Signing Statements

[Wild Cobra]

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 uncons utionality of such law?

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?

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.

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

[LnGrrrR]

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 cons ution. Have a wake-up call, and make congress careful not to trample on the cons ution.

Yes, they're both equally silly examples.

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 Cons utional, but might not, depending on your view.

[Wild Cobra]

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 cir stances 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).

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

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

[Wild Cobra]

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

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

[FromWayDowntown]

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

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

[ElNono]

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 cons utionally 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 cons utionality 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 Cons ution; 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 cons utionality 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 cons utionality of any given provision of a law could become the subject of a pre-emptive lawsuit.

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 cons ution, 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.

[FromWayDowntown]

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 cons ution, 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).

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.

[ElNono]

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?

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.

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

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

[ElNono]

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.

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

[Wild Cobra]

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.

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

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

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

And just how does their opinion override the cons ution.

I'm done with you if you're going to waste my time on bull 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 cons ution, any sane person should immediately realize it is uncons utional, and need not waste the time of the court.

[FromWayDowntown]

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

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 cons utionality.

[ElNono]

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

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

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

[Wild Cobra]

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

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?

[Wild Cobra]

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

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

[LnGrrrR]

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.

Do you think that FISA was uncons utional?

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

[Wild Cobra]

Do you think that FISA was uncons utional?

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

No in both cases.

[ElNono]

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 cons utionality.

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.

[LnGrrrR]

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 cons utionally 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 cons utionality 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.

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

[Wild Cobra]

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.

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

[ElNono]

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

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

But thanks for twisting my words

[Wild Cobra]

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

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

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

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

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

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

[Wild Cobra]

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

But thanks for twisting my words

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

[LnGrrrR]

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

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.

[LnGrrrR]

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.

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

[ElNono]

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

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.