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.