Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, July 27, 2006

Flaws with Specter's Signing Statement Bill

As with the FISA legislation, Specter's signing statements bill is meaningless, and an illegal usurpation of judicial power by the legislature. GPO Not yet released

Currently, Congress chooses to not enforce the law. Madison's mistaken belief was that factions would compete. Today's problem is that the factions are not interested in asserting power they have been granted. [Ref: 40 U.S. 449]

Unresolved power issues fueled the American Civil War. What's needed are "mandatory investigative regulations" [From: 440 U.S. 741] for Congress, not just the Executive to follow; and clear criteria for Congress to investigate Executive misconduct. This can be accomplished by statute (which Congress now chooses to ignore); or explicitly through a New Constitution (which they may ignore as well, but afford a clear basis to start 5 USC 3331 proceedings: "Hearings had once been optional. By the new statute they became mandatory." 288 U.S. 294) [Ex: Apply mandatory requirement to Senate Committee Ex: Watergate].

* * *

Without reference to the not-yet-available text, let's consider Specter's words

First, it prevents the President from
issuing a signing statement that alters
the meaning of a statute by instructing
Federal and State courts not to rely on
Presidential signing statements in interpreting
a statute.


Instructing the courts not to rely on a presidential statement to interpret a statute in no way "prevents" the President from issuing a signing statement that alters the meaning of a statute. Said another way, If the Executive is going to ignore the law, and Congress does nothing, what good is it to pass a bill outlawing illegal conduct when the Congress refuses to take action on the initial violations?"A good idea, but the Congress is not interested in using the teeth.

Create Mandatory Congressional Investigation and Impeachment Criteria

The focus should shift from [a] whether the court does or does not use the signing statement; to [b] whether the Executive is or is not in violation of federal law, and subject to immediate-automatic-non debatable impeachment proceedings if h e illegally asserts intention not to enforce the law as Congress has written it. Ideally, the Executive should be subject to automatic impeachment proceedings for violating the Constitution, regardless whether the House does or does not vote to investigate.

A better approach would be to enforce the law, and impeach the Executive when he fails to enforce the law. There should be a law that mandates, and creates a ministerial obligation for the House to investigate alleged Presidential violations of the Constitution. Whether the House chooses to impeach is a separate matter. The problem with this Congress is that it refuses to take the first step. Ideally, new legislation should trigger what the Congress refuses to voluntarily do: Investigate, gather facts and take action.

* * *

Second, it permits the Congress to
seek what amounts to a declaratory
judgment on the legality of Presidential
signing statements that seek to
modify—or even to nullify—a duly enacted

This is a good idea.

* * *

Third, it grants Congress the power
to intervene in any case in the Supreme
Court where the construction or
constitutionality of any act of Congress
is in question and a presidential
signing statement for that act was

. . . later he says:
That way, if the court is trying
to determine the meaning or the constitutionality
of an act, the Congress
gets a voice in the debate

This is non-sense: the Congress has no "vote" in any "judicial" function; nor is there a "debate" within the Judiciary, there is simply an opinion.

Congress may not grant itself judicial power, nor does it have any means to affect the Court. Rather, to be precise, the Congress may "file a motion" for the Court to "consider".

This is a bad thing: It unconstitutionally permits Congress to usurp judicial power by affecting ongoing litigation with subsequent acts. This violates the Separation of powers principle. Ref

Said another way: Congress has provided no reason why it should be able to intervene on a Judicial matter; nor sufficiently state how this intervention will be uniformly applied; nor does it permit the Judiciary to exercise the exclusive judicial review power.

  • What if Congress does not want to intervene on what is an illegal Presidential signing statement?

  • What if the case never reaches the Supreme Court; should the Congress not have the power to intervene at lower levels?

  • What if the Congress, despite the court ruling that the signing statement is not Constitutional, asserts that it is -- what effort will be made to ensure the plaintiff (not Congress) is given the right to recovery monetary damages for having to litigate against issues Congress does not prevail?

  • Why does Congress get the power to intervene, but We the People are not permitted to do this; in other words, where is it delegated to Congress the power to do something which the Courts have denied We the People to do: Intervene in cases where We the People have no standing?

    It would make sense to expand the "means to intervene" to anyone who shows an interest in protecting the Constitution, without regard to their damages or standing.

    * * *

    This statement is not supported by the Boston Globe article:
    As of June 26, 2006, President
    Bush had issued 130 signing statements.
    President Clinton issued 105
    signing statements during his two

    Boston Globe reports the number to be 750+.

    * * *

    Specter's comments focus on the usurpation of legislative, not judicial power. The real issue is, despite what Congress may or may not have a gripe with the Executive on signing statements, where is the Supreme Courts view on Executive usurpation of Judicial power?

    * * *

    Next page

    DoJ Unresponsive: They have time to surf wikis, but not time to respond to Specter

    Michelle Boardman
    from the Office of Legal Counsel, why
    the President did not ask the Congress
    to put the signing statement language
    into the bill. She simply didn’t have an
    answer. I asked her to get back to me
    with the answer and I still have not
    gotten a response.

    * * *

    This one has a curious twist, raising questions as to why the court is silent:

    the President issued a signing
    statement saying his administration
    would interpret the new law ‘‘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

    Focus on the phrase: "limitations on the judicial power" -- see that? that's not correct: The President has no judicial power. Either

    A. This is a misquote;

    B. Nobody has challenged this emphatic Executive assertion of judicial power.

    Karen G and liberty and others also caught the issue. Fein included the language without direct comment on the Executive's "judicial power", and sated:
    Thus, the nullification will circumvent judicial review because Supreme Court decisions make dubious the standing of Members of Congress or congressional committees to challenge allegedly unconstitutional non-enforcement by the White House. President Bush’s signing statement was tantamount to a constitutionally impermissible line item veto.

    On this and many other issues, The Cherry Blossom King does a really nice job of interweaving the Bush misconduct with the Declaration of Impendence. I recommend keeping this as a reference.

    * * *

    Back to the Specter Speech:

    This bill does not
    seek to limit the President’s power—
    and this bill does not seek to expand
    Congress’s power. Rather, this bill simply
    seeks to safeguard our constitution.

    Given the Congressional "lack of interest" in enforcing the existing laws, passing another law is meaningless. They don't need a new bill; they need a new spirit or will within Congress to act.

    * * *

    This is curious and tends to suggest that the Congress and Executive want to look at the Judiciary as a super-ordinate branch, which is contrary to the separate but equal notion of power:
    Now, I do not see, in a case like
    this, why Congress should not get to
    explain its side. This bill would allow
    Congress to intervene and present evidence
    as to the meaning of an act in

    By asking the court to entertain a "he said, we said" approach; the Congress is asking the Court to act as a referee between the Executive and Legislative Branch; although perhaps desired, this is not Constitutional in that it puts the Court in a position of refereeing on matters of power, thereby placing the Supreme Court above both Congress and the Executive.

    * * *

    The bill fails to address the real problem: resistance of Congress to enforce the existing laws. Rather it changes the subject from the FISA-violations, and asks us to believe another canard: That an Act of Congress -- which this President ignores -- will compel the Executive to pay attention to what he ignores.

    It simply seeks to put measures in place that
    will safeguard the constitutional structure
    of enacting legislation. In preserving
    this structure, this bill reinforces
    our system of checks and balances
    and separation of powers set out
    in our Constitution

    It sounds nice, but there's nothing to suggest within this bill that the Congress is serious about enforcing this new requirement, as it was not with the FISA.

    This bill is the wrong solution to the wrong problem. The real problem: the joint Congressional-Executive agreement to violate the law, and do nothing to enforce violations of the law.

    it is precisely because of these absurd remarks that Congress should have no role in providing inputs to the Judiciary: Congress will make a mess of things. It's time to let the Judicial branch focuses on the FISA-violations. This Congress is legislating a phony problem-solution to what is a Constitutional matter.

    The voters, not the Congress, will have to make their decision this November 2006: Who do you trust to enforce the law:

  • The RNC that will not review facts related to admitted violations of the law;

  • This RNC-controlled Congress that passes meaningless legislation to the wrong problems; OR

  • Someone new that is interested in finding facts, and proposing real solutions.

    * * *

    Consider: "It is as mandatory in its character as any law upon the statute book" [57 U.S. 369, May 24, 1854] Yet, what has long been assumed to be a non-debatable point is now "unclear".

    That executive officers, as such, are amenable to courts of justice for their official acts, would almost seem too plain for argument. Such has ever been the law in England. [37 U.S. 524, March 12, 1838]

    The RNC is simply asking us to bleieve that the Constitution is debatable. They are wrong.

    * * *


    40 U.S. 449
    March 10, 1841, Decided
    About twenty years before the US Civil War.

    Emphasis Added Could the Union stand the mighty shock, and if it fell, shall we look upon the victims of anarchy and civil war, resting weared for the night from the work of death and desolation, to renew in the morning the dreadful conflict? Throwing our eyes across the Atlantic, shall we behold the consequences, when the overthrow of this Union, this second fall of mankind, shall be there promulgated? Shall we there see those daring men, now pleading the cause of self-government around the thrones of monarchs, sink despairing from the conflict, amid the shouts of tyrants exulting over the prostrate liberties of man. And who can expect such a decree from this tribunal? No, this court will now prove, that however passion or prejudice may sway for a time any other department of this government, here the rights of every section of this Union are secure. And when, as I doubt not, all shall now be informed, that over the subject of slavery, congress possesses no jurisdiction; the power of agitators will expire, and this decree will be regarded as a re-signing and re-sealing of the constitution.


    Consider what we know in 2006 in re FISA and the Executive abuse of power. Then consider what happened between 1841 and 1860 on the issues of slavery. The core issues are:

  • Who has the power to make the rules?

  • Where there is no jurisdiction, what must be done in the Constitution to ensure there is clear guidance to that has which power?

  • If the government will not listen to We the People, what can be done outside Article V to issue a New Constitution?

  • When there is a wrong, but there is no leadership to do what is right, what are the lawful options?

  • What might have been done in 1841 to avoid the Civil War of the 1860s?

  • Applying what we've learned about the power vacuums of the 1840-1860 era and the use of force to resolve disputes, what might we do today to amicably resolve the issues without going through another civil war over issues of Executive power, the Constitution, and individual rights as they relate to FISA, NSA, torture, Geneva, and signing statements?

  • If there is no statute of limitations on certain crimes, what is Congress thinking by choosing to avoid what cannot be avoided? Ref