Lawyers dissect Bush's argument; show he doesn't have unchecked authority

[ProSense]

Why the President's Defense of Executive Power to Wiretap Without Warrants Can't Succeed in the Strict Constructionist Court He Wants

By VIKRAM AMAR AND ALAN BROWNSTEIN
----
Friday, Feb. 17, 2006

A few months ago, President Bush said he picked Chief Justice Roberts and Justice Alito largely because he considers them "strict constructionists." In the President's words, "e've got to make sure . . . to have people who serve on the bench who are not going to try to legislate, but who will strictly interpret the Constitution." The President's message was clear: Justices should narrowly apply the law as it exists - derived from non-judicial sources like text, history and unbroken societal tradition - rather than "create" law in the context of adjudicating disputes.

The authors on what they refer to as "The First Strict Constructionist Tool: Foundational Principles..."

Snip...

We suggest that once we look at the eavesdropping question for what it is -- a clash between foundational constitutional principles and vital societal interests - there is no way for a Court to adjudicate the dispute without making law. At this level of abstraction, there simply is no existing law to apply. If we are going to stick with the baseball metaphor the Chief Justice previously employed, a strict constructionist analysis using foundational constitutional theory alone can only swing blindly at this question and miss. That's "strike one" for the strict constructionist side.

and on "A Second Strict Construction Tool - Constitutional Text From Articles I and II..."

Snip...

Article II does state that "The President shall be Commander in Chief of the Army and Navy of the United States." That is a formidable grant of power. Article II also vests the "executive power" in the President. But Article II does more than confer powers onto the President -- it also imposes obligations upon him. In particular, Article II mandates that "he shall take Care that the Laws be faithfully executed."

Snip..

There is a caveat in Article I, however. Congress is vested only with "All" powers herein granted. Is Congress granted the power to make law with regard to wars and military affairs?

Is it ever.

And on "More Constitutional Text - the Fourth Amendment..."

Snip...

One might argue that when the Constitution itself (here the text of the Fourth Amendment) explicitly employs language that requires courts to act like legislatures and, in essence, to make law, such judicial lawmaking is consistent with a strict constructionist methodology. But this argument undercuts the very core of the strict constructionist methodology, because much of the constitutional text uses open-ended terms that invite such judicial law making. Thus, the only conclusion a fair umpire can reach here is that a strict constructionist analysis, standing alone, cannot support the President's position. That's "strike two."

Source: http://writ.news.findlaw.com/commentary/20060217_brownstein.html

[ProSense]

1. More (strike three)

Snip...

The framers were certainly well aware of the risks to civil liberty caused by threats to the nation's national security. The framers also recognized the danger posed by military exigencies to the allocation of power among the branches of government. War and its attendant apprehension would tend to "increase the executive at the expense of the legislative authority" said Alexander Hamilton in Federalist No 8. The constitutional scheme of things was intended to mitigate these tendencies, not to approve or promote them.

Indeed, Stanford Professor Jack Rakove has explained:

is surely informed by the original understanding of the quantum of authority the president can claim as Commander-in-Chief or as the repository of the executive power vested by Article II, Section 1 of the Constitution. Contrary to the view that the American founders retained a broad conception of the unilateral power and discretionary authority of the executive in the realm of military and diplomatic affairs, the adopters of our Constitution rejected a monarchical conception of executive prerogative, and instead maintained and extended the legislative supervision and control of executive power that were the profound legacy of Anglo-American constitutional history since the early seventeenth century.

snip…

Of course, there may be powerful counterarguments that override these original intents/original understandings. Conditions have changed dramatically over the last two centuries. Advances in technology and communications might now require a re-allocation of power in favor of the executive branch. The dogs of war today may be too fast and powerful to be mastered by anything short of ample and inherent executive power.

This may be a fair position. But in order to adopt it, the Court must reject the original understanding and develop new policies for determining the appropriate scope of presidential power in times of international stress and conflict. That is judicial law making, pure and simple. It is also "Strike Three" for the strict constructionists.

Source: http://writ.news.findlaw.com/commentary/20060217_brownstein.html

[wtmusic]

2. IMO even "analyzing" the WH position plays into their hands

Look, POTUS broke the law. Period. There can be no denial.

The only real issue here is enforcement.

[Roland99]

3. And when the fox is watching the henhouse, the fox will be allowed to roam

[yurbud]

12. illustration of your idea (PIC)

[Roland99]

13. heh heh

[yurbud]

16. don't encourage me or I'll reach deeper (ANIMATION)

[Roland99]

17. Keep 'em coming!

[ProSense]

4. Greenwald: Administration fears NSA scandal

Unclaimed Territory - by Glenn Greenwald

Monday, February 20, 2006
The dying scandal that keeps growing

Ever since the NSA scandal began, Bush followers, led by Karl Rove, and even some frightened Democrats, have loudly insisted that this scandal is actually beneficial for Republicans, because they can use it to depict Democrats as weak on national security. Democrats want to hang up when Osama calls, while Bush is being aggressive in protecting our children from being blown up. As a result, they claimed, Republicans want this scandal to last as long as possible because it will only benefit Republicans politically and damage Democrats by highlighting their vulnerabilities.

While spouting that bravado, the Administration's actions reveal that they fear this scandal and want more than anything for it to disappear. At every turn, they have tried to prevent a meaningful investigation into the legality of their actions. If the NSA scandal is really the political weapon which the GOP can use to bash Democrats as being weak on national security, wouldn't the White House be doing the opposite - that is, encouraging every hearing and investigation possible?

The supplemental claim we hear most from the Administration is that this scandal is dying. It will all fade away with some nice legislation designed to render legal the President's four years of deliberate law-breaking. But the NSA scandal continues to dominate the news. Every day brings more conflicts, more disputes, more internecine fighting among Republicans. Indeed, Republicans are all fighting with each other on virtually every aspect of this scandal - when have we ever seen that?

Just review media reports on this scandal over the last 24 hours alone. Does this sound like an Administration that welcomes this scandal as something that is politically beneficial? Does this sound like a scandal that is dying:


more...


http://glenngreenwald.blogspot.com/2006/02/dying-scandal-that-keeps-growing.html

[ProSense]

19. Wingnuts apparently don't like being spied on either. n/t

[leeroysphitz]

5. It's too bad that our Legislative branch hasn't done the same nt

[ginnyinWI]

6. K&R

[mom cat]

7. MYTH: Bush wants a strict constructionist Supreme Court!

Once again, liberals are ignoring the obvious: logic does not matter with dictators, neither does law.

Strict construction was considered the conservative gold standard to denounce the practice of "liberal judges" issuing decisions which conservatives did not like, such as abortion, affirmative action and civil rights. They decried a practice of what they called legislation from the bench. They're called for strict construction had little to do with their delight in the concept. Rather, it was a method of trying to smear the opposition, something that neoconservatives are quite good at. It wasn't that they were opposed to legislation from the bench, it was that they were opposed to liberals legislating from the bench.

My my! How all of that has changed now that they have the power. Recently Justice Scalia has been talking about the Constitution being a living thing that needs to change with the times and be flexible. The concept of strict construction will be dropped faster that an unemployed alcoholic uncle would be dropped.

The new court, especially Alito, Scalia, Roberts, and Thomas will be more than ready to legislate from the bench in ways that will give Bush the extraordinary power that he craves.

Even if the Legislature does not retroactively give Bush the authority to spy on you and me, the new court, which will forget everything they ever heard about the concept of strict construction, will be ready willing and able to declare that what Bush did was legal. And, since the Supreme Court is the final arbiter of what is considered legal and illegal in this country, there will be no higher authority to which the matter can be appealed.
Of course there's always the process of amending the Constitution, ha, ha! That would take the rest of my life, and the damage to our democracy will have already been done.

Appeals to logic and law are appropriate in a democracy. We do not have one. The last two elections were clearly stolen. We have someone in the White House who was never elected and has yet arrogated to himself absolute authority under the guise of his role as commander in chief. If the Supreme Court agrees, which they very well might, then the dictatorship is legitimized, entrenched and damn near impossible to peacefully remove.

The Alito traitors sold this country out for what amounted to 30 pieces of silver. Never forget that!

[unblock]

8. one need look no further than bush v. gore

to see that the so-called "strict constructionist" is a first and foremost a partisan hack, ready to use any convenient argument to rationalize his banana republican bias.

did strict constructionism provide a basis for not counting votes?
did strict constructionism provide a basis for cases that don't establish precedent?
did strict constructionism provide a basis for an equal protection right to a vote with different balloting systems throughout the state, yet not a recount under the same conditions?
did strict constructionism provide a basis for the urgency to publicly declare a conclusive victor in a presidential election a month prior to when the electoral votes are formally read, challenged, and resolved, possibly including multiple tie-breaking votes, when congress convenes in january?


these banana republicans are partisan liars and hack, and the fact that they toss about a "philosophy" is merely thin disguise for their bias and loyalty.

[mom cat]

10. Exactly.The Supreme court ended democracy in America with that vote.

[FreedomAngel82]

15. Well of course

Anybody who pays attention knows this. They say "oh activist judges!" but than turn around and want to take away already decided law with Roe v Wade which is what they're doing. It's totally ridiculous. :mad: They brand anyone who goes against them a liberal judge. Remember the judge in the Terri Schavio case who sided with the husband? He was a conservative who was appointed by Jeb and a Baptist. He was called a liberal judge (they say it like it's a bad thing) and was kicked out of his church. :(

[eallen]

9. Congress also has the power to regulate our defensive forces.

In Article I, Section 8, Congress is given the power "to make Rules for the Government and Regulation of the land and naval Forces." This is an exact parallel to the clause making the President commander-in-chief. If the latter gives him the power to spy, the former gives Congress the power to say when and how.

[Justice]

11. Remember 2000: Supposed States Rights Justices Put Bush in WH

In the end, the Justices Bush appoints will do what Bush and his crew want -strict construction or no. Scalia, et al showed how much they really believed in states rights in Bush v. Gore.

[yurbud]

14. 2000 proved judges like pols, do what they want and scrounge for

rationalization and evidence AFTER they decide what they want to do.

[Wordie]

18. K&R...great post.

[Rodger Dodger]

20. There is a notion that the law is what is written.

What is the "law"? What is written on paper...or the "law" that's enforced?

Money can trump most any person. Individuals have the ethic's and moral's, they perceive, they can afford. Everyone has their price:those who receive, are bound.

The past practice of the Supreme Court, supports the notion that "the law" is whatever the Supreme Court says it is. Regardless of how convoluted their reasoning. however. In a Republic the power is in the Senate; but only if those in the Senate have the moral courage to exercise it power. Should the court act unreasonably the senators' has it. with-in its-power to pull the purse-strings of government and refuse to fund the excesses of the Executive Branch.

Even if it means shutting down the government.