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Author Topic: Bush violates Oath of Office... again
Everard
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ARticle II, section 3

"he shall take Care that the Laws be
faithfully executed,"

http://www.boston.com/news/nation/washington/articles/2006/03/24/bush_shuns_patriot_act_requirement/

Unitary power of the executive? Those who claim that the constitution is careful about word choice shouldn't believe it exists.

Article I section 1, "All legislative Powers herein granted shall be vested in a
Congress of the United States"

Article II, section 1,
"The executive Power shall be vested in a President of the
United States of America."

The executive power is NOT ALL the presidents. But ALL legislative power does belong to congress, so congress has the power to limit the executive's powers.

Further, there is no clause in the constitution that says the president may ignore congressional acts. Rather, it says that he shall faithfully execute the laws passed by congress.

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Dagonee
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Ev, the inclusion of "all" in article I is more naturally interpreted as limiting Congress's power. Article I limits the grant to "Powers herein granted." No such limitation is placed on the President.

That said, I think it is clearly in Congress's power to require the President to report his doings, subject to Executive Privilege. And since Executive Privilege covers the deliberative process, not what's actually done, it does not seem to cover the information requested in the act.

quote:
Further, there is no clause in the constitution that says the president may ignore congressional acts. Rather, it says that he shall faithfully execute the laws passed by congress.
This is not quite accurate. The President is required by the Supremacy Clause not to enforce unconstitutional laws passed by Congress. The Constitution has primacy and is part of "the Law." Again, though, I don't think this particular instance qualifies, because I don't think Congress's request is unconstitutional.

Also, has the President missed his deadline for supplying info (I'm not registered at the Globe and couldn't read the second page)? If not, he's not violated his oath of office yet.

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Everard
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Sure he has. He's saying he doesn't have to uphold the law. Thats a violation of his oath to uphold teh constitution, because saying the president doesn't have to uphold the law undermines the constitution.

I agree that article I section 1 limits congress, because it says all the legislatve power contained in the constitution is congresses. But I don't see a natural reading of I,1 and II,1 that says that the executive power is "unitary."

[ March 24, 2006, 12:14 PM: Message edited by: Everard ]

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Pete at Home
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Military necessity is a standard legal justification for a government agent breaking any law, unless

1. the law specifically stipulates that necessity is NOT a justification for breaking that law.
2. The context of the law makes clear that it was only supposed allow actions in military necessity, and therefore that military necessity would not be a defense for exceeding that authority. But this is tricky and courts wrestle with it. For example, in Brown v. US the Supreme Court found that military necessity didn't allow permenant seizure of enemy property without compensation, because there was no congressional Capture Rule allowing such seizures.

On the facts provided in the story, it seems to me that the Patriot act is an example of the 2nd exception, and that the President cannot justify his non-compliance. However, the President is being advised by that significant minority of constitutional scholars that would argue that the president is in the right, justified by military necessity, or other factors I don't have time to explain.

Trouble is that we're in an area where federal courts don't enforce. Congress' options for enforcing are few, clunky, and politically risky.

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Dagonee
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"The executive power." Not "The executive power not granted to someone else."
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Everard
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Yes, dagonee. "The executive power" is my point.

There's nothing about the wording that says that the executive power can't be restricted by other branches. There IS something about the wording in article I that says that the legislative power can't be restricted by other branches.

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Dagonee
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Congress's powers are enumerated and explicitly limited to that enumeration. The enumeration does not contain the ability to restrict the executive power.
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WmLambert
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This seems to be a replay of the NSA surveillance controversy that Russel Feingold said was enough to warrant impeachment, but he would urge censure.

The response to that was made by the Attorney General. How is this not applicable to the Patriot Act mandates as well?

What Attorney General Alberto Gonzales said at Georgetown University's law school is objectively clear on the NSA's international surveillance program.

He said, the NSA's International Surveillance program is "a highly classified program. It remains an important tool in protecting America." The political opportunists using it for political capital have also NOT asked that the terrorist surveillance program be stopped.
[quote="Attorney General Gonzales"]The FISA Court of Review, the special court of appeals charged with hearing appeals of decisions by the FISA court, stated in 2002 that, quote, “[w]e take for granted that the President does have that [inherent] authority” and, “assuming that is so, FISA could not encroach on the President’s constitutional power.” We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President's Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President's constitutional authority today.[/quote]

The program is necessary and it is legal. Congress has no power to restrict the President's constitutional authority, any more than the President can detract from Congress's constitutional powers by issuing an executive order. Those who argue the creation of the FISA Court in 1978 somehow alters the Constitution are wrong.

[quote="Attorney General Gonzales also"]You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in a time of war would end after only 15 days.

Instead, the legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in the event of a particular armed conflict. Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. That is exactly what happened three days after the attacks of 9/11, when Congress passed the Force Resolution, permitting the President to exercise “all necessary and appropriate” incidents of military force.

Thus, it is simply not the case that Congress in 1978 anticipated all the ways that the President might need to act in times of armed conflict to protect the United States. FISA, by its own terms, was not intended to be the last word on these critical issues.

...Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

Now, consider this. What would happen if the President had not authorized the international surveillance program after September 11, and instead had relied solely on FISA, and the following events were to take place: the NSA obtains information that an al Qaeda operative overseas is planning a nuclear attack in conjunction with a cell inside the United States. The NSA decides to intercept all communications between the overseas al Qaeda operative and individuals located inside the U.S.; but first, it must obtain multiple layers of approval from lawyers and assemble all of the information needed to complete a FISA application. It begins that process, but the next day, while NSA is still working on getting the necessary approvals, a nuclear device levels much of Washington, D.C.

Suppose that disaster had happened a year ago. How do you think the surviving Democrats would have responded? Do you think they would have praised the administration for refusing to go outside the bounds of FISA's procedures? Or do you think they would have denounced President Bush and his administration as the most irresponsible, feckless and ineffective officials to control the executive branch since James Buchanan?

I think the latter. And you know what? They would have had a point[/quote]

The FISA "emergency" process actually takes days or weeks to go through. It also must be signed off on before surveillance even starts. As a revelant example: the NSA did pick up two electronic intercepts on September 10, 2001. Many liberal disinformation web sites use these as evidence of malfeasance or "prior knowledge" by Bush 43. The Senate Intelligence Committee heard this evidence that blows the whacko conspiracists' accusations apart:
[quote="General Michael Hayden"]There is one other area in our pre-September 11th performance that has attracted a great deal of public attention. In the hours just prior to the attacks, NSA did obtain two pieces of information suggesting that individuals with terrorist connections believed something significant would happen on September 11th. This information did not specifically indicate an attack would take place on that day. It did not contain any details on the time, place, or nature of what might happen. It also contained no suggestion of airplanes being used as weapons. Because of the processing involved, we were unable to report the information until September 12th.[/quote]

Anyone who claims the President knew beforehand what was going to happen is lying. Anyone who says they read the Senate Intelligence Committee Report and still say these thengs are knowingly lying and committing sedition or treason.

Claiming Bush 43 is violating the Constitution is just another example of The "useful idiots" saying whatever they can to hurt the Administration and the President and the country.

Everard - you said: "The executive power is NOT ALL the presidents. But ALL legislative power does belong to congress, so congress has the power to limit the executive's powers. ...Further, there is no clause in the constitution that says the president may ignore congressional acts. Rather, it says that he shall faithfully execute the laws passed by congress."

It occurs to me that ALL Executive power resides with the Executive branch. And Congress's checks and balances more often resides with funding of Executive action. Congress did give him specific powers to ignore congressional acts when it passed the Force Resolution, permitting the President to exercise “all necessary and appropriate” incidents of military force.

This is akin to the restrictions that forbade Rockefeller from going to a foreign nation and representing the U.S.: That is consigned to the Executive branch. He admitted telling Hussein before the war that we were going to attack - which is purporteed to have been the trigger for Sarandar and the hiding and exporting of WMD before we could. There are reasons for separations between the branches - and Congress tends to blur the lines wat too much.

[ March 24, 2006, 12:43 PM: Message edited by: WmLambert ]

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Pete at Home
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I think it's safe to say that the power to impeach the president, the power to tax and spend, and the power to designate boundaries give Congress considerable ability to restrict the executive power, Dag.

Given time I could think of other restrictions that Congress could put on the executive. Congress could probably have the white house painted pink, and moved to Louisiana.

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Dagonee
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I wasn't referring to the power to do specific things that restrict the executive. That's different from a power specifically to restrict the executive. As should have been clear from the fact that I said, in this thread, that Congress likely has the power to demand this accounting from the executive branch.
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Pete at Home
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quote:
It occurs to me that ALL Executive power resides with the Executive branch.
Only if you define executive power as that which the executive branch has, and that would undermine your earlier argument.

Most countries would consider the power to declare war, or to write letters of Marque and Reprisals as executive powers. Certainly that's how they've been used. The power to impeach is also an executive power (prosecutorial), although the power to convict an impeached official is a judicial function.

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Pete at Home
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Dag, then what do you make of Youngstown Sheet & Tube Co v. Sawyer (1952)?

The president's authority is greatest when acting pursuant to an express or implied act of Congress; in an uncertain zone of twilight when acting according to his own independent powers in absence of any grant or denial of authority, and AT ITS LOWEST EBB when the president acts contrary to the express or implied will of Congress?

To me that implies that Congress can restrict executive authority inasmuch as that authority overlaps with congressional power, but that there's still some things the president can do despite Congress' opposition.

(unless they impeach him, cut off his funding, and turn the lights off at the white house)

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Everard
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Article 1 section 8

"To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water"

"To make Rules for the Government and Regulation of the land and naval
Forces;"

"To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof."

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Dagonee
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quote:
To me that implies that Congress can restrict executive authority inasmuch as that authority overlaps with congressional power, but that there's still some things the president can do despite Congress' opposition.
Yep. That's what it means to me. Especially "there's still some things the president can do despite Congress' opposition."

The largest part of the executive power is to enforce the laws. Congress makes the majority of the laws. Therefore, most of what the President does involves Congress's authorization in some sense.

But that untouchable core, call it the residual executive power, is still there.

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Pete at Home
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Ev, "To make Rules for the Government and Regulation of the land and naval
Forces" is unquestionably legislative power.

"Rules concerning Captures on Land and Water" is legislative power of a sort otherwise forbidden to US legislators, i.e. the Bill of Attainder. Capture rules allow Congress to designate whole classes of "enemy" persons and then seize their property without compensation. See the various iterations of the Trading with the Enemy Act that the Supreme Court has upheld.

And making necessary laws of course is legislation.

I agree with you however that the power to declare war, and the power to grant Letters of Marque and Reprisal, are not legislative powers.


quote:
Originally posted by Everard:
Article 1 section 8

"To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water"

"To make Rules for the Government and Regulation of the land and naval
Forces;"

"To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof."

Dag -- untoucheable core is a nice way of putting this. The pardon power, for example -- Congress cannot infringe on this.
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Everard
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Well, that last bit that I quoted from section 8 does say that congress could pass laws restricting the pardon power.

That last bit I quoted makes congress extremely powerful, I think.

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Pete at Home
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Whoa -- restrict the pardon power? I think you're misreading it. What law could be "necessary and proper for carrying into execution" the President's pardon power? They could pass laws that publish the president's pardons. They could provide him with a staff to help him review pardons should he so assign that staff to do so. But they cannot regulate the pardon power itself. The Supreme Court would strike that flat as "Aggrandizement" of the Legislative branch. Absolutely unconstitutional. Congress might pass laws requiring the Supreme Court to wear lederhosen before they'd let them pass laws restricting the pardon power, or forbidding the president to dismiss a cabinet member (Andrew Johnson was vindicated by a much later Supreme Court ruling on that subject).

We talk about "co-equal branches," but I think that a careful look at the constitition makes it clear that the drafters saw Congress as the most powerful branch, the presidency as #2, and the Judiciary as a distant #3.

The way we have things is mostly constititional, though; the president only has as much power as he has, because Congress has delegated so many of their powers. And the constitution allows this! It's a very flexible framework, and that flexibility is mostly based on decisions that Congress makes. But there is an absolute baseline of power that the President has, and Congress can't trump that. They can paint his house green and move it to Alaska, turn out the lights and stop paying his staff, but they cannot take away or limit his pardon power unless they impeach and convict him.

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JK bledsoe
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I am confused
Did not the President say he would not abide by the law he just signed? What is all this learned stuff about nuance in the law. That Man works for US, and is accountable to US through congress. What evidence do we need? This guy is a loose cannon. Congress needs to Act!

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Pete at Home
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Presidents have often said exactly that sort of thing while signing a bill, JK, and Congress has never taken action over it. If they think it matters enough, then they will act.

At a more local level, prosecutors have this kind of discretion too, to decide which laws they will enforce, and to set a threshold at which to act. Because frankly it would be impossible to enforce every single law on the books. All executives have to make choices. There are a few checks on executives in case others don't like their selection.
1. With a local prosecutor, you can sometimes bring a suit for a writ of mandamous to force the prosecutor to enforce the law.
2. With the president, there's impeachment, and a couple other tricks of questionable constitutionality.

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Pete at Home
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"What is all this learned stuff about nuance in the law. "

I don't know what you mean by "nuance," and I'm not persuaded that you know what you mean, either. Almost all laws have an implicit exception for military necessity. Like murder. You don't need a special exception in a murder statute to say that it's not murder in cases of war. Some statutes put the exception in explicitly, some don't, it's not necessary.

I think from context here that Congress probably intended to make this apply even in military necessity, or more likely some in Congress did and some didn't. The president does have an argument that if passing info to COngress would jeopardize national security, that he should not do it.

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FiredrakeRAGE
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Pete at Home -

You seem to know a significant amount of case law. Your ability (and that of others) to index precedent that could apply to the topic at hand is a real boon to this board. How do you come by the precedent you quote? Is it simply that in the course of your studies some cases have been covered, and the more important cases are remembered, or do you use some type of resource?

Edited to add: I can see why this particular case would be notable enough to be known front-to-back by a legal scholar. However, in the past you have come up with many cases that seem far more esoteric.

--Firedrake

[ March 25, 2006, 11:14 PM: Message edited by: FiredrakeRAGE ]

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Pete at Home
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Thanks for the kind words, FDR.

The first year in law school is all required stuff. After that, you have electives, but some electives are more useful to careers, or useful to help you pass the bar exam. Many law school will offer one or two electives that are really specific and esoteric, and often these classes end up cancelling because there isn't enough interest.

I suspect that few lawyers or law students have ever taken a class in "Separation of Powers."

My paper for the class showed that McCain was wrong that he could base anti-torture legislation on Congress' power to write rules on captures (since that term applies only to war loot) and showed the insane constitutional results that would occur if we expanded the capture rules provision to include persons. I also showed in a rather large footnote how the "torture memo" was also dead wrong that Congress had no power to regulate how the executive branch handled war captives, because that power falls squarely under Congress' power to "define and punish offenses against the law of nations).

I have no idea what in the world I'll ever do with this information, as a practical matter. But it makes for good conversation.

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The Drake
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I'm not a lawyer, so I can't make an educated statement about whether Bush following through on his declared intention is Legal.

I will say that it is Wrong. Congress has given extraordinary powers to the executive, in the form of the Justice department. There are still serious questions about abuses in this area. Congress has directed the President to give them oversight, in the form of reporting, when this law is used. Necessary, in my opinion, and I would hope that the powers be revoked if the President does not adhere to the ENTIRE law.

If he felt the provision was illegal, it would have been a good time to VETO the bill, and ask Congress to remove the restriction.

A Chief Executive grown too powerful scares me far more than some terrorist cells.

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Pete at Home
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Drake, did you read what I said?

Justification of military necessity is *implied* in almost all laws, according to our courts and in the common law. That's how the law works. If Congress wanted to disallow the common-law exceptions, then they should have said so explicitly.

By telling Congress how he's reading it, he's giving Congress a chance to pass another bill amending the law.

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The Drake
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I read what you said. And I said "I can't talk about what's Legal".

Knowing the intent of Congress, he should have agreed to it or struck it down, not kept the stuff he liked.

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Pete at Home
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Do you know the will of Congress in this case? What if some in Congress meant one thing and some meant another? Whose will do you go by?


What if the will of Congress here, as usual, is to pass laws making it look to voters like they are restricting certain actions, while leaving in implied exceptions for the President to do what most of Congress knows is necessary?


This would not be the first time that Congress has publically pretended to give the president one thing, while actually giving him something else.

That's why the President's job is to enforce the law, not to enforce the will of Congress. Because Congress is much to clever, political, and complicated to always articulate what it is that they really want.

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