Sunday, January 15, 2006

Response to a Subversive Operative

Recently what, to me, seems a subversive political operative, has posted responses to Brother Lawrence DiStasi's observations. His moniker is Blade Runner and she (or he) earlier noted that the president's nominee to the Supreme Court "has to be" approved by the Senate because the president won the election. That comment is too silly to respond to other that to state that the Senate has the duty to advice AND consent. No consent, no confirmation, find another candidate, please.

But on to the matter at hand, Blade Runner writes:

You claim the President can only refuse to enforce or obey a congressional statute if the Supreme Court has made a ruling that it is unconstitutional. It's a legitimate position to take in an argument but it is not the law.

What Blade Runner fails to notice is that DiStasi’s argument is nuanced and measured. By reading his text, DiStasi never mentions that the president has to, in toto, observe every decision passed by Congress. He specifically argues about the Congressional law known as FISA passed in 1978 and what would happen if Alito became a Supreme Court Justice. The essay was, after all, about Alito and not Supreme Court jurisprudence per se.

Today, for example, if the Republican controlled Congress passed a law that ordered the president to place so many Quakers in relocation camps because they have protested against the US-Iraq war and so on and so on, Bush would have an obligation, if not a duty, to ignore such a law because it runs contrary to the many rights enumerated in the Bill of Rights.

Every case is different, and some are quite clear even to the non-initiated.

In 1978 Congress passed FISA, a statute that echoed Fourth Amendment protections guaranteed in the Bill of Rights, albeit with a lot of leeway (the three-day ruling to obtain a warrant after the fact of a wiretap is an example).

Only a power hungry president can claim to the new and obscure "unitary executive theory" and claim that he (or she, in the future) is not beholding to Congress' laws in time of war or at any time.

That’s what worries not only DiStasi but a score of Republicans like Congressman Chris Shays, former Congressman Amo Houghton and Bob Barr, Senator Chuck Hagel, Senator John McCain and others.

Blade Runner also brings up the case Meyers v. US (1926):

The US Supreme Court addressed this issue in the 1926 case of Myers v. US. There Democrat President Wilson refused to comply with what he felt was an unconstitutional law (barring him from removing postmasters). The Supreme Court upheld his authority to refuse to enforce unconstitutional acts.
Of course this case in a 6-3 ruling has nothing in common with FISA. The Myers case involved the Tenure of Office Act (1867), later modified, and passed during Andrew Johnson’s term in office. In fact, President Johnson was impeached by the Congress for his action to fire Secretary of War Edwin Stanton. Johnson made it by the skin of his teeth. At first blush the Myers’s case made Wilson’s argument prudent. Yet the case was later modified in Humphrey’s Executor v. US (1935) where Justice Sutherland wrote that Congress COULD limit the president’s power of removal; the Court found that the Myers principle applied only to executive officers. Is a postmaster an executive officer? Is a postmaster "in any proper sense be characterized as an arm or an eye of the executive"? Not in my mind, so Wilson was wrong, in the long run.

Later, in the case Morrison v. Olson (1988) the Court upheld the Independent Counsel Act, again intruding on the executive. The executive is often wrong. Hello!

That’s why the imperial presidency is so worrisome even in times of war. Presidents should be prudent with the power they wield and purport to have and often do not. That’s why the Samuel Alito nomination is so worrisome for us combat Democrats. That’s what Lawrence DiStasi’s wrote about in his essay.

Moreover, in times of war, as Professor Buzan, the Constitutional Law scholar at Cal State Fullerton used to remind me, "In times of war, when the flag goes up, the Justices dive under the beach." In my mind, Alito would be the first to find a safe spot under that bench and agree with the president, just like the Court did in 1943 and upheld the placing of thousand of Japanese–American citizens in relocation camps. The team members of the Splinters Blog, in short, are civil libertarians.

Finally, to paraphrase Benjamin Franklin philosophy in Walter Issacson’s book, "Compromise, may not make great heroes, but they make great democracies." The office of the presidency needs to compromise and work with the legislature instead of depending on Supreme Court Justices who agree with his politics and his ideology. The Alito nomination would bring in another ideologue and make him believe he is imperious with unfettered power, not as the Founding Fathers envisioned.

Finally , we don’t bemoan, we fight!

Read our bios. All of us are Democratic activists and we don’t hide by monikers.

2 Comments:

Blogger bladerunner said...

When I read the first sentence of Mr. Delgado's post I thought I was on a Republican blog, referring to me as a "subversive political operative." The GOP is famous for name calling and invective. Funny, the headline of the SPLINTERS BLOG said "THE CONTRIBUTORS TO THIS BLOG ENCOURAGE YOUR PARTICIPATION BY POSTING YOUR COMMENTS." Some welcome.

But, as Mr. Delgado said, on to the matter at hand: to call Mr. Disanti's post "nuanced" was your second mistake. The post is hardly subtle, suggesting a constitutional crisis if Alito is confirmed. No qualifying congressional limits on executive power.This is part of a much larger constitutional struggle between the branches of government and needs to be seen in this context. That may not suit your imemediate political ends but for you to dismiss it as essentially irrelevant is unfortunate.

Thank you for conceeding that a President may choose not to enforce what he believes to be an unconstitutional act...you just want to say its ok for those congressional actions YOU choose to oppose. Which is what happens in a democracy. Just ackknowledge your selective constitutional scrutiny for what drives it--your partisanship.

Even though you conceded this point, you then went on to misconstrue the Humprheys Executive Case. That case did not overrule the Myers Case. It reaffirmed, in fact, Myers position that for executive branch officials who serve purely executive branch functions, congress may not limit the presidents authority and the president may choose to not comply with the law. Humprheys distinguished between a postmaster(which, I am sorry Mr. Delgado, Humphreys confirmed to be purely executive and the President could refuse to comply with a congressional restriction in this area) with the Federal Trade Commission or other quasi-legislative bodies.By the way Mr. Delgado, you concluded Wilson was wrong---and yet the Humphrey's Court quotes Wilson approvingly for his position. Same with Morrison v. Olson---the Court found the Special Division was not performing executive functions but primarily judicial so it did not run afould of the seperation of powers.

But I find it ironic that you would cite Morrison--authored by Justice Rhenquist whom you most surely would have opposed---upholding the system of the independent counsel that ran unchecked against President Clinton in a most egregious abuse of power.
I don't like the President's position on wiretapping and hope judicial review will rein him in. But you ignore the point that every Democratic president has supported the position that it may refuse to enforce what he believes is an unconstitutional act, that encroaches on executive powers. And you gave an example where you believe that kind of action would be appropriate. And you ignore the hypocrisy of so many Democrats who expected (and got) the Republicans to support Ginsburg and Breyer(both well qualified) and yet insist on Democrats opposing Alito, who received the highest rating from the ABA. I never said that the Senate "has" to confirm a nominee--Clarence Thomas for example should never have been confirmed as he was unqualified. SO please can the constitutional crisis blah blah...
Combat Democrats ought to be winning elections so Democrats can appoint the judges. It's good to raise abuse of executive powers issues or for that mater alot of other issues(but not the petty body language remarks of Mr. Disanti)just understand the math---theres not 40 Democrats who believe Alito's so far outside the pale that they will fillibuster. You going to drum them out of the Party? Will combat Democrats be combatting other Democrats instead of Republicans? Republicans control the Congress and the WHite House. Win it back. Combat Democrats should be registering Democrats...the Party continues to bleed in central orange county while all of you are obsessed with Roberts and Alito.
A final note....the reference to not hiding behind a monkier is a cheap shot. Most bloggers do have a handle. Your opening comment about my being a subversive political operative is exactly the reason why most people use handles....what's most important is getting a discussion going...I tried to do that and you personally attack me. You implore people to loos at your site and then you do this....amazing.

3:46 AM  
Blogger Lou Delgado said...

BR: Sounds you either studied con law like I did or teach it.

Way too much work to respond, but good work.

3:12 AM  

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