Tuesday, January 31, 2006

SOTU Address 

Keith Olbermann asked tonight why do presidents continue to deliver the State of the Union Address in person, referring to the lengthy period of time between Thomas Jefferson and Woodrow Wilson in which the president would simply send the address to Congress to have it read into the Congressional Record by a member of congress. The reason Jefferson gave up the practice was really about his concern in violating the separation of powers in the Constitution, and not so much about not wanting to appear regal, as many have written. Keith also notes that nothing really come from a president giving this address. I beg to differ.

First, when will the broadcast media stop using Michael Beschloss for any comment about the president? There are hundreds of us who study presidential politics that could give better answers than he gives, yet whenever something about the presidency arises, there he is.

Second, as Jeffrey Cohen wrote several years ago in the "American Political Science Review," the SOTU Address is the most important address a president is likely to give all year. He commands as much broadcast network (prime) time he wants, he will largely receive a bump in the polls after it, and many of the issues he hits upon will remain salient with American voters up to six months after delivering the address--so one would have to wonder why a president would choose not to give this address live.

Third, there are a number of memorable things that come from these addresses. In 1995, who doesn't remember Bill Clinton's charge that the era of big government was over? Ronald Reagan's 1985 SOTU address formed the basis of the Reagan Doctrine, which covered such things as thwarting communisim in Latin American and not dealing with terrorists, among other things.

Fourth, what would we do without discussions pertaining to who gets to sit next to the First Lady in the Gallery? This practice, first done by Reagan when he pointed to Lenny Skutnik during his 1982 address. Skutnik, you may recall, was the man who jumped into the Potomic to save passengers aboard an airplane that slid off the runway at National Airport and into the frozen Potomic River. Or who could forget Reagan's 1986 address that was rescheduled due to the Challenger disaster?

So while our political pundits will complain about how these address do not mean a hill of beans, I think that the people enjoy these things because it allows all of us to share a civic moment--a moment in which we are all sitting around the television and attempting to 1) see if the military actually clap; 2) see if any of the justices clap; 3) see which cabinet secretary gets left behind in case the Congress at this moment gets destroyed; and 4) who makes themselves heard--the Republicans or the Democrats (I have heard that some place bets on how many standing ovations there will be).

So turn on C-SPAN and sit back and take part in a uniquely American tradition.

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Monday, January 30, 2006

More "Jonnie Come Lately's" 

Warning: Bitter Posting Ahead

Ever since the Alito nomination, and the revelation of the presidential signing statement, not to mention the unitary executive, I have been sent links by friends to a wide variety of "pundits" who know all about the signing statement or the unitary executive. All the press goes to these likely suspects, with only a passing glance to the work that I have done.

Such is the case with Slate' Dahlia Lithwick, who titles her lastest post PRESIDENTIAL SIGNING STATEMENTS ARE MORE THAN JUST EXECUTIVE BRANCH LUNACY.

No shit.

She doesn't even evoke my name, instead linking to my 2005 Midwest paper, once in the same sentence that suggests I am a Bush defender:

Presidents have used them since Monroe, and, as Bush supporters are quick to point out, Bill Clinton was one of the most prolific issuers of signing statements

What is upsetting is this suggests my paper was a polemic--that perhaps I wrote it for the Heritage Foundation as a swipe at all those liberals out there. My paper, as well as all of my work, has never been done to score political points. That is what this blog is for.

There are other points in this piece that are also upsetting, but what can you do?

Let me try to provide some semblance of balance to her post.

First, this President Bush behaved exactly as his father did. In fact, this President Bush is no where nearly as creative as the C. Boyden Gray machine of the first Bush administration. During the administration, they managed to make significant changes to the Clean Air Act Amendments of 1990 via administration fiat, despite what the Democrats--the majority at the time in Congress--had to say about it (I encourage you to read Herz, Michael. "Imposing Unified Executive Branch Statutory Interpretation." Cardozo Law Review. 15:1-2. October, 1993--it will flat blow your socks off).

Second, Papa Bush came up with the extraordinary strategy of the alternative legislative history to correct the political battles lost during the legislative process. The first, when he signed the Foreign Operations, Export Financing, and Related Programs Appropriations Act" in 1989, he did an end run around an amendment added by Congressman David Obey (D. WI) that "prohibited the sales of arms or aid to any foreign government to further US foreign policy objectives if the U.S. would be prohibited from the same kind of influence." The amendment was in direct reaction to what happened as a result of Iran-contra, and Obey's amendment was meant to embarrass the president. Not to be outdone, when President Bush issued his signing statement, he construed the Obey amendment narrowly in accordance with the view expressed on the House and Senate floor that the provision only applies to quid pro quo transactions, "transactions in which U.S. funds are provided to a foreign nation on the express condition that the foreign nation provide specific assistance to a third country, which assistance U.S. officials are expressly prohibited from providing by U.S. law.” This was a strategy worked out between the White House and Senator Bob Dole, who was the Minority Leader of the Senate at the time. As Charles Tiefer argued, the intent was to "supplant congressional legislation on a central and hotly contested issue."

The second time the Bush administration used the alternative legislative history was even brasher. This time it was done to protect business interests in the "Civil Rights Act of 1991." A year earlier, the administration had successfully vetoed the "Civil Rights Act of 1990," but a year later brought the Clarence Thomas hearings, as well as David Duke offering praise to the Bush administration's veto of the 1990 act. Politically, he was placed in a position that he would have to sign the act. The Civil Rights Act of 1991 was passed in order to, among other things, overturn a controversial Supreme Court decision in 1989. This decision was designed, as some believed, to relieve the pressure that businesses were under to hire by quota. The 1990 and 1991 acts were designed to overturn the 1989 decision, and return the precedent established in a 1971 case.

When Bush signed the 1991 act, just like when his son signed the December 30 act with great fanfare, President Bush issued two separate signing statements. One, a formal signing statement flanked by members of Congress as well as civil rights leaders, and the second signed in private and which provided the "devil in the details," if you will. The private signing statement first "codified", and not overturned, the 1989 case, and second he directed the executive branch agencies to look to a legislative history provided by Senator Dole, and others, rather than the definition worked out by John Danforth--at the behest of President Bush!!

George W. Bush has not tried something this brash yet, although his December 30 signing statement came pretty close.

Ms. Lithwick also writes:

And if you believe that all this executive self-aggrandizement is meaningless until and unless a court has given it force, you are missing the whole point of a signing statement: These statements are directed at federal agencies and their lawyers. One of their main historical purposes was to afford agencies a glance at how the president wants a statute to be enforced.

I have been making this argument since 1999, when I wrote a conference paper for the American Political Science Association meeting in Atlanta, 1999. Nearly every legal scholar who had written on the reasons of why the Reagan administration made the decision to add the signing statement to the "Legislative History" section of the USSCAN argued that it was done to influence the courts (just between us, this is also the subject of a journal article I am writing titled "A Matter of Direction" and coming to a favorite journal near you!) It was my hunch that the need to influence the courts was a smokescreen, and instead it was directed toward the executive branch agencies, who, by way of Supreme Court decisions, were pushed closer and closer to the White House. Most importantly, in 1984, the Supreme Court ruled that when provisions of law were left undefined or vague by the Congress, agency heads were supposed to use "reasonable administrative discretion" to fill the void. The Reagan administration understood this to mean "reasonable presidential discretion" when interpreting the provisions. Here is what Doug Kmiec told me about the rationale to add the signing statement to USSCAN:

“In other words it let agencies know that their work product under new law was not only to reflect their considered judgment, but also that of the President, who unfortunately can sometimes seem like a distant abstraction when one works in a sprawling administrative agency."

Don't get much clearer than that.

So here is a shout out to Ms. Lithwick and any other pundit who wises up to the unitary executive or the presidential signing statement--but especially the presidential signing statement. Give me a call or an email. You will find that I can be very helpful in providing you the details of how the signing statement has been used. Further, don't assume my work means I stand behind one type of politics over the other.

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Sunday, January 29, 2006

Why It Blows 

If you want evidence, besides the obvious, of why the "Wall Street Journal" editorial page stinks to high heaven, look no further than the tag team interview of Vice-President Dick Cheney, conducted by James Taranto and Paul Gigot. Why two editors felt the need to go on this interview is beyond me, but it certainly wasn't to do a hard nosed interview of the VP. The 2022 word piece is nothing more than a:

1. love-lorn gush at the feet of the VP;
2. a multi-page screed against the political left

In fact, it barely passes an interview given nearly 46%, or 920 words were that of the VP.

Titled "A Strong Executive," the article first gives a sketch of Cheney's career in public service--which spans the Nixon administration through the current Bush administration. Given that he is only 65, this is an impressive run. He served as the youngest chief of staff ever--34 during the Ford administration, and a 10 year stint as a Representative from Wyoming, where he was plucked in 1989 to be George H.W. Bush's second pick to man the Department of Defense (after his first pick, John Tower, went down in flames).

The most revealing point of Cheney's defense of executive power comes near the beginning of the piece:

"In the aftermath of Vietnam and Watergate . . . there was a concerted effort to place limits and restrictions on presidential authority -- everything from the War Powers Act to the Hughes-Ryan Act on intelligence to stripping the president of his ability to impound funds -- a series of decisions that were aimed at the time at trying to avoid a repeat of things like Vietnam or . . . Watergate.

"I thought they were misguided then, and have believed that given the world that we live in, that the president needs to have unimpaired executive authority. It doesn't mean, obviously, that there shouldn't be restraints. There clearly are with respect to the Constitution, and he's bound by those, as he should be. . . . But I do think the pendulum from time to time throughout history has swung from side to side -- Congress was pre-eminent, or the executive was pre-eminent -- and as I say, I believe in this day and age it's important that we have a strong presidency."

Telling of course is Cheney's defense of President Reagan's violation of the Boland Amendment that led to the Iran-Contra investigation, of which Cheney helped write the Minority Report for the Republicans. It was Cheney's view that Congress, not President Reagan, was in the wrong given the limitations it tried to assert on the foreign policy prerogatives of the President--a perfect example of Mansfield's defense that I wrote about yesterday, in which the President should be able to break the law when it intrudes upon his constitutional prerogatives.

What is more telling about this pitiful editorial is the joy that Taranto and Gigot seem to get piling on Democrats, which is really the central message of the story. Here is an example indicative of what I mean:

It may be that their party's base -- the Angry Left -- is so implacably opposed to the administration and to the war effort that leading Democrats can afford to be responsible about national security only behind closed doors. If this is so -- and given the electoral price the Democrats paid in 2002 and 2004 for their uncertain approach to national security -- the public revelation of the NSA program could end up jeopardizing their prospects for taking advantage of the GOP's very real problems this November.

Further, these two allow Cheney to once again make the connection between the 9/11 attacks and Iraq:

We also discussed foreign policy with Mr. Cheney, the highest-level official to serve in both the Bush administration that left Saddam Hussein in power and the one that overthrew him. What changed? "I think that 9/11 was a watershed event," he says. "It became clear that we were up against an adversary who, with a relatively small number of people, could come together and mount a devastating attack against the United States." This brought into focus the danger of proliferation: "The ultimate threat now would be a group of al Qaeda in the middle of one of our cities with a nuclear weapon."

By 9/11, Mr. Cheney notes, "we had 10 years of experience with Saddam Hussein defying the international community... and, based upon the best evidence that everybody had at the point, proceeding with his WMD programs." Saddam also supported international terrorism...

As for the care taken in proofing this editorial for mistakes, I will let this statement serve as the example:

Four years ago tomorrow, President Bush delivered his first State of the Union Address, in which he famously declared that Iraq and Iran, along with North Korea, made up an "axis of evil." In light of the divergent ways in which the administration has approached the three countries, I asked Mr. Cheney, was it a mistake to lump them together like this?

You may all remember that President Bush gave his first State of the Union five years ago, at which time he had no reason to speak about an "axis of evil" since the 9/11 attacks had not yet occurred. Want proof? Here is President Bush's first State of the Union address.

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Protecting Life 

If you were watching "Meet the Press" this morning, you may have seen Senator Bill Frist defending his decision to diagnose Terry Schiavo from the floor of the Senate. He said that he will always move to protect life. Is this so?

My appreciation to the Clyde-inator for passing this story out of the "New York Times" that discusses a decision in Texas to pull the plug on a woman who was not in a persistant vegitative state, but rather was in a position in which she was unable to pay her hospital bills.

The case involves a 27-year old immigrant woman who was "kept alive by a ventilator as she lay dying of cancer" in a Texas hospital. She had no money, no health care coverage, and it appears no powerful protectors in the United States Congress.

The hospital--Baylor Regional Medical Center--notified the woman's brother that if he, or the family, did not come up with the money to pay her bills--or if they could not find another facility to take care of her--they would disconnect the ventilator in 10 days. Her family, unable to find another facility to take care of her and unable to pay her bills, had to stand by as the hospital disconnected her ventilator 10 days after they were notified. It seems the hospital was protected by a 1999 Texas law--signed by President Bush--that "relieved doctors of an obligation to provide life-sustaining treatment 10 days after having provided formal notice that such treatment was found to be medically 'inappropiate.'" Let's be clear here--this woman was fully in control of her mental faculties--not in a vegitative state--when the plug was pulled.

It appears that the woman's life failed a cost-benefit test--that dumping thousands upon thousands of dollars in prolonging her life (the cancer was terminal) would be money wasted since she was never going to get better. And given her place in life, even if she did get better, she would never contribute to society in a way that paid back her debt. But as the "Times" piece argues: "But using cost-benefit analysis does not make one a moral monster. In the wealthiest nation on earth, a genuine cost-benefit test would never dictate unplugging a fully conscious, responsive patient from life support against her objections. "

Where was Senator Frist's sense of outrage on the floor of the Senate when this horrific act transpired? For that, where was Tim Russert's grilling on this issue today, or any day, on "Meet the Press?"

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Taking Candy From A Baby 

This past Friday, the "Wall Street Journal" ran an interesting article (front page, above the fold) on the new buying power of children under 10, and the ways in which corporate media are trying to get at them.

It opens with a British children's show, Pocoyo, with the main character a "googly-eyed duck with a long neck and a skinny body."

The honchos at ITV, the largest commercial television network in the UK, and not the creative artists behind the show, had veto power over how the animals in the show would look--all based on marketing, and not artistic, reasons:
Pato's neck was too long to be made into a soft toy, they said. So the neck was shortened and Pato fattened up. He'll go on sale as a stuffed animal this year for about $18. By the same reasoning, Elly, Pato's pink elephant friend, lost her toenails. She's expected to sell for the same price.

It appears that with this show, as well as a number of popular kids shows (Bob the Builder, Teletubbies, Thomas and Friends), the "suits" consider themselves "co-creators," with the ability of augmenting any character of any show for marketing reasons.

The reason, again according to the suits who head up the corporations (the same thing is happening here in the US), is that these shows are incredibly expensive to make without the type of advertising you find on shows geared towards adults. Advertising doesn't seem to work on young children (they don't "want" the things advertised in the same manner that adults are motivated to buy), thus they must make up the difference in sales of the characters who are part of these shows). But this isn't about making up the difference, but rather heaping a windfall in product sales based on television shows, with no educational value, but whose sole purpose is to manipulate children to make demands on parents to buy these over-priced toys (anyone who has watched "Teletubbies" will recognize this to be true).

How much money are we talking about? According to the article, "Dora the Explore" alone reaped "$1.4 billion in sales of toys, backpacks, clothes and other products in 2005."

Federal law has held that care should be taken with advertising placed during kids shows, arguing that they should be distinct so children know when the show has ended and the advertising has begun. It seems clear that the FCC should spend more time making sure that the shows geared towards kids are not themselves nothing more than one giant advertisement.

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Saturday, January 28, 2006

The Law and the President 

This is the title from an opinion piece in the "Weekly Standard" and written by Harvard scholar Harvey Mansfield, a to the core conservative academician who conveniently gets overlooked when David Horowitz and others go on their tirades about liberal nutjobs in the social sciences.

Mansfield, whose 1993 book Taming the Prince is a must read for anyone interested in the origin of presidential power.

Mansfield makes the argument that the president has constitutional and prerogative powers, the latter of which allows the president to use extra-legal powers when necessary, for example, when commanding the military:

A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties (and carrying out foreign powers), and pardoning the convicted, not to mention a veto of legislation. To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president,which is larger.

His interpretation of Article II is interesting. The fact that the president has to use discretion when implementing the law, Mansfield suggests, is proof that there is more than the law at play with the presidency. If the president's only role was to execute the laws, this would make him an agent of the Congress--the lonely officer awaiting his instructions from his superiors before acting. The Constitution, we must remember, gives the president an independent will to act.

While the article is intellectually interesting, there are a couple of parts that I take issue with. For example, Mansfield argues that the 1978 Foreign Intelligence Surveillance Act (FISA) established judges who were there to approve the secret actions of presidents. He writes:

From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges...

If that were the case, then why allow the president to take action and 72 hours after the fact notify the FISA courts upon what he had done? I would assert that the FISA courts were there not to approve, but rather to monitor and if necessary, to alert the Congress, the media, the public (?) regarding the potentially illegal actions taken by the president. This lets the other powers of government decide whether they wish to act against the president or not.

The second point I take issue with involves his discussion of the critics of the Bush administration. He writes:

We note that President Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if legality could guarantee success and morality could make our enemies give up.

I disagree. I think the Bush critics are attempting to frame his actions in terms of legality, because if successful, the American people understand the opposite of legal, and if President Bush is not acting in legal terms, then he must be acting illegally. Hence the attempt by the Bush administration to frame the whole wiretap issue in terms of politics--that the critics are making hay to score political points, and if they had their way, would deny to the president the necessary tools he would need to protect us from terrorism.

Despite which side you fall on politically, the article is an enjoyable read.

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Wednesday, January 25, 2006

The Permanent Campaign 

Scholars and journalists alike used to describe the Clinton's approach to governance as a "permanent" campaign--that is, the Clinton administration didn't stop running for office despite winning twice. And this was indicative of something very wrong in the political system.

It appears that perhaps the permanent campaign is not idiosyncratic, but rather may be an institutionalized component of governing. To support this assertion, one need look no further than the White House homepage, and its link titled "Setting the Record Straight."

The "Bushies" are coordinating their response to the recent criticisms by Democrats and a spate of civil libertarians about the revelations of domestic spying, and if it weren't actually happening, it would pass as a farce.

In today's press briefing, Scott McClellan got into a lover's quarrel with Martha Raddatz of ABC News. The quarrel, which has been transpiring over the past couple of days, appeared to be nothing more than a bizarre disagreement over semantics.

Buckle yourselves in because the road gets rough:

The White House last night put out paper backing up its claims that this was a terrorist surveillance program, saying the charges of domestic spying -- you defined what "domestic" meant. Isn't one end of that phone call on domestic soil? Why is the charge of it being domestic spying so far off?

MR. McCLELLAN: For the same reasons that a phone call from someone inside the United States to someone outside the United States is not a domestic call. If you look at how that is billed on your phone records, it's billed as an international call, it is charged the international rate. And so that's the best way to sum that up. Because one communication within this surveillance has to be outside of the United States. That means it's an international communication, for the very reason I just said.

Q Right. But one of the people being eavesdropped on is on domestic soil.

MR. McCLELLAN: I think it leaves an inaccurate impression with the American people to say that this is domestic spying.

Q Why is that inaccurate?

MR. McCLELLAN: For the reasons that General Hayden has said, for the reasons that others have said within the administration, and for the example I just provided to you. You don't call a flight from New York to somewhere in Afghanistan, a domestic flight. It's called an international flight.

Q Right, but --

MR. McCLELLAN: This is international communications that are being monitored --

Q But whatever -- it's David's point, too -- I mean, whatever you call it in your trying to call it -- someone domestically --

MR. McCLELLAN: It's what it is.

Q -- is being spied on. Someone's communications --

MR. McCLELLAN: It is what it is.

Q -- on domestic soil are being tracked.

This is the administration's new tactic--reframe the debate from "domestic" surveillance to "terrorist" surveillance, and point out that electronic eavesdropping only seems to apply to "international," and not "domestic" calls. And McClellan made sure to several times point out that the administration was only listening to what "terrorists" had to say. Regardless of how they choose to spin this, listening in to a conversation of an individual here in the United States accounts for domestic eavesdropping regardless of who is on the other line. Second, the person(s) on the phone have not been convicted of anything, yet McClellan swiftly posits that they are terrorists (I mean, who would support protections for terrorists?).

To show just how feckless the White House reporters are, McClellan, when fed up with the criticism of the rhetorical game of domestic v international, spins the roles around and fires back to NBC's David Gregory:

Let me ask you this. Is an international communication overseas by an al Qaeda member coming into the United States, that is monitored overseas, is that a domestic communication?

Gregory responds with "I-ask-questions-not-answer-them" (although it was such a poorly worded question, he could have easily dispensed with it) and for his effort receives boos and hisses from his fellow reporters--not one person who was willing to call McClellan on the mat for trying to change the subject.

But back to this permanent campaign. The link to "Setting the Record Straight" reads almost like a bulleted rapid response taken from the Bush/Cheney website of a two, or six years ago. On the page, the administration is making the case that President Bush was authorized to use the wiretaps by the congressional authorization to respond to the terrorist attacks AND if that is not good enough, via his inherent powers under the Commander in Chief prerogatives of Article II.

But a January 5, 2006 memo titled "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" states:

The basis for this legislation is the understanding — concurred in by the Attorney
General — that even if the President has an “inherent” constitutional power to authorize
warrantless surveillance for foreign intelligence purposes, Congress has the power to
regulate the exercise of this authority by legislating a reasonable warrant procedure
governing foreign intelligence surveillance.

It would seem that the shift into war room by the administration would appear that they are not so confident of their position, and thus are launching a rhetorical blitz to reframe the political debate. And their overall success may depend on how many congressional Republicans break from their support of the administration "anywhere anytime."

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Tuesday, January 24, 2006

Stalemate 

Charlie Cook has a column today at "Government Executive" on the problematic trend in this country toward polarization in our representative institutions, and in the electorate. A problem that some do not agree is occurring.

This has been an unhealthy trend in government since the 1970s, when liberal Democrats won in the aftermath of Watergate and acted like Bolsheviks when it came to compromise. Similarly, the same thing happened throughout the 1980s to the Republicans, which embarked on a scorched Earth crusade to take over the Congress, which proved successful in 1994. Then of course there was impeachment, a botched election, etc. bringing us up to where we are today. As Cook recalls something he saw on a liberal web site during the Alito nominations:

"Do we want a judge who would marry such a weak-willed bitch?" in reference to Mrs. Alito, who broke down and cried after baiting from Republican Senator Lindsay Graham.

It is clear that this current state of politics has been poisoned, in large part due to the closeness of our national elections. Everyone is expected to choose sides. Of course, our media has a large hand in the very reasons why things have gotten so bad.

* The Internet simply cannot operate as an open space in support of deliberative politics, ass the "LA Times" found out a couple of months ago when anonymous users flamed their experimental citizen editorial page, forcing it to shut down before the day ended. Even on community "freenets," the level of abuse to anyone with an unpopular opinion keeps all but the most thick skinned from coming back. As Cass Sunstein, University of Chicago law professor described in his book, "Republic.com," the Internet chatrooms and bulletin boards skew towards the most extreme viewpoint, thus killing any chance of true deliberation.

* Newspapers: Once the bastion of a reasoned and enlightened society in the United States, the daily newspaper bleeds uninformed opinion from the editorial page to the straight news sections. The editorial pages of most newspapers in the United States feature nothing more than syndicated columnists, who shoot from the Left or the Right, while overlooking talent right in their own backyard. As a kid, the newspaper in my own hometown featured an infuriating conservative who drove me crazy. Yet I continued to come back each day, and even submit my own responses, to which he would always reply. If the opinion leader lives in the community for which he writes, he or she is more likely to keep in mind the concerns of the typical "citizen" of his or her community. Can we say the same for Clarence Page, William Safire, or Maureen Dowd?

* Television: This is almost too easy a target, and certainly an offender that requires more space than I can spare. Television appeals to the lowest common denominator in citizens. In fact, its very existence feeds off of the actions of the typical flamethrower. As discussed in this 1999 "American Journalism Review" article, television eschews the reasoned for the outlandish.

I certainly share Cook's conclusion: "If there is a solution to the degeneration of our political debate, I haven't found it. But I certainly hope someone finds it soon."

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Thursday, January 19, 2006

Thinking Things Through 

All in all, my hour today on the program "Forum" went well. I hardly got to make the points I wanted to make because the whole thing seemed to move really fast. I do know that my interviewee skills leave a lot to be desired.

I have been working on a diagram of the unitary executive. First and foremost, the unitary executive theory is a theory deeply rooted in the Constitution. At the top, the wellspring from which presidential power is derived is the "vesting" clause of Article II. Recall that there is a major difference between the vesting clause of Article I and Article II. Article I's vesting clause simply states that "all legislative powers herein granted shall be vested in a Congress," while Article II simply states that all executive power is vested in a president of the United States. As argued before, this is a difference with distinction.

Once this difference is noted, I move on to the twin engines that really drive the unitary executive. That is the "Oath" and "Take Care" clauses of Article II. It is the "Oath" clause that requires a president to resist unconstitutional encroachments onto executive branch prerogatives. It is the basis for President Bush's controversial signing statement last month modifying the agreement he made with John McCain on torture, and it is the basis for Walter Dellinger's 1994 opinion mandating an "enhanced responsibility" for the president to resist unconstitutional breaches of a president's prerogatives.

On the otherside is the "Take Care" clause, which provides the president with administrative oversight, which allows him to monitor and even influence executive branch decisionmaking, as seen in President Clinton's Executive Order 12,866, and the muscle given to the Office of Management and Budget to play the role of presidential enforcer.

Then underneath both of these clauses you find the "presidential power tools" that enable the president to carry out his constitutional responsibilities, which is still a work in progress. I like the metaphor of a "power tool" adopted by Phillip Cooper to explain the variety of different devices a president can go into his "belt" to use in different situations. By all means, tweak it and see what you may do with it. But if you find it useful, please let me know how you have used it.

On a different, but somewhat similar note. I was going back and reading up on the initial literature on the unitary executive back in the 1980s and stumbled on something I missed the first go round (considering how much I wanted to finish that damned dissertation it is not surprising that I overlooked it). I have made the point, as others have, that Justice Antonin Scalia is a committed "Unitarian." I often recite his concurrence in "Freytag v Commissioner." However, there is a more forthright stance in his dissent in Morrison v Olson. In fact, he was the only dissent in that decision. Morrison, as you might recall, upheld the independent counsel statute that was part of the "Ethics in Government Act," which was passed at the end of the Carter administration. The Reagan administration bitterly opposed the statute as an unconstitutional violation of the separation of powers doctrine, which in this case allowed an officer with executive powers who did not come under the direction of the President.

In two instances in his dissent, Justice Scalia made reference to the concept of the unitary executive. In Part V of his 30+ page dissent, Scalia notes:

The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.

Then later, he quotes previous attorneys general, one of which he worked for as arguing:

It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide.

If you recall during Judge Alito's hearing, an area in which he sternly disagreed with past Supreme Court decisions was in its decision in Morrison. Members of the Senate should take this into consideration in their upcoming deliberations on the nomination. Justice Scalia has long been a vocal proponent of judicial deference to presidential power, and so has Judge Alito. Putting him on the Supreme Court will create a very different Court from the one we see today.






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Odds and Ends 

Just a couple of things this evening. First, for those of you who are interested, our local NPR station, WMUB, has a Friday morning program called "Forum." The idea is to present an eclectic range of topics to discuss for an hour, complete with listener call-in. I raise this issue because tomorrow the topic will be Rethinking Presidential Power, which you may recall is the name of a conference paper I presented last year, and I think will be the name of a future book. I will be on this show tomorrow for an hour, discussing everything from the unitary executive, to presidential signing statements, to potential limits on presidential power. If you think you may be interested in listening in, they stream over the internet. Or if you are in the area, the station call numbers is 88.5 FM.

Second, I received this anonymous email today:

Do you know the bill number in which Leahy added language that required the Attorney General to report to the Congress any instance in which the administration was refusing to enforce sections of law?

I do. The bill was H.R. 2215, and it was assigned Public Law No. 107-273.

Section 530D--Report on enforcement of laws--is the Leahy addition. It reads as follows:

Sec. 530D. Report on enforcement of laws

    `(a) REPORT-
      `(1) IN GENERAL- The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice--
        `(A) establishes or implements a formal or informal policy to refrain--
          `(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or
          `(ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution or of any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;
        `(B) determines--
          `(i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; or
          `(ii) to refrain from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; or
        `(C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action--
          `(i) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000; or
          `(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration.
      `(2) SUBMISSION OF REPORT TO THE CONGRESS- For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to--
        `(A) the majority leader and minority leader of the Senate;
        `(B) the Speaker, majority leader, and minority leader of the House of Representatives;
        `(C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and
        `(D) the Senate Legal Counsel and the General Counsel of the House of Representatives.
    `(b) DEADLINE- A report shall be submitted--
      `(1) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;
      `(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; and
      `(3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.
    `(c) CONTENTS- A report required by subsection (a) shall--
      `(1) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);
      `(2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that--
        `(A) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, or of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, if the fact of each such omission (and the precise ground or grounds therefor) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and
        `(B) the requirements of this paragraph shall be deemed satisfied--
          `(i) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and
          `(ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if not apparent on the face of documents provided); and
      `(3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.


Now, whether the DoJ has issued these reports is still a mystery to me. You may recall that in the late 1970s, when the Carter administration systematically ordered the Justice Department to refuse to defend any challenge of a legislative veto, Representative Elliot Levitas, a Democrat from Georgia, added language to a DoJ appropriations bill that ordered the Attorney General to inform the Congress in every instance in which it refused to defend law, so that Congress may defend those provisions not defended by the administration. I have never found one instance in which the DoJ upheld its end of the bargain. I have submitted a FOIA to the DoJ for communications covering either of these amendments--the Levitas and the Leahy amendments--and have not received any information yet.



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Wednesday, January 18, 2006

In Praise of Privacy 


Given this is the month in which Roe v Wade was decided (January 22, 1973), I think it fitting to highlight an important aspect of Roe that gets lost in the hollering about abortion, and that is the emphasis placed on privacy rights to support the right of an abortion.

Before the Supreme Court could get to a constitutional right to an abortion, the Court needed some basis in which they could support such a right.  Thus in two cases preceding it, Griswold v Connecticut(1965) and Eisenstadt v Baird(1972), the Court decided that the Constitution inferred (penumbra) the right of privacy out of several of the amendments to the Constitution.

If you add the 1st, 3d, 4th (searches and seizures), 5th (against self-incrimination), 9th, and 14th amendments, you get a constitutional right to privacy.  This is one of the reasons why Roe has been such a controversial issue—not just the moral arguments surrounding conception and life, but also playing loose with the wording of the Constitution in order to create rights that are not explicitly there.

Now while all the focus has fixed on abortion, privacy rights have expanded to a number of different avenues, particularly in the days of the security state following the 9/11 attacks.

There is, of course, the argument over whether privacy allows for homosexuality and over the importance of precedent.  In 1986, the Supreme Court (J. White for the Majority) decided that this right to privacy did not extend to homosexual activities, even in the privacy of our homes.  The case involved a challenge to an anti-sodomy law on the books in Georgia.  J. White argued that these sorts of laws predate our government, and there is a legitimate (even a Christian) commitment seeing homosexuality as a sin, and thus a legitimate government interest in preventing such activities.  Less than 20 years late, the Supreme Court reversed itself in the case Lawrence et. al. v Texas.  In this case, Justice Kennedy, writing for the majority, claimed that the Court made a mistake in Bowers and should have respected the integrity of activities between consenting adults that take place in areas where we have a reasonable expectation of privacy (see J. Scalia’s doozy of a dissenting opinion).

But there are more important issues of privacy today, many of which come from private industry to aid commerce, yet have dual use capabilities.  In the current issue of Legal Affairs (Jan-Feb, 2006), there are a number of shorter articles on items that raise privacy concerns.  The first is Radio Frequency ID, or RFID, which is by companies to better track inventory.  The problem, however, is the RFID tags, which are small, stay with the product after it has been bought, allowing the individual to potentially be tracked well after the fact.  Among the problems raised:

A second area of privacy violations is in the area of backscatter.  Backscatter is type of X-ray machine that allows an individual to better see what an individual is carrying underneath his or her clothes.  “Because backscatter X-rays pass through clothing, they effectively strip a subject to reveal contraband.”  The problem?  “It is like seeing someone naked.”

I think when we leave our homes fully clothed, we assume that no one would be looking at our naked selves.  In Iraq, this has even greater implications given the religious implications of Islam and skin.  Muslim law requires that women wear the cumbersome “Burka,” and if it was learned that Americans were able to see underneath and through that Burka adds to already mounting tension between Iraqi’s and Americans.

So in the upcoming anniversary of the Roe decision, we should also reflect on the underlying rationale behind Roe—the right to privacy—and certainly have discussions with our friends and neighbors regarding the tension that exists between security and liberty, and how privacy fits into that tension

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Monday, January 16, 2006

Crooked Is As Crooked Does 

When it comes to partisan politics, the Ohio Republican Party has broken the mold in dirty dealings. While it remains to be seen whether the national Democrat Party can get its act together and take advantage of the problems the Congressional Republicans have found themselves in. And given how well they were handled during the Alito hearings, it is a very long shot at best.

But in Ohio, the statewide Democrats simply could sit back and say nothing and simply allow the voters to run the Republicans out of town.

Front and center is our Secretary of State, Ken Blackwell. You may remember Blackwell from the 2004 presidential election, when his job as Bush/Cheney campaign chief for Ohio took precedent over his job as Ohio's Secretary of State (chicanery too numerous to name here).

Blackwell is currently running for Governor, and even before the primary has been held, he is already up to his Daley-esque machinations. According to the "Columbus Dispatch, (no liberal rag, mind you)" 30 pastors in the Columbus area have petitioned the IRS to investigate a couple evangelical "mega-churches" for dealing in purely partisan actions. The ministers are alleging:

* The two evangelical churches have begun a voter registration campaign to support Blackwell's candidacy;
* The two evangelical churches have also submitted "biased voter education" which informs members only of Blackwell;
* The evangelical churches have sponsored political events with only Blackwell present.

Blackwell is not the only Republican in the race. Jim Petro, the current Ohio Attorney-General began running television ads statewide (and particularly where I live, known as one the reddest areas of the country) championing himself as the candidate for the Right.

This race already has been building up to be a costly and nasty one, and it seems as if Blackwell will not disappoint.

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The Alito Wrap-up 

Danny Schechter posted an article on "AlterNet" in which he takes the media to task for not taking the lead in taking Judge Alito apart during last week's hearings. I would simply suggest that if the Senate Democrats would have done a better job in probing the important issues that many Americans care about, they may have forced the media into covering the hearings as something different from the typical "he said-she said." How?

The only way they would have forced different coverage would have been to break up the unity among the "other side"--that is, get the Judiciary Committee Republicans to break ranks.
If you look back to the Bork hearings, what sunk Bork more than anything else was his rankling of Senate Republicans such as Arlon Specter. Once that happened, the story went from usual to unusual, and with it a decidedly different story was told in the press.

Last week, the Senate Democrats were given the opportunity to do just this. They could have been specific in their questions and simply not moving on when the candidate tried to be evasive. And if the candidate refused to answer very simple and direct questions, the Democrats could have complained to the Chair that the candidate was not answering questions. For instance, Chair Arlen Specter sided with the Democrats during the Roberts hearing on the issue of evasiveness. A concerted effort at asking simple questions with answers that were general or bloated--or even refusal to answers--would have been something the Democrats could have gone to the public with.

But that did not happen. Instead, the Democrats on the Committee took this opportunity and turned it into a moment to hog the cameras, for nothing more than to advance their candidacies for the 2008 presidential election. Joe Biden used 75% of his time to blowhard, as did New York's Chuck Schumer. These Senators blew a perfect opportunity frustrate the president and his choice to fill the vacancy on the Supreme Court. Instead, they conceded defeat at the outset of the hearings and instead used their time to tell us how funny, brilliant, witty, or sympathetic they were. In so doing, they gave the American public no reason to turn against the nominee and, more importantly, no reason to change leadership come November.

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Sunday, January 15, 2006

Like Father Like Son 

Now that the Alito hearings are over, the press focus should move elsewhere. I am willing to bet in a couple of years if the signing statement comes back into vogue, the press will fall over each other attempting to figure out what they are, where they came from, and why there are important. And I am sure a bunch of "Johnny come lately's" will hog the spotlight and feed faulty information.

I wanted to say something about the attention they received during the Alito hearings before drawing a comparison between W and his father.

First, the focus on the signing statement that accompanied the Defense appropriation measure led to a focus that presumed the signing statements were only used in defense of foreign policy prerogatives. I will be honest. I was quite surprised that Senator Leahy never once brought up the fact that he battled the administration regarding the whistleblower protections that were a part of "Sarbanes-Oxley" and that he added a measure to the Justice Department appropriations bill demanding that the attorney general inform the Congress on every instance in which the administration takes the position that it does not have to carry out provisions of law that the president disagrees with:

The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice--

A) establishes or implements a formal or informal policy to refrain--

(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional...

But instead Leahy was content to bluster that the president was acting as if he were above the law, and that he hinted that it was the judiciary's responsibility to keep him in line. In an interview last Sunday with CBS's Bob Schieffer Leahy said:

You know, the Congress is powerless to act. We pass laws, the president says I'm not going to follow the law -- like the law on torture, the McCain amendment. Are the courts at least going to be willing, somebody willing, to stand up and say wait a minute. Laws count in this country. Nobody's above the law. Not the president, not the Congress, not anybody else.

Although not my favorite Senator, Jeff Sessions was far more reasoned in what action could be taken in the aftermath of a signing statement. Here he is with NPR's Bob Siegel:

So I mean--but he may express right up front that he thinks the law only covers A and B and not C, and he's not--he didn't mean to commit to doing C, so therefore that gives Congress notice, if they're unhappy, they can pass a law that requires him to do C.

And this is exactly how many of the actions and reactions of a signing statement are played out. For example, when Clinton signed the "Centennial of Flight Commemoration Act," he refused to sit the committee established to prepare the country for the celebrations until the appointments problem of the bill was fixed, which Congress was forced to do in remedial legislation a couple of years after.

So why is W like his father when it comes to the signing statement? The first, and certainly the most obvious, is the detail both presidents have paid to protecting the prerogatives of the office. 68% of all signing statements that President H.W. issued were to correct constitutional problems in the bills he signed. As one lawyer in the adminstration argued, the Bush signing statements "...are pervaded by an amazing scrupulosity about the separation of powers. Even a cursory review of the record suggests that the administration tried to identify and deal with every such issue in every bill that was presented to the president."

Second, both presidents had an enforcer in the administration who acted as the president's agent in defending the prerogatives of the office. For W, this person, or persons are vice-president Cheney and his new chief of staff, David Addington. For his father, that person was White House Counsel C. Boyden Gray. It was Gray's mission to act as the head of the spear that was the Bush agenda, acting both as a force inside Congress and, most importantly, acting as a connection to the conservative community.

Third, both administrations held as tantamount the privacy of internal executive branch communications. Remember the levels to which the vice-president went to protect communications dealing with the energy task force, formed in 2001? For his father, when the Congress refused to appropriate funding for the Office of Regulatory Affairs (within OMB) until the administration agreed to share sensitive regulatory information with the Congress, the administration simply created a shadow agency within the EOP and led by Vice President Quayle, and out of reach for the Congress.

A couple of other interesting things that the first Bush presidency did that did not receive much attention at the time, nor much attention during the Alito hearings, yet was interesting and significant nonetheless.

First, the HW Bush administration tried to be creative with the addition of the signing statement to the legislative history section of bills. In two seperate occassions, once in 1989 and once in 1991, the administration found itself on the losing end of legislation passed from the Congress. In 1989, the administration failed to change language that outlawed the use of aid, public or private, to influence the policies of a country if that country was off limits by legislation. This language was a direct result of what had happened during "Iran-Contra," in which the Reagan administration used money from an illegal sale of armaments to Iran in order to help the Contras in Nicaragua. The bill that ended up on the president's desk in 1989 had veto-proof protections, so what the administration did was create an alternative legislative history in the Senate which modified this language to only "quid pro quo" transactions, something clearly not meant by the Congress. In 1991, the administration once again used an alternative legislative history (created by Senator Robert Dole in the Senate) to limit the impact of the Civil Rights Act of 1991.

A second thing not covered in the recent flurry of signing statements coverage was the use, by the HW Bush administration, of signing statements to legislation already on the books, in essence to make law backwards. President Bush, in an effort to shore up his conservative credentials, reinterpreted the "abortion" provision of Title X of the "Public Health Services Act (1970)." From Nixon-Reagan, this meant that no family planning agency could use federal money for the purpose of abortion. President Bush reinterpreted this to mean that no family plannin agency that received federal funds could use federal money for abortion counseling, information regarding abortion, or to divert individuals to abortion providers. When family planning groups sued, the Supreme Court upheld the Bush administration's interpretation as "reasonable."

So there you have it. There was a lot of misunderstanding in the press of what the unitary executive theory actually postulates (and part of the misunderstanding was deliberately done by Judge Alito) as well as what the signing statement can and cannot do. Further, there was little context provided regarding its usage, particularly during the last three administrations.

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Thursday, January 12, 2006

Wrapping Up 

First, a gentleman who had graduated from Harvard Law in the 1950s wrote me last night and asked some interesting questions. Unfortunately I accidentally deleted the email before I responded. If you are reading, please drop me an email.

On with the show....

As the Alito hearings wrap up, and debate on Alito set for next week, I suspect that all of the interest in the unitary executive and in presidential signing statements will taper off so that in a couple of weeks it will be forgotten. Or forgotten until the president does something else extraordinary, which will then start another series of shuck and jive begins.

First, with respect to Judge Alito and his description of the unitary executive. When asked, Judge Alito suggested that the unitary executive involved the relationship between the president and supervision of his inferiors. Judge Alito, in response to a question to Senator Kennedy, stated:

...the concept of the unitary executive doesn't have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. And the theory is, the Constitution says the executive power is conferred on the president.

Now the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power, but a power that is explicitly set out in the Constitution.

Doesn't have to do with the scope of presidential power? I have not heard a version of the theory yet that does not go to the heart of presidential power, which Judge Alito actually admitted as much. Unitarians start with the Constitution's vesting power, particularly the difference between Article I and Article II. In Article I, the vesting clause states that "all legislative powers herein granted... where Article II states that "The executive power is vested..." Unitarians take that to mean that executive powers granted within and without the Constitution is for the president, and the president only. This means that the president has the authority--even plenary power--to use all resources available to him to protect the prerogatives of his office and to advance his preferences for the nation.

Unitarians next move to how Article II advances presidential power. The "Oath" clause demands the president protect the prerogatives of the office--gives him "enhanced responsibility" as Dellinger wrote--to refuse to implement provisions of law he determines is unconstitutional. Second, the "Take Care" clause expects the president to insure that the laws are faithfully executed. This means the president can demand that the executive branch agencies will implement law as the president intends. It means that the president may supervise executive branch communication. It means that the president may remove those who are not behaving as the president intends

All of these taken together equal more than what Judge Alito suggested. Now one may reasonably conclude that perhaps he did not understand exactly what the theory intends, though this may be remarkable given that he has given a speech defending the principle of the unitary executive. But suppose he does not understand it. The very fact that he participated in a symposium in 1993, and sponsored by the Cardozo School of Law, that specified the unitary executive theory. Many who participated in that particular symposium were the young turks in the Reagan Justice Department who had dispersed to various law schools across the country, and who had been diligently articulating the enhanced scope of presidential power. One of the participants in that symposium was Judge Alito, who wrote a piece about the Office of Legal Counsel as the shield of executive power. Thus it would be incredible to believe that Judge Alito left that symposium with the simple understanding he described in his hearings. This leads to an important question, and hopefully one raised prior to vote--why did Judge Alito feel compelled to deliberately misconstrue his understanding of the theory?



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Wednesday, January 11, 2006

I think We Know Which He Is 

On the webpage of talk radio host and White House Correspondent Les Kinsolving it proclaims:

Les Kinsolving is the nation's un-labeled talk show host! Just when you think he's conservative, he's liberal. And just when you think he's liberal, he's in the center! From proud, vociferous patriot to opinionated social commentary to winsome, mischievous devil's advocate, Les keeps audiences on their listening toes!

Here is the question he asks yesterday the the afternoon press gaggle with Scott McClellan:

Q Scott, the circulation-dwindling Washington Post has just joined a church in re-entering the burgeoning field of radio broadcasting. And my question, does the President believe there is very much compatibility at all between The Washington Post and The Church of Jesus Christ of Latter Day Saints? And if so, what?

He may play it straight down the middle with his politics, but we at least know where he stands with respect to the "Washington Post."

Second, a particular problem with the press over the last 30 years has been a focus on strategy and conflict when describing politics to the detriment of substance. Conflict grabs viewers by the same principle in which we rubber neck at accident sites. However, conflict day in and day out leaves us less informed about what and why issues are important. Here is conflict in motion in yesterday's press gaggle:

Q So when we heard yesterday about it being a dignified hearing, were there any senators in particular that the President was thinking of as not being dignified?

MR. McCLELLAN: I'm sorry, were there what?

Q Were there any senators in particular who the President was thinking of when --

MR. McCLELLAN: The President was saying that he hopes that there will be a civil and dignified hearing. This is for our nation's highest court and the American people expect the hearing to be conducted in a fair and dignified way. I think there has been a history of doing so in the United States Senate. There have been some who have engaged in inaccurate comments and dishonest attacks, certainly a number of groups that are outside the mainstream, and some who have sought to inject partisan politics into the Judiciary. The President believes that the Judiciary and the confirmation process for a Supreme Court nominee should be above partisan politics. And that's only the point he's making.

Q But in terms of the actual senators, themselves, they should not be in the least concerned that if they do raise their voices or get heated, that that would be considered undignified?

Need we say anymore?

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Tuesday, January 10, 2006

More Data 

My numbers on the use of the term "unitary executive" made it into the Senate Record today. Senator Edward Kennedy quoted the "Wall Street Journal" article that discussed the unitary executive. Here is what Senator Kennedy said, including responses by Judge Alito:

SEN. KENNEDY: Well, just -- Judge Alito, in that -- the same
signing statement undermining the McCain anti-torture law, the
president referred to his authority to supervise the unitary executive
branch. That's an unfamiliar term to most Americans, what The Wall
Street Journal describes as the foundation of the Bush
administration's assertion of power to determine the fate of enemy
prisoners, jailing U.S. citizens as enemy combatants without charging
them.

President Bush has referred to this doctrine at least 110 times,
while Ronald Reagan and first President Bush, combined, used the term
only seven times. President Clinton never used it.

Judge Alito, The Wall Street Journal reports that officials of
the Bush administration are concerned that current judges are not
buying into its unitary executive theory. So they're appointing new
judges more sympathetic to their executive power claims. We need to
know whether you're one of those judges.

In 2000, in the year 2000, in a speech soon after the election,
you referred to the unitary executive theory as "the gospel" and
affirmed your belief in it.

So, Judge Alito, the president is saying he can ignore the ban on
torture passed by Congress, that the courts cannot review his conduct.
In light of your lengthy record on the issues of executive power --
deferring to the conduct of law enforcement officials, even when
they're engaged in conduct that your judicial colleagues condemn --
Judge Chertoff, Judge Rendell; subscribing to the theory of unitary
executive, which gives the president complete power over the
independent agencies, the independent agencies that protect our health
and safety; believing that the true independent special prosecutors
who investigate executive wrongdoing are unconstitutional; referring
to the supremacy of the elected branches over the judicial branch, and
arguing that the court should give equal weight to a president's view
about the meaning of the laws that Congress has passed -- why should
we believe that you'll act as an independent check on the president
when he claims the power to ignore the laws passed by Congress?




JUDGE ALITO: Well, Senator, let me explain what I understand the
idea of the unitary executive to be. And I think it's -- there's been
some misunderstanding, at least as to what I understand this concept
to mean.

I think it's important to draw a distinction between two very
different ideas. One is the scope of executive power. And often
presidents or occasionally presidents have asserted inherent executive
powers not set out in the Constitution. And we might think of that
as, you know, how big is this table? The extent of executive power.

And the second question is, when you have a power that is within
the prerogative of the executive, who controls the executive?

And so you might -- and those are separate questions. And the
issue of, to my mind, the concept of the unitary executive doesn't
have to do with the scope of executive power. It has to do with who
within the executive branch controls the exercise of executive power.
And the theory is, the Constitution says the executive power is
conferred on the president.

Now the power that I was addressing in that speech was the power
to take care that the laws are faithfully executed, not some inherent
power, but a power that is explicitly set out in the Constitution.


I have had some requests asking in what areas do presidents issue constitutionally based signing statements. I have that information from Reagan-Clinton, and am currently working on adding the Bush information.

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Monday, January 09, 2006

An Op/Ed That Didn't Make It 

The title of the opinion from the Office of Legal Counsel, the chief constitutional protectors in the executive branch read: PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES.  Within the opinion, the assistant attorney general argued: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.  Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment… If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency.  This is usually true, for example, of provisions limiting the President’s authority as Commander in Chief.  Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.”

While it may come as a surprise to some, this is an opinion Walter Dellinger, assistant attorney general in the Clinton administration wrote to White House Counsel Abner J. Mikva.  This defense of constitutional prerogatives simply continued the aggressive protections of presidential powers that began, in earnest, with the Reagan administration and has continued to the present Bush administration.

This view of separation of powers—that each branch has the obligation to interpret the meaning of the Constitution for itself—serves as the foundation behind the president’s signing statements.  And both of these concepts—what scholars refer to as “coordinate construction or departmentalism, and the presidential signing statement—are often credited to the Reagan administration when in fact both have a rich history that stretches back to the very dawn of the American Republic.

The bill signing statement was first used by President Monroe, our fifth president who served from 1817-1825, to rectify two bills that interfered with his appointment powers.  When President Tyler issued a statement objecting to the way in which congressional districts were apportioned, Representative John Quincy Adams fired back, suggesting that Tyler should be punished for defacing a public document.  The Carter administration issued so many challenges to the legislative veto, that Congress added language to a Justice Department appropriations bill demanding that the attorney general inform Congress whenever the president refused to defend provisions of law.

It was not until the Reagan administration that the signing statement was used systematically in a way to protect the prerogatives of the presidency and to advise statutory construction both to executive branch agencies and to the federal courts (which was greatly aided by the decision in 1986 to add the bill signing statement to the legislative history of all bills).  Since the Reagan administration, all presidents—Republican and Democrat—have continued to use the signing statement to nullify provisions of bills independently determined to be unconstitutional.  In fact, in 2002, Senator Patrick Leahy added an amendment to the Justice Department appropriations bill ordering the attorney general to tell the Congress every instance in which the president refuses to enforce or defend provisions of law.
Does all of this suggest a “radical” view of the constitutional relationship of the three branches of government?  Has the president, as many fear, slipped the boundaries of the Constitution?    Not really.  Congress, with its oversight capabilities, can and should hold hearings that force agents of the executive branch to defend whatever actions deemed to be suspect. The “power of the purse” means that Congress, if it is willing, can shut off the spigot of appropriations to the various executive branch agencies to strip the president of his ability to do nearly anything.  In fact, in the past, the Congress has threatened to cut off appropriations in order to bring the executive branch around to the position of the Congress.  And finally, the Constitution demands that if the president has abused his powers, the Congress is charged with throwing him out of office.  And if all else fails, the American public has the ability to remove any public official who has violated his or her oath to defend the Constitution.

What the current case of the Bush administration and its signing statement on the McCain amendment highlights is not necessarily a president that is mad with power, but rather a Congress that has a partisan affinity with the occupant at the other end of Pennsylvania Avenue.  This affinity is causing Congress to place political advantages over the long term protection of congressional prerogatives.  Congress should remind itself that the next president may not be a Republican, and any power left unchecked now only establishes a precedent to aid the presidency in the future.

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Friday, January 06, 2006

One Stop Shopping 

Citing an increase in government secrecy and the isolation individuals often feel when snubbed by the government when making requests for information (something that I can attest to), several groups have come together to cobble a one stop list of individuals and organizations that offer advice on how to get government information or have made and received information from the government, and are offering to share it with us.

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Pentagon Papers, Round II 

The "Boston Phoenix," an alternative newspaper in Boston, has an interesting article comparing the instance of the Pentagon Papers with the leaks surrounding the National Security Administration and its wiretapping of US citizens.

The Pentagon Papers, a leaked 15 year historical overview of the War in Vietnam, which drew American's attention to the fact that LBJ lied in order to get the Tonkin Resolution from Congress.

The Nixon administration took on the papers that ran the classified document--the "New York Times," "The Washington Post," and the "Boston Globe."

In the end, the Supreme Court issued a highly fractured decision that ended up deciding for the papers. But it clearly was not a ringing endorsement for First Amendment freedoms. In fact, the justices went out of their way to note how squemish they felt about ruling on national security privileges of the executive branch.

As the article details, the Nixon administration began an effort to punish the newspapers for running their stories, but fell short because they had a hard time convincing federal prosecutors to take up the case or, more importantly, Watergate exploded on the political scene and forced the administration to turn its attention elsewhere.

Fastforward to the issue of running leaked classified documents regarding potential issues of spying on American citizens by an ultra-secret executive branch creature. The author argues that the Bush administration, which has suggested that it wants to find out who the leakers were, are angry that the "Times" ran the story.

According to the writer, the "Times" is in a delicate position given that a year ago it found out about this story, but at the urging of the White House, did not run it. The pitch--to run it would endanger national security because it would kill any information the NSA was receiving on potential terrorist strikes within the US.

I don't agree with the writer. First, this president does not have the kind of political capital to start a war with the nation's newspapers and other media. In the days after 9/11, we would be faced with a different outcome. But given the things the Bush administration wants to accomplish by the end of the presidency, getting bogged down in a drawn out battle with the media, both domestic and international, can't be high on their list. Given Bush's admiration for Teddy Roosevelt, let's see if he lives by TR's admonition regarding fighting the press: "You don't pick fights with people who buy ink by the barrel."

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Thursday, January 05, 2006

All The Kings Statements 

Revised 1/11

Thanks to the good people over at the "Kos" who found a problem in my data. It should have listed FDR with 3 statements, not 0. The problem has been corrected

The Bush administration has issued over 500 constitutionally based signing statements since 2001. Constitutionally based signing statements are those in which the president refuses to defend or enforce provisions of
law because he determines it to be unconstitutional. How does President Bush stack up to presidents before him?


President*
* The data for the signing statements up to the Hoover administration was generously provided to me by Professor Christopher May, who did fantastic work on nullification of sections of law for all presidents up to Carter. I highly recommend his book, Presidential Defiance of "Unconstitutional" Laws.

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Wednesday, January 04, 2006

Bush Unplugged 

The President spoke today at the Pentagon, and I have to say his ability to put concepts into stark, manichean categories has largely diminished from the early days of the GWOT. Here is how the President describes "Us vs. Them":

Democracies yield an ideology that is based on an ideology that says, people are free -- free to choose. The ideology of the enemy says, a few people will choose, and if you don't like what we tell you to believe in, we'll kill you, or -- or treat you harshly.

It sort of has that "fool me...won't get fooled again" feel to it, doesn't it?

Also, in order to not beat a dead horse, the President tics off what we are doing in Iraq:

* Training their military
* Training their police
* Setting up their administrative agencies

How that doesn't come close to nation-building is a mystery to me. I know, I know--9/11 changed everything....

Even though the President spoke today for roughly 15 minutes, he entertained no questions (even though praising the value of an open, democratic society).

Given what transpired in the press briefing this afternoon, you can get a sense of why the President decided not to entertain questions from the press. I am guessing this person doing the questioning of Scott McClellan is Helen Thomas:


Q How can you justify killing children and grandchildren at home?

MR. McCLELLAN: Look at what took place in Iraq last month; successful elections, where you had nearly 70 percent of the voters turn out --

Q That has nothing to do with my question.

MR. McCLELLAN: -- and if you look at the pictures from that election, the Iraqi people are determined to live in freedom. They want to chart their own future. And the President talked about that earlier today. And it's --

Q -- bomb innocent families.

MR. McCLELLAN: -- the terrorists and Saddam loyalists who are going out killing innocent civilians. We saw that again today, with some suicide attacks on a funeral procession of Iraqi civilians.

Q So why are we there --

MR. McCLELLAN: I disagree strongly with your characterization of our military. They go out of the way to target the enemy --

Q I didn't say they did --

MR. McCLELLAN: Well, your implication is certainly that.

Q In this case, there have been several --

MR. McCLELLAN: That's your implication. No, that's your implication. Our military --

Q That's not my implication. I'm telling you what --

MR. McCLELLAN: -- uses technology to target the enemy and avoid civilian casualties.

You get an idea of why she always looks sour when you see her on television.

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Monday, January 02, 2006

Contexutalizing The Signing Statement 

Let me give my warmest thanks to all my friends who sent me this story in today's "Washington Post." It truly reflects what a "learning community" should be all about.

The "Washington Post" ran a small blurb on Judge Samuel Alito's memo arguing on behalf of the presidential signing statement, using it as an effective policy and political tool and not just utilizing it as a glorified press release. While the article is more in response to the Alito memo, what it fails to do is tell us why the Reagan administration focused on something as obscure as the signing statement in the first place.

The reporter on this story, Christopher Lee, writes that the "Reagan administration popularized the use of [the] signing statements and subsequent administrations continued the practice. (The courts have yet to give them much weight...)

First, I am not sure why he writes that the courts have "yet" to give them much weight since that is not the case. While it is true that some "textualists"--those judges who will only consider the language of the bill and nothing else (a view espoused by Justice Antonin Scalia), there are alternatively others who take a big picture approach to determine the intent behind ill-defined legislation (a view possessed by Justice Stephen Breyer). Despite this, there is great evidence to suggest that judges and justices have made use of the president's position or interpretation on a piece of law. For instance, FDR issued a statement with a military appropriations bill that contained a section that sought to punish a few members of the State Department by denying funds to pay their salaries. FDR took the position that this was a bill of attainder and ordered the Justice Department to refuse to defend it if challenged in court, which it was. In the decision United States v. Lovett (1946), the Supreme Court sided with FDR's position, even referring to the signing statement issued by the President.

But more to the contemporary period and the Reagan administration. By the time that Reagan had won election to the presidency in 1980, the use of the signing statement to ward off infringements upon the prerogatives of the president was already institutionalized within the Office of Legal Counsel in the Justice Department. President Carter, for example, used the signing statement to nullify an attempt by conservatives in the Congress to keep President Carter from carrying out his pardon of Vietnam War draft evaders. Even more than this, Carter systematically used the signing statement to refuse to recognize the constitutionality of the legislative veto. In fact, Congress took notice of this standard practice and placed a provision within a Justice Department appropriations bill in 1978 that required the attorney general to inform Congress whenever the administration issued statements refusing to defend provisions of law in the federal courts. In fact, Carter's position on the legislative veto allowed it to take the side of a suit by an individual who challenged a legislative veto contained in the Immigration and Nationality Act. By the time the case, INS v Chadha reached the Supreme Court, the Reagan administration took over from the Carter administration and continued to challenge the legislative veto (something that Reagan had sworn not to do while on the campaign trail). When the Supreme Court issued its opinion in Chadha, it made reference to presidential opposition (by way of signing statements) to the legislative veto. In the 13th footnote, the Court found:

The suggestion is made that 244(c)(2) is somehow immunized from constitutional scrutiny because the Act containing 244(c)(2) was passed by Congress and approved by the President. Marbury v. Madison, 1 Cranch 137 (1803), resolved that question. The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review. See Smith v. Maryland, 442 U.S. 735, 740 , n. 5 (1979); National League of Cities v. Usery, 426 U.S. 833, 841 , n. 12 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Myers v. United States, 272 U.S. 52 (1926). See also n. 22, infra. In any event, 11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. See Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv. J. Legis. 735, 737-738, n. 7 (1979) (collecting citations to Presidential statements). Perhaps the earliest Executive expression on the constitutionality of the congressional veto is found in Attorney General William D. Mitchell's opinion of January 24, 1933, to President Hoover. 37 Op. Atty. Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953).

Just a few short years later, the Court once again took in President Reagan's view, by way of the signing statement, when it found parts of the budget-deficit-control bill (popularly known as "Graham-Rudmann") unconstitutional. In the first footnote of Bowsher v Synar, the Court stated:

In his signing statement, the President expressed his view that the Act was constitutionally defective because of the Comptroller General's ability to exercise supervisory authority over the President. Statement on Signing H. J. Res. 372 Into Law, 21 Weekly Comp. of Pres. Doc. 1491 (1985).

This brings me to the Alito memo that is the subject of the "Post" article and this posting. In February, 1986, attorney general Ed Meese told an audience at the National Press Club what the administration intended to do with the presidential signing statement:

To make sure that the PresidentÂ?s own understanding of whatÂ?s in a bill is the sameÂ?or is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

Despite the shock this statement had upon those involved with law school or law journals, it didn't raise even a ripple on the news media at the time (in fact, if there was any mention of the speech, it was on the topic of the speech--guns and gun control--and not on the signing statement announcement). Furthermore, those who wrote at the time about what this arrangement meant, including the current "Post" article today, still miss the real target of the presidential signing statement. And this is exactly, as I have argued, what the administration intended to do all along. As Meese stated, it was important to have the signing statement included in the legislative history of all bills in order to aid the courts in "statutory construction." However, the real target of this arrangement was the executive branch agencies, and not necessarily the courts.

In 1984, in the case Chevron v Natural Resources Defense Council, the Supreme Court decided that when executive branch agency heads were faced with provisions in law that were vague, they must first go to the congressional history of the bill for guidance. If they do not get any clarity there, they must then employ "reasonable administrative discretion" in interpreting what the meaning of law is. And when this happens, those agency heads had better be looking at the presidential signing statement for guidance. As one executive branch official who was in on the strategy sessions described by Alito told me, the guidance offered to the various agencies was very successful:

...insofar as it conveyed presidential direction to members of the executive branch at the earliest possible point of implementation. In other words it let agencies know that their work product under new law was not only to reflect their considered judgment, but also that of the President, who unfortunately can sometimes seem like a distant abstraction when one works in a sprawling administrative agency.

The Reagan administration went to action in utilizing their new policy tool after the announcement was made. In three separate instances in 1986, the Reagan administration made effective use of the signing statement.

In the "Safe Drinking Water Amendments of 1986," President Reagan issued a signing statement interpreting a section of the bill that contradicted with a Senate conference report on the measure that failed to resolve a contentious issue within the Senate. By changing a "may" into a "shall," the Reagan administration flipped the provision in a way that benefited important executive branch constituents.

In signing the "Immigration Reform and Control Act, 1986," the Reagan administration took advantage of a section of the bill offered by Congressman Barney Frank that protected minorities from discriminate firings by "bigoted" employers. The section as Frank intended it placed the burden of proof on the employer to provide documentation showing just cause for the firing. After the bill emerged from conference, the "Frank Amendment" was still in place, but the meaning was stripped after the Senate would not budge on the burden of proof. When Reagan issued the signing statement, he instructed executive branch agencies charged with executing the law to place the burden of proof upon those who were fired, in direct contradiction to the intent of its author, Barney Frank. Of course this new interpretation aided the business community in the United States.

And finally, in signing the "Sentencing Act of 1987," Reagan's signing statement that took the side of the Senate in a highly contentious debate ovretroactivelyity and judicial discretion within the bill. In 1989, in a challenge to the law, the Court noted the Justice Department's role in the negotiations of the measure, which was reflected in the bill signing statement.

So, in a nutshell (blogshell?), that is the context in which the Alito memo was written. The Reagan administration had seen the value in using the signing statement as a shield for presidential prerogatives. Pressing its importance, they sought to use it also as a tool to give them leverage in policy battles with the Congress, particularly a Congress that by the end of 1986 would shift visibly to the left. And certainly an instrument that would aid those presidents who came after the Reagan administration, be it Republican or Democrat.

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Sunday, January 01, 2006

Shaky Ground 

First of firsts--Happy New Year to all my friends and dedicated blog readers, those few of you out there (you know who you are).

The "New York Times" goes front page this time with a story worthy of its merit on the front page (and not about the comedic abilities of Supreme Court justices).

The article casts further doubts on the legitimacy of the NSA wiretaps. As I noted earlier, it was my belief that the wiretaps were not on sound ground when the President waited as long as he did in his speech to the nation to defend the constitutionality of the wiretappings (that he was empowered to use all means necessary by way of his inherent powers as commander in chief). Normally what would transpire is an opinion of the Office of Legal Counsel (OLC) which defends the action as a justifiable executive action to advance or protect presidential prerogatives.

As the "Times" piece notes, the administration had established the program in 2002, which required that before it was implemented, it needed to have a system of checks within the executive branch, which included the Justice Department, to make sure that civil liberties abuses didn't occur. It appears that when the administration sought the Justice Department's approval, the acting AG at the time wouldn't sign off.

In the spring of 2004, John Ashcroft was in intensive care as a result of pancreatitus, and in his place was James Comey. When Comey wouldn't sign off on the program, the White House sent Chief of Staff Andrew Card and then-White House Counsel Alberto Gonzales (now the AG) to George Washington University Hospital to go over the head of Comey and sign off on the program ("...they needed him for certification"). This certainly calls into question the independence of Gonzales to be the chief law enforcer of the United States and not the president's personal attorney.

Apparently Ashcroft was also unsure about the legality of the program, as were other executive branch officials, but in the end he apparently fell in as a team player and signed off on the operation.

If this article is true, and Arlen Specter, chairman of the Senate Judiciary Committee has pledged to hold hearings to find out, then the administration has placed constitutional prerogatives in peril, which is ironic given their zest to protect and enhance those very powers.

By drudging up the "inherent powers" given to the commander in chief during a time of war, the administration has put constitutional prerogatives in play, just as they did in 2001 when the vice president refused to release documents on who attended and what was said at meetings of the Energy Task Force. The administration fought tooth and nail to protect the right of the administration to be exposed to advice that was freely given and not subjected to exposure by the press. In the end, the Supreme Court produced a mixed ruling, but a ruling that nonetheless protected the right to withhold information without claiming executive privilege.

This case would be different. In the current case, the administration has gone fishing for a justification to protect its defense of the wiretaps. At first they claimed FISA protections, but it is clear that FISA courts were set up for this very type of issue. Instead, they have shifted to the prerogative defense when it is clear that they don't even believe it is a viable defense. So if this issue goes to court (either by way of individuals punished for breaking the law or for refusing to participate in Senate oversight hearings), there is a good chance the administration will lose and thus violate one of their core principles to do no harm (to prerogatives).

Either way, this certainly is not something the administration wanted going into the new year. They have good economic numbers and a Supreme Court nomination hearing, and yet will continue to be plagued by sins of the past.

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