August 4, 2006

Separation of Powers

The Flawed ABA Report on Presidential Signing Statements

Carroll Andrew Morse

Don’t believe the hype that says that the American Bar Association's recent report on the use of Presidential signing statements represents a universal consensus within the legal profession. Thursday’s Boston Globe ran an op-ed by Duke Law Professor Curtis Bradley and University of Chicago Law Professor Eric Posner that asks two fundamental questions that the ABA did not address -- is it possible that Congress or the courts might do something that is unconstitutional and, if it is possible, must the President comply with unconstitutional acts...

Last week, an American Bar Association Task Force issued a head-scratching report, which concluded that ``the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the president has signed" is ``contrary to the rule of law and our constitutional system of separation of powers." That this conclusion is false is well known to constitutional law scholars and, one assumes, to the current and former law school deans on the task force….

The task force argued, in just two pages of the 34-page report, that issuing signing statements violates the separation of powers because the president has a legal duty to enforce unconstitutional laws….

The task force disapproved of nonenforcement of unconstitutional laws without providing a clear argument or drawing out the implications of its position, which is that not just Bush but many presidents have violated ``the rule of law" and ``the principle of separation of powers." If this is the task force's view, its focus on Bush is unjustified; what it is arguing for is a major adjustment of constitutional understandings

9:24 AM
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I can't wait for a Dem president to use some of these powers that Bush has accrued. Just as an experiment, mind you.

What happened to the days when Conservatives talked about "jack-booted thugs" jumping out of black helicopters to perpetrate the ominous "knock on the door"?

Am I to assume that jack-booted thugs are acceptable, so long as they're YOUR jack-booted thugs? Sort of like the general US attitude to dictators? e.g. the Saudis.

Those images and terms are from the mid-nineties; remember the militias? Oklahoma City? Tim McVeigh was striking out against what he saw as a gov't grown too oppressive.

Guess it depends on which party is running the show, eh? And I thought Conservatives were the party of principles.

Which is why Rep presidents are completely irresponsible when it comes to money. Hey, guys, deficits DO matter. It took ten years and a bunch of tax hikes to undo the damage that St Ronnie Reagan wrought--and he passed three of them because he knew he'd gone too far. No doubt it's going to take that--and more--to undo Bush's mess.

The problem is that Reps don't dare cut gov't spending. The odd thing is that Red states are, by and large, the beneficiaries of gov't spending. Think military bases, farm subsidies, oil companies.... The DOD, btw, accounts for half of discretionary spending. Ergo, any serious effort to reduce spending must include cuts in the DOD budget.

Check it out. The blue NE pays much more in taxes than it gets in fed spending. Of the top 10 that get more in spending than they pay, something like 8 are really red.

So what sort of spending are you going to cut? And Soc Sec doesn't count, because it has its own dedicated revenue stream. You can't cut benefits without cutting the payroll tax (well, you can try; that would be an object lesson in self-immolation), so any cuts to SS wouldn't actually save money.

So what are the Rep plans to balance the budget?

And calling me a socialist (or whatever) doesn't change any of this.

Posted by: klaus at August 4, 2006 6:58 PM

{Comment deleted. What is it about the concept of being at least nominally on-topic that you don't understand?}

Posted by: Rino Cooke at August 6, 2006 9:41 AM

You have a point; I did wander a bit.

However, that doesn't mean I'm wrong.

Posted by: klaus at August 7, 2006 7:01 PM

Klaus,

Though I may disagree with its substance (and hope to respond a little later), your comment was perfectly on-topic.

I was referring to a comment in the 2nd slot written by "Rino Cooke" that had nothing to do with the initial post or your reply.

Posted by: Andrew at August 7, 2006 7:05 PM

The law is whatever the president says it is. He is "the decider". Absolute executive power. Isn't that what "get the government off your back conservatism" is all about?

Posted by: mike at August 10, 2006 9:10 AM