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03 May 2006

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Michael Singer

Pat, your story does not show how Jefferson and Bush are alike. Bush violates M v.M all the time asssuming he has equal power to make law as he likes it. That is unconstitutional in the sense that the court is the final judge as in M v. M. He is not co-equal with the Supreme court. Now I know none of these little tricks of his have come before the court but he is clearly trying to make law unto himself. That is not Jeffersonian.
Michael Singer

W. Patrick Lang

Michael

Come now! Are you really this literal minded and "preachy?"

Did God Almighty write the decision in "Marbury?"

Irony, man! You are a New Yorker. You are supposed to have subtle and nuanced views. pl

Mac Nayeri

Some legal scholars support GWs expansion of executive powers basing it on the President's inherent powers per the commander in chief authority.

A leading case on the subject of Presidential powers reasoned that President Truman could break a steelworker strike during the Korean War. The court reasoned because of the relationship between an uninterrupted flow of steel and the war effort, the "theatre of operations" included American steel mills and thus within the scope of Truman's commander in chief powers. People in support of GWs claims may cite this case as legal justification, arguing due to the transnational characteristic of the enemy, the "theatre of operations" extends to practically anywhere the facts present themselves.

But they are going against other longstanding Constitionally enshrined principles.

This is an area of the law where, over time, different courts have arrived at very different conclusions.

Mac Nayeri

Some legal scholars support GWs expansion of executive powers basing it on the President's inherent powers per the commander in chief authority.

A leading case on the subject of Presidential powers reasoned that President Truman could break a steelworker strike during the Korean War. The court reasoned because of the relationship between an uninterrupted flow of steel and the war effort, the "theatre of operations" included American steel mills and thus within the scope of Truman's commander in chief powers. People in support of GWs claims may cite this case as legal justification, arguing due to the transnational characteristic of the enemy, the "theatre of operations" extends to practically anywhere the facts present themselves. But they are going against other longstanding Constitionally enshrined principles. This is an area of the law where, over time, different courts have arrived at very different conclusions.

Mac Nayeri

sorry for the double post

M

CJ

I'm not a lawyer but it seems as though the president has some latitude in setting aside law in emergency. It would seem logical in extreme circumstances. Lincoln and habeas, for instance. The problem seems to be that this president has used as his justification a conflict that has no practical end, therefore giving the presidency an imperial caste. And unlike Lincoln, who arguably was dealing with a much more existential threat, GW doesn't seem at all inclined to go to congress for lawful cover at anytime. Also, allowing such presidential prerogative would seem to necessitate congress being willing to exercise its oversight function in the case of executive overreach or incompetence – sadly lacking at present.

In general, irony aside, it boggles the mind to mention our current president in the same paragraph as Jefferson and Lincoln.

CJ

Eric

You taken the bar yet there, M? Last time you were talking about the study.

Just curious.

Mac Nayeri

Eric

I got my MBEs this week and the Essays are announced this weekend. The names of all those who pass is posted on the net. We'll see!

M

W. Patrick Lang

While true that everything old can be made new, that is not so easy to achieve in the law (Scopes notwithstanding!). Marbury v. Madison is not realistically subject to challenge, but, more to the point, the President's signings do not involve Marbury, at least not yet.
When the President signs a law, it becomes the law of the land on its own statutory terms, unaffected by any reservations the President wrote in any "signing" or other document. If the President violates that law (or any other law), then there is the potential for judicial intervention. Ultimately, the Supreme Court (or lower court) would determine the Constitutionality of the law, again, on its own statutory terms and regardless of the "signing". This is because the Constitutional process for how a bill becomes a law (we all remember that!) does not allow the President to amend what the Congress sent up to him to sign or veto (as the Republicans would say, the President has an up or down vote).
If the law is found to be Constitutional and the President has violated it, then Marbury becomes relevant to what happens next. That is, does the President adhere to the Court's decision, or does he create a Constitutional crisis. This is what Marbury was intended to resolve. Likewise, if the law is unconstitutional and the President insists on enforcing the law, Marbury becomes relevant to what happens next. Either way though, the "signing" is irrelevant.
Why then does the President tout his signings and swing around his status as Commander in Chief? Signings and talk about being the Commander are the smoke of political cover, allowing him to say that he has a right to ignore a law and leaving it to the media to sort out (which they fail to do).

Arnie

W. Patrick Lang

Arnie

"Marbury v. Madison is not realistically subject to challenge,"

This is a lawyer's point of view. It assumes that all things are subject to judicial review rather than political review. pl

john pfeifler

The president's signing statements provide instructions (wink, wink)to the executive agencies charged with implementing the legislation. Mr. Bush has latched onto a rather ingenious method of directing traffic without personal involvement. Just a thought.

Arnie

Couple of thoughts. The arguments of some legal scholars (who are these folks, anyway?) that a President has Constitutional authority as Commander to violate laws seem inherently fallacious. Under law (Constitution), the President's duty is to enforce laws (ah yes, that oath). And under the Constitution, his authority as Commander inherently is no broader than the authority of the military itself. We would reject any notion that the military has Constitutional authority to go around the Nation breaking laws as it sees fit. Yet, we would need to accept that notion to find that the President’s authority as Commander extends to rewriting and violating laws.
As Pat implies, law has limits but not politics. Nor, for that matter, are there limits to smoke and mirrors. Calling a spade a shovel, the notion that the Pres, acting for the military in the role of Commander, can rewrite or break laws, is a power grab. Legal references to support this stuff are just smoke and mirrors- nothing serious there. The problem indeed is purely political. In any event, I agree that eventually the problem philosophically is a challenge to Marbury. It's great that the framers brilliantly provided us with so much entertainment.

W. Patrick Lang

Arnie

Ah -- my friend. "The framers" did not provide us this entertainment. John Marshall did so. pat

Mac Nayeri

Addington and Yoo are the braintrust of the administration's legal positions vis-a-vis the 'war on terror,' at least the public face of it. Woo has since left the govt and is at Stanford now - his book on this very issue, was recently published. It's worth the read. Addington is still there although his job title escapes me.


As I mentioned already, "they are going against other longstanding Constitionally enshrined principles," but that hasnt deterred them in the slightest.

M

DeWitt Grey

Mac Naveri:

You got the Supreme Court's decision in the Youngstown Steel case exactly backwards. See:

http://laws.lp.findlaw.com/us/343/579.html

As Mr. Justice Black wrote for the Court:

"It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States."

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities."


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