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July 11, 2009

Comments

But I think it's profoundly dangerous to have, on the record, a statement that the President's interpretation of the law is binding on the Executive Branch.

I agree 100%, hilzoy. However, it would be interesting to know what the Obama administration's position on this issue is. Given their track record so far, I wouldn't be a bit surprised if they agree with Gonzales and Bush.

good post

In our system, the President is not a dictator, and public servants should not pretend that he is.

House Overwhelmingly Rebukes Obama Singing Statement ...The Hill, 7/09/09

Obama, in a statement made as he signed the bill, said that he would ignore the conditions.

They would "interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions," Obama said in the signing statement.

Senior Democrats and Republicans railed against the notion that the president could ignore a law they had passed and he had signed.


House Overwhelmingly Rebukes Obama Singing Statement

i'll admit i don't know all the details here, so feel free to correct me....

but isn't it possible that there's a legitimate disagreement here about what one branch of the govt can compel another branch to do? in other words, was Congress trying to make the President do something that they had no authority to order ?

I also have a problem with the President issuing singing statements.

We didn't elect Rex Harrison president!

...was Congress trying to make the President do something that they had no authority to order ?

Sure. On the one side Obama, Cheney, GWB, Yoo, Addington. On the other side 429 Congresspersons.

You are free to think it best practice to give the Executive Branch the benefit of the doubt in these disputes.

Reading Glenn Greenwald over the past couple of months has convinced me that Obama is not much better, and potentially even worse, than the Bush administration as far as their interpretation of the law is concerned.

Okay, if you read the Hill article Congress is threatening to withhold funds that Obama may promise nations if Obama doesn't follow their restrictions. Obama is certainly claiming that the restrictions impinge on the Executive Branch perogative to negotiate treaties, just as Bush claimed that Congress could not restrict the means Bush used to prosecute a war and defend the country. AFAIK, Bush's arguments are still in court, so certainly the competing claims are arguable.

This is another perspective on the "rule of law," that Congress can pass a law telling Obama to touch his toes every day at 3 o'clock, and Obama can tell Congress to fly a kite, ain't gonna. At that point Congress can impeach or whatever.

This is "Rule of Law" as a matter of pure power relations, without respect or reverence for law. There are many, perhaps John Yoo, who do view the separate branches of American government as in that kind of fully competitive and antagonistic relation, and the law as only meaningful and effective when accompanied by coercion.

I have taken that position myself, that GWB and Cheney can do anything they damn well please to do, and Congress can only and should impeach if necessary, and the people should avail themselves of their own extralegal options in defense against tyranny, if necessary.

But "The Law Be Damned" didn't seem the temper of the OP, or a popular position hereabouts.

I do realize Its-All-Different-If-It's-Obama.

Hilzoy did a fine job of covering the key issues. I want to stress the meaning of Bush's misreading of the commander-in-chief clause. He is c in c of the armed forces. Thus, he is claiming that the FBI and all the other agencies involved in this program are part of the armed forces. They are not. They are part of the executive branch and exist so that he can faithfully execute the laws, a distinction Hilzoy makes.

Wonderful post.

Even those who argue (in the face of 206 years of precedent) that each branch has a coequal right and responsibility to interpret the constitution should agree that doing so in secret is a major problem.

I do realize Its-All-Different-If-It's-Obama.

it would be even better if you would realize that you can't read minds.

Sure. On the one side Obama, Cheney, GWB, Yoo, Addington. On the other side 429 Congresspersons.
You are free to think it best practice to give the Executive Branch the benefit of the doubt in these disputes.

We ought to be able to agree that there are, in fact, things that Congress cannot legally compel the President to do eg pardon a particular person, promote a particular general, appoint a particular person to the Supreme Court. And that Congress ought not try to compel those things.

I think the President should veto such legislation, and should the veto be overridden take the matter to the Supreme Court. Im much prefer that to signing statements- the biggest problem I have with them is that they ignore the implicit wholeness of a single piece of legislation eg Congress authorized program A with oversight B and reporting C, but the President declares B and C unconstitutional. Congress might well not have approved program A without such oversight, but they've been usurped and their assent co-opted.

Okay, if you read the Hill article Congress is threatening to withhold funds that Obama may promise nations if Obama doesn't follow their restrictions.

They are also literally demanding that he take those positions. He is right to find this an unconstitutional infringement on the clear, sole role of the President in foreign negotiations. Of course, they have the power of the purse to enforce their position (along with the Senate's role in affirming treaties); if they had merely said what they would and would not do under certain circumstances it'd be unobjectionable. This is what their follow-up bill does, and that's fine with me- the only problem now is that the two provisions have been severed into separate bills, and Obama may well veto the latter one.

"Sure. On the one side Obama, Cheney, GWB, Yoo, Addington. On the other side 429 Congresspersons."

No, not really.

On the one side Obama, on the other 429 Congresspersons.

Conversely: on the one side Cheney, GWB, Yoo, Addington, and on the other 429 doormats.

I think it's great for Congress to jealously guard their prerogatives and use the purse to put some teeth in it.

Where the hell were they for the previous 8 years?

I've often wondered if somebody -- maybe Karl Rove? -- had a drawer full of 8x10 glossies of each and every member of Congress en flagrante delicto with a barnyard animal.

Hard to understand the difference otherwise.

But, hell yeah, it sure is All-Different-If-It's-Obama.

Let's face it. The President will always be a champion of executive power. That is the nature of the office. Some Presidents are more aggressive in seeking to extend their power than others. But once a predecessor has seized a certain amount of power no President (except a wimp like Jimmy Carter) is going to voluntarily part with it. This was part of the originally intended design of the system.

What was also intended was that Congress would be a champion of legislative power and seek to limit executive power and keep the President from getting out of hand. This they have signally failed to do for quite some time now. The courts are making a noble attempt, but without Congress, they can't do it.

Am I the only one who finds it disturbing that it was the IG, an executive official who was finally able to figure out what was going on, rather than Congress, which is supposed to be tasked with oversight of the executive?

lemme retract my 4:25 comment; it was unnecessarily pointed.

like i said, i don't know all the details of this topic; i've read what's out there, but it's still not clear to me that this isn't a disagreement about the separation of powers and what one branch can compel another to do.

and really, if the spat is over Congress telling Obama how he should deal with the World Bank? that's not exactly a harbinger of imminent dictatorship.

"The fact that the President was willing to defy the Department of Justice on a question on which he had no expertise shows that he was not taking his obligation seriously."


I think three things about this,

1) This statement is not supported by any actions, it is clear throug the whole report that everyone took this seriously.

2) I think they stretched the boundaries to get it started, and then worked through the issues. (I really didn't like the hospital scene)

3) In the timelines of meetings in the report it seems the Congressional leadership was never out of the loop.

It's hard for me to get too worried when the leadership seemed to be working with the administration at every step.

"I think three things about this"

I think two things about this.

1. There's a difference between taking your legal and constitutional responsibilities seriously and making sure you CYA

2. I'd have thought the result of the whole process would be enough to cause worry

2) I think they stretched the boundaries to get it started, and then worked through the issues. (I really didn't like the hospital scene)

When discussing the legality of a course of action, "stretched the boundaries" is nothing more than a dismissive euphemism for "broke the law".

3) In the timelines of meetings in the report it seems the Congressional leadership was never out of the loop.

It's hard for me to get too worried when the leadership seemed to be working with the administration at every step.

That Congressional leadership may have been complicit "at every step" would not mean that the actions were permissible - it would only mean that Congressional leadership was complicit in the wrongdoing. From my point of view, that'd be cause to be more worried, not less.

Good post, but one sentence seems like American chauvinism to me:

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

Monarchy doesn't imply that the monarch can interpret the laws any way he or she wants. In Aristotle's typology, it implies the opposite: a state in which one person can rule without regard to the law is a tyranny.

The implied, Sunday-school-version-of-the-4th-of-July, contrast is with Hanoverian England. But, in fact, Geroge III did not claim that he could ignore a statute of the British Parliament and anti-Jacobite laws stated that a person could be convicted of treason for saying he could.

That's important because Yoo routinely gets it wrong.

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