Fight The Power! (Special NRO Edition)

Check out this post, from the NRO's Bench Memos, on Bush's signing statement on the McCain and Graham amendments:

"At the lefty legal blog "Balkinization," Washington attorney Marty Lederman has a post on the signing statement that conveys the good news that the president is not taking the McCain amendment lying down, and may plan to make the most of the Graham amendment. Of course, Lederman doesn't think this is good news, but it is."

Let me get this straight: when a President announces that he will be bound by a statute he is in the process of signing into law only to the extent that he feels like it, that's not "violating his Constitutional obligation to take care that the laws be faithfully executed", or "asserting that he's above the law": it's "not taking the McCain amendment lying down." And when he announces that he will follow another part of that statute only in keeping with an interpretation that's inconsistent both with its plain meaning and with the intent of those who drafted and passed it, that's "making the most of the Graham amendment." Moreover, the fact that our President is doing this is "good news".

I had not previously thought that obeying the law was just "taking the law lying down", or that it's a good thing to be willing to fight back when the law requires that I do something. But now that Matthew J. Franck has enlightened me, I can see all sorts of further good news in the offing. I, for one, might decide not to take the tax code lying down: lots of good news there! Or maybe I'll just "make the most of it" by interpreting "taxable income" to mean "income derived from construction work", and discover that -- hey! -- I had no taxable income in 2005. Muggers and rapists aren't just criminals: they are people who have the guts not to take the laws against assault and rape lying down! And that group of angry-looking people converging on Matthew J. Franck's office: they have decided to make the most of the laws banning kidnapping by interpreting them as allowing the kidnapping of idiots!

Truly, the possibilities are endless. I just wouldn't have thought that a self-described "conservative" would have thought they were all that attractive.

Comments

[cleek]

I just wouldn't have thought that a self-described "conservative" would have thought they were all that attractive.

perhaps there's an bit of seeing W as a vigilante, disregard the law (with a sneer and a big gun) to do the things that need doing but that the Big Bad Government (played here by Congress) is just too foolish or timid to allow.

it's Dirty Harry '06.

[cleek]

disregard the law...

make that

disregaring the law...

[cleek]

disregarding the law...

i give up

[Bruce Baugh]

On the left, there's the idea of the living Constitution, whose meaning and application change along with a dynamic society.

On the right, there's apparently the idea of the undead Constitution, which must be kept on a leash and fed with designated victims in between the times it's set free to feast on the flesh of its masters' enemies.

[dmbeaster]

Its the Oliver North as hero mentality -- nothing new for the corrupt in the GOP. Following the law is for sissies. After all, the GOP is the party with all the "ideas."

[Steve]

If you think this business of the President trying to change the meaning of a law by making a "signing statement" is BS, you should give thought to whether legislative history is BS as well, at least in the way some courts use it.

In my view, legislative history is a useful interpretive guide only when it makes use of actual events, as opposed to mere speeches. For example, if someone argues that a law means X, it's a good counterargument to note that an amendment containing X was actually considered and rejected.

But all too often, sponsors of a bill or other lawmakers will get up and hold forth on what they feel their bill means, and some court will later cite to that in order to resolve a dispute. Fact is, Congress votes on the bill before it, not on the statements made by sponsors; and those statements have no more legal significance than a statement by the President that where the law says black he intends to read it as white.

[lostoption]

Legislative history becomes relevant only when meaning of a statute unclear (which is unfortunately frequently the case, at least to some degree).

When a court finds it necessary to inquire into the deliberations out of which a bill came to be enacted, it must certainly be careful to try to avoid lending credence to self-serving pronouncements as to what some legislator supposedly thinks a particular enactment means. Generally one should consider the totality of the back and forth surrounding the development of a particular bill--arguments made, counter-arguments, negotiations.

The least credence should be bestowed upon pronouncements made after the enactment of a bill. For then, no further action can be taken in response. After the fact pronouncements are no different than the arguments of a lawyer as to how a statute should be interpreted.

And so, the pronouncements of a president as to what he believes the meaning to be of an enactment of the Congress presented to him for his signature, should have no more effect than an expression of opinion by any citizen.

For it to be otherwise would be to allow the president to amend the legislation presented to him by the Congress, then sign it in a form more to his liking--thus usurping the Congressional power.

The president has no such power. He can only sign a bill--or veto a bill. That's it.

[calmo]

Why does this dog, Keeper of the NRO Bench Memos, get the attention he does? Aside from the relief humor we so desperately need, is there anything from this pontification worth salvaging? Maybe it's his concise, argument-lite, style that comes with the territory of being a professor, chair and head of a department.[Of course, Lederman doesn't think this is good news, but it is.]
But the real weapon, the envy of all suicide bombers, was this:
Judge Scalia makes a compelling case [only for bench dogs] that the "legislative record" behind the meaning of a statute is worse than useless, arguing that it is only the meaning of the statute itself that can recommend itself to a court's attention as a guide to its meaning.
So there we have it --the law is what the court, in their wisdom of ignoring "worse than useless" legislative records, says it is. The next court of course is similarly entitled to their own opinion and might not think this is good news. And it is'nt.

[Amos Newcombe]

And Muhammed Atta didn't take the laws against hijacking and murder lying down either. What a wonderful thing for the Administration that was! Faith-based too!

[Pooh]

What lostoption said, word for word.

I'd also like to emphasise that legislative history cannot be used to make a statute mean something that is antithetical to what it says it means.

[bob mcmanus]

Ultimately, the President is not bound by the law in any way whatsoever. None of us are. We are bound by the polity and politics of the law, what consequences are implied, possible, probable when we break the law; and whether we willingly obey the law(stopsigns, Napster) in order to gain whatever psychic benefits accrue to being social animals.

The President may do whatever he likes, if he feels himself to be above the polity, or until the polity gets in his way.

[bob mcmanus]

Joseph de Maistre

Incidentally, this guy came up at Brad deLong's recently. He was very influential during the 19th century, and may be making a comeback.

[Pooh]

Bob, that is of course fundamentally true.

Down that path, the Hobbesian state of nature awaits.

[Slartibartfast]

He was very influential during the 19th century, and may be making a comeback.

If so, I'd like to meet the guy and find out how he does it.

[bob mcmanus]

Director Primacy

Bainbridge channels de Maistre? Just for grins, do a creative reading of Bainbridge's arguments on efficient corporate governance. Since he uses Burke, it is not unfair to generalize them to the political realm.
...
"Down that path, the Hobbesian state of nature awaits."

Did we ever leave that path? Sometimes I think the essential difference between liberals and conservatives is that conservatives recognize politics is violence, always as threat, sometimes with actual blood.

[Gary Farber]

"On the right, there's apparently the idea of the undead Constitution, which must be kept on a leash and fed with designated victims in between the times it's set free to feast on the flesh of its masters' enemies."

I rarely make a point of noting when someone writes well, or when someone cracks me up, but on occasion, it is necessary.

Of course, I expect that from Bruce, and take him for granted. But not quite.

Still snickering. Or chuckling. Possibly snuckling.

Bob, is there any chance you might consider making a practice of giving, say, a six word or so (more wouldn't hurt) description of whatever it is you're linking to that you want us to read, and not just a name? (You do sometimes, but mostly not so much.)

There's a lot to read on the internets, and it would be helpful to have a clue beyond that you read it, and think we should, and that it's by Jane Smith. Of course, I only speak for myself, and you need give no never mind.

[Frank]

Gary- Coming from you that seems a truely strange request.

[hilzoy]

Bruce: That is absolutely classic. You have made my week. (seriously.)

[Pooh]

"Did we ever leave that path?"

Well, yes. The course of history has been described in those terms - each age less violent than the last. Of course when the rule of law breaks down...but only a non-shallow thinker would cogitate on that. And our current executive a philosopher isn't.

Bob, you really aren't doing much to rouse me from my standard post-NY "everything is crap and getting worse" mood.

[Anarch]

Thirded re those dissolved into paroxysms after Bruce's post. That will get stolen.

[Jackmormon]

Here's the DeLong thread (Link).

De Maistre is significantly worse than Burke. A generation later, a reactionary rather than a conservative, French rather than Irish, and a dedicated absolute monarchist. "They have forgotten nothing and learned nothing," indeed.

[hilzoy]

Ditto to Jackmormon on De Maistre. A truly scary, cranky nutcase. One of him was enough.

[Barry Freed]

Allow me to be the first to say that I, for one, welcome our new necrocon overlords, masters of the undead Constitution.

[Paul]

the president is not taking the McCain amendment lying down

Lying down. That would be waterboarding, right? Maybe he should take it standing on a stool with a few electrodes up his hoo-ha.