April 30, 2006

The King and I

by Armen

I read the first page of this Boston Globe story (Hat tip: H. App. B.) about the White House not enforcing or following laws enacted by Congress by asserting that they conflict with its interpretation of the Constitution, and was not that surprised. And I've come to the conclusion that there will never be any sort of a legal solution to this. Here is why.

Although the SCOTUS has hinted that it is the sole interpreter of the Constitution it is unlikely to hold so. Given that it's finals week, I'm glossing over a lot of my reasoning, but I think if any challenge is mounted to the President's conduct it is likely to be found a political question and deferred to the elected branches. The elected branches are at the hands of a single party and so they are not too eager to steal power from each other. Well, let me rephrase that, Congress is not eager to stand in the way of the President as he expands his power from previous administrations. Effectively, by voting for a particular party, we as the electorate have also voted on an alteration of our system of government. Naturally given someone's political leanings he/she is likely to have the knee-jerk reaction that this is either legitimate/good, or the most egregious violation of human norms since Napoleon crowned himself emperor.

My solution is very, very simple and I think those of all political persuasions would see it to their advantage to adopt it. Inform the public. Let's talk about historical practice. Let's talk about the implications of a President who claims he has inherent powers to act without statutory authorization under the Constitution while at the same time he also claims he has the powers to ignore statutes. Let's talk about the consistency of having 19th century federalism combined with a 21st century presidency. Or has the die been cast? Are we the Roman Republic circa 44 BCE?

April 30, 2006 01:44 PM | TrackBack
Comments

I disagree that this is a true political question (though I recognize that I'm just arguing against your conclusion).

Consider:

"Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk"

"In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then said he could ignore them all."

This seems like a definite Chadha problem, in that the President is effectively exercising a super-majority-proof veto (or reserving a veto over Congress's 2/3 veto power) under the pretense of "signing" them into law. Without the formal exercise of a veto power, Congress has nothing to override. If the President really did think the sections were unconstitutional (at least as against his interpretations) he shouldn't be signing it into law in the first place. This seems like a significant separation of powers problem (assuming a case involving a conflict between a law and the signing statement does arise), even if you concede the point that the President could, in theory, ignore laws he believed to be unconstitutional (as was suggested in Jackson's concurrence in Youngstown).

Posted by: Chris at April 30, 2006 05:08 PM
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