate, but I honestly don't think you have explained what you mean by "officially, in the law, constitutional" and "officially, in the law, unconstitutional". Again, to explain what you mean, I think you need to specify some particular legal implications.

Maybe a specific hypothetical scenario will help explain what I am looking for. A plaintiff brings a Bivens action against a federal official in a federal district court, alleging the official conducted a search which violated his Fourth Amendment rights. The official responds that at the time, he was acting pursuant to a Presidential order which had not yet been held unconstitutional, although it since has.

In your view, does this official automatically have a valid defense to this Bivens action?

Personally, I think the answer turns out to be far more complicated than your posts seem to suggest (but correct me if I am wrong--like I said, I'm not sure what you mean by "officially, in the law, constitutional"). In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court held that the Attorney General, unlike the President, did not have absolute immunity from suit for alleged violations of Fourth Amendment rights. He did, however, have qualified immunity, which meant that he could only be sued for violating "clearly established" law. But although the Court in that case held that the relevant Fourth Amendment doctrines were not clearly established at the relevant time, it noted:

"We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law."

So, it seems to me that the Court in Mitchell suggested that in certain circumstances, a warrantless search could in fact violate clearly established Fourth Amendment rights, even though no court had yet explicitly held that this particular form of search was unconstitutional. And any official with only qualified immunity could in fact be held liable for conducting such an unconstitutional search.

Which returns me to my question. Suppose the trial court holds that the relevant Fourth Amendment doctrines were in fact clearly established at the relevant time, in that in the trial court's view, there was no legitimate question about the unconstitutionality of the search, even though no court had yet held as much when the search was conducted. On your theory, would the federal official nonetheless have a valid defense to a Bivens action if he was ordered by the President to conduct the search?
9.18.2006 10:19am
AppSocRes (mail):
Didn't Andrew Jackson flout a Supreme Court decision with words to the effect that "Marshall has made his decision now let him enforce it."
9.18.2006 11:30am
Mark Field (mail):
From Lev (12:39 a.m.):


How would he do that, ask for an advisory opinion?


From DMN (2:08 a.m.):


He is not required to blindly enforce a law merely because the courts haven't yet ruled upon it. Laws against (say) flag burning didn't become unconstitutional the days that Johnson and Eichman were handed down; they were always unconstitutional, and hence void ab initio.


2:08 a.m.?!!! Geez, David, what are you doing up at that hour?

I agree with you and Lev that the President's duty to faithfully enforce the laws includes the Constitution. That's why I added my sentence that, in general, he should do so via a test case (and say publicly that he's doing so). Not an advisory opinion -- that seems to be what the Specter bill sets up -- but an actual case. It's usually not hard for the Executive Branch to do that. If that's not possible, as it isn't in political question cases, then Congress and the President can battle it out in the political arena. In no case, however, is it ok to violate laws secretly just because the President thinks they're unconstitutional.
9.18.2006 12:48pm
David M. Nieporent (www):
KAshford, I think your constitution has some different provisions in it than mine does.
9.18.2006 12:58pm
frankcross (mail):
On enforcement, the executive branch commonly does not enforce laws to their fullest extent. If limited resources warrant nonenforcement, a belief in unconstitutionality should.

The issue is more affirmative violations of laws. I think Presidents can do this too, if they believe the laws to be unconstitutional. But it is important that they do so transparently, so that the Congress and courts can weigh in. Otherwise, there is no check or balance and the President is reduced to dictatorial status.
9.18.2006 1:05pm
Eric Rasmusen (mail) (www):
Orin, you asked:

[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.

Any ideas as to what historical evidence supports this claim?

A quick skim over the 110 comments seems to indicate that nobody knows or cares much about history. Maybe I'm wrong too, but I'll point you towards a possibility. Wasn't Yoo's idea the strongly held opinion of Jefferson's Democratic Party? That is, didn't Jefferson, Madison, etc. believe that it was up to the President as well as the Supreme Court to determine Constitutionality? I won't say that I agree with Jefferson on that, but that was the opinion a majority of voters favored around 1802.

As to whether the executive should obey obsolete laws, doesn't almost everybody believe he shouldn't, with the controversy being over whether a given law is obsolete? For years there were sodomy laws that governors didn't enforce, for example. I'm sure sodomy laws aren't even the best example. There no doubt are obsolete laws out there that not even a single person wants enforced, so "by unanimous consent" the executive ignores them.
9.18.2006 1:21pm
Lev:

Medis

I have explained it quite clearly several times, with examples. Perhaps the problem is that what I am saying is too simple and basic for you.

A plaintiff brings a Bivens action against a federal official in a federal district court, alleging the official conducted a search which violated his Fourth Amendment rights. The official responds that at the time, he was acting pursuant to a Presidential order which had not yet been held unconstitutional, although it since has. In your view, does this official automatically have a valid defense to this Bivens action?



That is not the point of my comment. In answer to your question, do you deny that the agent has a valid defense to a Bivens action? Do you deny that the agent may validly assert he was acting within his authority and as, at the time, legally authorized? Do you deny those are valid defenses?


a Presidential order which had not yet been held unconstitutional


As I have said to you many times, a presidential order that has not yet been ruled unconstitutional by the highest reviewing court or determined by Congress in an impeachment and conviction proceeding, is constitutional.


alleging the official conducted a search which violated his Fourth Amendment rights.


As I have said to you many times, an presidential order that has not yet been ruled unconstitutional by the highest reviewing court or determined by Congress in an impeachment and conviction proceeding, is constitutional.


The official responds that at the time, he was acting pursuant to a Presidential order which had not yet been held unconstitutional, although it since has.


At the time, he was acting under a constitutional, officially, in the law, order. The order was constitutional because it was issued by the president in the course of his official duties and pursuant to his constitutional authority as executive, and it had not yet been ruled unconstitional by the highest reviewing court or determined by Congress to be unconstitutional in an impeachment and conviction proceeding.


Which returns me to my question. Suppose the trial court holds that the relevant Fourth Amendment doctrines were in fact clearly established at the relevant time, in that in the trial court's view, there was no legitimate question about the unconstitutionality of the search, even though no court had yet held as much when the search was conducted. On your theory, would the federal official nonetheless have a valid defense to a Bivens action if he was ordered by the President to conduct the search?


There is a saying: you can find a trial court that will rule any way you want on something.

Until the trial court rules, the action is officially, under the law, constitutional, because it had not yet been ruled unconstitutional by the highest reviewing court or determined to be unconstitutional by congress in an impeachment and conviction proceeding.

The only exception is where the same case as presented to your court had already been addressed by some other series of reviewing courts.

The presumption of our system is that bills properly enacted into law by being passed by Congress and signed by President, and actions taken by the Executive, are constitutional. Lawsuits must allege and prove unconstituionality, because the presumption is constitutionality. Officially, under the law. Why you can't seem to "get" this is a mystery to me.
9.18.2006 2:02pm
Lev:
Mark Field


I agree with you and Lev that the President's duty to faithfully enforce the laws includes the Constitution. That's why I added my sentence that, in general, he should do so via a test case (and say publicly that he's doing so). Not an advisory opinion -- that seems to be what the Specter bill sets up -- but an actual case. It's usually not hard for the Executive Branch to do that.


Test case? Who would he file it against? Who would be an actual party with an interest to fight the case? You are asking for a president to file something with a court that requests an advisory opinion.

The "test case" is the president says he is not going to enforce a particular law, say, that requires an EPA rulemaking on wetlands. And then someone with an interest, NRDC, Sierra Club, files a suit to compel compliance with the law. Or, say, he claims that he is following FISA in some areas but not others because of his inherent executive authority, and someone alleging an interest, CAIR, Hitchens, files a lawsuit to compell compliance.
9.18.2006 2:09pm
Mark Field (mail):

Test case? Who would he file it against? Who would be an actual party with an interest to fight the case?


Well, to pick FISA as an obvious example, the Administration could file charges against someone using evidence obtained without compliance with FISA. Even easier, it could seek a FISA warrant based on such evidence and have the FISA court rule on the warrant (JaO has suggested this many times). The courts would then rule on the use of that evidence.

You are asking for a president to file something with a court that requests an advisory opinion.

I'm not asking for that at all. I think, as the example I gave demonstrates, that the Executive's ability to control events creates numerous options for actual lawsuits. As long as the President is open about what he's doing, the odds are high that a court challenge will follow. If there isn't such an opportunity, then I agree that there has to be some other method.
9.18.2006 2:30pm
Just an Observer:
Lev,

In the case of the FISA violations, the route to a test case initiated by DOJ has always been there: The government, which alone has standing in the FISA courts, could file a warrant application based on information from the prior warrantless wiretaps it theorizes out of court to be legal. If that theory were vindicated, the precedent would be established.

In fact, according to reporting in the Washington Post, DOJ has avoided filing such applications because the chief FISA judges warned that the warrantless surveillance would be struck down.

And in third-party civil actions such as you mention, this admistration has fought hammer-and-tong over procedural issues to keep the legal merits from being reached. (So far, it has refused even to brief the legal merits.) If Bush and Gonzales wanted a test case of those merits, it would be much easier to frame the case if the government cooperated. Instead, they adopt the legal strategy of a fugitive.
9.18.2006 2:31pm
Medis:
Lev,

You ask: "Do you deny that the agent may validly assert he was acting within his authority and as, at the time, legally authorized? Do you deny those are valid defenses?"

As a general matter, it is NOT a valid defense to a Bivens action that the official was acting within the scope of his authority, as in fact Mitchell makes clear (that would be absolute immunity, which most federal officials, including cabinet officers, do not have). Rather, if his actions nonetheless violated "clearly established" law (including constitutionally-protected rights), then he is subject to liability in tort. In other words, such officials only have what is known as "qualified immunity".

You also write: "The only exception is where the same case as presented to your court had already been addressed by some other series of reviewing courts."

How do you reconcile that claim with the note from Mitchell I quoted? Recall, the Supreme Court stated: "We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances."

So, the Supreme Court seems to have rejected your view that "the same case" must first have "already been addressed by some other series of reviewing courts." Rather, according to the Supreme Court, it is enough if the constitutional right in question was "clearly established", even if no court has previously applied that constitutional right to an identical case and held an identical action unconstitutional.

Finally, you write: "Lawsuits must allege and prove unconstituionality, because the presumption is constitutionality."

Sure, but of course plaintiff must allege and prove all of the major elements of their case. And my point is just that in the same lawsuit, the plaintiff can prove the unconstitutionality of an official action and then hold that official liable for his or her violation of the constitution, even though no other court had previously held that an identical action was unconstitutional. In that sense, it just seems incorrect to me as a matter of U.S. law to state that such an action is "officially constitutional" until a court holds otherwise, because an official can be held liable for actions taken before any court has explicitly ruled on the constitutionality of those actions.
9.18.2006 2:35pm
eddie (mail):
If there is an unambiguous law, and the president disagrees with it, is anyone seriously arguing that just by virtue of his executive power the president can not merely ignore the law, but actively disobey said law? Can the president impose a tax by executive order, simply because he can? Can any unambiguous part of the Constitution be ignored/actively violated by the president?

Have we lost every pretense that this is a representative constitutional democracy? Have we lost any concept (a conservative concept) of stability in the law. I am stunned by some of the "arguments" being made here by lawyers. If the president as executive can ignore congress, why couldn't a president simply ignore articles of impeachment, especially since having continuity of abolute authority in times of war seems more important than any other concept?
9.18.2006 2:42pm
Andrew Hyman (mail) (www):
Eric Rasmussen,

Some governors do have prosecutorial discretion to ignore what they deem to be obsolete laws. However, I don't know that POTUS should or does have similar power. Here's a quote about it from Ulysses S. Grant in his first inaugural address:

I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.


To his credit, President Bush seems to be taking a similar approach regarding interrogations. He's threatening to simply halt the program, unless Congress spells out the rights and duties of the interrogators.
9.18.2006 2:44pm
Andrew J. Lazarus (mail):
Eric, you surely see a difference between sodomy laws that some states chose not to enforce and the Geneva Conventions, which are so important that armed forces personnel get regular refresher courses in them, don't you? Failure to enforce an allegedly obsolete law is just not the same as declaring that the active law is obsolete after 9/11 and repudiating it.

Even if you could find examples of earlier presidents who failed to enforce laws they felt were unconstitutional, you have to realize that isn't what Yoo argues for. Did Jefferson repudiate a statute because it was "wrongheaded"? I don't think so. Yoo has also made an Article II on steroids (description from Marty Lederman, I think) argument for unencumberable executive authority (i.e., tyranny), but it didn't survive Hamdan.

I also bring to your attention (again) the 1933 German Enabling Act, which does have many of the "In case of emergency, the law is subservient to the Administration" features of the Yoo argument.
9.18.2006 2:48pm
Just an Observer:
Andrew Hyman: To his credit, President Bush seems to be taking a similar approach regarding interrogations. He's threatening to simply halt the program, unless Congress spells out the rights and duties of the interrogators.

As I understand it, "the program" has already been halted because even the malleable OLC lawyers cannot write an opinion saying that it complies with Geneva Common Article 3. Bush has not really asked Congress to "spell out" clarification -- in fact he refuses to specify what practices he seeks to legalize -- but for flexible legislation that allows these harsh interrogations to resume.

Apparently, OLC lawyers secretly and creatively interpreted the 2005 McCain amendment to allow certain harsh techniques, which failed to "shock the conscience" as they construe the term. But even they are unable to stretch the language of Geneva -- forbidding "outrages upon personal dignity" and "cruel treatment" -- to allow such practices as induced hypothermia and forced standing for long periods.
9.18.2006 3:15pm
PubliusFL:
Has Lev discovered the "Zeno's paradox" of constitutional law? The courts cannot invalidate a law unless it is unconstitutional, but a law is constitutional unless it has been invalidated. Therefore, no law is unconstitutional!

As Felix Frankfurter wrote, "the ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it."
9.18.2006 3:15pm
Lev:
Medis


In other words, such officials only have what is known as "qualified immunity".


Which is to say, that until the action is proved unconstitutional in a court, it is constitutional, officially, in the law. If the official has been specifically authorized by the president pursuant to a specific finding to perform the specific act performed, it is not a defense to a Bivens action?

The concept is similar to criminal law and individuals including defendants. Until the state proves their guilt in a court and including the highest court of review, the individual is not guilty of any crime, officially, in the law. If and only if the state proves guilt, then and only then is the individual guilty, officially, in the law.


And my point is just that in the same lawsuit, the plaintiff can prove the unconstitutionality of an official action and then hold that official liable for his or her violation of the constitution, even though no other court had previously held that an identical action was unconstitutional.


Now I think you are being intentionally obtuse. Until the action is proved unconstitutional in a court, i.e. officially, in the law, it is constitutional, officially, in the law.
9.19.2006 1:29am
Lev:
Mark Field


Test case? Who would he file it against? Who would be an actual party with an interest to fight the case?


Well, to pick FISA as an obvious example, the Administration could file charges against someone using evidence obtained without compliance with FISA.

We have different views of "test case." What you describe is, to me, an actual case, as in your:

I think, as the example I gave demonstrates, that the Executive's ability to control events creates numerous options for actual lawsuits.

And actual lawsuits do not involve advisory opinions.

Just an Observer

See above.

A "test case" is not, to me, a case in which the validity of a legal viewpoint or statute is tested by adversaries advancing or defending their own stakes in the litigation. Such a case is actual litigation, actual lawsuits.

A "test case" is, to me, a case ponied up by the collusion of plaintiff and defendant in which both have the same aim or goal for the outcome of the litigation and they have no actual adverse interest leading to an actual "fight" in court, an actual case or controversy.

I acknowledge that some actual litigation cases are carefully selected to test a legal position and for that reason are called "test cases", e.g. some of the death penalty cases and civil rights cases. But in each case there are actual litigants with opposing interests.
9.19.2006 1:40am
Lev:
eddie


If there is an unambiguous law, and the president disagrees with it, is anyone seriously arguing that just by virtue of his executive power the president can not merely ignore the law, but actively disobey said law? Can the president impose a tax by executive order, simply because he can? Can any unambiguous part of the Constitution be ignored/actively violated by the president?


I am not sure how to break this to you, but the answer to your questions is: the president can certainly try to do those things. The ultimate questions are two: 1.if the courts say he can't, will he not, and 2. will Congress let him or impeach and convict him?

You can apply the same type of question to, say, the Supreme Court. Can they ignore the unambiguous Constitution etc. etc. The answer is, yes. The question then is, will Congress allow them to.

The Constitution has, it seems to me, built in to it a whole lot of faith in self-restraint. Sure there are checks and balances by the separation of powers, but there is a whole lot of expectation of self restraint built in.
9.19.2006 1:51am
Lev:
PubliusFL

There is no paradox. Properly restating your surmise:


The courts cannot invalidate a law unless it is unconstitutional, but a law is constitutional unless it has been invalidated. Therefore, no law is unconstitutional until a court has invalidated it!


Stating the premise more correctly:


The courts should not invalidate a law unless it is unconstitutional, but a law is constitutional unless it has been invalidated. Therefore, no law is unconstitutional until a court has invalidated it!
9.19.2006 1:55am
Medis:
Lev,

Honestly, I still can't figure out what you are saying.

You seem to be saying your point is demonstrated by the fact that a plaintiff in a constitutional tort case has to prove all the elements of his claim in order to win a lawsuit (which, as I noted above, is not unique to constitutional tort cases). But if a plaintiff can prove that an action which happened before the case was brought was unconstitutional, even though no court had yet spoken on an identical action at the time of the action, then I see no meaning to your claim that the action was "officially constitutional" until the plaintiff proved his case.

Indeed, I think the criminal example is quite telling. It is also true that in a criminal prosecution, the government has to prove that the defendant committed all of the elements of a crime. But I don't think we would say that "offically" no crime was committed until the government proved its case. Rather, the crime had already occurred before the case was brought. Indeed, I think we would say that the crime occurred even if the government never prosecuted the crime--say because they couldn't identify the person responsible.

So, similarly, I think we would say in a constitutional tort case that the constitutional tort had already occurred, even though it had yet to be proved. Indeed, we can imagine a similar scenario in which the victim of the tort can't identify the person who committed the tort, so can't bring a lawsuit. But I don't think we would say that means no constitutional tort had occurred.

But anyway, I think we are going in circles at this point. I'm still not sure what you mean, but as yet you haven't identified any special implications which attach to your claims. So, I am pretty confident this is just semantics.
9.19.2006 7:57am
PubliusFL:
Lev,

Alright then, we'll use your phrasing:

"The courts should not invalidate a law unless it is unconstitutional, but a law is constitutional unless it has been invalidated. Therefore, no law is unconstitutional until a court has invalidated it!"

You say "a law is constitutional unless it has been invalidated," and you say "the courts should not invalidate a law unless it is unconstitutional." It follows from these premises, therefore, that the courts should never invalidate laws.
9.19.2006 8:53am
Just an Observer:
Lev,

You seem to define-away "test case" to mean advisory opinions, which of course can't happen. But the scenarios I described all involve actual litigants with actual facts.

In criminal cases or third-party civil cases, that is obvious from the outset. Of course, standing remains a requirement. DOJ still could help identify civil plaintiffs or criminal defendants, facts could be stipulated, and privileges waived in order to facilitate a test of the government's legal theory.

In the FISA warrant example, DOJ has standing before the court, and denial of such a warrant creates a case for review by the higher courts. That's how In Re: Sealed Case came to be -- the lower FISA court refused to grant the warrant sought without strings attached, and the case was appealed. The Foreign Intelligence Surveillance Court of Review did invite third parties such as the ACLU to argue against the government on appeal of the legal questions presented.

In the scenario I described, if the lower FISA court refused to grant the warrant because it found the supporting application to be tainted by the warrantless surveillance, that action would be appealed to the higher court of review. That court's action, in turn, would be reviewable by the Supreme Court. All of this can occur under existing law and the courts' existing jurisdiction.

In general, it is quite appropriate for the government to facilitate test cases with actual facts. If the President does think a law is unconstitutional, it may be that the only way to test that theory is to defy the law, thus creating the controversy for the courts to resolve.
(See the OLC opinion: PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES.

However, what Bush is doing with FISA is to violate the law on its face while suggesting out of court that FISA is unconstitutional, but avoiding judicial review of that question.

It may be that the adminstration never will raise the same constitutional theory it espouses in press releases in a real court, fearing an ulitmate loss on the question. So far, in the actual cases before the courts, DOJ has stubbornly refused to brief those merits. In ACLU v NSA, Judge Taylor said the government merely "suggested" that FISA is unconstitutional, and thus did not rule on the question. In the parallel case of CCR v Bush, Judge Lynch energetically pressed DOJ on these questions in oral argument, and his actions remain to be determined.
9.19.2006 9:44am
Mark Field (mail):
Lev, I'm not going to quibble about terms. By "test case", I meant an actual case. That's how I understand the term. I assume, that having been cleared up, we agree.
9.19.2006 1:05pm
Medis:
By the way, people in the legal community, including the government, use that same sense of "test case" all the time.
9.19.2006 1:19pm
raj (mail):
PubliusFL

Has Lev discovered the "Zeno's paradox" of constitutional law? The courts cannot invalidate a law unless it is unconstitutional, but a law is constitutional unless it has been invalidated. Therefore, no law is unconstitutional! (Emphasis added)

I believe that the bolded part is incorrect. A law is deemed to be constitutional until the courts have held it to be unconstitutional. Hence, there is no paradox.
9.19.2006 3:35pm
Medis:
raj,

"Deemed" by whom, and for what purpose?
9.19.2006 3:40pm
EricRasmusen (mail) (www):
I am really disheartened that people in con law don't know more of its history. Or perhaps the people commenting here are not students of con law (it's ok not to be-- I'm not either). But this ignorance is, I think, part of the reason why people don't find our present Supreme Court jurisprudence bizarre. Please note the example of Jefferson and Madison writing that a statute passed by Congress, executed by the Presdient, and enforced by the courts was nonetheless unconstitutional and void:

http://www.bartleby.com/65/ke/KentuckyNV.html

Kentucky and Virginia Resolutions


in U.S. history, resolutions passed in opposition to the Alien and Sedition Acts, which were enacted by the Federalists in 1798. The Jeffersonian Republicans first replied in the Kentucky Resolutions, adopted by the Kentucky legislature in Nov., 1798. Written by Thomas Jefferson himself, they were a severe attack on the Federalists' broad interpretation of the Constitution, which would have extended the powers of the national government over the states. The resolutions declared that the Constitution merely established a compact between the states and that the federal government had no right to exercise powers not specifically delegated to it under the terms of the compact; should the federal government assume such powers, its acts under them would be unauthoritative and therefore void. It was the right of the states and not the federal government to decide as to the constitutionality of such acts. A further resolution, adopted in Feb., 1799, provided a means by which the states could enforce their decisions by formal nullification of the objectionable laws. A similar set of resolutions was adopted in Virginia in Dec., 1798, but these Virginia Resolutions, written by James Madison, were a somewhat milder expression of the strict construction of the Constitution and the compact theory of the Union.
9.19.2006 10:10pm
Andrew Hyman (mail) (www):
Eric, the quote that Orin provided in his post has Yoo saying this:

[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.


Yoo wasn't necessarily talking about legislation or judicial decisions that are unconstitutional. He was talking about legislation or judicial decisions that are merely "wrongheaded." It is not always true that wrongheaded=unconstitutional. You are entirely correct that there is quite a bit of historical justification for a president to disregard a statute that is unconstitutional, even if the courts and Congress disagree with the president. But that historical justification does not apply to statutes that are merely wrongheaded.
9.19.2006 11:25pm
Mark Field (mail):
Eric, I think we're all familiar with that history. The thing is, though, that the mere say-so of Jefferson and Madison didn't (and doesn't) make something unconstitutional. Consider, for example, the replies of Rhode Island and New Hampshire to the VA and KY Resolutions:

"That, in the opinion of this (RI) legislature, the
second section of the third article of the Constitution of
the United States, in these words, to wit—"The judicial
power shall extend to all cases arising under the laws of the United States"—vests in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.
2. Resolved, That for any state legislature to assume that
authority would be—
1st. Blending together legislative and judicial powers;
2nd. Hazarding an interruption of the peace of the
states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort for vindicating its own opinions but the strength of its own arm;
3rd. Submitting most important questions of law to
less competent tribunals; and,
4th. An infraction of the Constitution of the United
States, expressed in plain terms.
3. Resolved, That although, for the above reasons, this
legislature, in their public capacity, do not feel themselves authorized to consider and decide on the constitutionality of the Sedition and Alien Laws (so called), yet they are called upon by the exigency of this occasion to declare that, in their private opinions, these laws are within the powers delegated to Congress, and promotive of the welfare of the United States."

NH:
"That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department.
That if the legislature of New Hampshire, for mere
speculative purposes, were to express an opinion on the
acts of the general government commonly called "the
Alien and Sedition Bills," that opinion would unreservedly
be that those acts are constitutional and, in the present
critical situation of our country, highly expedient."

Our present SCOTUS jurisprudence is not bizarre at all.
9.19.2006 11:54pm
Lev:
Medis



Honestly, I still can't figure out what you are saying.


Uh huh. Duly noted.


PubliusFL



You say "a law is constitutional unless it has been invalidated," and you say "the courts should not invalidate a law unless it is unconstitutional." It follows from these premises, therefore, that the courts should never invalidate laws unless they are unconstitutional.



Just an Observer

Mark Field


Yeah, in thinking about it later, I expected someone would make similar points. Let me just say that when the question of test case first came up above, it seemed to me from the context it was a ponied up thing, which is why I made the comments I did.

An actual case or controversy "test case" could indeed be "brought" by the DoJ without an adversary in the FISA process, or alternatively the "adversary" is the decision of the FISA court being appealed.

I retract my "test case" comments to the extent they are inconsistent with this and your comments.


However, what Bush is doing with FISA is to violate the law on its face while suggesting out of court that FISA is unconstitutional, but avoiding judicial review of that question.


Assuming for the sake of argument he is violating FISA, he is doing what you say, which means someone else has to sue to stop it.


raj


You can use whatever word you like, deemed, presumed, is, but unless a court says it is unconstitutional, it is constitutional. If someone feels it is unconstitutional, they must go to court and prove it unconstitutional.
9.20.2006 12:44am
Lev:
EricRasmusen

Being completely and totally ignorant of history, it appears to me those resolutions appear to be attempts to convert the constitutional government back into the confederation government.
9.20.2006 12:48am