by von
While I’m agreeing with The CalPundit on one thing, let me agree with him on another: The proposal by Senator Dodd to cap the level of troops at 130,000 is bad policy and bad politics. As Drum writes, "legislation that essentially locks in place the status quo" is probably the worst of all possible worlds. I’d only add that it’s wholly inappropriate for the Senate to be doing this kind of beancounting. These kinds decisions should be left to the Generals on the ground, who shouldn’t need to go before a subcommittee if 130,500 troops end up in Iraq because of a delayed flight.
I’ve come out against Bush’s surge proposal, and I stick to that. I have lost confidence in Bush’s competence and his ability to conduct this war. I have no faith that this policy will, at long last, not be the same total f-up as the others have been. But there are some competent commanders in Iraq, and they shouldn’t be micromanaged by Congress. Congress should either register its disagreement with Bush in a nonbinding resolution, or it should pass a law that takes us in a new direction. For reasons expressed above, and the fact that I haven’t yet seen a "new direction" that I like, I favor the former. The latter, however, at least has the benefit of being logically consistent and not-completely-stupid.
This proposal also suggests that Presidential-Wanna-Be Dodd is not ready for prime time. It’s not leadership to take two opposing sides (escalate! retreat!) and then decide you’ll split it right down the middle. A pollster can do that. A leader chooses a course, convinces her fellows of its correctness, and then leads. This ain’t that. Senator Dodd’s proposal reeks of political opportunism and pussyfooting, and it should be slunked away by the better brains in Congress.
Agreed, Von. There is only ONE Commander-in-Chief, per the U.S. Constitution, at a time.
Well, you may not like it, and I certainly don’t like it, but from a practical viewpoint if you block the surge Bush has nowhere to go but the ISG proposal, which I think is where most of the Senate want him to go.
2/3 of the U.S. Senate is not going to “block the surge”.
“I’d only add that it’s wholly inappropriate for the Senate to be doing this kind of beancounting. These kinds decisions should be left to the Generals on the ground, who shouldn’t need to go before a subcommittee if 130,500 troops end up in Iraq because of a delayed flight.”
I prefer democracy, myself.
Since you appear to have some time, possibly you could do some clean-up on the comment-storm you’ve left untended on your last thread, Von?
Digressively, I think more positively of Chris Dood, overall, than I don’t, but he’s going to be President (or even the Democratic nominee) only in his dreams. Ditto Biden.
I wouldn’t be too sure of that. You’ve currently got 7 Republicans strongly opposed to the surge along with 9 more voicing serious reservations.
And given the rather tepid public reaction to Bush’s speech those numbers are likely to continue to rise.
Even if they override a veto then, I hope the Commander-in-Chief would take this one to the mat.
What exactly would that entail?
There’s also the non-binding resolution approach.
Digressing slightly, Webb is an interesting, if unsurprising, choice here:
(That’s as regards next Tuesday’s State of the Union.)
I’m a bit curious what you propose now. If you’re opposed to the surge – what then? Reading this posting & the anti-surge one on the 11th it appears that you believe we should stay-the-course (no surge/no withdrawal). Is my inference correct?
Personally in favour of a referendum for the Iraqis asking them if the US should set a <1 year timeline for withdrawal. After the Iraqis vote yes, then we withdraw - ask the Kurds if it's ok to leave a listening post. Also in favour of Congress cutting off funding for Iraq if Bush does proceed with his 'surge' plan.
Curious what other commentors propose the US and/or Congress should do now.
What exactly would that entail?
Make them override the veto.
i don’t really like the idea of Congress managing the war (since that really is the CiC’s job), but at the same time, Congress is the body closest to the public, and if the public wants the war to end, Congress needs to respond… somehow. no, i’m not sure how.
Von,
So Bush would “go to the mat” if his veto was overridden by…
Making them override the veto?
That really makes no sense at all.
It’s pretty obvious Charlie was suggesting Bush should ignore the legislation. And I wouldn’t put it past him at this point.
Signing statements or taking it to the Supreme Court is not “ignore the legislation”. Sending Senators to Gitmo would be though.
Response by Von:
Good that responded to a comment, Von. Possibly you might want to read them a bit more slowly, though?
Actually, a signing statement claiming the right to ignore the legislation would definately be ignoring the legislation Charlie.
As to taking it to the Supreme Court, what grounds would he have? That congress can’t override the authority of the Commander in Chief when it comes to the use of the military or US funds?
I recall the never tried that with the Boland Ammendment and instead, took your advice and “took it to the mat”.
That didn’t work out so well for them.
The Boland Amendment(s) were not Constitutional — neither side took that to the mat — your point?
Gary: Digressively, I think more positively of Chris Dood, overall, than I don’t
Hee!
Gary Farber:
I am looking forward to Senator Webb’s response (maybe he will physically attack the President this time).
Really? I guess I forgot when the Supreme Court ruled on that. Or when the Reagan administration asked it to.
All I can remember on the subject was George H W Bush saying..
“I hereby Pardon Cap Wienberger for all the things he didn’t do that I didn’t know about”.
Got a link to the ruling by chance? And also, by passing the Boland Ammendment, one side certainly “took it to the mat” wouldn’t you say?
And why are you of the impression that there was more than one Boland Amendment?
So, I guess my point is that the president doesn’t get to unilaterally declare federal law unconstitutional.
And that if he should find himself indicted for violating duly passed laws, his lawyer isn’t going to be wild about going with the “but look, a signing statement” defense.
Signing statements or taking it to the Supreme Court is not “ignore the legislation”. Sending Senators to Gitmo would be though.
A signing statement is an inappropriate tool in nearly every circumstance. A President should either accept or veto a bill; there is no third Constitutional option. Moreover, a signing statement would also be ineffective inasmuch as Congress controlled the military size limits via the power of the purse.
As to taking it to the Supreme Court, what grounds would he have? That congress can’t override the authority of the Commander in Chief when it comes to the use of the military or US funds?
If Dodd merely purports to impose a cap, Bush may well have a legal argument to make. If he does so through the power of the purse there may be no option for Bush, although it would entail yet another layer of micromanagement by Congress.
Good that responded to a comment, Von. Possibly you might want to read them a bit more slowly, though?
You’re right, Gary, I misread that. But your general assumptions regarding (and descriptions) of me — which seem to have been getting steadily more negative in this last series of posts (they were seldom positive) — are off base. Please try to stay to the merits of a post or a comment; your attempts at metacommentary misfire more frequently than they hit.
Von, that’s what Gary was doing.
It’s not “metacommentary” to point out that a comment makes no sense whatsover is it?
Davebo:
The President of the United States takes an oath to preserve, protect and defend the Constitution (last I checked) and if Congress tried to usurp some other Article II power, I would expect the President to resist that as well. Unless you think it would be just fine for 2/3 of Congress to start issuing Presidential Pardons as well? The President is certainly not obligated to follow UNCONSTITUTIONAL laws.
And, I’m not the only one who knows there were multiple pieces of legislation known collectively as the Boland Amendments: http://query.nytimes.com/gst/fullpage.html?res=9B0DE4DF1039F933A25754C0A961948260
There’s no Supreme Court case because, as I stated, neither side decided to take the issue to the mat. If the Senate overrides a veto, this time around, I fully expect it will be taken to the mat.
It’s not “metacommentary” to point out that a comment makes no sense whatsover is it?
For clarity, I was referencing an early series of comments on the closed comment thread.
Of course not, but he’s also not permitted to unilaterally declare laws unconstitutional.
Yep, I was right: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Another interesting Presidential power: If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as he thinks fit.
“Please try to stay to the merits of a post or a comment; your attempts at metacommentary misfire more frequently than they hit.”
In what way was this comment that you are responding to not solely on the merits of a post or comment, Von?
Surely you’re not instructing me with a comment that isn’t on the merits of a comment, but is metacommentary, that I shouldn’t, like you, engage in metacommentary?
And, to be honest, I sincerely doubt that you’ve read a very high percentage of my comments here in the past year, to be able to accurately judge how many are or are not metacommentary, let alone how many of such comments by me misfire or are on-target.
With due respect, you weren’t even aware a day ago who was and wasn’t a current poster here. Not to mention the umpty questions directed at your few posts in the past year, in threads that you never responded to at all.
Insofar as I have any negative thoughts about you, I’m perfectly straightforward in saying that that’s because of the above: it’s extremely irritating, though of no importance in the larger scheme of things, from the POV of a regular commenter here, that you’ve clearly on many occasions not read what people have replied to you (we know this because of your sometimes posting statements that ignored previous corrections).
Naturally, you’re perfectly free to do that; it’s your blog. But it’s not, I suggest, unreasonable to have some irritation sometimes at finding that attempting to engage you in discussion of your posts is like talking to a wall that disappears.
And that’s all. That you’re doing the best you can within your circumstances, I accept, and have no further complaint about. I have no other negative feelings towards you. Peace, man.
Actually, if 2/3 of the Congress granted a “Presidential Pardon” to Samuel R. “Sandy” Berger, I think the President could rightfully declare THAT unconsitutional, Marbury v. Madison notwithstanding.
Of course not, but he’s also not permitted to unilaterally declare laws unconstitutional.
Arguably he gets one shot at doing so via the veto. But you are correct that once a law has been duly passed and either signed into law or a veto overridden, the President no longer has the authority to decide which laws he is going to follow.
Charlie, the President can declare the sunrise unconstitutional if he feels like it.
It won’t change anything though.
once a law has been duly passed and either signed into law or a veto overridden, the President no longer has the authority to decide which laws he is going to follow
modulo the relationship of the President to the party with subpoena power, of course.
(assuming this new FISA stuff isn’t yet another sleight of hand)
Well, then, let Congress and the Supreme Court ENFORCE it.
“For clarity, I was referencing an early series of comments on the closed comment thread.”
Series? Please link to these multiple comments by me, so I’ll know to what you refer. (“Series” denotes at least three separate comments; I assume you can support your assertion.)
If you can also explain how it is that you can be referring to unmentioned other comments, in a comment declaring that people (such as me) should stick to replying to single comments, and not engage in metacommentary on other comments, without yourself having been not sticking to the comment you replying to, and engaging in metacommentary, I’d really like to understand how that works. Because I’m having real trouble understanding the consistent policy you’re trying to put forth, here, I’m afraid.
(I certainly agree that metacommentary can be problematic, and should best be used in limited, and careful, thoughtful, quantities, FWIW.)
In what way was this comment that you are responding to not solely on the merits of a post or comment, Von?
Gary, as I pointed out to Davebo, I’m responding to your comments on the prior closed-comment thread.
Gary, as I pointed out to Davebo, I’m responding to your comments on the prior closed-comment thread.
And, I should add, on prior threads, to respond to your specious response about a “series.” And that ends the discussion from my side on this topic, Gary. See you on a different one.
Few people think less of the President than I do, but even I am not ready to assume that he’d take on the powers of a dictator. If Congress passes a restriction like this — which I doubt — and the president vetoes it, as I would expect, and then the veto gets overridden — which i doubt all the more — then I’d say there’s about a zero chance that the President (and the Armed Forces) would disobey. If he did, though, he’d have to be impeached. Or are you suggesting that after conviction, he’d refuse to leave?
On the merits of the proposal, I don’t see anything wrong with a cap. It’s not micromanaging, really. Congress will not have said what parts of the country the soldiers may occupy, what tasks they can do, which bases they must occupy, or even that the whole number in the cap must be there. The constitutionality of the cap is frankly obvious.
Nor is it plainly a bad idea to have the debate (which is what happens when a bill gets introduced.)
I didn’t say “disobey”. Taking it to the Supreme Court is not the same as “disobeying”. Also, I would expect this or any other President to comply with a valid conviction on Impeachment, regardless.
Von, it’s worth asking how exactly you think the President gets to bring the unconstitutionality of a statute to the Supreme Court. It’s not like that court has original jurisdiction (of what would likely be a political question anyway).
Of course, in this instance, that means that Cheney becomes President . . .
By the time it all plays out, Cheney has a month to serve before his term ends. If that.
I’m no fan of the VP either, but I’m not sure we’d be any worse off with him in the first chair. For one thing, the policies might be exactly the same, and for another so many people who seem to want to give the President the benefit of the doubt because of his personal appeal wouldn’t feel the same about the VP.
Depends on the circumstances, I guess. There are scenarios in which a new President Cheney could have approval ratings as high, if not higher than, Bush after 9/11.
George W. Bush holds the record high approval rating of over 85% shortly after the September 11 attacks. The lowest approval rating ever recorded is held by Harry S. Truman, who in February 1952 had an approval rating of 22% for a very limited time. At the same time, Truman’s disapproval rating was 65% (falling 2% from 67% in January 1952). Jimmy Carter is a close second, with approval ratings as low as, again for a limited time, 26% during his presidency.
http://en.wikipedia.org/wiki/Approval_rating#American_presidential_job_approval
Von, it’s worth asking how exactly you think the President gets to bring the unconstitutionality of a statute to the Supreme Court. It’s not like that court has original jurisdiction (of what would likely be a political question anyway).
I didn’t say that he’d be able to go to the SCt immediately, only that he may have cause to challenge the Constitutionality of the statute — beginning, it would seem, in federal District Court. Now, Congress could also try to deprive the D.Ct. of jurisdiction to hear the claim, which would raise all sorts of other interesting questions.
Of course, saying that the President could challenge is not the same as saying that he would win. The Court could reject the claim for a myriad of reasons, including on the ground that it’s a political question.
To come back to the point, you do understand, Charlie, that the courts won’t adjudicate this kind of thing, and that therefore the only ‘take it to the mat’ course is to disobey and get impeached?
It doesn’t really matter: the bill isn’t going to get passed, but is rather a vehicle for discussion. More ingredients for the sausage factory.
von, do you mean to say that the President could initiate a declaratory judgment action in the district court? Who’s the proper defendant? Why isn’t it a political question?
Bush v. Gonzales. I’d go down to watch the oral argument in that one.
Also, there’s no reason another impeachment trial has to last more than the 21 days it took for Clinton (Articles of Impeachment were passed on December 19, 1998 and the trial was done on February 12, 1999).
The courts could take jdx if they wanted to — just one possible scenario: Congressman X sues the President to enforce the caps.
As I recall, in 1999, a group of congressmen sued President Bill Clinton for continuing to bomb Yugoslavia without obtaining from Congress a declaration of war. I’d have to check what the result was, but the suit itself could certainly be initiated.
Of course, such a lawsuit could be dismissed as you postulate as well:
http://www.lcnp.org/disarmament/ABMlawsuit/abmsuit.pdf
Didn’t Campaign Finance Reform get sued by Congressmen and survive the “political question” issue?
Lastly, consider this CharleyCarp: if Cheney were to assume the Presidency after January 20th (in just 3 more days), he would thereafter be eligible to run (as the incumbent) for TWO full terms.
Congressman X sues the President to enforce the caps.
More likely the treasury official or whoever doles out the actual cash would quickly find themselves on (criminal) trial or certainly under oath before congress and then the dominoes start to tumble.
I’d have to check what the result was, but the suit itself could certainly be initiated.
Even if the GOP congress won that one, do you really want to be citing it considering that there was no declaration of war for Iraq? As far as I can remember all (including Somalia and Kosovo) have fallen under the War Powers Act which allows ‘authorizations of force’ as opposed to ‘declarations of war’ Now if you want to argue that Congressional ‘authorizations of force’ are unconstitutional be my guest.
I don’t think any President has ever legally complied with the War Powers Act, since every President from Nixon to Bush 43 consider it unconstitutional. As a political scientist, it would be interesting to see how the ROBERTS Supreme Court would address the issue. To answer above how a new President Cheney could ever become more popular than Bush was, I admit it would probably take some Tom Clancy-like tragedy, but it is possible.
In such a scenario, this is an interesting question as well: Can Secretary of Commerce Carlos Gutierrez or Secretary of Labor Elaine Chao become President since they are arguably ineligible as neither are natural-born citizens? It is commonly accepted that they cannot, but another subject of controversy is whether cabinet officers who are not natural-born citizens are constitutionally ineligible to be “acting President”, because Article II establishes only eligibility requirements for the office of President.
The same question exists for officers in the line of succession who are not at least 35 years old or have not resided in the United States for 14 years. To avoid a needless constitutional dispute at what would likely be a time of great crisis, there is a statute (3 U.S.C. ยง 19(e)) which specifies that even the acting President must meet the constitutional requirements for the office of President. However, questions about the natural-born citizen requirement, especially the argument that it was superseded by the citizenship provisions of the 14th Amendment, would still keep this controversy alive. All very interesting questions . . .
Von: “Gary, as I pointed out to Davebo, I’m responding to your comments on the prior closed-comment thread.”
And: “And, I should add, on prior threads, to respond to your specious response about a ‘series.'”
That, following instructing me: “Please try to stay to the merits of a post or a comment; your attempts at metacommentary misfire more frequently than they hit.”
I’ve asked you to resolve this inconsistency. I invite you again to resolve it; I wouldn’t want to understand it to mean that you were instructing me to not do what you were free to do, and were doing. Absent explanation from you, however, I would be left with no other interpretation. I assume you aren’t a hypocrite, outlining one set of policies for me about sticking to replying to a single comment and not doing metacommentary, in the course of engaging in not stickiong to replying to a single comment, and in metacommentary, while retroactively explaining that your comment about how I need to stick to replying to a single comment was, you know, based on some other comments I made, somewhere else, at some time, which it’s too much trouble to actually link to. I look forward to your explaining your position on this in a way that makes sense.
Up to you, and as well, whether to accuse me of making a “series” of “steadily more negative” comments about you, and then refuse to support your claim. I tend to think that’s not the sort of argumentation you’d want to encourage around here.
You don’t support attacking people, with speciic claims, and then refusing to support those assertions with links, right?
(One possible reasonable response might be along the lines: “You’re right, Gary; I was annoyed at you when I made my comment at 04:28 PM, and didn’t notice that I was being inconsistent in lecturing you with metacommentary about the need for people to avoid metacommentary; oops.” But I’m sure there are many other reasonable responses possible.)
Charlie, you might be thinking of Campbell v. Clinton. Interesting mix of opinions, but the suit didn’t get anywhere. Anyone can sue anyone for anything. I can sue you for ‘being a troll’ (upon information and belief), or I can sue you to quiet title to a parcel of lunar real estate, but obviously the critical question is whether I can prevail. If I can’t prevail, then ‘I can sue you’ is a meaningless phrase. When commonly used, this phrase means ‘I can sue you and win.’
You can say that the courts can take jurisdiction, and I guess it’s true that Baker v. Carr and all its progeny can be overruled. (And its predecessors back to CJ Marshall’s day). I’m more likely to win my suit for lunar water rights — further discussion of this, and of succession of non-citizens, is better relegated to a science fiction site. I’m sure Gary can give you a recommendation.
Campaign Finance has a direct impact on members of congress, in their individual capacities. This is obviously completely different from a law that only impacts their institutional capacities.
Bush v. Gonzales. I’d go down to watch the oral argument in that one.
Please tell me you intended that to be as dirty as it sounds…
von, do you mean to say that the President could initiate a declaratory judgment action in the district court? Who’s the proper defendant? Why isn’t it a political question?
I haven’t done the research; it may very well be a political question. I just wouldn’t dismiss it immediately as non-justicable, because I think that there’s an legitimate argument that, in some circumstances, the President may be able to act on a matter even if 2/3rds of the Congress disagrees with him. To take an extreme example, if Congress decided to pass a law investing “executive Power in a Praetor, who shall serve as the President’s co-equal and advisor,” it’s not clear that the President would be required to obey that law & listen to the Praetor, even if Congress overruled his veto. Nor would I think that to be a purely political question, given that the Courts have an appropriate role (under Art. II, sec. 2) in resolving what Art II means when it states “The executive Power shall be vested in a President of the United States of America.” (Although the SCt would have appellate, not original, jurisdiction, as noted in sec. 2, para. 2.)
Gary, you may think it capricious or you may not understand; you may continue to accuse me of acting inappropriately or improperly; indeed, you may fill the remaining pages of this comment thread with demands that I provide pin-point cites to each example I can find from the last six or more months, so we can debate each of them and you may establish in each case that you are in the right (as you surely will). All of this will undoubtably be very fascinating and, at long last, I will be forced to concede that I’ve imagined it all and, moreover, that I deserved those slings and arrows that I received from you regarding my lack of responsibility as a blogger, my poor or inappropriate posting habits, my failures as a policeman of comments, my inability to cut-and-paste, and the rest. As I mentioned, however, I am through with this topic and am moving on — because, among other things, it’s boring and makes bad blog. Accordingly, your future conversation on this topic will be decidedly one-sided.
Shorter Von: I’m going to take my toys and go home.
Shorter Von: I’m going to take my toys and go home.
No, not quite. I’m not going anywhere.
Since it is likely that Dodd’s proposal is unconstitutional (the pResident is the Commander in Chief, after all), as far as I can tell Dodd is just grandstanding.
The Congress COULD, if it wanted to, cap the number of people in the army and navy at 130K, and use that mechanism to achieve Dodd’s goal, but that would be the only mechanism. And, of course, Congress isn’t going to do that. As long as the size of the army and navy is larger than 130K, the pResident can send them whereever he wants, whether or not there has been a declaration of war or an Authorization to Use Military Force (AUMF, the distinction between the two eluding me). If memory serves, the US Supreme Court has pretty much indicated that several times in the past.
Von, it’s worth asking how exactly you think the President gets to bring the unconstitutionality of a statute to the Supreme Court. It’s not like that court has original jurisdiction (of what would likely be a political question anyway).
No, if a pResident were to directly try to raise the issue of the unconstitutionality of a statute with the federal judiciary, it would probably be considered a request for an advisory opinion, and the federal courts do not have jurisdiction to render advisory opinions. That’s the case or controversy requirement of Article III. Some state courts do have jurisdiction to render advisory opinions regarding matters sent to them by the legislatures or executive branches of the state governments.
About the only way that the federal executive can test the constitutionality of a statute is to not enforce it or abide by it (which it can do if it believes the statute to be unconstitutional) and if a plaintiff sues for a mandatory injunction ordering the executive to enforce the statute, the pResident can defend on the ground that he believes the statute to be unconstitutional. I suppose that the pResident might have a public relations problem if he was the one who signed the measure into law (it might have been signed by a previous pResident, or passed over a veto), since the question might reasonably be raised why he signed the measure instead of vetoing it (example, if memory serves, the War Powers Act was passed over Nixon’s veto), but that’s another issue.