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January 17, 2006

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boris

execuive branch can tell its employees to do whatever

Whatever ??? No only in areas specific to the exercise of constitutional power.

My example implies the president has the authority to instruct the NSA to disregard certain elements of FISA, just as SCOTUS has the authority to instruct judges to disregard an unconstitutional sentencing bill.

I dispute any claim that since everybody knows SCOTUS can disregard the will of congress when it conflicts with their constitutional authority that they are the ONLY branch that can. That if the executive branch is faced with a constitutional conflict it must go a calling on the judicial branch for an official ruling. It’s easy to see where the misunderstanding comes from, but it don’t make it any less wrong.

The branch responsible for protecting executive constitutional authority is not the judicial but the EXECUTIVE BRANCH. They are the experts, the final authority, the last word.

It could not be otherwise with EQUAL branches of government

Frankly the notion that SCOTUS is responsible for protecting executive constitutional authority is patently illogical because it contradicts separation of powers and equality of branches. It is a non starter. Deliberately wrong and false.

The Ace

If we were talking about "foreign" wiretaps, we would not be talking.

Provide evidence to the contrary.
Not assertion, evidence.

The Ace

Ace, the representative of modern day Republican debate tactics (ridicule, belligerance, derision and half baked "truths" designed not to enlighten but to muddle)

Everything, without exception, I posted is fact.

Extraneus

AB: I think pretty much ALL of you are Alien & Sedition Act fans, though you manage incredibly to remain in denial over it.

Can you expand on that? I know I've suggested that the leakers and NYT appear to have violated the Espionage Act and Title 18, but I haven't seen anyone suggest new citizens wait 14 years to vote, aliens be deported for suspicion, or anyone be tried for criticism. I guess I don't understand your point.

kim

Sedition is as sedition does.
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maryrose

Ok so far we've heard from Risen and Tice.
Let's here from the rest of the so-called whistleblowers. " If this be treason, Let's make the most of it"
All of a sudden after the investigation-silence. Why aren't they stepping forward under the protection of thr NYT.

kim

With Pinch struck dumb and his minions running the the tapes sometimes on cue, the big tent seems to have sprung leaks.
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CTD

boris,

actually, if you read all of the Constitution, you will find that Congress has the power to, "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers[emphasis mine] vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

One such Officer would be the President.

The judiciary has the power to "all cases, in Law and Equity, arising under this Constitution".

So your argument that the President gets to decide which laws he wants to follow is coming from either ignorance or a crack pipe.

Harry Arthur

Harry, sometimes hyperbole is all you need.

Sometimes "exageration for effect, not meant to be taken literally" is all you need? Maybe in a high school debate, but not if you are actually trying to convince someone to think differently about a particular fact set. And especially after you have been critical of others for their hyperbole.

This is NOT a complicated issue.

Of course it is. That's precisely why experts on both sides of the issue disagree. That's also why there are "liberal" legal scholars who argue that the president exercised his constitutional authority properly and why there are "conservative" scholars who take the opposite point of view. This isn't even fundamentally partisan. So, yes, it IS a complicated issue.

Either you believe in a Nation of Laws or you believe in a Unitary Executive, i.e. an elected King.

This is what's commonly known as a false dichotomy. It's an illogical form of argument used when you are of the opinion that "hyperbole is all you need." There are other choices and other options on the continuum. We are not stuck with the extremes.

Are you comfortable with a President who secretly, unilateraly decides by himself the Constitutionality of our laws rather than faithfully executing the legislation of the co-equal branch of government?

This illogical construction is what's commonly known as "begging the question." It's the type of illogical thought process one resorts to when one believes that "hyperbole is all you need." And it's an unsubstantiated assertion. Probably made in your "child like faith" that Bush is evil.

If so, please explain how our Constitution was able to withstand the recent past when we had ICBMS armed with nuclear warheads aimed at us by the USSR, but they must be sacrificed now to the demands of religious fanatics armed with boxcutters and laptops. Notwithstanding the foolishly belligerant screen names of so many rightwing bloggers, it is astonishing to watch the collective cowering of their blindly loyal partisans.

Another series of false dichotomies mixed with invective and unsubstantiated allegations.

At least as far as this "cowering, blindly loyal partisan" is concerned, I was elated to hear that post-9/11, Bush made the decision to go after these, as you described them rather benignly, "religious fanatics with box cutters and laptops" with every asset in our arsenal, including the NSA. These "religious fanatics with boxcutters and laptops", managed to take down two 100+ story skyscrapers that dominated the skyline of Manhattan, punch a large hole in the Pentagon that took more than a year to repair, and were it not for a group of brave passengers, would have taken out either the White House or the Capital. In the process they killed more people than did the Imperial Japanese Navy's attack on Pearl Harbor in 1941. Personally, I take them a bit more seriously than you apparently do. I'm happy that Bush does also.

Perhaps you will arrive at a different opinion when these insignificant ragtag "religious fanatics with box cutters and laptops" smuggle a suitcase nuke across the southern border and set it off in one of our major cities.

Meanwhile, we have reports of young Arab men buying throw away cell phones by the gross at the local Wal Mart. Wonder what that could possibly be about?

woof

Question 1: When did conservatives become such lily livered yellow bellies ?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Oh, you big meanie. You really called us a name. Boo-hoo that really hurt. snif,, sniff....

With a graduate degree in psych, I wonder why you think fear is something that motivates conservatives? We are at war. We are the Jacksonians of American History. We are the Shermans that burned Atlanta. We don't want to negotiate with terrorists, we want to kill them. It is not fear to want to protect our families and our cities. We even want to protect you. That is what war is about. We feared the Japanese for a few months, but later we incinerated them.

It is your fear that is being projected. You thought that the enemy was Bush, Reagan, Republicans, capitalists, evangelical Christians. Then you were forced to confront that there are millions of crazed islamic fascists who want to behead you or nuke you. And they live next to you. It is your borderline personality, your deep seated personal inadequacies that lead you to hate your fellow citizens when it is the islamofascists that want to extinguish you.

And we may all fear that if we don't do the war on terror right, total war is around the corner. Why don't you face you fears so you can carry on an adult conversation?


Question 2: Why do conservatives have so little respect for and loyalty to our Constitution?

It is our adult nature to do research and learn that the President's Art. 2 Sect 2 power to conduct foreign surveillance has repeatedly been affirmed as Constitutional. I don't see any court cases in your posting.


Question 3: Did any conservatives take American history in high school or did they just forget that the guiding principle of the founding fathers was to implant mechanisms against the natural tendency of men to seek the comfort of a King?

Booo hooo, there you go again calling us dumb you meanie.

The founding fathers also fashioned an executive who had the power to defend his fellow citizens with power and speed when the nation was in danger.

Given the history of Democratic abuses of power (FDR interning innocent japanese - staying in the white house 4 terms, Wilson incarcerating Debs, Clinton using the IRS against his political enemies and conducting warrantless searches of right wing extremist groups - FBI files in the whitehouse, LBJ spying on Martin Luther King) yes, there is much to worry about among Democratic leaders.

boris

Liberals seem to assert that the three supposedly equal branches of government are like a blinkered game of rock-paper-scissors where the executive branch always loses (unless there’s a Clinton co-presidency).

the President gets to decide which laws he wants to follow

Straw for your dummy. My example implies the president has the authority to instruct the NSA to disregard certain elements of FISA, just as SCOTUS has the authority to instruct judges to disregard a sentencing bill that imposes on judical constitutional power. The Executive has equal authority within it’s branch to instruct it’s instruments of national force to disregard the will of congress in areas specific to the exercise of constitutional power.

Claiming the president’s executive constitutional authority is at the mercy of BOTH the judicial branch and congress WHEN AT WAR is a flat out lie. The founders were quite familiar with fighting war and they made it clear that protecting the country requires power unsuited to congress or judges. The notion that executive war power is subject to meddling and interference from the other branches is not just revisionism unglued, it’s suicidal nonsense.

CTD

A flat out lie? Revisionism unglued? I'm directly quoting from our Constitution - specifically Article I, section 8, and Article III, section 1. You're not against the Constitution, are you?

Meanwhile, the wide array of powers you claim the President has are not to be found in the Constitution. You really should read the whole document. Congress has "the Power to declare War", and "the Power to make Rules for the Government and Regulation of the land and naval Forces". It's not, "Regulation of the land and naval Forces, except the President".

kim

Given that these measures have saved lives, it's a good thing the executive has an option to carry the ball when the legislature fumbles. And you couch potato judges should remember the refs are still arguing over the replay.
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boris

the wide array of powers you claim

More straw, dummy. A "wide array of powers" has not been claimed. Only authority to instruct the NSA to disregard certain elements of FISA in areas specific to the exercise of executive constitutional power in time of war.

SCOTUS in my example exercises similar power within the judicial branch. Do liberals throw hissy fits whenever it happens?

No, clearly SCOTUS has that authority unquestioned. The claim that the Executive has ZERO ZIP NADA power to protect it's own constitutional powers, despite being one of three EQUAL branches, is the extraordinary claim. The extraordinary claim requires the extraordinary proof. Get busy.

kim

If you can't debate real arguments it is gratifying the damage that can be done to straw ones. Fur flies, there's plenty of opportunity to charge up the high moral hill and slash the enemy snickety snark, and in the end, triumph over all the forces of evil. Or the hallucinations of them.
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Appalled Moderate

Boris:

The courts simply do not agree with you:

Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment, 18 not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963). The independent check upon executive discretion is not [407 U.S. 297, 318] satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. 19 Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.

United States vs. U.S. District Court, 407 U.S. 297. (Supreme Court case decided in 1972)

The 4th amendment applies to citizens, not non-citizens, and the current case is more complex than can be resolved in a comments section. But your theory of executive power can only be sustained by (i) the Supreme Court reversing itself or (ii) the Executive refusing to do the bidding of the Supreme Court.

boris

your theory of executive power

It's not my "theory", it's my opinion that the president has the constitutional authority to do what's widely assumed was done with the NSA program, disregard certain elements of FISA.

The context is surveillance on international communication collecting foreign intelligence. Invoking the 4th amendment is absurd. BTW under what circumstance is the Supreme Court obliged to do the bidding of the Executive ???

kim

So you would slay the son on faith in the law?
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kim

Change the law, before it's too late.
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Appalled Moderate

Theory = opinion.

The executive directly rejecting a decision of the judiciary is what most would call a "Constitutional Crisis", particularly as the President has responsibility to defend the Constitution, which the judicary is given the responsibility to interpret.

boris

I am not aware of a mechanism for the minority party to bring the FISA issue before the judicial branch. The executive and congress are elected branches. In general their interpretation of the constitutional authority of their respective branches is ultimately decided by the voters, not SCOTUS.

Not claiming it can't happen. It's not like a mathmatical equation with exacly one correct solution.

Congress gave the president a line item veto in the 90s. SCOTUS took it away claiming it transfered too much of congress budget authority to the executive. WTF? It would be interesting if SCOTUS intervened and overruled FISA constraints on the executive for trespass on executive war power. I'm skeptical it would turn out that way given the institutional bias of judges. That's why it should be the Executive branch that is in charge of protecting it's turf. Judges can't be expected to know that territory well enough to avoid serious mistakes when national security is on the line and lives are at stake.

boris

the Constitution, which the judicary is given the responsibility to interpret

EXCLUSIVE responsibility ??? Yeah ? Whatever. Which article of the constitution says that? The one written by Marbury?

boris

Theory = opinion.

Not. Stupid word games sport.

Theory implies hypothetical.

Opinion addresses the actual.

It is my opinion that the president has the constitutional authority to do what's widely assumed was done with the NSA program, disregard certain elements of FISA.

The saying “possession is nine points of the law” is a far better guide to what the branches can do and have the authority to do than all the straw stuffing dummies wasting bandwidth claiming the president CAN’T DO what he is in fact doing.

Appalled Moderate

Boris:

I CAN jaywalk. Nobody's likely to prosecute me for doing it. That does not mean I have the legal right to do so. Someday, I may get a ticket. If I challenged the policeman, or refused to submit to his authority, I would be hauled down the courthouse for resisting arrest. The remedy for a President who refuses to execute a judicial order is impeachment, removal and prosecution.

Not a fan of Marbury v. Madison, eh? Those 200 year old precedents are a pain, aren't they?

As for theory vs. opinion, I was using theory in it's legal, not scientific, sense.

Cecil Turner

Meanwhile, the wide array of powers you claim the President has are not to be found in the Constitution. You really should read the whole document.

Seems to me no matter how many times you read it, you're not going to find "judicial review" or "judicial supremacy" in there. And although the concept is hardly new, it's obviously morphed somewhat between Marbury v. Madison and today . . . which seems to make the Constitutional argument a bit strained.

But your theory of executive power can only be sustained by (i) the Supreme Court reversing itself or (ii) the Executive refusing to do the bidding of the Supreme Court.

Neither of which would be novel. But I'd note in this particular case most of the consternation appears to be in advance of an on-point Supreme Court ruling. (And in fact, precedent seems to support the Executive.) Similarly, the observation that Congress has the power to make rules for the "Regulation of the land and naval Forces" elides the fact that it has thus far failed to either complain that the rules aren't being followed, or to tighten them to apply unequivocally to the current emergency.

kim

He is doing it. It has saved lives. No innocents have been harmed. The legislature was slow to right the laws necessary. Fine lawyers are haggling over the legality of it, a haggle the legislature can silence. Had it been done your way, people would be dead, property destroyed, we'd had another one or two trillion dallar hit to the economy.

Do you see why you are beating a chimera?
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kim

I once knew of a local priest who twice daily crossed one of the main streets in town, watching left and right until it was safe to cross. One day, pedestrian lights were put in, and he obeyed, pressing the button, and crossing when the light was green. It wasn't long before a driver, not seeing the light, hit and killed him.

You would have us not watch out for traffic?

Another analogy is the cop on the beat, keeping his eyes and ears open. Once he senses a crime, and starts in pursuit, is he subject to trespassing laws?

You would respect the privacy of the landowner when the criminal did not?

You know, at least some of the people who vote have some sense. They can tell the difference between one invasion of privacy and another.
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Appalled Moderate

Cecil:

On this FISA business, I do not know what the "answer" is because the Courts have not ruled on point. It will be years before they do so, during which I expect that the Bush administration will continue to do what they have been doing.

I was taking on Boris' argument that the President, under the constitution, can disregard a direct judicial edict. My guess is that that would violate the constitutional edict that the President "defend the Constitution" and his oath of office to faithfully execute the laws of the United States.

boris

I CAN jaywalk. Nobody's likely to prosecute me for doing it. That does not mean I have the legal right to do so.

Unless the constitution gives one the legal authority to save a child's life from being run over by a truck.

boris

I was taking on Boris' argument that the President, under the constitution, can disregard a direct judicial edict

Where exactly has this mysterious OTHER boris made that claim ???

The Ace

was taking on Boris' argument that the President, under the constitution, can disregard a direct judicial edict.

Huh? Which one?
You posted United States vs. U.S. District Court

Which flatly states:

[This case] involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.

[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.

May want to get back in the batter's box and swing and miss again...

Appalled Moderate

Boris:

OK. Direct question. The Supreme Court says that the NSA program violates FISA and the 4th Amendment. Cease and desist.

Does the President have the power to order the NSA to continue as they were?

I have interpreted your comments as saying they do not -- the President has the sole authority in his sphere to do as he pleases. I can be wrong. But answer the question.

kim

Hiding it, makes neither murder nor treason a protected privacy. No matter what your citizenship.
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boris

the President has the sole authority in his sphere to do as he pleases.

Then your claim must therefore be that the SCOTUS has the sole authority in its sphere to do as it pleases.

Wouldn't put it quite that way ???

Me neither.

The Ace

Does the President have the power to order the NSA to continue as they were?

Yes, absolutely.
Speaking for myself...

Appalled Moderate

Answer the question put to you Boris.

boris

Answer the question put to you Boris.

Seems you're way behind on the question answering scorecard. Suggest you get busy.

Appalled Moderate

There are constraints on the Supreme Court. The Congress can choose to change its composition. The President can appoint new members. I think that Congress could impose term limits on members, if they so chose. (I am prepapred to be wrong on that one)

Now. Boris. Answer the question and take responsibility for your position on the issue. Even "I don't know" is an acceptable answer, here.

Sue

AM,

The president can be removed after 4 years. Hence the king is dead. Long live the king.

maryrose

AM,
If you had the power to stop the program right now would you do it? What is your plan of protection for us in place of this program. I await your answer.

boris

There are constraints on the Supreme Court.

Is that a no ???

As my example implies: The Executive has authority (as does SCOTUS) within it’s branch to instruct it’s instruments of national force to disregard the will of congress in areas specific to the exercise of constitutional power.

I have hardly been dodging the explicit nature of this claim. Is this a new version of poor reading comprehension substituting for reasonable argument ?

Appalled Moderate

Boris:

It's clear you believe the executive has the authority to disregard FISA, based on his mandate to defend the nation. OK. But not my question.

Under your reading, does the president have the authority to disregard the Supreme Court, when it has determined that the actions of the executive are violating the Fourth Amendment rights of citizens? I ask this, because these are the grounds of the ACLU lawsuit. And, also, quite honestly, I am curious what your position actually is.

boris
If the Supreme Court says that the NSA program violates FISA and the 4th Amendment. Cease and desist.

Would the President have the power to order the NSA to continue as they were?

The problem I have with this scenario is that I have not made a claim either way. Since everybody knows SCOTUS can disregard the will of congress when it conflicts with the constitution there is a presumption that they are the final authority on all things constitutional, even so far as overriding the president's authority within the executive branch. That is inconsistent with three separate equal branches of government.

I would prefer that SCOTUS stay out of the dispute, especially during AUMF. The elected branches are in a position to suffer the consequences of another terrorist attack in the US. SCOTUS is not. I would view their input at this time as meddling, acceptable only if they supported the executive position as long as AUMF is in effect.

As a practical matter there is no mechanism for courts or congress to take control of NSA or remove control from the president without also removing the president’s ability to protect the country or wage war. Defunding NSA would be political suicide, and impeaching the president would not prevent Dick Cheney from continuing the program.

boris

violating the Fourth Amendment rights of citizens

A legal wiretap on one person (eg crime boss) does allow monitoring of calls between him and other parties (for whom there is no warrant). Very skeptical of the claim that monitoring a call to a foreign terrorist is a greater violation of the 4th amendment than monitoring a call to the local crime boss.

Appalled Moderate

Boris:

WE do not know the entire facts of the NSA case (and I hope we do not find them out). It's why speculating on the outcome of that case is probably pretty futile. My thought is that the 4th amendment claim is strongest with respect to attorneys consulting with their overseas terrorist clients.

As for the Supreme Court not hearing the case -- staying out of it -- that's possible, if not likely. They could find that plaintiffs have not alleged a harm specifc to them, and therefore, no case can be brought. Certainly, in times of war, the courts have been deferential to executive power. (The Supreme Court did not strike down Lincoln's suspension of habeas corpus until after the war was over. And they upheld the internment of Japanese-Americans). Courts have been deferential because they know that Congress and the Executive do have influence over them. FDR's court packing is too often remembered as a failure, when, in reality, after it was offered, the Court suddenly stopped ruling that his initiatives were unconstitutional.

But all this brings up another question -- are we more at war than we were during the Cold War? And, if we aren't, should we tolerate suspension of some liberties that we did not tolerate in the late 70s, early 80s?

These questions are not as simple as imagined on either left or right.

kim

They are apparently not simple enough for our legislators to deal with them.
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Cecil Turner

Under your reading, does the president have the authority to disregard the Supreme Court, when it has determined that the actions of the executive are violating the Fourth Amendment rights of citizens?

Since this rather obviously does not violate the Fourth Amendment, the hypothetical is a bit strained. More to the point, does SCOTUS have the authority to rule on a wartime measure that may or may not be a dispute between the President and Congress? Dunno, but unless Congress asserts its authority, I bet they don't.

On the broader question, I'd suggest it's situational. Historically SCOTUS's pronouncements have carried more weight, in part because they were viewed as an independent arbiter, in part because they generally appear more sensible. But again, that's not in the Constitution, and it's shifted over time. If they made an obviously impractical ruling on a central warfighting issue, I suspect it might be ignored.

Harry Arthur

AM, These questions are not as simple as imagined on either left or right.

Precisely. My point to AB up thread. These questions are neither simple nor do they break down entirely along partisan lines.

That there should be oversight is in my mind unquestionable. That such oversight should be very tightly limited to those (few?) trustworthy members of congress who can keep a secret, is also in my mind without serious doubt. The group of people with a "need to know" must be kept small and disciplined.

I would offer that in matters of separation of powers, as in baseball, the tie goes to the runner.

cathyf
Certainly, in times of war, the courts have been deferential to executive power. (The Supreme Court did not strike down Lincoln's suspension of habeas corpus until after the war was over. And they upheld the internment of Japanese-Americans).
Probably a better example is the 8 German sabatours who were captured in 1942 and tried in a military tribunal. Six, including one US citizen, were sentenced to death and the sentence was carried out the next day. A few months later the Supreme Court rejected their appeal in a unanimous decision, specifically citing that they were "unlawful belligerents" and as such had given up any constitutional rights they might have had as US citizens or US persons.

cathy :-)

Harry Arthur

For you historians, was it Jefferson or Jackson who said "the Supreme Court has made its ruling, now let them enforce it" ?

Regarding the balance of powers - the SC can hand down rulings all day long but only the executive has the ability and resources to enforce them. If the executive fails to do so in the collective mind of the American people as represented in Congress, the executive may be impeached, and if convicted, removed from office.

Harry Arthur

cathyf, some parallels to current events, no?

boris

More to the point, does SCOTUS have the authority to rule on a wartime measure that may or may not be a dispute between the President and Congress?

That's why I mentioned the line item veto before. Congress gave it to the president and SCOTUS took it away. Just what the beef was and why they decided to jump in was never that clear.

If they made an obviously impractical ruling on a central warfighting issue, I suspect it might be ignored.

I'll go along with that and say further that it should be. I don't recall scads of lavish praise for the administration abiding the rules of state authority in the Katrina disaster. Seems when lives are at stake the executive is supposed to execute, rules or not.

Cecil Turner

For you historians, was it Jefferson or Jackson who said "the Supreme Court has made its ruling, now let them enforce it" ?

Jackson, referring to Worcester v. Georgia. Most commonly the quote is given as: "John Marshall has made his decision. Now let him enforce it." The case against Jackson usually points to the "Trail of Tears" and asserts ignoring the ruling enabled an historic injustice; the "pro-Jackson" case generally points to the SCOTUS ruling's establishment of extra-legal conclaves within a state. As a practical matter, Jackson's interpretation won.

Harry Arthur

Thanks, Cecil, my memory was very dim on this one but recall it speaking to the concept of separation of powers, particularly between the SC and the president.

Unfortunately at this point in our history it seems that the SC is, or at least is viewed as, possessing virtually unlimited power to impose its will on the people.

Perhaps Roberts and Alito in conjunction with Scalia and Thomas will help reign in this tendency. One can only hope.

CTD

boris,

Yes, the Judiciary has the final say on what is Constitutional. That is what they do. The three branches are not equal like three apples. The matter of equality doesn't even apply because they do different things. The Executive doesn't get to decide what's Constitutional, the Judiciary doesn't make any laws, and the Legislative branch doesn't bomb anything or run HUD. Get the equality thing out of your head.

You ask, "what if the judiciary decides breathing is unconstitutional?" There is a clause saying that judges "shall hold their Offices during good Behaviour", which acts as a hedge against their going loony and deciding up is down and night is day. See, the Framers even thought of that! It is a remarkable document and you should read it sometime.

Now you might be saying, "but I think that spying on random people that the government can't even get a FISA warrant for is the best way to stop terrorism. How can the President do that without breaking the law and risking impeachment?"

I can't help you there.

boris

CTD ...

You're talking to your own dummy filled with straw. How pathetic is that ???

Do me a favor, give it a different name would you ??? It's kinda creepy how you keep calling it boris.

CTD

OK, boris. I assumed since you said, "that's inconsistent with three equal branches of government", you were actually supporting the idea that they were in fact equal. That's a fair assumption, isn't it?

But if you are now saying they're not, then great - especially since so far, that's been your only argument against whether the Supreme Court can find the President's actions unconstitutional or (more likely for this particular case) illegal.

boris

A policeman, a fireman and a paramedic have different responsibilities and skills. Doesn't mean they're not "equal".

The three branches have equal authority in their respective domains. The notion that the executive has to obey whatever congress commands unless they get permission from the judicial is incorrect.

The judicial defends it's own constitutional power from congress overreach as in my example.

The executive and congress as elected branches protect and assert their authority through a more political process. In this case a political confrontation on the NSA program favors the president. Expect the executive to win this one, and if SCOTUS does decide to meddle, it would more likely constrain congress overreach than subject the executive to a risky policy outside their area of constitutional responsibility.

boris

It seems to me that whenever SCOTUS has intervened in the other branches, it acted to constrain overreach rather than impose some policy. In the NSA case there is no executive "overreach". Executive is doing what they have inherent authority to do absent explicit congress restriction.

If SCOTUS acts to impose the will of congress to restrict inherent executive authority, that would be out of character for them. Even if their opinion was such that congress may have constitutional authority to regulate the activity, they would be more inclined to let that play out politically.

kim

Yon Cassius has a lean and hungry look.
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CTD

The three branches have equal authority in their respective domains.

The President appoints judges. He also appoints Cabinet members. Judges don't get to appoint other judges. So long as you stick on this "equal authority" thing, in the face of its obvious bogosity, I can't help you. Sorry.

boris

The President appoints judges

I can see logic isn't your strong suit. A president appointing judges is not acting strictly within the executive branch.

Harry Arthur

I think we're wrapped up with the term "equal" here. The point is not, nor do I think boris made this point, that the branches are "equal" in the sense of being equivalent, but that their powers are "equal" in the sense of being "balanced" so that practically speaking they offset each other.

But, CTD, if it pleases you to spend the better part of the thread picking fly poop out of pepper, then please do enjoy yourself.

that's been your only argument against whether the Supreme Court can find the President's actions unconstitutional or (more likely for this particular case) illegal.

And if the SC does find the president's actions unconstitutional or illegal, what then? In which branch are the cops?

As far as the judiciary forcing the executive to act in any particular manner, see the quotation above from president Jackson. The judiciary has no police power whatsoever to force the executive branch to do anything. As I asked rhetorically, "in which branch are the cops?"

It is, as boris clearly indicated, the American people who, through elections or through impeachment if necessary, hold the executive accountable for his or her conduct in office.

CTD

Sure, Harry, if the President breaks the law, the only thing stopping him is impeachment (and the possibilities of further getting kicked out of office and thrown in jail).

I think you are too kind to boris, though. Statements like "Executive is doing what they have inherent authority to do absent explicit congress restriction" suggest a crack problem.

boris

So now you're giving your dummy stuffed with straw illegal drugs ? How pathetic is that ?

I asked you to change its name once already. Calling that thing boris creeps me out. Next you'll be sticking pins in it.

CTD

Anyone can see what you wrote on this page already, boris. I'm just quoting you. Denying it just further erodes your credibility.

Recognizing that you have a problem is the first step.

Aaron

Tom, I think you're showing your age when you describe catching a courier with a FLOPPY DISK. I wonder if we even have the resources to read such an archaic device.

I would guess they'd use CD-ROM or more likely flash memory stick.

kim

So would you have New York burn while Rockefeller wails on his violin?
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boris

CTD ...

boris (the real one, not your straw stuffed dummy):

In the NSA case there is no executive "overreach". Executive is doing what they have inherent authority to do absent explicit congress restriction.
United States Foreign Intelligence Surveillance Court of Review:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

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Wilson/Plame