Signing Statements

Too early to tell, but President Obama has issued four signing statements by May 20th. President Bush only had one by this time on his first term. He didn't have four until July 30th.

well they grilled bush for doing it so obama better watch it.

On what bills, and what do they say, WC?

There's nothing wrong with a signing statement per se. Using them as the equivalent of a line item veto was the Bush novelty that drew such lusty complaints.

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Originally Posted by winehole23

on what bills, and what do they say, wc?

There's nothing wrong with a signing statement per se. Using them as the equivalent of a line item veto was the bush novelty that drew such lusty complaints.

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+1

Although, I would not be surprised in the least if Obama took up Bush's idea that the signing statement was something where he said how he would interpret the law, even meaning he might just not follow it if he deemed it necessary.

For all the differences between Obama and Bush, love of executive power and secrecy is CERTAINLY not one of them.

+1

Is anyone surprised? Presidential powers have expanded repeatedly since the formation of our nation, most often at times of danger for our country (Lincoln, FDR, Bush to mention a few). Not often do our Presidents release the power that their predecessor got. I would expect this pattern to continue for all eternity until Congress and Supreme Court just don't matter at all.

news flash: the President never had to use a line item veto or signing statement or whatever to get his point across.

He could just use his discretion to not fund/do whatever he wanted anyway.

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Originally Posted by angrydude

news flash: the President never had to use a line item veto or signing statement or whatever to get his point across.

He could just use his discretion to not fund/do whatever he wanted anyway.

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Not true.

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Originally Posted by Wild Cobra

Too early to tell, but President Obama has issued four signing statements by May 20th. President Bush only had one by this time on his first term. He didn't have four until July 30th.

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how many do you think Gore would have had by this time had he been elected instead of W?

why is this an issue for you?

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Originally Posted by sam1617

Is anyone surprised? Presidential powers have expanded repeatedly since the formation of our nation, most often at times of danger for our country (Lincoln, FDR, Bush to mention a few). Not often do our Presidents release the power that their predecessor got. I would expect this pattern to continue for all eternity until Congress and Supreme Court just don't matter at all.

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Throughout the Bush Administration, that was my point about some of the arguments made by pro-Bush posters who were unalarmed by the extraordinary scope of executive power wielded by that administration. It's all fine and dandy when it's someone you like, but it's a bit harder to stomach when it's someone you oppose.

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Originally Posted by Blake

how many do you think Gore would have had by this time had he been elected instead of W?

why is this an issue for you?

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i don't even want to think about if gore had been elected.

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Originally Posted by FromWayDowntown

Throughout the Bush Administration, that was my point about some of the arguments made by pro-Bush posters who were unalarmed by the extraordinary scope of executive power wielded by that administration. It's all fine and dandy when it's someone you like, but it's a bit harder to stomach when it's someone you oppose.

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Yeah, to me, the biggest disappointment of the George W Bush era to me is not anything to do with foreign policy, economic policy or anything like that. Its that when the Republicans has a good chance to shrink the federal government's power, they didn't instead they expanded it. It is damn frustrating. Its also the reason I have a new political theory, as long as there is a Democratic president, Republicans need to heavily control Congress, and whenever a Republican is President the opposing party should control Congress. As long as no one can do anything, America (and the world) wins.

dubya ended up signing 100s of them, most of which said he wouldn't enforce the legislation, rather than simple qualifications or other notations.

dubya is documented as serial abuser of signing statements, basically in line with dickhead's idea that the Exec is the primary power, not to be held in check by the legislature or the courts.

As Conny said a couple weeks ago, if dubya did it something, it was by definition a priori legal. L'etat, c'est moi, is how French kings expressed it.

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Originally Posted by wild cobra

too early to tell

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+1

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Originally Posted by FromWayDowntown

Throughout the Bush Administration, that was my point about some of the arguments made by pro-Bush posters who were unalarmed by the extraordinary scope of executive power wielded by that administration. It's all fine and dandy when it's someone you like, but it's a bit harder to stomach when it's someone you oppose.

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Bingo.

That's why small government is the only answer.

Obama will not be King of Americant forever. The pendulum WILL swing back to neocons eventually.

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Originally Posted by FaithInOne

Bingo.

That's why small government is the only answer.

Obama will not be King of Americant forever. The pendulum WILL swing back to neocons eventually.

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Are you implying that neocons weren't in favor of Executive power?

Technically, the pendulum swinging back would imply there might be a Pres who actually REDUCES exec power someday.

For whatever it's worth, what follows are the complete texts of each of President Obama's signing statements:

1. AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (2/17/09)

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Originally Posted by 2/17/09 Signing Statement

Today I have signed into law H.R. 1, the "American Recovery and Reinvestment Act of 2009." The Act provides a direct fiscal boost to help lift our Nation from the greatest economic crisis in our lifetimes and lay the foundation for further growth. This recovery plan will help to save or create as many as three to four million jobs by the end of 2010, the vast majority of them in the private sector. It will make the most significant investment in America's roads, bridges, mass transit, and other infrastructure since the construction of the interstate highway system. It will make investments to foster reform in education, double renewable energy while fostering efficiency in the use of our energy, and improve quality while bringing down costs in healthcare. Middle-class families will get tax cuts and the most vulnerable will get the largest increase in assistance in decades.

The situation we face could not be more serious. We have inherited an economic crisis as deep and as dire as any since the Great Depression. Economists from across the spectrum have warned that failure to act quickly would lead to the disappearance of millions of more jobs and national unemployment rates that could be in the double digits. I want to thank the Congress for coming together around this hard-fought compromise. No one policy or program will solve the challenges we face right now, nor will this crisis recede in a short period of time. However, with this Act we begin the process of restoring the economy and making America a stronger and more prosperous Nation.

My Administration will initiate new, far-reaching measures to help ensure that every dollar spent in this historic legislation is spent wisely and for its intended purpose. The Federal Government will be held to new standards of transparency and accountability. The legislation includes no earmarks. An oversight board will be charged with monitoring our progress as part of an unprecedented effort to root out waste and inefficiency. This board will be advised by experts—not just Government experts, not just politicians, but also citizens with years of expertise in management, economics, and accounting.

So much depends on what we do at this moment. This is not about the future of my Administration. This effort is about the future of our families and communities, our economy and our country. We are going to move forward carefully and transparently and as effectively as possible because so much is on the line. That is what we have already begun to do—drafting this plan with a level of openness for which the American people have asked and that this situation demands.

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2. OMNIBUS APPROPRIATIONS ACT OF 2009 (3/11/09)

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Originally Posted by 3/11/09 Signing Statement

Today I have signed into law H.R. 1105, the "Omnibus Appropriations Act, 2009." This bill completes the work of last year by providing the funding necessary for the smooth operation of our Nation's Government.

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

* Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

* United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

* Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

* Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

* Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

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3. OMNIBUS PUBLIC LAND MANAGEMENT ACT OF 2009 (3/30/09)

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Originally Posted by 3/30/09 Signing Statement

Today I have signed into law H.R. 146, the "Omnibus Public Land Management Act of 2009." This landmark bill will protect millions of acres of Federal land as wilderness, protect more than 1,000 miles of rivers through the National Wild and Scenic River System, and designate thousands of miles of trails for the National Trails System. It also will authorize the 26 million-acre National Landscape Conservation System within the Department of the Interior.

Among other provisions, H.R. 146 designates three new units in our National Park System, enlarges the boundaries of several existing parks, and designates a number of National Heritage Areas. It creates a new national monument -- the Prehistoric Trackways National Monument –- and four new national conservation areas, and establishes the Wyoming Range Withdrawal Area. It establishes a collaborative landscape-scale restoration program with a goal of reducing the risk of wildfire and authorizes programs to study and research the effects of climate change on natural resources and other research-related activities.

Treasured places from coast to coast will benefit from H.R. 146, including Pictured Rocks National Lakeshore in Michigan; Monongahela National Forest in West Virginia; Oregon's Mount Hood; Idaho's Owyhee Canyons; the Rocky Mountain National Park in Colorado; Zion National Park in Utah; remarkable landscapes in the Sierra Nevada Mountains of California; and wilderness-quality National Forest lands in Virginia and public lands in New Mexico.

This bipartisan bill has been many years in the making, and is one of the most important pieces of natural resource legislation in decades. This legislation also makes progress for which millions of Americans have long waited on another front. The Christopher and Dana Reeve Paralysis Act is the first piece of comprehensive legislation aimed at improving the lives of Americans living with paralysis. It creates new coordinated research activities through the National Institutes of Health that will connect the best minds and best practices from the best labs across the country, and focus their efforts through collaborative scientific research into a cure for paralysis, saving effort, money, and, most importantly, time. It will promote enhanced rehabilitation services for paralyzed Americans, helping develop better equipment and technology that allows them to live full and independent lives free from unnecessary barriers. This legislation will work to improve the quality of life for all those who live with paralysis, no matter the cause.

Section 8203 of the Act provides that the Secretary of the Interior shall appoint certain members of the Erie Canalway National Heritage Corridor Commission "based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor." Because it would be an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission.

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4. FRAUD ENFORCEMENT AND RECOVERY ACT OF 2009 (5/20/09)

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Originally Posted by 5/20/09 Signing Statement

Today I have signed into law S. 386, the "Fraud Enforcement and Recovery Act of 2009." This Act provides Federal investigators and prosecutors with significant new criminal and civil tools to assist in holding accountable those who have committed financial fraud. These legislative enhancements will help the Department of Justice to combat mortgage fraud, securities and commodities fraud, and related offenses, and to protect taxpayer money that has been expended on recent economic stimulus and rescue packages. With the tools that the Act provides, the Department of Justice and others will be better equipped to address the challenges that face the Nation in difficult economic times and to do their part to help the Nation respond to this challenge.

Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.

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5. CREATION OF RONALD REAGAN CENTENNIAL COMMISSION (6/2/09)

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Originally Posted by 6/2/09 Signing Statement

Today I am pleased today to sign into law, H.R. 131, which will create a Ronald Reagan Centennial Commission with the responsibility to plan, develop, and carry out activities to honor Ronald Reagan on the 100th anniversary of his birth. It is fitting that the life of our 40th President be commemorated on this occasion. The bill provides that the Commission will be composed of the Secretary of the Interior, four individuals whom I will appoint after considering the recommendations of the Board of Trustees of the Ronald Reagan Foundation, and six members of Congress appointed by the congressional leadership. I wholeheartedly welcome the participation of members of Congress in the activities of the Commission. In accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390).

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great read, fwd.

now, why are people bitching?

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Originally Posted by Winehole23

On what bills, and what do they say, WC?

There's nothing wrong with a signing statement per se. Using them as the equivalent of a line item veto was the Bush novelty that drew such lusty complaints.

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Saying you will carry out a law so far as it doesn't infringe on your Article II powers as President, which was the gist of most of Bush's signing statements, is not the equivalent of a line-item veto.

In the first one, he talks about transparancy that hasn't happened. No big deal, we all knew he lied.

In the second one, he effectively has five line item vetoes(by the libtard use of the phrase):

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Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

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United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

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Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

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Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

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I might go over the third and fourth later, but this is the same type of thing you dimwitcrats cried about President Bush doing.

Think about your hypocrisy.

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Originally Posted by boutons_deux

dubya ended up signing 100s of them, most of which said he wouldn't enforce the legislation, rather than simple qualifications or other notations.

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159 signing statements is hardly "100's." you must be thinking of president Clinton. He made 381 signing statements.

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Originally Posted by boutons_deux

dubya is documented as serial abuser of signing statements, basically in line with dickhead's idea that the Exec is the primary power, not to be held in check by the legislature or the courts.

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Does that apply to President Clinton as well then? Since when, is stating in writing, that a president will not yield his authority, an abuse?

What memo did I miss?

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Originally Posted by boutons_deux

As Conny said a couple weeks ago, if dubya did it something, it was by definition a priori legal. L'etat, c'est moi, is how French kings expressed it.

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Actually, the ones that challenged the law were the ones that congress was imposing upon the Executive branch, which they cannot do because of the separation of powers. They were in essence saying the executive branch cannot be told by congress what to do. In reality, that's all President Obama has done as well. I applaud him for not giving in to congress. I only wish you liberals could be as respectful to President Bush for doing the same thing. I must question the lack of intelligence the congress has in trying to impose on the executive... Calling it a "priori" is being nice, rather than calling congress incompetent.

President Bush's 159 signing statements

President Obama's 5 (and growing) signing statements

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Originally Posted by Winehole23

On what bills, and what do they say, WC?

There's nothing wrong with a signing statement per se. Using them as the equivalent of a line item veto was the Bush novelty that drew such lusty complaints.

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Find your favorite news attack on his signing statement, then go to the link I just posted, and read the signing statement for the date indicated.

I'll bet is was nothing more than saying he would not give up the executive power because congress cannot override his powers.

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Originally Posted by Yonivore

Saying you will carry out a law so far as it doesn't infringe on your Article II powers as President, which was the gist of most of Bush's signing statements, is not the equivalent of a line-item veto.

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If a law interferes with a President's Article II powers, he does not have the right to wholesale ignore it. He has to challenge it through court. That's why we have a judiciary branch!

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Originally Posted by Wild Cobra

Find your favorite news attack on his signing statement, then go to the link I just posted, and read the signing statement for the date indicated.

I'll bet is was nothing more than saying he would not give up the executive power because congress cannot override his powers.

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Why is there this belief that Congress can not write laws that puts checks on a President?

The only precedent for this sort of thinking is Andrew Jackson, and Abraham Lincoln. At least Lincoln's was during a time of war.

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Originally Posted by LnGrrrR

Why is there this belief that Congress can not write laws that puts checks on a President?

The only precedent for this sort of thinking is Andrew Jackson, and Abraham Lincoln. At least Lincoln's was during a time of war.

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I think the belief is that Congress, pursuant to their Article I power to make law, can't make one that supercedes or negates or otherwise make impotent, an Article II power of the Executive.

That's the thinking. Changes to the Constitution are to be done in a certain manner; by amendment and ratified by the States. Congress can't just pass a law that puts an unconstitutional check on the executive.

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Originally Posted by Yonivore

I think the belief is that Congress, pursuant to their Article I power to make law, can't make one that supercedes or negates or otherwise make impotent, an Article II power of the Executive.

That's the thinking. Changes to the Constitution are to be done in a certain manner; by amendment and ratified by the States. Congress can't just pass a law that puts an unconstitutional check on the executive.

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They certainly can. And the avenue the President must pursue if he believes such law is trumping his constitutional powers is to challenge it on a court of law (this would be the case when his veto power is superseded by a supermajority by congress). The reason a congressional supermajority that overrides the executive veto exists is for this exact reason.
We have a branch of the government that interprets the law, and checks for constitutional boundaries. It's called the Judiciary branch, not the Executive.
That's why passing laws like retroactive immunity is cheating on the system.

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Originally Posted by Yonivore

That's the thinking. Changes to the Constitution are to be done in a certain manner; by amendment and ratified by the States. Congress can't just pass a law that puts an unconstitutional check on the executive.

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Agreed. But the PRESIDENT doesn't get to decide if the law is unconstitutional or not; that's the point of the judiciary branch. The judiciary branch determines not only how the law works, but whether a law is constitutional or not.

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Originally Posted by ElNono

They certainly can. And the avenue the President must pursue if he believes such law is trumping his constitutional powers is to challenge it on a court of law (this would be the case when his veto power is superseded by a supermajority by congress).

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No, he can just ignore it and force them to take him to court. He's not obligated to give up an Article II power until the courts sort it out. In fact, he and the Congress both took an oath to uphold the constitution.

The Congress can seek judicial relief, in the form of an injunction, but, beyond that, the President is under no obligation to blindly follow a law he believes to be unconstitutional while it works it way through the court system.

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Originally Posted by ElNono

The reason a congressional supermajority that overrides the executive veto exists is for this exact reason.

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Well, the rules for vetoes and for overiding that veto are spelled out in the Constitution.

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Originally Posted by ElNono

We have a branch of the government that interprets the law, and checks for constitutional boundaries. It's called the Judiciary branch, not the Executive.

That's why passing laws like retroactive immunity is cheating on the system.

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And, that's where Congress would take their case if they believed the president were not faithfully executing either the law or his Article II responsibilities.

Sorry, the president is under no obligation to adhere to a crappy law. That's what the courts are for. Congress can sue him....and, on occasion, have. But, usually, they just call a bunch of meaningless hearings until they've bloviated it out of their collective system.

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Originally Posted by Yonivore

The Congress can seek judicial relief, in the form of an injunction, but, beyond that, the President is under no obligation to blindly follow a law he believes to be unconstitutional while it works it way through the court system.

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Yes, this is obviously somewhat of a gray area. I agree that it's not inconceivable to think that the President could get away with this. I wouldn't be half as annoyed if a large majority of Congress weren't executive loving wimps.

Per our system of government, the President should comply with the law until it's overturned. However, in the real world, your example would hold true.

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Originally Posted by Yonivore

No, he can just ignore it and force them to take him to court. He's not obligated to give up an Article II power until the courts sort it out. In fact, he and the Congress both took an oath to uphold the constitution.

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This is already contemplated in the Judicial system. It's called an order of stay. All the president has to do is ask the judge to grant that order. Judges normally do in these matters.

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Originally Posted by Yonivore

The Congress can seek judicial relief, in the form of an injunction, but, beyond that, the President is under no obligation to blindly follow a law he believes to be unconstitutional while it works it way through the court system.

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Of course Congress can seek judicial relief. Or they can simply choose to impeach the president and take matters in their own hands.

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Originally Posted by Yonivore

Well, the rules for vetoes and for overiding that veto are spelled out in the Constitution.

And, that's where Congress would take their case if they believed the president were not faithfully executing either the law or his Article II responsibilities.

Sorry, the president is under no obligation to adhere to a crappy law. That's what the courts are for. Congress can sue him....and, on occasion, have. But, usually, they just call a bunch of meaningless hearings until they've bloviated it out of their collective system.

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According to the Constitution he swore to uphold, yes he is under obligation to adhere to the law, crappy or not. He always has the option to veto if the law didn't enjoy a supermajority, which is his right.
But under a supermajority case, he has a way through the Judicial system to repel any laws he doesn't agree with. And that's the proper way to do things.
Intentionally ignoring and violating a law he doesn't agree with, without challenging it in court is a crime.

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Originally Posted by ElNono

According to the Constitution he swore to uphold, yes he is under obligation to adhere to the law, crappy or not.

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The President swears that he or she will "preserve, protect, and defend the Constitution." Art. II, s. 1, cl. 8. I'm not sure that such an oath necessarily means that the President is compelled to adhere to laws (or parts thereof) that are deemed facially unconstitutional.

In fact, I'd think that the manifest problem wtih saying that the President has a threshold obligation to challenge a law through the courts is that in most instances, there will not be an actual case or controversy to frame the dispute. No federal court can decide a question of law without an actual case or controversy.

I think the problem that Bush critics had with signing statements weren't necessarily the signing statements themselves -- as noted, they're fairly traditional at this point -- or the refusal to comply with laws he deemed to infringe on his Article II powers. To me the controversy about Bush's signing statements arises from things like the explicit adoption of the unitary executive theory and the concommitant notion that he was, essentially, bound by no law so long as he can argue that an action is taken in his capacity as Commander-in-Chief.

What's true of the Bush practice is this: he (or Cheney) found a group of lawyers who argued rabidly for unprecedented expansions of Presidential power in times of "war," however vaguely defined, and used signing statements to make clear that he would keep his own counsel as to the extent to which he would feel himself bound constitutionally. As we've seen over time, the objective correctness of that counsel is questionable and as cases and controversies arise and make their way through the federal courts, at least some of what Bush's advisors told him about his constitutional powers is being shot down.

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Originally Posted by FromWayDowntown

I think the problem that Bush critics had with signing statements weren't necessarily the signing statements themselves -- as noted, they're fairly traditional at this point -- or the refusal to comply with laws he deemed to infringe on his Article II powers. To me the controversy about Bush's signing statements arises from things like the explicit adoption of the unitary executive theory and the concommitant notion that he was, essentially, bound by no law so long as he can argue that an action is taken in his capacity as Commander-in-Chief.

What's true of the Bush practice is this: he (or Cheney) found a group of lawyers who argued rabidly for unprecedented expansions of Presidential power in times of "war," however vaguely defined, and used signing statements to make clear that he would keep his own counsel as to the extent to which he would feel himself bound constitutionally. As we've seen over time, the objective correctness of that counsel is questionable and as cases and controversies arise and make their way through the federal courts, at least some of what Bush's advisors told him about his constitutional powers is being shot down.

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This is a good point. Even signing statements such as his wouldn't be taken as seriously if not for the mindset that the War on Terror made our President a "war-time" president, with all the emergency provisions that entails. A permanent state of emergency is highly detrimental to our system of government, and defeats the very purpose of those 'emergency' powers.

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Originally Posted by ElNono

They certainly can. And the avenue the President must pursue if he believes such law is trumping his constitutional powers is to challenge it on a court of law (this would be the case when his veto power is superseded by a supermajority by congress). The reason a congressional supermajority that overrides the executive veto exists is for this exact reason.

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So you suggest we bog down the courts even farther? Separation of powers is clear. Congress cannot supersede presidential authority. It's a matter of who blinks first for a court case. The president basically says "that affects the Executive Powers," so it doesn't apply to us. If congress doesn't like it, they can take it to court.

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Originally Posted by ElNono

We have a branch of the government that interprets the law, and checks for constitutional boundaries. It's called the Judiciary branch, not the Executive.
That's why passing laws like retroactive immunity is cheating on the system.

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OK, take that to court, and show that the executive request to protect this nation didn't create an automatic immunity. The law was to stop litigation, that would lose anyway, and hurt corporations, making lawyers rich.

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Originally Posted by FromWayDowntown

The President swears that he or she will "preserve, protect, and defend the Constitution." Art. II, s. 1, cl. 8. I'm not sure that such an oath necessarily means that the President is compelled to adhere to laws (or parts thereof) that are deemed facially unconstitutional.

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I think it's pretty easily understood that the president is obligated to ignore laws passed by congress that interfere with his sworn duties. I would expect congress to do the same with an executive order that infringes on their duties.

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Originally Posted by FromWayDowntown

In fact, I'd think that the manifest problem wtih saying that the President has a threshold obligation to challenge a law through the courts is that in most instances, there will not be an actual case or controversy to frame the dispute. No federal court can decide a question of law without an actual case or controversy.

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Agreed, and funny how the democrats cry about it, but don't take it to court. Think it's because they know they will lose?

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Originally Posted by FromWayDowntown

I think the problem that Bush critics had with signing statements weren't necessarily the signing statements themselves -- as noted, they're fairly traditional at this point -- or the refusal to comply with laws he deemed to infringe on his Article II powers. To me the controversy about Bush's signing statements arises from things like the explicit adoption of the unitary executive theory and the concommitant notion that he was, essentially, bound by no law so long as he can argue that an action is taken in his capacity as Commander-in-Chief.

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I would agree if he did such things to effectively make it a line item veto on laws outside the executive branch. As long as the signing statement affects the usage on the executive branch, I see no problems.

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Originally Posted by FromWayDowntown

What's true of the Bush practice is this: he (or Cheney) found a group of lawyers who argued rabidly for unprecedented expansions of Presidential power in times of "war," however vaguely defined, and used signing statements to make clear that he would keep his own counsel as to the extent to which he would feel himself bound constitutionally. As we've seen over time, the objective correctness of that counsel is questionable and as cases and controversies arise and make their way through the federal courts, at least some of what Bush's advisors told him about his constitutional powers is being shot down.

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Questionable or not, I say the president is bound by constitution to ignore parts of law that interfere with his duties.

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Originally Posted by ElNono

According to the Constitution he swore to uphold, yes he is under obligation to adhere to the law, crappy or not.

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Doesn't it go something like "faithfully execute the law." That does not mean the black and white of the law, but "in a loyal manner." To accept an unjust law would not be loyal or faithful.

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Originally Posted by ElNono

He always has the option to veto if the law didn't enjoy a supermajority, which is his right.

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You keep forgetting one thing. There is no place in the constitution that allows congress to supersede presidential authority, or the other was around. In fact, in Clinton v. City of New York, the line item veto was effectively scrubbed, because it violated the Presentment Clause of the Constitution. The difference is that this was statute that didn't affect the executive power, but the law of the land.

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Originally Posted by ElNono

But under a supermajority case, he has a way through the Judicial system to repel any laws he doesn't agree with. And that's the proper way to do things. Intentionally ignoring and violating a law he doesn't agree with, without challenging it in court is a crime.

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I would argue congress passing laws that affect the executive branch powers laid out by constitution are a crime, therefor not enforceable.

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Originally Posted by FromWayDowntown

The President swears that he or she will "preserve, protect, and defend the Constitution." Art. II, s. 1, cl. 8. I'm not sure that such an oath necessarily means that the President is compelled to adhere to laws (or parts thereof) that are deemed facially unconstitutional.

In fact, I'd think that the manifest problem wtih saying that the President has a threshold obligation to challenge a law through the courts is that in most instances, there will not be an actual case or controversy to frame the dispute. No federal court can decide a question of law without an actual case or controversy.

I think the problem that Bush critics had with signing statements weren't necessarily the signing statements themselves -- as noted, they're fairly traditional at this point -- or the refusal to comply with laws he deemed to infringe on his Article II powers. To me the controversy about Bush's signing statements arises from things like the explicit adoption of the unitary executive theory and the concommitant notion that he was, essentially, bound by no law so long as he can argue that an action is taken in his capacity as Commander-in-Chief.

What's true of the Bush practice is this: he (or Cheney) found a group of lawyers who argued rabidly for unprecedented expansions of Presidential power in times of "war," however vaguely defined, and used signing statements to make clear that he would keep his own counsel as to the extent to which he would feel himself bound constitutionally. As we've seen over time, the objective correctness of that counsel is questionable and as cases and controversies arise and make their way through the federal courts, at least some of what Bush's advisors told him about his constitutional powers is being shot down.

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My point is not that he can't ignore or challenge the laws. The point is that there's a lawful way to do it, which is also the proper way to do it.
If Congress were to pass a law with supermajority that the president didn't agree with, he has two options:
1) Ignore/violate the law, and expose himself to potential impeachment for knowingly breaking such law, if Congress decides to sue and wins in court.
2) Sue and obtain a motion to stay. In this case he's legally protected to simply suspend the application of the law until the matter is resolved, with no secondary side effects.

I don't think Yoni understands the distinction or the consequences between 1 and 2.

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Originally Posted by Wild Cobra

I think it's pretty easily understood that the president is obligated to ignore laws passed by congress that interfere with his sworn duties. I would expect congress to do the same with an executive order that infringes on their duties.

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Tell me, if the President stated that, for now on, he would create the budget for the defense department, and that he needed to do so under his powers to protect and defend the nation, would that be acceptable?
Agreed, and funny how the democrats cry about it, but don't take it to court. Think it's because they know they will lose?
I would agree if he did such things to effectively make it a line item veto on laws outside the executive branch. As long as the signing statement affects the usage on the executive branch, I see no problems.

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Originally Posted by Wild Cobra

Questionable or not, I say the president is bound by constitution to ignore parts of law that interfere with his duties.

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He's not bound by the Constitution to do such. It doesn't specifically say in the Constitution he's to ignore power grabs by Congress.

Remember, the designers wanted the Executive to be weak... in fact, weaker than the legislative branch. Now, Congress would be stupid to create a law that directly violated the Constitution. But there are certainly gray areas.

Don't you think that Congress can put certain limits on a President's power? For instance, if Congress decided for one year not to fund the military... then the President would not be able to effectively control the military (as it wouldn't exist). There's nothing, theoretically, preventing them from doing so.

[quote=Wild Cobra;3442265]To accept an unjust law would not be loyal or faithful.quote]

Who determines whether the law is just or unjust?

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Originally Posted by Wild Cobra

So you suggest we bog down the courts even farther? Separation of powers is clear. Congress cannot supersede presidential authority. It's a matter of who blinks first for a court case. The president basically says "that affects the Executive Powers," so it doesn't apply to us. If congress doesn't like it, they can take it to court.

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See my answer to FromWayDowntown above about the consequences of doing that as opposed to the president himself suing and staying the law.

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Originally Posted by Wild Cobra

OK, take that to court, and show that the executive request to protect this nation didn't create an automatic immunity. The law was to stop litigation, that would lose anyway, and hurt corporations, making lawyers rich.

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It obviously didn't create any 'automatic immunity' considering that a law had to be passed by Congress post facto in order to grant such immunity retroactively. And the cases did go to court, but the aforementioned law prevented them from going forward.

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Originally Posted by LnGrrrR

Who determines whether the law is just or unjust?

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Let the court decide it once someone does take it to them. As long as congress doesn't challenge the signing statement, may as well consider that congress agrees!

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Originally Posted by ElNono

See my answer to FromWayDowntown above about the consequences of doing that as opposed to the president himself suing and staying the law.

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My God.

Don't you get it? The fact congress doesn't sue effectively gives the president the power to do so. Doesn't matter what your opinion is. Until someone takes it to court, it is the accepted practice.

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Originally Posted by ElNono

It obviously didn't create any 'automatic immunity' considering that a law had to be passed by Congress post facto in order to grant such immunity retroactively. And the cases did go to court, but the aforementioned law prevented them from going forward.

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Right... I would agree if I saw it from the viewpoint that the executive branch has duties that cannot be constrained by a lower law than the constitution.

It keeps coming down to this with you. You think a statute can violate the constitutional powers of the president. You are wrong!

Ignore what I said about doing it to to keep the telecommunications corporations from losing millions to defend a case they shouldn't have to. If the lawyers and activists don't like the law, let them take it to court. It's now their turn.

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Originally Posted by Wild Cobra

Doesn't it go something like "faithfully execute the law." That does not mean the black and white of the law, but "in a loyal manner." To accept an unjust law would not be loyal or faithful.

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The Judiciary decides which laws are unjust, unconstitutional, etc. That is spelled out clearly in the Constitution. If the Executive now attributes himself the ability to interpret laws, then it's interfering directly with the separation of powers.

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Originally Posted by Wild Cobra

You keep forgetting one thing. There is no place in the constitution that allows congress to supersede presidential authority, or the other was around.

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Yes there is. Congressional supermajority supersedes the presidential veto authority. It's that way by design. Congress checks on the Executive. The Executive checks on the Judiciary (by means of selecting judges) and the Judiciary checks on Congress (by interpreting the law).

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Originally Posted by Wild Cobra

In fact, in Clinton v. City of New York, the line item veto was effectively scrubbed, because it violated the Presentment Clause of the Constitution. The difference is that this was statute that didn't affect the executive power, but the law of the land.

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Decided by the Judiciary. Exactly my point.

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Originally Posted by Wild Cobra

I would argue congress passing laws that affect the executive branch powers laid out by constitution are a crime, therefor not enforceable.

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I don't think it has been tested in court, but I would say most any court will agree with you. But that's exactly why you take it to court. You don't unilaterally decide it doesn't apply and proceed to ignore/violate it.

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Originally Posted by Wild Cobra

Let the court decide it once someone does take it to them. As long as congress doesn't challenge the signing statement, may as well consider that congress agrees!

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Ah, so it's ok for me to smoke crack until someone arrests me for it, correct? :D I mean, until I'm brought to court, and they say I'm guilty, then it's not REALLY illegal.

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Originally Posted by ElNono

The Judiciary decides which laws are unjust, unconstitutional, etc. That is spelled out clearly in the Constitution. If the Executive now attributes himself the ability to interpret laws, then it's interfering directly with the separation of powers.



Yes there is. Congressional supermajority supersedes the presidential veto authority. It's that way by design. Congress checks on the Executive. The Executive checks on the Judiciary (by means of selecting judges) and the Judiciary checks on Congress (by interpreting the law).

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You still don't get it. I don't care if 100% of congress voted for something, congress cannot strip away a presidential power granted by constitution. You seem to think so.

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Originally Posted by ElNono

Decided by the Judiciary. Exactly my point.

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Yes, but not till someone brings the case up.

Again (or are you ignoring this point,) since it isn't being brought to the courts, it is the accepted practice.

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Originally Posted by ElNono

I don't think it has been tested in court, but I would say most any court will agree with you. But that's exactly why you take it to court. You don't unilaterally decide it doesn't apply and proceed to ignore/violate it.

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Nor should congress create a law that steps on the presidential powers.

Which is worse. To ignore a law that is wrong, that there is no repercussion from, or follow a bad law that does have repercussions?

Think about that. Which is worse? Now also, why waste the time and money to take it to court when there is no real fallout from just ignoring it?

If you don't like it, find a signing statement that you can claim affects you, and take it to court. Get the precedent set. Otherwise, deal with it.

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Originally Posted by LnGrrrR

Ah, so it's ok for me to smoke crack until someone arrests me for it, correct? :D I mean, until I'm brought to court, and they say I'm guilty, then it's not REALLY illegal.

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Perhaps an equally silly example would be congress making a law that says you cannot breath air. Would you wait and take that to court before breathing?

I wish one of these president would have the balls to call for the removal of those voting to violate the constitution. Have a wake-up call, and make congress careful not to trample on the constitution.

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Originally Posted by Wild Cobra

My God.

Don't you get it? The fact congress doesn't sue effectively gives the president the power to do so. Doesn't matter what your opinion is. Until someone takes it to court, it is the accepted practice.

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Originally Posted by LnGrrrR

Ah, so it's ok for me to smoke crack until someone arrests me for it, correct? I mean, until I'm brought to court, and they say I'm guilty, then it's not REALLY illegal.

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Exactly. It's like if a credit card company never sues me because I didn't want to pay them back the $300 I owed them, then does that mean I effectively never spent the money or owed them anything?
It's a matter of procedure. If the executive is going to be in the business of interpreting the law, then it's overstepping the powers granted to the judiciary on the Constitution.

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Originally Posted by Wild Cobra

Right... I would agree if I saw it from the viewpoint that the executive branch has duties that cannot be constrained by a lower law than the constitution.

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That should be decided by the judiciary, not a bunch of lawyers hired by the executive.

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Originally Posted by Wild Cobra

It keeps coming down to this with you. You think a statute can violate the constitutional powers of the president. You are wrong!

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I don't think it can. But it's up to the judiciary to decide wether such statute does or not. And THAT is my point. If the executive tomorrow believes that it can declare war without Congress approval in the name of protecting the nation you don't think a court would be involved in deciding that matter?

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Originally Posted by Wild Cobra

Ignore what I said about doing it to to keep the telecommunications corporations from losing millions to defend a case they shouldn't have to. If the lawyers and activists don't like the law, let them take it to court. It's now their turn.

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They actually lost yesterday. I hear they're going to appeal to the Ninth circuit, but I doubt they're going anywhere with that law in place.

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Originally Posted by ElNono

They actually lost yesterday. I hear they're going to appeal to the Ninth circuit, but I doubt they're going anywhere with that law in place.

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They lost because the courts agree the executive branch had the right to use their capabilities in defending this nation. Had the telecommunications companies been taken to court, following executive direction, how many millions would they have spent to win the case, and who would reimburse them?

I'll bet it was a cut and dry case as well.

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Originally Posted by Wild Cobra

Nor should congress create a law that steps on the presidential powers.

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Ofcourse they shouldn't. It would be a clear violation of separation of powers. HOWEVER, if they would do so, who is responsible for determining the unconstitutionality of such law?

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Originally Posted by Wild Cobra

Which is worse. To ignore a law that is wrong, that there is no repercussion from, or follow a bad law that does have repercussions?

Think about that. Which is worse? Now also, why waste the time and money to take it to court when there is no real fallout from just ignoring it?

If you don't like it, find a signing statement that you can claim affects you, and take it to court. Get the precedent set. Otherwise, deal with it.

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It's a matter of procedure. The application of a law can be easily stopped in it's tracks by the Judiciary. That's THEIR job, not the executive.
Ignoring/violating it does have consequences for the executive. Including impeachment or an actual compel order from a court directing the application of the law.

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Originally Posted by ElNono

My point is not that he can't ignore or challenge the laws. The point is that there's a lawful way to do it, which is also the proper way to do it.

If Congress were to pass a law with supermajority that the president didn't agree with, he has two options:
1) Ignore/violate the law, and expose himself to potential impeachment for knowingly breaking such law, if Congress decides to sue and wins in court.

2) Sue and obtain a motion to stay. In this case he's legally protected to simply suspend the application of the law until the matter is resolved, with no secondary side effects.

I don't think Yoni understands the distinction or the consequences between 1 and 2.

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You're just flat wrong about #2 even being a possibility. You're saying that the President can file a lawsuit against Congress claiming that one of its acts is constitutionally infirm and can do so without a real controversy. That would necessarily mean that the courts could issue a wholly advisory opinion as to the constitutionality of a law, which is fundamentally not true. I'd be interested to see some sort of legal authority for the idea that #2 would ever be a possibility.

I'm also not sure that a refusal to adhere to #1 would result in impeachment -- or even support impeachment. Again, the President's obligation is to support and defend the Constitution; in so doing, he is to faithfully execute the laws. But the executive branch and its agencies are alleged to have violated laws frequently and are sued by individuals who would be protected by those laws for those violations. Those suits are how the constitutionality of the law is frequently determined. Sometimes it favors the executive choice against enforcing a law; sometimes it favors the claimed right of the individual and sanctions the refusal to enforce the law.

Ultimately, our system of government would be hideously more ineffective than it already is if every disagreement between the Congress and the President about the putative constitutionality of any given provision of a law could become the subject of a pre-emptive lawsuit.

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Originally Posted by Wild Cobra

They lost because the courts agree the executive branch had the right to use their capabilities in defending this nation. Had the telecommunications companies been taken to court, following executive direction, how many millions would they have spent to win the case, and who would reimburse them?

I'll bet it was a cut and dry case as well.

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Not really. They lost because the judge deemed that Congress was pretty clear in the law as far as granting the immunity to the companies, and under such circumstances the cases couldn't go forward.
It didn't even get to the point of analyzing the executive decisions (other than to deny the DOJ states secret doctrine from being applied to the case).

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Originally Posted by ElNono

Ofcourse they shouldn't. It would be a clear violation of separation of powers. HOWEVER, if they would do so, who is responsible for determining the unconstitutionality of such law?

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Exactly. "It would be a clear violation of separation of powers." And because of that, it need not be taken to court.

The president decides it steps on his powers and says so. Again, since nobody is bringing it the courts after that, they effectively agree!

Why should I waste my time defending my actions against a clear violation, when I don't have to. Do you?

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Originally Posted by ElNono

It's a matter of procedure. The application of a law can be easily stopped in it's tracks by the Judiciary. That's THEIR job, not the executive.
Ignoring/violating it does have consequences for the executive. Including impeachment or an actual compel order from a court directing the application of the law.

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Then let them. Who's stopping them from saying "excuse me, you can't do that."

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Originally Posted by Wild Cobra

Perhaps an equally silly example would be congress making a law that says you cannot breath air. Would you wait and take that to court before breathing?

I wish one of these president would have the balls to call for the removal of those voting to violate the constitution. Have a wake-up call, and make congress careful not to trample on the constitution.

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Yes, they're both equally silly examples. :D

As before, that's the 'gray area' I referred to. Sure, some laws are on their face acceptable, others are not. But there are some that MIGHT be Constitutional, but might not, depending on your view.

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Originally Posted by ElNono

Not really. They lost because the judge deemed that Congress was pretty clear in the law as far as granting the immunity to the companies, and under such circumstances the cases couldn't go forward.
It didn't even get to the point of analyzing the executive decisions (other than to deny the DOJ states secret doctrine from being applied to the case).

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And wasn't the clarity of the law saying they did no wrong?

Why does an executive decision, authorized by constitution, need to be compared to a law beneath the constitution?

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Originally Posted by LnGrrrR

But there are some that MIGHT be Constitutional, but might not, depending on your view.

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Yes, but until someone challenges the actions taken, the last action taken, stands.

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Originally Posted by Wild Cobra

I wish one of these president would have the balls to call for the removal of those voting to violate the constitution. Have a wake-up call, and make congress careful not to trample on the constitution.

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Please point me to the Presidential power to have Congressmen removed from office.

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Originally Posted by FromWayDowntown

You're just flat wrong about #2 even being a possibility. You're saying that the President can file a lawsuit against Congress claiming that one of its acts is constitutionally infirm and can do so without a real controversy. That would necessarily mean that the courts could issue a wholly advisory opinion as to the constitutionality of a law, which is fundamentally not true. I'd be interested to see some sort of legal authority for the idea that #2 would ever be a possibility.

I'm also not sure that a refusal to adhere to #1 would result in impeachment -- or even support impeachment. Again, the President's obligation is to support and defend the Constitution; in so doing, he is to faithfully execute the laws. But the executive branch and its agencies are alleged to have violated laws frequently and are sued by individuals who would be protected by those laws for those violations. Those suits are how the constitutionality of the law is frequently determined. Sometimes it favors the executive choice against enforcing a law; sometimes it favors the claimed right of the individual and sanctions the refusal to enforce the law.

Ultimately, our system of government would be hideously more ineffective than it already is if every disagreement between the Congress and the President about the putative constitutionality of any given provision of a law could become the subject of a pre-emptive lawsuit.

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The point being argued is a supposed law passed by Congress with a supermajority that limits presidential powers. Such a law that would clearly overstep the constitution, and obviously would only be possible with a complete disconnect between the executive and the legislative branches. The question imposed in such an imaginary case is, what recourse does the executive has if such scenario were to play out? It's been argued here that the executive can simply ignore such law without consequences, and I'm simply arguing otherwise. That there's a lawful way for the executive to actually ignore such law through the proper channels (that is, the judiciary).

In the real world, both congress and the executive work closely to amend differences and actually get things done without forcing anybody's hands for the most part.

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Originally Posted by ElNono

The point being argued is a supposed law passed by Congress with a supermajority that limits presidential powers. Such a law that would clearly overstep the constitution, and obviously would only be possible with a complete disconnect between the executive and the legislative branches. The question imposed in such an imaginary case is, what recourse does the executive has if such scenario were to play out? It's been argued here that the executive can simply ignore such law without consequences, and I'm simply arguing otherwise. That there's a lawful way for the executive to actually ignore such law through the proper channels (that is, the judiciary).

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I understand the point being argued. I'm telling you that the executive has no way to assert a claim to be resolved by the judiciary without a case or controversy and that the only way for there to be a case or controversy to allow judicial involvement is for the executive to, in essence, ignore the law.

If you can explain to me how the courts can offer advisory opinions about laws in the absence of an actual case or controversy -- if you can give me an example of an instance in which such an opinion has been issued -- I'd be extremely interested in seeing that.

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Originally Posted by Wild Cobra

Exactly. "It would be a clear violation of separation of powers." And because of that, it need not be taken to court.

The president decides it steps on his powers and says so. Again, since nobody is bringing it the courts after that, they effectively agree!

Why should I waste my time defending my actions against a clear violation, when I don't have to. Do you?

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Should Congress pass tomorrow a law with a supermajority stating that the president is no longer the Commander in Chief, you don't think there will be a lawsuit presented from somebody from the executive (or not) the very same day along with a motion to stay? If you don't think so, you're more disconnected from reality than I thought.

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Originally Posted by Wild Cobra

Then let them. Who's stopping them from saying "excuse me, you can't do that."

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Now that the memos came out, it looks like some bar associations are indeed saying that.

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Originally Posted by FromWayDowntown

I understand the point being argued. I'm telling you that the executive has no way to assert a claim to be resolved by the judiciary without a case or controversy and that the only way for there to be a case or controversy to allow judicial involvement is for the executive to, in essence, ignore the law.

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The case/controversy is the actual enactment of a law that it's plainly unconstitutional. The executive and/or any other civilian would definitely have a case to present to a court of law.

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Originally Posted by ElNono

Should Congress pass tomorrow a law with a supermajority stating that the president is no longer the Commander in Chief, you don't think there will be a lawsuit presented from somebody from the executive the very same day along with a motion to stay? I you think so, you're more disconnected from reality than I thought.

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I think the whole nation, and media, would be laughing so hard...

It would also be so ridiculous, and obviously unconstitutional, that it wouldn't need to go to court.

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Originally Posted by ElNono

Now that the memos came out, it looks like some bar associations are indeed saying that.

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And just how does their opinion override the constitution.

I'm done with you if you're going to waste my time on bullshit that doesn't matter. FromWayDowntown has made some great points as well, but you keep thinking until it's tested, the first action applies. When the first action is a clear assault upon the constitution, any sane person should immediately realize it is unconstitutional, and need not waste the time of the court.

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Originally Posted by ElNono

The case/controversy is the actual enactment of a law that it's plainly unconstitutional. The executive and/or any other civilian would definitely have a case to present to a court of law.

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I fundamentally believe that to be incorrect. If it were correct, we'd see the law books littered with cases between Presidents and Congress. We don't. That's because there has to be a violation of the law to support a challenge to its constitutionality.

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Originally Posted by Wild Cobra

I think the whole nation, and media, would be laughing so hard...

It would also be so ridiculous, and obviously unconstitutional, that it wouldn't need to go to court.

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So the law would stand. Which if we put into your 'first action' doctrine, it would make it automatically constitutional (since the executive doesn't challenge it, they must accept it's ok). :tu

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Originally Posted by ElNono

The case/controversy is the actual enactment of a law that it's plainly unconstitutional. The executive and/or any other civilian would definitely have a case to present to a court of law.

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OK, President Obama now has five recent cases he needs to brings to the Supreme Court. You think we need to burden the Supreme Court with cases that are so clear?

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Originally Posted by ElNono

So the law would stand. Which if we put into your 'first action' doctrine, it would make it automatically constitutional (since the executive doesn't challenge it, they must accept it's ok). :tu

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No, because by just ignoring it, he stays president!

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Originally Posted by Wild Cobra

They lost because the courts agree the executive branch had the right to use their capabilities in defending this nation. Had the telecommunications companies been taken to court, following executive direction, how many millions would they have spent to win the case, and who would reimburse them?

I'll bet it was a cut and dry case as well.

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Do you think that FISA was unconstitutional?

Do you think Congress is within their rights to enact laws that limit the President in performing any of his constitutional duties?

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Originally Posted by LnGrrrR

Do you think that FISA was unconstitutional?

Do you think Congress is within their rights to enact laws that limit the President in performing any of his constitutional duties?

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No in both cases.

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Originally Posted by FromWayDowntown

I fundamentally believe that to be incorrect. If it were correct, we'd see the law books littered with cases between Presidents and Congress. We don't. That's because there has to be a violation of the law to support a challenge to its constitutionality.

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The reason we don't is that this case is certainly a big stretch. I don't think we ever had a Congress/Executive pair that hated each other to present this type of scenario. Which really begs the question of what the conservative segment here is really worried about.

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Originally Posted by FromWayDowntown

You're just flat wrong about #2 even being a possibility. You're saying that the President can file a lawsuit against Congress claiming that one of its acts is constitutionally infirm and can do so without a real controversy. That would necessarily mean that the courts could issue a wholly advisory opinion as to the constitutionality of a law, which is fundamentally not true. I'd be interested to see some sort of legal authority for the idea that #2 would ever be a possibility.

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Couldn't the President say he had standing to bring the case to court?

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Originally Posted by ElNono

The reason we don't is that this case is certainly a big stretch. I don't think we ever had a Congress/Executive pair that hated each other to present this type of scenario. Which really begs the question of what the conservative segment here is really worried about.

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I'm worried about a growing number of people like you who thinks an obvious violation of the constitution is OK.

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Originally Posted by Wild Cobra

I'm worried about a growing number of people like you who thinks an obvious violation of the constitution is OK.

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I never claimed that. I merely indicated that the only branch that can decide what's a violation of the constitution is the judiciary.
Which I also claim is the only branch of the government that can interpret the constitution as to determine where the executive powers start and end.

But thanks for twisting my words :tu

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Originally Posted by LnGrrrR

Couldn't the President say he had standing to bring the case to court?

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Does he have to specify that? Why not clear statements like these:

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This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions

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Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

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I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

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Does it matter who threatens to take an action to the court if no one does?

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Originally Posted by ElNono

I never claimed that. I merely indicated that the only branch that can decide what's a violation of the constitution is the judiciary.
Which I also claim is the only branch of the government that can interpret the constitution as to determine where the executive powers start and end.

But thanks for twisting my words :tu

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Fine. Then accept the fact that congress doesn't think they have a case to take it to court.

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Originally Posted by Wild Cobra

Yes, but until someone challenges the actions taken, the last action taken, stands.

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I would agree with you that, real world, this is exactly how it goes. However, according to the law, it's still breaking the law.

A good example of this would be speeding. If the cops never arrest someone going less then 80 in a 75 zone, does that mean it's 'legal' to drive at 78 MPH in a 75 zone? No, it doesn't.

However, due to their lack of prosecuting people who drive 78MPH, it becomes accepted and somewhat 'de facto' legal. And if it were brought up in court, the fact that it was never prosecuted (if proven) COULD possibly get the defendant off!

So, long story short, I (mostly) agree with you.

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Originally Posted by FromWayDowntown

If you can explain to me how the courts can offer advisory opinions about laws in the absence of an actual case or controversy -- if you can give me an example of an instance in which such an opinion has been issued -- I'd be extremely interested in seeing that.

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Not the courts, but doesn't DOJ do this most of the time?

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Originally Posted by Wild Cobra

Fine. Then accept the fact that congress doesn't think they have a case to take it to court.

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A blatant case would certainly be brought to court. I just don't think it's a feasible scenario, that's all. I mean, we have had senators suing to overturn laws that passed and they didn't agree with. Ultimately, the judiciary SHOULD have the last word as far as interpreting the law goes.

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Originally Posted by LnGrrrR

Couldn't the President say he had standing to bring the case to court?

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If there was a case, he might -- though I have some doubts about the President's ability to establish legal standing absent a wild hypothetical in which the Executive branch enforces the written law, in which the President himself goes out to violate the law and be deprived of the right the law attempts to secure for having violated the law, and then challenges the constitutionality of the law via a lawsuit.

Again, however, the problem is that there ISN'T A CASE OR CONTROVERSY!!!

A purely academic disagreement between the branches about the constitutionality of an act of one with respect to the other doesn't create a case or a controversy.

Here are some definitions of "advisory opinion":

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Originally Posted by Law Encyclopedia

An opinion by a court as to the legality of proposed legislation or conduct, given in response to a request by the government, legislature, or some other interested party.

Advisory opinions are issued in the absence of a case or controversy. Although they are not binding and carry no precedential value, they are sometimes offered as persuasive evidence in cases where no precedent exists.

Federal courts will not issue advisory opinions. This rule, based on the constitutional guarantee of separation of powers, was established in 1793 when John Jay, the first chief justice of the Supreme Court, refused to provide legal advice in response to requests by President George Washington and Treasury Secretary Alexander Hamilton. Washington asked the Court for advice relating to his Neutrality Proclamation in regard to the French Revolution. Hamilton asked Jay for an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives. In both instances, the Court diplomatically but firmly refused to supply an opinion.

The Supreme Court has steadfastly resisted subsequent efforts to elicit advisory opinions, even when these efforts appear under the guise of an actual lawsuit. Thus, in Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911), the Court struck down an act of Congress that authorized the plaintiffs to sue the United States to determine the validity of certain laws. The Court found the lawsuits authorized by the act to be thinly veiled attempts to obtain advisory opinions, since the constitutional requirements of justiciability and an actual case or controversy were not satisfied. Justice William R. Day, writing for the Court, predicted that if the justices rendered a judgment in the case,

the result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution.
Echoing the convictions expressed in Muskrat, Supreme Court Justice Felix Frankfurter, writing on advisory opinions, said, "Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to … sterile conclusions unrelated to actualities."

Unlike their federal counterpart, a number of state constitutions authorize their courts to issue advisory opinions. However, even in those states, courts usually restrict advisory opinions to pending legislation and refuse requests for opinions on abstract or theoretical questions of law. In any event, the opinions are not binding authority in future cases.

Advisory opinions have their greatest effect as guides to policy making for the executive and legislative branches of state government. They are most often sought in the areas of intergovernmental relations, taxation, and finance.

Advisory opinions contrast with declaratory judgments, which determine the rights of litigants in an actual controversy and involve specific individuals who are at least nominally adverse to each other. Declaratory judgments are allowed by courts at both the federal and state levels. Although the line between advisory opinions and declaratory judgments is a fine one, the Supreme Court has consistently reiterated the necessity of keeping it intact. In Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936), the justices insisted that the Federal Declaratory Judgment Act, which gives federal courts the power to issue declaratory judgments, "does not attempt to change the essential requisites for the exercise of judicial power." An actual, not theoretical, case or controversy between specific parties must still be shown. In another case, the Court stated specifically that the Declaratory Judgment Act cannot be invoked to "obtain an advisory decree upon a hypothetical state of facts" (Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936 [1938]).

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Originally Posted by Wikipedia

An advisory opinion is an opinion issued by a court that does not have the effect of resolving a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important questions to the judiciary and obtain an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.

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I'd be fascinated for someone to tell me how the crazy hypothetical lawsuits being discussed in this thread could even remotely be possible in a world where advisory opinions are constitutionally forbidden!?!?!?

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Originally Posted by ElNono

The reason we don't is that this case is certainly a big stretch. I don't think we ever had a Congress/Executive pair that hated each other to present this type of scenario. Which really begs the question of what the conservative segment here is really worried about.

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We don't have those suits in the books because they are categorically unconstitutional.

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Originally Posted by Wild Cobra

Does it matter who threatens to take an action to the court if no one does?

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Not really. I was just wondering if the President could say he has standing and take it to court, rather than ignoring the law wholesale.

Which brings up an interesting point... if Congress passes a law restricting the President and Executive branch from a specific action, and the President responds by doing so anyways, who would have standing to rectify this situation?

(It's somewhat similar to the case where the courts ruled against Andrew Jackson and he said, "Well screw you" and he did it anyways. Except there the Executive were not following the check of the judiciary.)

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Originally Posted by LnGrrrR

Not the courts, but doesn't DOJ do this most of the time?

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Sure, executive agencies offer advisory opinions in some instances. But that doesn't get us anywhere in ElNono's hypothetical and Wild Cobra's retorts to it because executive agencies like DOJ are Article II actors and not Article III courts.

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Originally Posted by FromWayDowntown

If there was a case, he might -- though I have some doubts about the President's ability to establish legal standing absent a wild hypothetical in which the Executive branch enforces the written law, in which the President himself goes out to violate the law and be deprived of the right the law attempts to secure for having violated the law, and then challenges the constitutionality of the law via a lawsuit.

Again, however, the problem is that there ISN'T A CASE OR CONTROVERSY!!!

A purely academic disagreement between the branches about the constitutionality of an act of one with respect to the other doesn't create a case or a controversy.

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Let's give the example of Nixon's downfall and the subsequent FISA law. If the Executive just ignored FISA, as in, say, wiretapping, and those wiretapping results were kept secret from the public, how could the FISA law actually bind the President as it is meant to? Who would have standing to back up the law binding the President from these certain actions?

(Note: I'm asking in a "I really don't know" sort of way, rather than a "trying to trick you" sort of way. :)

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Originally Posted by FromWayDowntown

Sure, executive agencies offer advisory opinions in some instances. But that doesn't get us anywhere in ElNono's hypothetical and Wild Cobra's retorts to it because executive agencies like DOJ are Article II actors and not Article III courts.

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Yes, I know. Just getting some clarification.

I was under the impression that any civilian could challenge the constitutionality of a law once enacted in a court of law, including members of any of the government branches.

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Originally Posted by ElNono

I was under the impression that any civilian could challenge the constitutionality of a law once enacted in a court of law, including members of any of the government branches.

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That's a wrong impression.

A civilian who has actually been adversely affected by a law -- for instance, by being arrested for violating it, or by losing property because of it, or by having a constitutional right clearly deprived becuase of it -- has an ability to challenge the law's constitutionality on that basis. But absent some sort of adverse impact to the person based on the law's application, there is no case or controversy to support a judicial resolution of the constitutional question.

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Originally Posted by LnGrrrR

Not really. I was just wondering if the President could say he has standing and take it to court, rather than ignoring the law wholesale.

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I don't think he should have to specify it. The fact he gives reason to ignore the statute passed tells me just that anyway. I think if he points out he has such legal standing, there could be a push to take it to the courts. A waste of time in my opinion. No need to trap oneself into wasting time.

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Originally Posted by LnGrrrR

Which brings up an interesting point... if Congress passes a law restricting the President and Executive branch from a specific action, and the President responds by doing so anyways, who would have standing to rectify this situation?

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Seems to me that the fact signing statements have been happening like this for so many years, the precedent is set. The president need not take it to the courts, and congress knows they would lose if they did.

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Originally Posted by LnGrrrR

(It's somewhat similar to the case where the courts ruled against Andrew Jackson and he said, "Well screw you" and he did it anyways. Except there the Executive were not following the check of the judiciary.)

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Well, I'm not familiar with that, and didn't find it on a quick search. I'd be curious to see it. Have a link?

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Originally Posted by LnGrrrR

Let's give the example of Nixon's downfall and the subsequent FISA law. If the Executive just ignored FISA, as in, say, wiretapping, and those wiretapping results were kept secret from the public, how could the FISA law actually bind the President as it is meant to? Who would have standing to back up the law binding the President from these certain actions?

(Note: I'm asking in a "I really don't know" sort of way, rather than a "trying to trick you" sort of way. :)

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Without being able to prove that the law deprived you of a constitutional right, nobody.

In fact, almost all of the FISA litigation that arose during the waning years of the Bush presidency was dismissed because the individuals who brought claims were unable to establish that they had standing.

Although it not a court decision, the opinion is probably valid. Consider this:

THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS, November 3, 1993.

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Originally Posted by FromWayDowntown

That's a wrong impression.

A civilian who has actually been adversely affected by a law -- for instance, by being arrested for violating it, or by losing property because of it, or by having a constitutional right clearly deprived becuase of it -- has an ability to challenge the law's constitutionality on that basis. But absent some sort of adverse impact to the person based on the law's application, there is no case or controversy to support a judicial resolution of the constitutional question.

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Thanks for the clarification. But wouldn't the executive be 'adversely affected by a law' in the hypothetical case we are talking about?

Furthermore, I want to clarify that I'm not the one that brought up this hypothetical. This whole theory of Congress passing bullshit laws with supermajority came from conservatives here when there was the possibility that the Democrats could have full control of Congress when Bush was still president.

I found an instance where signing statements were tested in court. With the passage of the Gramm-Rudman-Hollings Balanced Budget Act, President Reagan issued a signing statement. Within it, he said this:

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In signing this bill, I am mindful of the serious constitutional questions raised by some of its provisions. The bill assigns a significant role to the Director of the Congressional Budget Office and the Comptroller General in calculating the budget estimates that trigger the operative provisions of the bill. Under the system of separated powers established by the Constitution, however, executive functions may only be performed by officers in the executive branch. The Director of the Congressional Budget Office and the Comptroller General are agents of Congress, not officers in the executive branch. The bill itself recognizes this problem and provides procedures for testing the constitutionality of the dubious provisions. The bill also provides a constitutionally valid alternative mechanism should the role of the Director of the Congressional Budget Office and the Comptroller General be struck down. It is my hope that these outstanding constitutional questions can be promptly resolved.

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The case was tested in court as Bowsher_v._Synar

From Wiki:

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Facts

Under the Gramm-Rudman-Hollings Act, allowable deficit levels were calculated with an eye to eliminating the federal deficit. If the budget exceeded the allowable deficit, across-the-board cuts were required. Directors of the OMB and CBO were required to report to the Comptroller General regarding their recommendations for how much must be cut. The Comptroller General then evaluated these reports, made his own conclusion, and made a recommendation to the President, who was then required to issue an order effecting the reductions required by the Comptroller General unless Congress made the required cuts in other ways within a specified amount of time. The Comptroller General is nominated by the President from a list of three people recommended by the presiding officers of the House and Senate. He is removable only by impeachment or a joint resolution of Congress (which requires majority votes in both houses and is subject to the veto). Congress can give a number of reasons for this removal, including “inefficiency,” “neglect of duty,” or “malfeasance.”

Holding

The Congress cannot control the execution of its laws; since it doesn’t possess this power, it can’t delegate it to its agents. The CG is an agent of the Legislature because Congress can remove him by a process other than impeachment. The CG exercises executive power. Thus, the Act is unconstitutional.

Reasoning

(1)Definition of “executive power.” The CG’s function under the Act is the “very essence” of execution of the laws since (1) it entails interpreting the Act to determine precisely what kind of budgetary calculations are required and (2) the CG commands the President to carry out, without variation, the CG’s directive regarding the budget resolutions. Interpreting a law enacted by Congress is the “very essence” of executions of the laws. Once Congress passes legislation, it can only influence its execution by passing new laws or through impeachment.
(2)Impeachment. The Constitution only explicitly provides Congress the power to remove executive officers by impeachment. Also, the Constitutional Convention explicitly rejected language that would have permitted impeachment for “maladministration,” with Madison arguing that “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Thus, Congress can only remove a member of the executive branch through impeachment.

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Just depends if you have standing. That's relevenat to almost all things pertaining to the courts.

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Originally Posted by FromWayDowntown

Without being able to prove that the law deprived you of a constitutional right, nobody.

In fact, almost all of the FISA litigation that arose during the waning years of the Bush presidency was dismissed because the individuals who brought claims were unable to establish that they had standing.

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Hm... interesting loophole there. Makes whistleblowers even MORE important.

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Originally Posted by Wild Cobra

Well, I'm not familiar with that, and didn't find it on a quick search. I'd be curious to see it. Have a link?

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http://www.pbs.org/wgbh/aia/part4/4p2959.html

About halfway down....

"The Cherokee went to the Supreme Court again in 1831. This time they based their appeal on an 1830 Georgia law which prohibited whites from living on Indian territory after March 31, 1831, without a license from the state. The state legislature had written this law to justify removing white missionaries who were helping the Indians resist removal. The court this time decided in favor of the Cherokee. It stated that the Cherokee had the right to self-government, and declared Georgia's extension of state law over them to be unconstitutional. The state of Georgia refused to abide by the Court decision, however, and President Jackson refused to enforce the law.

In 1830, just a year after taking office, Jackson pushed a new piece of legislation called the "Indian Removal Act" through both houses of Congress. It gave the president power to negotiate removal treaties with Indian tribes living east of the Mississippi. Under these treaties, the Indians were to give up their lands east of the Mississippi in exchange for lands to the west. Those wishing to remain in the east would become citizens of their home state. This act affected not only the southeastern nations, but many others further north. The removal was supposed to be voluntary and peaceful, and it was that way for the tribes that agreed to the conditions. But the southeastern nations resisted, and Jackson forced them to leave."

Andrew Jackson was probably the most racist President we've ever had.

WC, thanks for finding out that court case. Pretty interesting stuff :D

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Originally Posted by LnGrrrR

"The Cherokee went to the Supreme Court again in 1831. This time they based their appeal on an 1830 Georgia law which prohibited whites from living on Indian territory after March 31, 1831, without a license from the state. The state legislature had written this law to justify removing white missionaries who were helping the Indians resist removal. The court this time decided in favor of the Cherokee. It stated that the Cherokee had the right to self-government, and declared Georgia's extension of state law over them to be unconstitutional. The state of Georgia refused to abide by the Court decision, however, and President Jackson refused to enforce the law.

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This is interesting as well, but how did he refuse to enforce the law? Did he go in and forcefully remove the missionaries? Without seeing the law and the verbatim ruling, I don't see it as the courts saying the Cherokee had the right to stay, just the the missionaries had the right to stay with the Cherokee. The self-governing could have meant they had the right to protect the missionaries. The article still leaves open speculation of the truth.

What am I missing?

How about it Winehole. From post #23:

http://i181.photobucket.com/albums/x...mentpost23.jpg

Anyone else up to the challenge of your favorite (most hated) President Bush Signing Statement?

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Originally Posted by Wild Cobra

Anyone else up to the challenge of your favorite (most hated) President Bush Signing Statement?

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I've already dealt with my view of that:

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Originally Posted by FWD

What's true of the Bush practice is this: he (or Cheney) found a group of lawyers who argued rabidly for unprecedented expansions of Presidential power in times of "war," however vaguely defined, and used signing statements to make clear that he would keep his own counsel as to the extent to which he would feel himself bound constitutionally. As we've seen over time, the objective correctness of that counsel is questionable and as cases and controversies arise and make their way through the federal courts, at least some of what Bush's advisors told him about his constitutional powers is being shot down.

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I don't have any particular problem with the use of signing statements or with any particular signing statement itself; my problem has always been the arguments that underlie some of Bush's signing statements. They strike me as making extreme leaps towards creating an imperial presidency that is largely unresponsive to Congress whenever it chooses to be. That's decidedly contrary to my understanding of the checks and balances inherent in the Constitution. And I think, over time, that some of that power grab will be repudiated by Courts (to an extent, it already has been in a few instances). Thus, the signing statement itself is little more than a public declaration of the argument, which strikes me as unfounded and insupportable to a very large extent.

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Originally Posted by FromWayDowntown

I don't have any particular problem with the use of signing statements or with any particular signing statement itself; my problem has always been the arguments that underlie some of Bush's signing statements. They strike me as making extreme leaps towards creating an imperial presidency that is largely unresponsive to Congress whenever it chooses to be. That's decidedly contrary to my understanding of the checks and balances inherent in the Constitution. And I think, over time, that some of that power grab will be repudiated by Courts (to an extent, it already has been in a few instances). Thus, the signing statement itself is little more than a public declaration of the argument, which strikes me as unfounded and insupportable to a very large extent.

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Which one.

Over and over, I hear the what the media says and liberals drink the Kool-Aid.

Please pick a signing statement and show me what's wrong. The link is there with the full text of all of them.

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Originally Posted by Wild Cobra

Which one.

Over and over, I hear the what the media says and liberals drink the Kool-Aid.

Please pick a signing statement and show me what's wrong. The link is there with the full text of all of them.

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WC, we've already been over this. FWDT just said that it's not signing statements, in and of themselves, that he has a problem with. It is the general idea of this unitary executive theory, coupled with the signing statements, that he is wary of.

And we've already discussed the few ones where Bush has said he won't follow the law as written if he thinks it interferes with his powers, and debated that already.

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Originally Posted by Wild Cobra

Which one.

Over and over, I hear the what the media says and liberals drink the Kool-Aid.

Please pick a signing statement and show me what's wrong. The link is there with the full text of all of them.

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Did you even read my post? In any event, thanks for giving me the chance to quote myself again:

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Originally Posted by FWD

I don't have any particular problem with the use of signing statements or with any particular signing statement itself.

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Solid job, though, of avoiding the argument.

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Originally Posted by FromWayDowntown

Did you even read my post? In any event, thanks for giving me the chance to quote myself again:

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Originally Posted by FWD

I don't have any particular problem with the use of signing statements or with any particular signing statement itself.

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Solid job, though, of avoiding the argument.

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Except you went on to say:

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my problem has always been the arguments that underlie some of Bush's signing statements. They strike me as making extreme leaps towards creating an imperial presidency that is largely unresponsive to Congress whenever it chooses to be.

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Can you show me please?

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Originally Posted by LnGrrrR

WC, we've already been over this. FWDT just said that it's not signing statements, in and of themselves, that he has a problem with. It is the general idea of this unitary executive theory, coupled with the signing statements, that he is wary of.

And we've already discussed the few ones where Bush has said he won't follow the law as written if he thinks it interferes with his powers, and debated that already.

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And I would like to see the text of which signing statements liberals have their panties in a wad over. Is that asking to much?

Such a general statement doesn't work for me because that's exactly how the liberal media tells liberals to react. Sorry for being an ass on the issue, I just want to see the context that warrants such a concern. Not some pundits spin.