Constitutional Law

Executive Power and the Election

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The New York Review of Books asked a number of its high profile contributors for their take on the upcoming election (Spoiler Alert: They're all in favor of Barack Obama). Gary Wills made a particularly strong case for why the Republicans should lose:

When Dick Cheney was vetting the last two candidates for the [Supreme] Court, he did not really care about their views on abortion. He concentrated on their attitude toward the many executive usurpations of the Bush administration, and he was satisfied on this account with John Roberts and with Sam Alito.

When Charles Gibson was questioning Governor Palin, he should not have asked about the Bush Doctrine (a wavering concept, and touching only one matter, war). He should have asked for her views on the unitary executive—the question Cheney asked the Court nominees. That is what matters most to the Bush people. It affects all the executive usurpations of the last seven years—not only the right of the president to wage undeclared wars, but his right to create military courts, to authorize extraordinary renditions, secret prisons, more severely coercive interrogation, trials with undisclosed evidence, domestic surveillance, and the overriding of congressional oversight in every aspect of government from energy policy to health services.

The use of presidential signing statements to undermine federal law has been another aspect of Bush's executive power grab. As The Boston Globe's Charlie Savage has extensively reported, Bush has issued more than a 1100 signing statements claiming the authority to reject or ignore portions of the very laws he has just signed.

In December 2005, for instance, Bush signed the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act. This exhaustively titled bill was most notable for containing the so-called McCain Amendment, which prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."

At the time, the bill's passage was seen as a victory against waterboarding and other torture tactics. But consider the passage from Bush's signing statement that specifically refers to the McCain Amendment:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.

President Bush, in other words, would be waging the War on Terror as he saw fit, regardless of what Congress or the courts had to say about it.

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  1. ep. Barney Frank (D-Mass.) said Democrats will push for a stimulus package after the November election, and called for a package reducing defense spending by 25 percent while saying Congress will “eventually” raise taxes.

    Frank told the editorial board of the SouthCoast Standard-Times that he wanted to reduce defense spending by a quarter, meaning the United States would have to withdraw from Iraq sooner.

  2. From the piece:
    “What they’ll do with that victory is another question, but for now, at least, the prospects for a new New Deal are looking bright again.” — Krugman, of course.

    Ugh. Pudong Development Zone, here I come!

  3. I have a question or two for all you neocons sycophants who’ve been cheering GWB on as he abused the constitution for almost 8 years.

    It’s almost Obama’s turn, does it still seem like a good idea? The wars on terror, in Iraq and Afghanistan are still unwon, do you concede that Obama has the same executive authority as Bush the lesser appropriated (with the consent of a GOP congress?

    IOW, thanks a lot assholes.

  4. Look, that’s all very interesting and if my recollection of Schoolhouse Rock is accurate, this is not how the constitution says a bill should become law. (Note: I’m being glib here, but I’m with you on the signing statements thing. Veto the law or don’t, but don’t pass it and then say, “Yeah, I’m signing this, but never mind.”)

    That said, Bush isn’t running this year. Obama, however, is running. What I’m wondering is, has he given any indication whatsoever that he’ll put a stop to the signing statements? Or has he left that door open?

  5. The delights of the unitary executive. Early in his administration, Bush upheld less than compelling Clinton claims to executive privilege regarding document disclosure. Bush’s successor (either/or) will no doubt return the favor to keep the power trip rolling.

  6. I might be remembering wrong, but didn’t McCain rule out issuing any signing statements, and Obama equivocate a bit?

  7. IOW, thanks a lot assholes.

    Oh, don’t worry so much J sub D. I’m sure the GOP will find their long lost balls when they settle in as the minority party.

  8. What is the big deal about signing statements? A President has not only the authority but the duty to interpret legislation in a way that harmonizes the legislation with the Constitution.Legislation is frequently ambiguous, sometimes designedly so. Interpretaion of laws is hardly the sole prerogative of the judiciary. Court’s routinely defer to agency interpretation, and last time I looked agencies are part of the executive branch. If the President’s interpretation is wrong,the judiciary can rectify the situation; if a political question makes the controversy injusticiable, the Congress has its own remedies. To repeat the mantra that signing statements constitute some kind of usurpation is just ignorant

  9. Congressmen routinely vote for legislation that they know to be Unconstitutional, and Presidents (including Bush) routinely sign this same legislation.

    Is this because only the Judicial branch has a line item veto, allowing it to strip unconstitutional segments out from a larger law? Yes, I know this isn’t really a veto.

    Bush doesn’t really have that option. He has to veto the whole thing.

    The horse-trading nature of Congress also makes this difficult, though obviously not impossible.

    So, while I would prefer that the President veto such things, my second choice would be for him to refuse to enforce Unconstitutional provisions.

    And obviously we all think we’re voting for the guy who will best do that.

  10. I should have just waited for djd to post.

  11. The New York Review of Books asked a number of its high profile contributors for their take on the upcoming election (Spoiler Alert: They’re all in favor of Barack Obama).

    Wow. I never saw that coming.

  12. He should have asked for her views on the unitary executive

    Palin: Bush is a Unitarian? Let’s get ’em!!

  13. “That said, Bush isn’t running this year. Obama, however, is running. What I’m wondering is, has he given any indication whatsoever that he’ll put a stop to the signing statements? Or has he left that door open?”

    With a Dem Congress, he won’t need them.

  14. Frank told the editorial board of the SouthCoast Standard-Times that he wanted to reduce defense spending by a quarter, meaning the United States would have to withdraw from Iraq sooner.

    Stupid question: if the goal is simply to get the troops out of Iraq as soon as possible, why don’t they just cut the funding for operations in Iraq now?

  15. The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch

    Not sure what might have been in the bill that would intrude on the President’s supervisory authority over executive staff, but if this is saying that the President declines to implement unconsitutional provisions of the bill (unconstitutional because they violate the separation of powers), what’s the problem with that?

    and as Commander in Chief

    Again, if the President is merely stating his intention not to act unconstitutionally by implementing the legislation in an unconstitutional way, what’s the problem?

    and consistent with the constitutional limitations on the judicial power.

    We shouldn’t be violating constitutional limitations on any branch’s power, yes?

    President Bush, in other words, would be waging the War on Terror as he saw fit, regardless of what Congress or the courts had to say about it.

    That strikes me as a highly tendentious reading of the previous paragraph.

    Really, the interesting question is whether the President will/should defer to a Supreme Court finding that some application of this bill that the President claims would be unconstitional is, in the SCOTUS’s opinion, constitutional. Is the President required to subordinate his opinion about Constitutionality to that of the SCOTUS? I think you can make that case, and I don’t see anything in the signing statement to the contrary.

  16. “””Oh, don’t worry so much J sub D. I’m sure the GOP will find their long lost balls when they settle in as the minority party.”””

    I think the GOP has shown they have big balls with some of the shit they’ve tried to pull and pulled on the citiznery. Or did you mean the balls to wield real oversight?

    Palin: Bush is a unitarian, he can eat whatever he wants

  17. Is the President required to subordinate his opinion about Constitutionality to that of the SCOTUS?

    I believe he is.

    If the President has issues with the bill he can veto it, but I don’t know where the President gets the authority to decide whether or not portions of a bill are unconstitutional.

    Bills that get passed in Congress aren’t part of a buffet that the Pres. gets to pick what he is likes and ignore what he doesn’t. I do believe only the Supremes get to decide the Constitutionality of a law once it gets signed.

  18. why don’t they just cut the funding for operations in Iraq now?

    Because then they wouldn’t have anything to run against. And heavens, the GOP might actually be right! Much better to let the Republicans do the hard work while the Dems score cheap political points.

    It’s the same reason that the GOP didn’t pass moderate restrictions on abortion when it had the chance. Then the “every sperm is sacred” crowd would lose their influence, and influence is more important than actually accomplishing something.

  19. (Spoiler Alert: They’re all in favor of Barack Obama).

    Say it ain’t so.

    “I live in a rather special world. I only know one person who voted for Nixon. Where they are I don’t know. They’re outside my ken. But sometimes when I’m in a theater I can feel them.” –Pauline Kael of The New Yorker

  20. He concentrated on their attitude toward the many executive usurpations of the Bush administration, and he was satisfied on this account with John Roberts and with Sam Alito.

    The Democrats are wetting themselves.

  21. Is the President required to subordinate his opinion about Constitutionality to that of the SCOTUS?

    I believe he is.

    I tend to agree – someone has to have the last say, and I think SCOTUS is probably the right arbiter of last resort.

    Still, it is not at all unusual to see SCOTUS look at a law and say, if you interpret/apply it this way, its Constitutional, but if you interpret/apply it another way, its not.

    Why can’t the President do the same thing? It seems like SCOTUS would have two alternatives in that case

    (1) The President’s “interpretation” is not consistent with the actual language of the law. Sure, but there is a very long history of SCOTUS deferring to executive branch agencies interpreting the law; it would be odd indeed for SCOTUS to give more deference to (subordinate) agencies than to the President himself.

    (2) The President’s interpretation isn’t Constitutional. This would mean either the law is stricken as a whole, or the SCOTUS tells us what the Constitutional application of the law is.

    Neither of these is inconsistent in the least with signing statements. The Executive will be interpreting the laws it applies; why shouldn’t it do so explicitly?

  22. Stupid question: if the goal is simply to get the troops out of Iraq as soon as possible, why don’t they just cut the funding for operations in Iraq now?

    Votes. It is that venal. If they cut off funding to what they believe is an illegal or immoral or just plain stupid war, it might cost them votes. Better for Americans and Iraqis to continue dying over a tilting the windmill effort to bring freedom and democracy to Arabia than to lose votes. After Obama is inaugurated, the deaths will continue because Dems don’t want to be the ones who “lost Iraq”. They fear it would cost them votes.

    In the upside down world of Washington DC, this is called leadership.

  23. “…if this is saying that the President declines to implement unconsitutional provisions of the bill (unconstitutional because they violate the separation of powers), what’s the problem with that?”

    The problem is that the President does not get to decide if a law passed by Congress is constitutional or not. He can either veto the bill (for any reason he sees fit) or perform his constitutional duty to “faithfully execute the laws.” The laws, as we all no doubt recall, are passed by Congress.

    I am sure that we also recall that the constitution says something about Congress making rules for the regulation of the Armed Forces (maybe something like “the Armed Forces may not torture people” if the Congress cared to make such a rule) and that nowhere – NOWHERE – does it says that the President may, in his role as Commander in Chief during war or peace, ignore the law.

    Signing statements are simply a way for a President to faithlessly execute the laws and not only a naked power grab but also a failure to live up to the oath of office.

  24. Stupid question: if the goal is simply to get the troops out of Iraq as soon as possible…

    It’s not. The goal is to get them out as soon as it is feasible.

    Nice and easy. No sudden movements. Like driving on ice.

  25. All this talk of executive power led me to take pleasurable refuge in a passage of the Declaration of Independence, one with chilling and amusing relevance to the thread, no?

    “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.”

    The 56 signers are referring, of course, to the King of England.

  26. If signing statements were just about interpreting laws in a way that harmonizes them with the Constitution, we wouldn’t be having this debate. Likewise, if signing statements with phrases like “consistent with his power as commander in chief” weren’t code words for “The Decider Decides” then signing statements wouldn’t be all that controversial.

  27. “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.”-Federalist #74

    “But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be “deep, solid, and ingenious,” that “the executive power is more easily confined when it is ONE”;2 that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty.

    I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution.”-Federalist #70

    The people who favored the Constitution clearly thought the President headed a “unitary executive”.

  28. “…there is no pretense for the parallel which has been attempted between [the president] and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group.

    The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.”- Federalist #69

  29. Though they also thought the legitimate method of the executive avoiding the legislature’s interference in the president’s powers was, the veto.The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.

    But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.”- Federalist #73

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