Signing Statements

[FromWayDowntown]

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

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 cons utionality 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 cons utionality 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":

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 cons utional 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 cons utionality 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 cons utional 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 Cons ution 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 Cons ution.
Echoing the convictions expressed in Muskrat, Supreme Court Justice Felix Frankfurter, writing on advisory opinions, said, "Every tendency to deal with cons utional 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 cons utions 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]).

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 cons utionality 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.

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 cons utionally forbidden!?!?!?

[FromWayDowntown]

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.

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

[LnGrrrR]

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

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.)

[FromWayDowntown]

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

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.

[LnGrrrR]

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 cons utionality 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 cons utionality of an act of one with respect to the other doesn't create a case or a controversy.

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.

[LnGrrrR]

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.

Yes, I know. Just getting some clarification.

[ElNono]

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

[FromWayDowntown]

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

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 cons utional right clearly deprived becuase of it -- has an ability to challenge the law's cons utionality 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 cons utional question.

[Wild Cobra]

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.

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.

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?

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.

(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.)

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?

[FromWayDowntown]

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.

Without being able to prove that the law deprived you of a cons utional 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.

[Wild Cobra]

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

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

[ElNono]

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 cons utional right clearly deprived becuase of it -- has an ability to challenge the law's cons utionality 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 cons utional question.

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 bull 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.

[Wild Cobra]

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:

In signing this bill, I am mindful of the serious cons utional 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 Cons ution, 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 cons utionality of the dubious provisions. The bill also provides a cons utionally 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 cons utional questions can be promptly resolved.

The case was tested in court as Bowsher_v._Synar

From Wiki:

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 uncons utional.

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 Cons ution only explicitly provides Congress the power to remove executive officers by impeachment. Also, the Cons utional 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.

[jman3000]

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

[LnGrrrR]

Without being able to prove that the law deprived you of a cons utional 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.

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

[LnGrrrR]

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?

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 uncons utional. 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.

[LnGrrrR]

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

[Wild Cobra]

"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 uncons utional. The state of Georgia refused to abide by the Court decision, however, and President Jackson refused to enforce the law.

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?

[Wild Cobra]

How about it Winehole. From post #23:



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

[FromWayDowntown]

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

I've already dealt with my view of that:

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 cons utionally. 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 cons utional powers is being shot down.

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 Cons ution. 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.

[Wild Cobra]

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 Cons ution. 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.

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.

[LnGrrrR]

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.

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.

[FromWayDowntown]

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.

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

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

Solid job, though, of avoiding the argument.

[Wild Cobra]

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

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

Solid job, though, of avoiding the argument.

Except you went on to say:

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.

Can you show me please?

[Wild Cobra]

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.

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.