Category Archives: Law: Constitutional Law

Horrible, simply horrible.

Time to exhume my “Experts Agree: Ed Meese is a Pig” T-Shirt.

America’s Finest News Source has the full details on the latest constitutional moves emanating from the White House —

Bush Grants Self Permission To Grant More Power To Self: WASHINGTON, DC–In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers.

…

The Presidential Empowerment Act, which the president hand-drafted on his own Oval Office stationery and promptly signed into law, provides Bush with full authority to permit himself to authorize increased jurisdiction over the three branches of the federal government, provided that the president considers it in his best interest to do so.

…

Senior administration officials lauded Bush’s decision, saying that current presidential powers over presidential power were “far too limited.”

Seven former OLC members, including Walter Dellinger and Marty Lederman have jointly authored, Untangling the Debate on Signing Statements. It’s a great explanation of the issues and why the Bush position on them is so troubling, and I’m in very substantial agreement with it.

Like the authors, I don’t for a second dispute the right, indeed duty, of the President to instruct the members of the executive branch in how to do their jobs — absent contrary congressional commands anyway. And Presidents have the right to say whatever they want when signing legislation. Like the authors, I don’t think this has much relevance to what a court should do if asked to decide the constitutionality of the statute. It’s certainly not on a par with legislative history — really nothing more than an argument in a brief. But there’s no harm in that.

And I accept that modern practice has for many years accepted that Presidents can sign a bill that they believe contains an unconstitutional provision then seek to have that part severed from the bill via court action — although the purist in me would prefer that the President veto the whole thing on constitutional grounds: Judicial severing of parts of legislation is not a particularly principled process and seems to be one that, for all its pragmatic short-run virtues, in the long run we might well be better-off without.

It’s no small matter when a President fails to execute or observe a statute — although constitutional grounds and subsequent court approval have in rare cases justified this stance. And the problem is more than doubled when — as is the case with the current administration — a President fails to observe the law in a manner which is designed to hide the ball, rather than make clear to the public and the courts that the President believes there’s a serious constitutional problem. It’s not ironic but deadly serious that this administration considers the statute requiring it to report when it fails to observe a law to be one of the many laws it doesn’t actually have to follow.

The other problem, of course, is that this administration has abused the ‘constitutional objection’ card beyond all credibility. Claiming that there are hundreds of bills that require executive correction betrays a worldview which says the President is a king, with fully and plenary powers not subject to legislative constraint and indeed has more-than-royal power to rewrite legislation at will.

A healthy democracy would have antibodies to this sort of thing. Ours seem very slow to swing into action. A big chunk of the blame lies in Congress, which has taken so much of this lying down for so long. And to be fair, part of it lies with the American people who voted this crew back into office in 2004. I hope 2006 will be a different story.

They do it, so I don’t have to (besides, they do it better):

• Steve Vladeck, Legislative Supremacy, The Laws of War, and the Geneva Holding
• Jack Balkin, Hamdan as a Democracy-Forcing Decision

Enjoy!

The Carpetbagger reports that Constitutional convention talk refuses to go away:

some of the less-sane members of the GOP base are openly considering a constitutional convention because of the Senate’s failure to pass an amendment banning gay marriage. Unfortunately, talk of such a ridiculous idea seems to be increasing, not decreasing.

A second Constitutional Convention is actually far more likely than it should be: Over the decades, arguably as many as 32 states have passed resolutions calling for a Constitutional Convention, just two shy of the 34 needed. I say “arguably” because some of these were a long time ago, and Dillon v. Gloss (1921) (!) tells us that changes in the Constitution should be the result of a “contemporaneous consensus.” Nevertheless, there is a contrary body of opinion, exemplified by the ratification of the 27th Amendment that these calls do not have a ‘use-by’ date — they remain in force at least until rescinded by the legislatures which issued them. (Some people even argue that since the Constitution doesn’t mention taking back a call for a convention, even a rescinded call for a Convention remains in effect!)

On the other hand, many of the petitions states have voted in the past are plausibly dismissed as technically deficient, as they purport to request that a convention be called for a particular purpose (e.g. to consider a given amendment), while the Constitution quite clearly contemplates only an open-ended procedure. It’s not at all clear what weight to give those resolutions.

Working on a worst-case hypothesis, as best I can tell the 32 states that have called for a new Constitutional Convention in some form or other are:

Alaska, Arizona, Arkansas, Delaware, Colorado, Georgia, Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska , New Hampshire, New Mexico , North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania , South Carolina, South Dakota, Tennessee, Texas, Utah , Wyoming

Many of these states passed resolutions that purported to limit the requests to a balanced budget amendment, and the large majority did so between 1975 and 1979 — almost a generation ago.

Alabama, Florida and Louisiana each subsequently rescinded their calls. As if in counterbalance, South Carolina and Tennessee passed their resolutions twice and Louisiana did it three times.

One house of the bicameral Nevada legislature also purported to “purge” its resolution, but as the call had been voted by both houses, it’s hard to see this as legally effective.

So the bottom line is…confusing. If the calls for a limited convention count as calls for an unlimited convention, and the rescissions don’t work, then we could be as little as two states away. If the three rescissions are legally effective — and I think they should be — we could be as little as five states away. On the other hand if only knowing and general calls for a convention work (which, on balance, I think should be the right answer) then we are very far away, although I don’t know what the exact number is; similarly, if the courts were to craft some sort of time limit for the validity of a call for a Convention, then we could be almost at square one, depending on what the line was.

Even if a Convention were to meet and to report out a new document, or changes to the old one, any revisions would have to be ratified by the states. I am sure that I don’t need to spell out how dramatic the potential changes could be — for ill, or even for good.

So, you heard it here first: If the call for a Second Constitutional convention happens, and if it survives its trip through the courts, then I’m going to be running to be a delegate. (Assuming we even get to elect our delegates, of course.)