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Wednesday, January 31, 2007

JOHN P. ELWOOD Provides Worthless, Misleading Testimony to House Judiciary Committee

House Judiciary Hearing on Signing Statements

The Title of the Hearing, contrary to Elwood's confusion, was about the President Bush Signing Statements. Elwood might as well have stayed home, discussing everything but the topic, making excuses for why this President remains in breach of his oath of office.

Ironically, Elwood cherry picked from various sources and unsuccessfully argued the President was not cherry picking from the Constitution. If DoJ witnesses want credibility, they should not continue doing what the President continues to do: Cherry pick.

Addington and Gonzalez appear to have reviewed this DoJ testimony. All cited case law, as was the case with the failed FISA defense, fails to consider the full language in the relevant court decisions. This is a repeat problem of Addington's mess in the Iran-Contra Minority Report.

Elwood pretended that a narrow line of signing statements may or may not be similar to someone else, but this in no way inspired confidence that Elwood comprehends the simple responsibility of a witness: To focus on the issue -- this President's signing statements -- not create a smokescreen. The cited examples in no way supported Elwood's central thesis, which Elwood failed to link to the purpose of the hearing. This falls into the "Do Over"-box for DoJ.

The Department of Justice Witness provided a trash statement requiring extensive time to fact check. The House should tell DoJ to resubmit his testimony.

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Rule: All DoJ Assertions in the testimony appear to have been denials of well-established concerns and violations of the law. DoJ has provided no basis to believe the denials about what the President is or is not doing.

It's easier to take the DoJ Statement, use all denials as a checklist of what the President is doing.

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Elwood's retelling of the Constitution [4 of 16] is irrelevant. The error is to assert a standard in the law or Constitution, and pretend the President is meeting that standard. He is not.

Illegal Self-Delegation of Judicial Power

Elwood's conclusion is an illegal usurpation of non-delegated Executive power. The Constitution only delegates to the judiciary the power to interpret the Constitution.
This disagreement does not relieve the President of the obligation to interpret and uphold the Constitution, but instead supports the candid public announcement of the President’s views.

We the People never delegated any judicial power, duty, or obligation to the President. Elwood has, in his conclusion, unconstitutionally ratified a violation of the Separation of Powers.

The President has no obligation or power to "interpret" the Constitution. His sole oath is to ensure the laws are enforced. This President and Elwood have, in their discussion of signing statements, usurped judicial power. There can be no candid discussion of the Constution with people like Elwood or this President who, in defending their actions, engage in illegal usurpation of power.


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Elwood fails to show that Bush's signing statements are or are not consistent with any precedents; or that the precedents, even if relevant, permit violations of the Constitution. They do not.[See Dunn]

Contrary to Elwood's assertion, Congress may require the President to do anything. This is the definition of a ministerial act, which Congress alone has the power to impose on the President.

The President may not claim unitary theory of government claiming he alone can make rules, as an excuse to ignore Congress; then reverse himself fail to enforce the law or sanction employees for violating the law. A unitary President must uniformly enforce the law, not cite a theory, but fail to take it to its logical conclusion: Protection of the Constitution.

Elwood attempts to take both sides of the argument: Asserting a non-delegated power to make rules; but a secondary (illegal) power to not enforce these rules. Elwood fails to explain why the President can have it both ways. He cannot.

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Elwood fails to credibly explain 14 of 16 how the President, subservient to Article I Section 8 rule making by Congress, can illegally assert judicial power in asserting his employees are or are not outside Congressional rule making power. The President has no power to make rules permitting illegal activity; or otherwise hiding evidence of unconstitutional conduct. Elwood simply asserted the legal requirement of supervision, without discussing the violations: Malfeasance and reckless supervision of Executive Branch employees engaged in violations of Geneva, war crimes, and violations of the Constitution.

Controlling disclosure of classified information is different than classifying evidence of illegal activity, but asserting the President can hide that illegal conduct. [ 12 of 16 ]

What other Presidents may or may not have said is interesting, but little relevance to whether Elwood has or has not fully discussed this President's signing statements. At best, he's misconstrued the concerns with the singing statements, then pretended that the citations explain the alleged illegal activity. Elwood's problem is that he's not adequately discussed the real illegal activity, which the President and DoJ have refused to cooperate in overseeing. Elwood's defense fails.

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Twisting Language

Elwood asserts on 14 of 16 that Myers recognized powers; but fails to mention the key problem with this President -- the responsibility is not a new power, but an oversight function. When the President does not enforce the law, as this President has failed to do, he may not assert a theory of "unitary executive" as a basis to block Congressional review of his maladminstration, and failure to remove officers who violatate the law.

Cherry Picking

Here is the original CRS, which in no way captures all the concerns in the CRS report:
However, in analyzing the constitutional basis for, and legal effect of, presidential signing statements, it becomes apparent that no constitutional or legal deficiencies adhere to the issuance of such statements in and of themselves. Rather, it appears that the appropriate focus of inquiry in this context is on the assertions of presidential authority contained therein, coupled with an examination of substantive executive action taken or forborne with regard to the provisions of law implicated in a presidential signing statement.2 of 30

However, Elwood only included the first sentence 6 of 16, deleting the relevant second part, curiously similar to what Addington did in the Iran-Contra report when pretending issue of politics were power.

Elwood, if you're going to call something "mainstream" at least consider the main stream of the argument, which you deleted from the CRS citation.

Elwood misstated the number of signing statements by an order of eight [8], well understating the problem. [9 of 16]

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Mischaracterizing ABA, Boston Globe

Elwood, in typical Addington-fashion, narrowly and incorrectly construes the ABA and Boston Globe positions, then refutes his misstatements without any evidence. Elwood, if you're going to defend the President, stop arguing with yourself.

Argues By Arguing the Incorrect Alternatives

Rather than defending the President's illegal activity, Elwood offers speculative risks of what may happen if signing statements are not used. 7 of 16 Elwood isn't arguing for the signing statements, only pretending that bad things might happen if they aren't used. This isn't a credible argument as he's only focused on speculative outcomes, not the certain illegal usurpation of power.

Repeating DoJ FISA Violation Defenses

Addington, Gonzalez, and Elwood have jointly pursued the common approach: Citing case law prior to the FISA, then ignoring the subsequent legislative history after the cited examples. This does not meet the standard of relevance.

President has no power to exercise judicial review nor interpret the law, especially when his conduct falls outside his narrow, sole Executive power.

Desiring to avoid a constitutional confrontation is no basis to assert the desirability of avoiding the confrontation; the confrontation may be needed. The President has no power to construe a statute to mean something that will prevent judicial review of his illegal usurpation of judicial power.

The Constitution only allows the President to make his views known to Congress. Elwood's speculative "benefit" of the President making isviews known to the public is outside the express delegation to the President to narrowly provide his comments in writing only to Congress. Elwood fails to account for this Constitutional requirement and standard on the President in Article I.

The President was no delegated power to remain silent and do nothing on a bill; but then direct a department to do something on that bill he has not signed. Elwood's reasoning is convoluted. Addington is close.

DoJ Witness Skews the Record

Ref The DoJ witness incorrectly stated that the Bush signing statements are "indistinguishable" from other Presidents. It is incorrect to say the President "occasionally" issued signing statements.

DoJ failed to correctly characterize the nature of the President's signing statements: To ignore the law.

It is irrelevant what other Presidents have done: The President has a duty to enforce the law, not actively ignore it as this President has done. There is no precedent which the Supreme Court recognizes which permits the President to usurp power.

As Addinton and Gonzalez cherry pick the statute, DoJ also mischaracterizes the CRS Study which clearly communicated a problem,

While the substance of the Bush II signing statements appear to be comparable to those of previous administrations, the nature and sheer number of provisions challenged or objected to indicates that there is nonetheless a qualitative difference to the current Administration’s use of this instrument.13 of 30

DoJ misses this statement, and focuses on a separate page, which includes a reference to numbers which DoJ Ignores:

While the number of provisions challenged or objected to by President Bush has given rise to controversy, it is important to note that the substance of his signing statements do not appear to differ substantively from those issued by either Presidents Reagan or Clinton. 12 of 30

DoJ ignore the CRS comments about the numbers as asserts the opposite, missing the point of the hearings: There is a problem with the numbers

In addition, the number of such statements issued by President Bush is in keeping with the number issued by every President during the past quarter century. 3 of 16


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Intent of Signing Statements

DoJ Mischaractizes the objective of signing statements which cherry pick on the statutes. There is no noble intent to ignoring the law, it's criminal activity and there is no excuse.

3 of 16: Look at the first full parapgraph, and you'll see they've created a checklist of illegal Presidential activity, then simply denied it without credible discussion:

___ Attempts to override, ignore, and invalidate laws

___ Ignore the checks and balances

___ Illegal usurpation of power

___ Violate the principle of separation of power

___ Unilateral action

___ Ignore Executive Responsibilities of ministerial acts

___ Efforts to ignore Congress, not respect Congressional statements

___ No respect for any dialog between Congress and Executive prior to passing the law

___ Refuse to enforce law as enacted

___ Put the Executive in a superior position over another branch of government

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3 of 16 Congress is allowed to make restrictions on who is or is not qualified to fill a position under the appointments process. Congress can make any rule which is a legal hurdle for the President to scale; Congress is not required to make rules which permit anyone to be qualified.

Contrary to DoJ Assertions, Article II powers are contingent upon Congressional consent, which they may grant or deny through any arbitrary rule Congress alone chooses. The DoJ Staff has no power to claim Congress cannot make this rule.

___ Illegal assertion President will not comply with Congressional rules related to when Congress will or will not recognize Presidential appointments

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There is no reason to believe DoJ Characterizations of when things are or are not violations; or whether they are or are not appropriate assertions of power.

The DoJ Witness statement is trash and should not be relied upon until all assertions are fact checked.

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Another Witness

Ref Mickey Edwards incorrectly stated that illegal activity is a precedent. This is contrary to the US Supreme Court in Dunn where a usurpation of power does not become precedent.

It is a separate matter whether the law is actively ignored; or selectively not enforced. State Attorney Generals under the TN AG rules 42.1 may decline to prosecute because a statute has not been enforced, but this is different than a President actively stating he will not enforce the law. [ Details ]

Ref Edwards also incorrectly characterizes the "Unitary Theory" of the Executive. The principle relates, as Justice Alito Presented it at his confirmation hearing, that the President shall have control over the personnel under his department. In theory, this means that Congress does nto share control. As Edwards presented it, he suggested that Congress cannot make rules, which defies Article 1 Section 8.

Putting aside the theoretical differences, perhaps Edwards or others may wish to discuss the concept of "ministerial acts" and "acts of Congress" in terms of what Edwards said:

According to this theory of the "unitary executive", the legislative branch of government may not instruct executive branch agencies in the performance of their duties.

Again, the distinction is between [a] power and [b] ministerial acts. The argument Addington and Gonzalez offered, which has no merit, was that the President had power to violate the law [which he does not] as an excuse to ignore the explicit FISA ministerial acts. It does not follow for Edwards to argue, in light of Addington's argument over power, that Congress under the unitary theory, cannot make rules or instruct the Exeutrive how to perform duties.

____ To what extent are illusory powers created -- above and beyond the single power: Executive -- to assert that the President's actions are outside the real of ministerial acts?

____ If the President cannot be told what to do, why is there any effort to make the President's actions an issue of power, distinguishing them from a ministerial act?

____ If there is no basis for Congress to tell the President how to do his job -- which, by definition is what a statute is as it relates to a ministerial act -- how does the President explain his assent, agreement, or concurrence with any act of Cognerss?

Under the President's theory of government all things that he wants to do -- illegal or not -- are powers; and all things he wants to ignore -- legal or not -- are deemed inappropriate instructions.

___ Why bothering to take the effort to pretend that an act of the President is not a ministerial act, unless there is a fair case that the President's conduct is a ministerial act?

The President, by asserting that his acting is only power -- which it is not -- he's set himself up to explain: If Congress is illegally defining how he is to do something, why would the President both the pretend that the Congressional act is no a ministerial act? If he had real legal foundation on his power argument, there would be not reason to assert any power; nor claim that the activity was not a ministerial act. The President, in his singing statements attempting to assert a non-delegated power, has implicitly argued:

1. He knows the Congress has the power to make rules;

2. He knows the Congress can define ministerial acts;

3. He knows he cannot violate the law;

4. To get around this he will assert his conduct is a new power.

The error, in the signing statement, was to attempt to shape the basis for his decision. This fatally asserted a position which he would only assert if he knew it was not legal; he would not mention an issue of power unless he knew there was a fair cas to be made that the activity was a ministerial act, but he was hoping to shape it as something other than what it was: An illegal assertion of non-delegated power to define something as a power, when it was really a ministerial act which Congress alone has the power to define, regulate, instruct, and specify how the task will be accomplished.

Legislative power is asserted through Acts; unless the Acts are enforced, Congressional power is illegally thwarted. These are not issues of simply usurpation of legislative power by the Executive; but Congress assenting to having its primary power ignored. The Members of Congress have been complicit in illegal violations of the Constitution and should be prosecuted under 5 USC 3331.

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