...and because Mark Shea has already done the only part of blogging I ever find tedious myself, the link assortment, I'm sending you here to click Mark's links and read Larison's excellent piece on Bush's recent speech to the Federalist Society. From Larison:
Giuliani is playing the same game now during the campaign, telling people that he will appoint strict constructionists and oppose judicial activism and all the rest. This is seen mainly as a way to placate social conservatives, but it should be understood as an attempted deception of anyone on the right who still attaches some importance to constitutionalism. Should he somehow be elected (God forbid), he will continue the same dual-track approach to the Constitution, mouthing Jeffersonian phrases and insisting on enumerated powers in the morning and embracing the most abusive policies possible under the President’s supposed (non-existent) “inherent powers” as “Commander-in-Chief” in the afternoon.
This is one of the most persistently frustrating tendencies of our recent Republican leaders, this idea that they can promise fidelity to the Constitution while cheating on her with an assortment of trollops (the Patriot Act, for the most egregious example). As bad as the double game is, though, what makes it worse is how willing so many Republicans are to go along with it all, to nod sagely and say things like, "Of course, wiretapping is against the Constitution, but right now it's necessary, or our enemies will win." There's this sense that diminishing the Constitution is only a problem if liberals do it, because of course we can trust conservatives to keep our best interests at heart.
What so many Republicans seem to be ignoring is that weakening the Constitution's protections is a seriously bad idea no matter who is doing it. There's a reason for having a Constitution in the first place, after all; there's a reason our founding fathers made the amendment process as complex as it is, there's a reason to keep the protections of Constitutional law firmly in place. Viewing all of the Constitution's clauses as if they were equally elastic is a proposition fraught with danger; ignoring the Constitution whenever it's more convenient to pretend we don't have one is the first ingredient in a recipe for a dictatorship.
Pretending that one group of people can be trusted with nearly-tyrannical levels of power just because they're "our sort" is a hideously foolish thing to do. As C.S. Lewis put it,
Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.
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"How insanely stupid. If the president doesn't like a law, he should not sign it, you lunatic."
My friend, why would the president veto a bill which (1)he asked for and (2)was needed to fix the deficiencies identified after 9-11, just because the Democratic Congress inserted a few unconstitutional provisions he could ignore.?
"If Congress then overrides him, he should feel free to state that the law is unconstitutional and take it to court. I suspect James Wilson agreed, in fact, I suspect he agreed in the actual quote you just gave, and you erased it with ellipses."
http://www.usdoj.gov/olc/signing.htm is the source from which I took the quote. It is from the November 3, 1993 MEMORANDUM FOR BERNARD N. NUSSBAUM, COUNSEL TO THE PRESIDENT (Clinton) from Walter Dellinger, Assistant Attorney General. If anything was erased (which I doubt), it was done by the Clinton Administration.
David, my reply is being "held for approval".
Cleveland, you've completely confused two issues here. The president does, in fact, have the authority to disobey unconstitutional laws.
That has nothing, at all, anything to do with his signing statements.
The president should not sign laws he believes are unconstitutional into effect. And if they're unconstitutional, he doesn't need a 'signing statement' in the first place.
And, of course, what he's asserting is unconstitutional is, in fact, not. The president has no 'national security' power, there is no such thing as the 'unitary executive', rights to hide deliberations of the executive branch only apply to policy conversations with the president, not anyone else, and Congress has always had broad(1) watchdog powers over the executive.
And it's ignoring the fact, that, um, you just agreed with me that Bush's signing statements are in a fundamentally different category than everyone else's. Namely, other presidents used them to direct resources and whatnot that the law being signed deliberately left up to them, whereas Bush uses them to call parts of laws unconstitutional.
Even if said laws are unconstitutionally, that's clearly not how other presidents operated, so your comment that other presidents did it is, by your own admission, completely stupid. They didn't do what Bush does: Sign laws into power while writing on the law that the law is unconstitutional.
1) Congress actually has near-infinite powers over the executive, at least if the president actually wishes to have any employees under him or any buildings or any laws to enforce or any military. The executive branch is, by design, the weakest branch, either the judicial or legislative operating alone could cripple it, precisely because it has so much operational power normally. The sole purpose of it is to do whatever the other two branches allow it to do. The idea that the branches of government are 'equal' is a particularly wrong-headed idea.
David, your over your head here. I quote even the Clinton Administration to prove you wrong, but you simply ignore it. This is from WIKIPEDIA, David, hardly a right wing organization, refering to the November 3, 1993 memo from White House Counsel Bernard Nussbaum explaining the use of signing statements to object to potentially unconstitutional legislation:
"If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.
This same Department of Justice memorandum observed that use of Presidential signing statements to create legislative history for the use of the courts was uncommon before the Reagan and Bush Presidencies. In 1986, Attorney General Edwin Meese III entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history.
Signing statements may be viewed as a type of executive order without congressional oversight. Other types of executive order are national security directives, homeland security presidential directives, and presidential decision directives, all of which deal with national security and defense matters."
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David, I am not going to reply to you further on this matter.
'This is from WIKIPEDIA, David, hardly a right wing organization'
I think that single sentence demonstrates exactly where Cleveland is coming from.
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