Constant's pations

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

Tuesday, March 06, 2007

Presidential Prerogative To Violate the Law Does Not Exist

The President has a challengable claim on how he asserts his power. His power is reviewable, and must comply with the law.

Ref Follow-up.

Cheney's use of "prerogative" is a claim on British Monarchy approach to power: That the President can assert new powers he alone decides he must have. This is backwards. All non-delegated power sreside with the States and We the People; they are not assumed by the President.

If there was nothing wrong, the President had no reason to hide his "permissible" use of power.

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The President has no right or power to violate the Constitution. Contrary to the British model of power, all powers not delegated to the Government are reserved to the States and We the People.

If you read the Constitution, Article II, contrary to the Cheney-Addington-Bybee myth, the President has only one power: Executive.

The executive power shall be vested in a President of the United States of AmericaRef

"The Executive power" is singular, not plural; and the farmers expressly delegated only one power to the President: Executive. All options he has are not new powers, but options.

The framers expressly distinguished between singular Executive power and plural Legislative Powers. The intent was to emphasize in the language itself, that the Congress has powers; while the President has on power.

All legislative powers herein granted shall be vested in a Congress of the United States . . . Ref

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Executive power shall assent to the law. How the President uses his sole power is subject to regulation. The only claim of "there is no dispute" applies to whether the President does or does not have one power: Executive.

CDongerss may make any law or rule which defines how the President uses his sole Power. This is a ministerial requirement. Congress through the Geneva Conventions imposes requirements on the President to only conduct combat and prisoner detentions consitent with Geneva. Had this not been the intent of Congress, there would be no treaty.

For anyone to suggest the president has "discretion" whether he complies with the law is a different question than how he complies: :Discretion is with the latter, not the former.

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Cheney has a warped sense of prerogative.


1. a right reserved exclusively by a particular person or group

2. The residual powers of the Crown that can be exercised at its own discretion.

The President has no rights; he only has power. As an individual citizen, he has the same rights as anyone else; as President he has a privilege, but this cannot be abused to hide illegal conduct.

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The issues:

___ The Constitution does not provide for "new" conditions outside the two possible options: Peace and war.

___ Any claim that there is an "extraordinary circumstance" is an excuse to ignore the law, especially when the White House has time to discuss an issue.

___ Covert actions, just because they are secret, doesn't mean they are lawful

___ The President cannot claim a discretion where the Constitution and statute provide a requirement

___ The President has no prerogative to violate the Constitution or the law; whether Congress chooses to enforce or not enforce the law does not mean that the law does not exist; or that the President has the power to violate the Constitution.

___ There is no credible argument that the constraints have prevented the President from doing something that was lawful; rather, the FISA requirements have given the President tools to violate the 4th Amendment, and retroactively get court approval.

___ The claim of prospective discretion is meaningless when the Congress and President agree to define rules for notifying Congress and the Courts.

___ The supposed "extraordinary circumstances" did not exist before Sept 2001 when the NSA was violating the Constitution.

___ Discretion to use power is one thing; pretending that "power" and "ability to operate" are equivalent is illusory. It cannot be said that an "ability" to do something can or cannot be constrained, when the power remains. It is a red herring to argue over the "ability" of the President to do something, when the power to do something remains, and must conform to guidelines how that sole power is used.

___ Supposed "restrictions" are to be discussed, not secretly violated. Someone in DoJ have the foresight to draft the Patriot Act before Sept 2001; surely, the law could ahve been discussed in the context of what the Patriot Act was shaping out to be.

Iran Contra

That which cannot be taken away, cannot be returned by the discretion of another; That which does not exist, cannot be preserved. The President has no lawful discretion to violate the law or Constitution. The ticking time bomb analogy does not apply:

I think you have to preserve the prerogative of the President in extraordinary circumstances not to notify the Congress at all [of covert actions]. Or that is to exercise discretion to wait for days or weeks, or even months. I think that's within his constitutional prerogative. I am reluctant to see us impose any additional restraints or restrictions upon the President's ability to operate in this area. ... I don't think that you can pass a law that will guarantee no future president will make mistakes, and I think we have to guard against passing laws now that will restrict some future president in a future crisis that we can only guess at at presentRef

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Cheney's characterization of Presidential power is not consistent with the US Constitution. He claims discretion as a principle, but fails to account for when the powers are abused; or what to do when the President puts himself above the law.