Signing Statements

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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trumping his constitutional powers is to challenge it on a court of law (this would be the case when his veto power is superseded by a supermajority by congress).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).