Powered by TypePad

« Some Thoughts On The Debt Limit | Main | Liberal Myths Never Die (Nor Do They Fade Away...) »

January 04, 2011

Comments

Jeff

wow, the campaign ads for 2012 will just write themselves ...

Charlie (Colorado)

But several other future members of the Obama legal team argued at the time that signing statements were lawful and appropriate so long as the president invoked only mainstream legal theories.

"Mainstream legal theories" of course being code for "legal theories we like."

clarice

Maybe they are baiting their breaths with halibut. Or just bating them.

Let your fingers to the bating.

Sometimes I notice
My cat's breath smells like cat food.
Abate the nuisance.
==========

PD

Is that like the difference between wear ye! and 'ware ye! ?

I R A Darth Aggie

Deer The Won

You may indeed have the power to transfer prisoners as you see fit.

You do not have the power to appropriate monies to pay for that purpose.

Perhaps you should spend your time designing your presidential library in Honolulu?

Thomas Collins

See LUN for an interesting pre-9/11 Heritage Foundation article on Presidential orders and directives including signing statements.

Steve C.

It would be an interesting conflict of fundamental constitutional powers. I think the President can make a powerful argument (as did President Bush) that the President's powers to prosecute wars and deal with the incidental prisoners (legitimate or not) are nearly unlimited.

The conflict is over the clear and enumerated power of Congress to control the purse strings of the government. Money can't be spent unless it is appropriated and appropriated funds must be spent in accordance with rules Congress sets for the expenditure. Earmarks while disgusting are "constitutional".

As I see it, Congress' power of the purse trumps the President's assertion of executive power. The power of the purse (the end result of the English Civil War) is the ultimate legislative check on absolute rule by an executive. A reasonable Supreme Court must rule that the while President has exclusive powers in the sphere of war making, his execution of those powers is dependent on the willingness of Congress to fund those activities.

narciso

It's a wonder how people refuse to actually read what someone says, in the LUN

Danube of Thought

I don't have a clear understanding (or any at all) about how the house, in practical terms, controls the purse strings. For example, it appropriates huge amounts for DoD, and doesn't specify every detail about how that money is to be spent. Suppose the Prez uses some of that money to fly these guys to, say, Leavenworth? Suppose he puts them on Air Force One?

Taser M

I like this take on Obama's flip flop:
http://www.ronreplogle.com/2011/01/hypocrisy-about-executive-power.html

It puts Obama's hypocrisy in its proper constitutional context.

Cecil Turner


I think the President can make a powerful argument (as did President Bush) that the President's powers to prosecute wars and deal with the incidental prisoners (legitimate or not) are nearly unlimited.

I don't think that's a powerful argument at all. The President's inherent powers are as Commander-in-Chief (the only Constitutional mention of the power), generally summarized as the power to wage war. The applicable precedent gives that as the power to wage war successfully (Home Building & Loan Assn. v. Blaisdell, reiterated in Hamdi), which is a substantial expansion, but not unlimited:

The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”
Moreover, Congress has several inherent war powers itself, most pertinently:
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • 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;
Probably the best summary is available in Quirin:
The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.
A casual read suggests handling detainees in particular is an area where Congressional power predominates. The only conflict arises if the rules for such endanger the Executive's ability to wage war successfully. And while I deplore both the decision in Hamdi and the extremely lame wording in the Military Commissions Act, there's little doubt they are legally binding (including on the Executive). And I find it more than a little entertaining to note that these "signing statements" require extensive reference to the Constitution to evaluate . . . which makes the "shredding" argument seem rather specious.

Cecil Turner

I don't have a clear understanding (or any at all) about how the house, in practical terms, controls the purse strings.

In this case, it's an explicit prohibition in the text of the National Defense Authorization Act:

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who--

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

bgates

it appropriates huge amounts for DoD, and doesn't specify every detail about how that money is to be spent

That would seem to open a real can of worms if we had a tougher Congress. Suppose the House defunded the Ed Dept; could the President declare that as education is a matter of national security, he's simply reopening the department under the aegis of the Pentagon?

Danube of Thought

That certainly should cover it. If he does it he's in clear violation of the law, and it will be of great interest to see how the press tarts it.

Has the president already signed that Act, or will he perhaps issue a signing statement simultaneously with doing so?

narciso

This was a post I put up on my own blog, along time ago in the LUN

bgates

Since this is the law thread at the moment, here's another question that just occurred to me.

Though I haven't thought about it too deeply, original public meaning makes sense to me as a judicial philosophy. But after the most productive (as in cough) Congress evah, can that be a coherent approach? I mean, in the case of a 2,000 page bill that's not even read by the fools who voted for it never mind the rest of the country, in what sense does an original public meaning even exist? I suppose for ObamaCare it doesn't matter so much because it's such a thoroughly unconstitutional abomination anyway, but the same concern and page count would apply to Dodd-Frank, the stimuli, and probably more terrors I've blocked from memory.

Cecil Turner

Has the president already signed that Act, or will he perhaps issue a signing statement simultaneously with doing so?

My reading of the Times story is that action is expected by the end of the week and they're considering a signing statement. Don't know what authority they could possibly cite for disregarding Congress in this instance, though.

bgates

Cecil, you're reading it like this:
"None of the funds authorized to be appropriated by this Act may be used to transfer, release, or assist in the transfer or release...."

Could the President read it like
"None of the funds authorized to be appropriated by this Act may be used..."?

Then he'd just need to arrange transportation by one of the other federal agencies that play a role in Muslim outreach, like State, or NASA, or the Migratory Bird Conservation Commission.

Danube of Thought

I suppose he would say in his signing statement something along the lines of "Section 1032 infringes on my powers as C-in-C and Chief Executive, and Is accordingly unconstitutional.". Then he will tell the press, "Remember, I used to be a professor of Constitutional Law," and the press will break upon predictable lines.

Jim Ryan

Rush is saying that Roy Spencer is suggesting that the flock of birds dying all at once was likely due to cloud suck: sucked up into a cloud and dying of cold inside it at 15,000 ft or more.

Naturally, you are asking yourself the macabre question, "Has this fate ever befallen a hang glider pilot?" Why, yes. Yes, it has. Keep 500' below the base of any large cloud, people.

daddy

David Corn today says Conservatives are ">http://www.politicsdaily.com/2011/01/04/the-gop-weaponizes-the-constitution/"> "'Weaponizing' the Constitution", so hopefully with us using it as a weapon we can beat the tar out of the guys trying to "Shred it."

So far this week we've "Shredded it", we've 'Weaponized it", we've "Indecipheralized it", (since it's 100 years old), and by Friday my bet is we'll have "Demonized it", "Bastardized it", and probably "Had sex with it".

Somebody please wake me up when the headlines tell us we've decided to actually "Honor and Abide by The Constitution."

Danube of Thought

Why can't the State Department transfer them?

Cecil Turner

I can't imagine the President making even a semi-sensible case on any of the above. (But then I never anticipated the silliness in the various SCOTUS rulings or the MCA either.)

narciso

How ignorant can Corn be, let us count the ways;

So let's call to the witness stand the preamble of the Constitution -- usually attributed to Gouverneur Morris. Morris was a onetime New York politician who years earlier had lost his reelection to Congress largely because he was an advocate of a strong, central government. Or, in the jargon of today's tea partiers, he believed in tyranny. (Morris of "We the People" fame was also an enthusiastic fan of aristocracy and a foe of slavery.) His preamble is a short statement:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Government is necessary, he and the other founders were explaining, for an assortment of tasks, including promoting the general welfare of the citizenry (which, interestingly, is listed as an obligation in addition to defending the nation). Advancing general welfare certainly is a broad assignment, and it can be read to cover many things, such as providing a strong social safety net for those Americans who are left out of the national prosperity or a robust set of rules to ensure the fair and efficient practice of commerce. And for over 200 years, Americans have been arguing over the role of government. The truth is, this is largely a judgment call.

glasater

Loud Noise Likely Caused Birds' Deaths in Arkansas

Rob Crawford

David Corn today says Conservatives are "'Weaponizing' the Constitution"...

No, the 2nd Amendment did that.

PW

Tom -- The "far left" (!) didn't complain about signing statements. Signing statements are part of the executive deal. What most of us objected to was the sheer volume of GWB signing statements. It became a game in which he asserted himself over Congress at every turn. It was part of the Cheney/Bush shtick. Look at the Bush numbers. Now look at the Obama numbers. If ever Obama appeared to be acting as obstructively as Bush did, we'd be all over him.

Ignatz

--Advancing general welfare certainly is a broad assignment, and it can be read to cover many things, such as providing a strong social safety net for those Americans who are left out of the national prosperity or a robust set of rules to ensure the fair and efficient practice of commerce. And for over 200 years, Americans have been arguing over the role of government. The truth is, this is largely a judgment call.--

Yeah, but the broad assignments were given a very limited, enumerated and strict set of powers by which to accomplish those assignments.
It has been the acquiescence or outright conspiracy of the judiciary in concert with the other two branches to expand all their powers generally that has transformed limited, enumerated powers into the hydra-headed leviathan we have today.

Ignatz

--If ever Obama appeared to be acting as obstructively as Bush did, we'd be all over him.--

If Obama is reelected and faces a tea party dominated Republican congress we will of course support the far left's intense and undoubted manning of the barricade's against Obama's obstruction of the will of the people.
Not even you can buy what you're selling.

Rob Crawford

If ever Obama appeared to be acting as obstructively as Bush did, we'd be all over him.

Unless, of course, you supported the policy, right?

Because I don't see a lot of lefties getting upset over the Obama administration's push on "Net Neutrality", despite being told by both the courts and the Congress that it's outside their power.

tommy mc donnell

its the fact that the american people accept this hypocrisy in their leaders that is the problem. this its okay for us but not for you has got to stop.

Danube of Thought

"Now look at the Obama numbers."

Sure. Every day of his presidency his party has had huge majorities in both houses of Congress--until now. His numbers don't mean diddly so far.

cathyf
I mean, in the case of a 2,000 page bill that's not even read by the fools who voted for it never mind the rest of the country, in what sense does an original public meaning even exist?
I've asked that before... What's to stop a clerk from simply adding or deleting whatever he wants from the bill and claiming that's what was there when it was passed? Why couldn't I go to the Department of Transportation and tell them that I have a $2million project that was in the transportation bill and I'm here to pick up the money? How do they prove that it wasn't in there?
Danube of Thought

"It became a game in which he asserted himself over Congress at every turn."

If I had a dirty mind, I'd say it became a game in which Congress asserted itself over Bush at every turn.

Where you stand depends on where you sit.

Rob Crawford

Why couldn't I go to the Department of Transportation and tell them that I have a $2million project that was in the transportation bill and I'm here to pick up the money?

Oh, that's easy -- they'd call up the Congress critters office and ask if anyone knew you.

daddy

"What's to stop a clerk from simply adding or deleting whatever he wants from the bill and claiming that's what was there when it was passed?"

Exactly cathyf,

It was a Carte Blanche for Un-Constitutional legislative growth and thievery.

Taser M

Here's Obama in all his glory, swearing off signing statements on the campaign trail.

http://www.youtube.com/watch?v=seAR1S1Mjkc&feature=player_embedded

bgates

What most of us objected to was the sheer volume of GWB signing statements.

Did you think to object to the content of any of them? Looking over the first several, I see statements regarding:

* providing for congressional disapproval of the rule submitted by the Dept of Labor
* a bill to expedite the construction of the World War II memorial in the District of Columbia
* creating the "Brown v. Board of Education 50th Anniversary Commission"

Where's the beef? (Probably in the signing statement made regarding a bill about mad cow disease, where the President ominously said one section would "be interpreted in a manner consistent
with the constitutional authority of the Presi-
dent to recommend to the consideration of
the Congress such measures as the President
shall judge necessary and expedient," cue spooky music.)

narciso

This seems more in keeping with the spirit of the thread, in the LUN

That's the last time we let you lead the flock.

Ah, the good old adiabatiac lapse rate, eh? I've seen good hearted physicists come to blows about it. Do you suppose arguing about it knocked off the birds?
==========

Do they not understand?  Or do they not care?

To the Supremes with Walpin, n. There is so much to be outraged about. And where all the leftist who were so certain Bush was clanging the doors on the concentration camp just four years ago.
==========

narciso

Yet another example where the rules don't matter, in the LUN

Mad Jack

narciso: Any examples of cases where the mortgagor was actually paying the mortgage foreclosed upon? I have zero sympathy for the entities that bought these mortgages but I also don't feel too bad for folks who are not paying their mortgage.

Stephanie

Google foreclosed mortgage on paid note and see what you get. They are out there...

narciso

The last few pages in the slide presentation, would show you,

daddy

Thanks narciso,

That link was very educational. In a depressing way.

But thank goodness Holder is still after Chris Christy's receipts at a Motel Six from a decade ago instead of being sidetracked by a couple hundred thousand mortgage forgeries in Florida.

Mad Jack

A handful at best and that is the kind of case any attorney would love to get. But, that's not the kind of thing that these AG's and class action bottom feeders are pushing.

Mad Jack

Sorry, posted too soon. I'll check out the last few pages on your LUN.

Mad Jack

Checked again. Not convinced. Again, I have no sympathy for the screwed up entities and law firms handling these foreclosures. They should follow the rules for a proper foreclosure but the fact is that paying borrowers are not being hurt here, except for being played for saps while their non-paying neighbors live mortgage free while the foreclosure is held up.

cathyf

I thought that narciso's link was good, but in kind of a legal technicality kind of way. The other problem is that the process has acquired all of these middlemen who can have interests that are opposite to both the mortgage holders and the homeowners. When the bank holds on to the note (like in the old days), and the borrower becomes delinquent, then it is in the bank's interest to move reasonably and slowly, because if the borrower is insolvent, then any legal expenses will just be on top of their primary mortgage losses.

But loan serving companies have the opposite incentive -- they pile on fee after fee, and then try to get the mortgage holder to pay them. For example, they will put a bounced check through 10 or 20 times to try to generate 10 or 20 times the bounced check fee. Or they will hold a check without depositing it in order to generate a late fee. Or the first step of the foreclosure process is that the servicing firm goes out to inspect the property to find out what is going on -- so the first month a check is late (which could be an innocent oversight or lost mail) they drive by the house a half-dozen times, generating a fee for each trip.

This is pure, naked fraud. The servicers are trying to defraud both the borrowers and the mortgage holders, and sometimes they collect the same bogus fee from both! It turns out that during the run-up side of the bubble, some number of "cash-out" refinancings were people who were increasing their mortgage balances to pay off thousands of dollars in basically fraudulent fees that they were conned into paying. Once the bubble burst, the servicers were more likely to get the money by ripping off the investors.

MarkJ

Quick summary, in 8 words or less, of any New York Times editorial supporting Obama:

"I'm greased up and waiting for you, master."

pagar

I posted this on another thread this morning but it belongs here. died in 1995, still robosigning affidavits in 2008.

More fraud fallout.

"They should follow the rules for a proper foreclosure"

IMO, that is all most of us are asking for. What you currently have in the mortgate servicing industy is fraud, so prevasive that RICO laws should be invoked in every case IMO.
No one should be so far above the law in America that they can just go out and take someone's house with out the proper paperwork. By now there are hundreds of thosands, if not millions of these phony paperwork creators out there. Nothing is being done. None of them are in jail. Why are we as a nation allowing this complete breakdown of the rule of law?

Melinda Romanoff

I see most are on board with the problems bared by the Foreclosure games.

Now let's see if they can pay up enough to skate.

The comments to this entry are closed.

Wilson/Plame