Political Crossfire Forums

[Publius2006]

Jimmy Madison wrote: Quote: I am basing it off of the fact that the President is signing a bill into law, while at the same time saying that he reserves the right to not enforce the legislation whenever he sees fit.

Publius:

Perhaps an adherence to the facts would be helpful. President Bush is not including a signing statement stipulating he will not enforce the legislation whenever he sees fit. Try reading the signing statement again. This correction is necessary since your predicate your conclusion upon this fact. Since this is a false statement of fact you may want to rethink your conclusion unless, of course, you can actually rely upon the facts to make a constructive argument to support your now factually unsupported conclusion.

Quote: Now I am not debating the positives and negatives of torture, but from the standpoint of constitutional law, the President cannot chose to simply enforce certain parts of a particular piece of legislation. That is akin to a line-item veto which is, until an amendment is passed, unconstitutional.

You can appeal to notions of constitutional law all day long. Ultimately, it is pointless to make these broad, general, and abstract appeals and then fail to provide any substantive argument to support your claim. I find NOTHING in the U.S. Constitution requiring the President to enforce a law he believes to be uncosntitutional in regards to some particular context. Your assumption constitutional law prohibits this conduct of course begs the question. Does the constitution/established constitutional jurisprudence require the President to enforce laws he believes to be unconstitutional/interfere with or impede his Executive powers? I seriously doubt you will find a case, memo, letter, note, or anything in the Federalist papers suggesting the answer is "Yes".

Rather, I think based on the writings of the Framers, Madison, Jefferson, Adams, Hamilton, and others, the President is NOT required to enforce legislation he believes to be unconstitutional or an infringement upon his delegated powers as part of the scheme of "checks and balances".

Now if President Bush is merely announcing in a signing statement something he can already do then what is the problem?

Quote: the President cannot chose to simply enforce certain parts of a particular piece of legislation. That is akin to a line-item veto which is, until an amendment is passed, unconstitutional

You are comparing apples to oranges. President Bush is not asserting he will not enforce at all specific provisions of the legislation or treat them as if they never existed wheres the line item veto expunged from the existence of the text the provision vetoed.

If the President ever signs a bill into law when he thinks that said law might be unconstitutional, then the President has breached his oath to "uphold the laws of the Constitution". Therefore the idea of signing statements on bills that might be unconstitutional is a mute point. The President should never sign such a bill into law in the first place, if this is actually his true reasoning behind the signing statement.

[John Galt]

Richard Owl Mirror wrote: Jimmy Madison wrote: Quote: The president has the right not to enforce a law that is unconstitutional. So what is unconstitutional about reserving that right?


I agree GTT of AK. However, Publius seems to be running off of the assumption this is an ALL or NOTHING situation. If the President signs the bill, then he must enforce ALL of the bill in ALL instances, contexts, situations, circumstances, and occurrences EVEN IF to do so would be unconstitutional. Of course his rebuttal is the, "according to constitutional law," but then fails to quote a case, letter, memo, or line from any of the documents from the Framers/Founding Fathers to support his contention.

While also making some faulty comparisons and exaggerating what exactly the signing statement says.


Quote: Section 7 - Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;
If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated,
who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Seems pretty BLACK & WHITE to me

All instances of how the law applies are not known at the time it is signed, since unforseeable events may transpire.

[Richard Owl Mirror]

John Galt wrote: Richard Owl Mirror wrote: Jimmy Madison wrote: Quote: The president has the right not to enforce a law that is unconstitutional. So what is unconstitutional about reserving that right?


I agree GTT of AK. However, Publius seems to be running off of the assumption this is an ALL or NOTHING situation. If the President signs the bill, then he must enforce ALL of the bill in ALL instances, contexts, situations, circumstances, and occurrences EVEN IF to do so would be unconstitutional. Of course his rebuttal is the, "according to constitutional law," but then fails to quote a case, letter, memo, or line from any of the documents from the Framers/Founding Fathers to support his contention.

While also making some faulty comparisons and exaggerating what exactly the signing statement says.


Quote: Section 7 - Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;
If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated,
who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Seems pretty BLACK & WHITE to me

All instances of how the law applies are not known at the time it is signed, since unforseeable events may transpire.

McCain Detainee Amendment
Quote: (a) In General.--No individual in the custody or under the physical control of the

Page: S10909 GPO's PDF
United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.



Turnaround On Torture Ban
After threatening to veto Sen. John McCain's proposed anti-torture law,
President Bush now seems to want to send a different message to the world.

Signing statement by President Bush
Quote: After approving the Bill President Bush issued a signing statement: an official document in which a president lays out his interpretation of a new law.[2] In it Bush said:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."




Quote: All instances of how the law applies are not known at the time it is signed, since unforeseeable events may transpire

And where would these instances be applied in the above legislative amendment and accompanying statement of signing by the president?

[Jimmy Madison]

Quote: The Prize Cases don't answer this. The arguments presented pertain to a declared state of war. There was no Congress convened to declare such a war, however, the war did exist and was an immediate threat to the United States. The applications were to those perpetrating war and not the general citizenry.


Medius:

I suggest you re-read the Prize Cases. There was not a declared state of war. The opinion even uses this fact to support their claim the President's conduct was constitutional. The President did not have to wait for the Congress to baptize the conflagration with a name before acting.

This seems to conform to the Framers' idea of the President possessing certain emergency powers when it comes to engaging the U.S. military forces. The original wording was Congress to possess powers to "make war" but the Framers were concerned this would impede the President's abilit to immediately call upon the military if exigent circumstances presented themselves requiring this type of response. So the Framers changed the wording from "make war" to "declare war" thereby allowing the President authority to use the military without congressional approval in some cases. (See Ralph Ketcham's book, James Madison, A Biography, see also James Madison's Constitutional Notes, Library of Congress).

Why is this relevant? Because at this time this nation is at war with Al Qaeda. Al Qaeda perpetuated a devastating attackss on a U.S. embassy, warship, and on this nation's soil. The U.S. responded with a military attack. Al Qaeda and the Taliban resisted and are still resisting. Al Qaeda has vowed more attacks on U.S. interests. The fact is this nation is at war.

I only address this digression to correct some of the facts you rely upon.

Quote: President Lincoln did attempt to exert power over the constitutional rights of the citizens at that time. He suspended Habeas Corpus in order to detain dissenters. This in fact was deemed unconstitutional.

"National Security" doesn't give the President any additional powers to ignore the rights of the citizens or the laws they create.


This is a digression because I am not arguing President Bush may do so and his signing statements do not make any such declaration. Furthermore, your assumption his national security policy is implicating the rights of U.S. citizens is at this time erroneous and unsupportable. Collection of numbers dialed is not an implication of privacy because the U.S. Supreme Court has held you do not have an expectation of privacy in the numbers you dial. See SMITH v. MARYLAND, 442 U.S. 735 (1979)

Quote: What you are arguing is that when the government is impaired in such a way as to make the constitution invalid (meaning there are non-functioning branches) then the other branches may assume the powers which cannot be executed. The problem with this argument is that you are applying the constitution to a government that could not possibly function within its scope due to circumstances. If it could not, then it was not functioning under the constitution. This being the case, simply because such actions were not punished, does not by default make them constitutional.

No this is not my argument but a lovely fictional strawman you conjured up. You would be well advised to know the argument I am making and address it as opposed to making up arguments for me and then attacking these phantom positions.

[Norrin Radd]

John Galt wrote: Publius2006 wrote: However, in the Federalist Papers it is explicitly stated that the power of judicial review was intended for the Supreme Court, and that this power was merely implied.

Where?

Also, how is it "explict" AND "implied"?

Yes, I would like to see this also.

In the writings of Jefferson, Hugo Black and others, they believed the Supreme Court was the weakest branch of government and that there is nothing in the constitution which gives them the power to decide all things constitutional.

[Jimmy Madison]

Quote: If the President ever signs a bill into law when he thinks that said law might be unconstitutional, then the President has breached his oath to "uphold the laws of the Constitution". Therefore the idea of signing statements on bills that might be unconstitutional is a mute point. The President should never sign such a bill into law in the first place, if this is actually his true reasoning behind the signing statement.

Publius:

Your assumption the phrase of "uphold the laws of the constitution" includes those laws which are not known to be "unconstitutional" but merely speculated to be unconstitutional is erroneous. If it is not certain the law is unconstitutional, if it is not known at the time of signing, the law is unconstitutional, then the President cannot be said to be violating his oath because at the time of signing a "MAY" be unconstitutional is not the same as the law "IS" unconstitutional. Hence, the President would not be implicating his constitutional oath by vetoing a law which he believes "MAY" be unconstitutional.

The phrase "uphold the laws of the Constitution" at best can be said to only require a President to veto laws he knows to be "unconstitutional". In this regard I am inclined to agree with your position and advocates on your side of the debate. I do not think the President can sign a bill into law and then summarily assert he will ignore the provision/not enforce it because it is unconstitutional. I think in this situation the text of the Constitution is clear, the President needs to veto this bill and send it back to Congress with his objections.

However, for those instances where it is not certain or clear if the law is unconstitutional, I think the President can attach a signing statement stating in some context, circumstance, occurrence, event, etcetera, should it arise, I will not enforce this provision/law as it would be unconstitutional to do so.

So quite simply we are talking about two situations here and your attempt to assume this is an all or nothing situation is untenable.

[Jimmy Madison]

Double post.

[Jimmy Madison]

Richard Owl Mirror wrote: Jimmy Madison wrote: Quote: The president has the right not to enforce a law that is unconstitutional. So what is unconstitutional about reserving that right?


I agree GTT of AK. However, Publius seems to be running off of the assumption this is an ALL or NOTHING situation. If the President signs the bill, then he must enforce ALL of the bill in ALL instances, contexts, situations, circumstances, and occurrences EVEN IF to do so would be unconstitutional. Of course his rebuttal is the, "according to constitutional law," but then fails to quote a case, letter, memo, or line from any of the documents from the Framers/Founding Fathers to support his contention.

While also making some faulty comparisons and exaggerating what exactly the signing statement says.


Quote: Section 7 - Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;
If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated,
who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Seems pretty BLACK & WHITE to me

Richard

No it is not black and white despite your attestations to the contrary. Your assumption a signing statement which explicitly indicates it is predicated upon some unforeseen event occurring but ultimately may never occur before the President refuses to enforce it as being unconstitutional necessarily means the President does not approve of the bill. Nothing could be further from the truth. The two are not mutually exclusive. The President can approve of a bill but ultimately assert he does not and will not enforce the bill should the occasion ever arise where to do so would be unconstitutional. Such a broad and general statement is not expressing a disapproval for the bill. Consequently, your reliance upon the text of the constitution is unavailing.

A signing statement merely asserting the President will not enforce the law in X, Y, and Z context/instance/occurrence/event because to do so is unconstitutional does not mean the President does not approve of the bill. The President is merely asserting, "I approve of this bill but if it impedes or infringes upon my constitutional authority at some point in the future in some context, I will not enforce it." Such a signing statement does not mean the President disapproves of the bill. Rather, this signing statement is simpy reaffirming he does not have to enforce it in the future should some unforeseen event/occurrence make enforcing it unconstitutional, a power the President already possesses. There is nothing in the text of the U.S. Constitution stating this is an instance where the President does not approve of the bill.

Now, I agree with you if the President possesses immediate constitutional objections to the bill upon sigining it, then the proper course of conduct is to veto it.

[John Galt]

Richard Owl Mirror wrote: John Galt wrote: Richard Owl Mirror wrote: Jimmy Madison wrote: Quote: The president has the right not to enforce a law that is unconstitutional. So what is unconstitutional about reserving that right?


I agree GTT of AK. However, Publius seems to be running off of the assumption this is an ALL or NOTHING situation. If the President signs the bill, then he must enforce ALL of the bill in ALL instances, contexts, situations, circumstances, and occurrences EVEN IF to do so would be unconstitutional. Of course his rebuttal is the, "according to constitutional law," but then fails to quote a case, letter, memo, or line from any of the documents from the Framers/Founding Fathers to support his contention.

While also making some faulty comparisons and exaggerating what exactly the signing statement says.


Quote: Section 7 - Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;
If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated,
who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Seems pretty BLACK & WHITE to me

All instances of how the law applies are not known at the time it is signed, since unforseeable events may transpire.

McCain Detainee Amendment
Quote: (a) In General.--No individual in the custody or under the physical control of the

Page: S10909 GPO's PDF
United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.



Turnaround On Torture Ban
After threatening to veto Sen. John McCain's proposed anti-torture law,
President Bush now seems to want to send a different message to the world.

Signing statement by President Bush
Quote: After approving the Bill President Bush issued a signing statement: an official document in which a president lays out his interpretation of a new law.[2] In it Bush said:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."




Quote: All instances of how the law applies are not known at the time it is signed, since unforeseeable events may transpire

And where would these instances be applied in the above legislative amendment and accompanying statement of signing by the president?

I don't know what you mean. They are unforseeable. Furthermore, The Constitution is the law of the land. It is a shame you think that it should not be. ThePresident was merely stating he has the power to enforce the law, but he does not have to if it violates the Constitution. The events have not transpired that would have promted the President to disregard this legislation as unconstitutional so we really can't argue about what it is. It is an unknown known.

You still have not answered why the President can refuse to spend what Congress authorizes but his actions here are some how out of the ordinary.

[Publius2006]

Norrin Radd wrote: John Galt wrote: Publius2006 wrote: However, in the Federalist Papers it is explicitly stated that the power of judicial review was intended for the Supreme Court, and that this power was merely implied.

Where?

Also, how is it "explict" AND "implied"?

Yes, I would like to see this also.

In the writings of Jefferson, Hugo Black and others, they believed the Supreme Court was the weakest branch of government and that there is nothing in the constitution which gives them the power to decide all things constitutional.

Federalist #16 (concerning the passage of unconstitutional laws by the legislature)

"If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional and void."

This is straight from the pen of the founding fathers who framed the constitution. Therefore it should be obvious that, although judicial review was not discussed in the constitution, it was very much so intended to exist by those who created it.

[Jimmy Madison]

Richard and Publius:

As I previously asserted, if the President has knowledge, at the time of signing the bill, it is unconstitutional, then I agree with you he must veto it as opposed to attaching a signing statement to it.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;
If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated

This language originated, not surprisingly, as a result of an abuse of power by the King in England. Several provisions of our U.S. Constitution were drafted with abuses by the Crown and Parliament in mind. This particular language was espoused to avert the proclivity of King George the II of refusing to enforce specific provisions in a law passed by parliament. Indeed, King James II was overthrown in Great Britain because he exerted what he called the suspending or dispensing power, where he would refuse to enforce laws enacted by parliament without his consent. And it was that history that caused the founding fathers to write into the Constitution an obligation of the president to faithfully execute the laws.


So I think you are correct when we are discussing an instance where the President immediately possesses and is aware of a constitutional objection to the proposed legislation sent to him for his signature.

[Jimmy Madison]

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void.

Publius:

Try taking the one line you quote from Hamilton's federalist paper numbered 16 and read it in context. Hamilton is not asserting the judicial branch possesses the authority of judicial review here.

Furthermore, your claim the Founding Fathers/Framers believed the judicial branch had this authority by citing Hamilton is problematic. You assume ALL the Founders/Framers believed the judicial branch was divested with the authorithy of judicial review. However, Madison and Jefferson repudiated any such notion and after the Supreme Court seized this power in Marbury vs. Madison devoted some number of years seeking to constrain this authority.

The Federalist Paper you are looking for is number 78, penned by Hamilton. The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them.
· Hamilton believes that as long as the judiciary remains truly distinct from both the legislature and the executive departments it will never endanger the general liberty of the people. Hamilton said this, “there is no liberty if the power of judging be not separated from the legislative and executive powers.”
· The complete independence of the courts of justice is peculiarly essential in a limited Constitution. Their duty is to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
· Rationally the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. If there should ever be an irreconcilable variance between the two, the Constitution ought to be preferred to the statute.
[/quote]

[John Galt]

Publius2006 wrote: Norrin Radd wrote: John Galt wrote: Publius2006 wrote: However, in the Federalist Papers it is explicitly stated that the power of judicial review was intended for the Supreme Court, and that this power was merely implied.

Where?

Also, how is it "explict" AND "implied"?

Yes, I would like to see this also.

In the writings of Jefferson, Hugo Black and others, they believed the Supreme Court was the weakest branch of government and that there is nothing in the constitution which gives them the power to decide all things constitutional.

Federalist #16 (concerning the passage of unconstitutional laws by the legislature)

"If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional and void."

This is straight from the pen of the founding fathers who framed the constitution. Therefore it should be obvious that, although judicial review was not discussed in the constitution, it was very much so intended to exist by those who created it.

No it was not. Judicial review was talked about very little when the Constitution was created. "Judicial" review was, once upon a time, a right exercised by the people. People would, in juries for example, declare laws unjust as violative of rights, hence the sentance immeditley after what you gave to us:

If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest.

People don't do that any more. Judges do. While there were examples of things happening at the time of ratification, they were few and far between. The founding fathers, nor the framers, never expressed that they wanted it. They never expressed they ddin't want it, until after it happened, and some with great zeal. What Federalist 16 was describing was how inadequate the Confederacy is and how superior a Federal government would be.

What Federalist 16 was describing was a State acting against the Constitution. And it was describing how a State (or conspiracy of States) would always find a brick wall unless there was some collusion between all parts of government. Since I do not contest the judicial reiew of state-borne legislation, only of Federal legislation, I wouldn't call this explict. At all.

[Publius2006]

Jimmy Madison wrote: But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void.

Publius:

Try taking the one line you quote from Hamilton's federalist paper numbered 16 and read it in context. Hamilton is not asserting the judicial branch possesses the authority of judicial review here.

Furthermore, your claim the Founding Fathers/Framers believed the judicial branch had this authority by citing Hamilton is problematic. You assume ALL the Founders/Framers believed the judicial branch was divested with the authorithy of judicial review. However, Madison and Jefferson repudiated any such notion and after the Supreme Court seized this power in Marbury vs. Madison devoted some number of years seeking to constrain this authority.

The Federalist Paper you are looking for is number 78, penned by Hamilton. The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them.
· Hamilton believes that as long as the judiciary remains truly distinct from both the legislature and the executive departments it will never endanger the general liberty of the people. Hamilton said this, “there is no liberty if the power of judging be not separated from the legislative and executive powers."
· The complete independence of the courts of justice is peculiarly essential in a limited Constitution. Their duty is to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
· Rationally the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. If there should ever be an irreconcilable variance between the two, the Constitution ought to be preferred to the statute.
[/quote]

True, it is a stretch of faith to assume that because Hamilton believed in the idea of judicial review, then the other members of the convention did as well. However it would seem that the notion was at least mentioned at some point in their deliberations. Also it appears that Hamilton felt that judicial review was an obvious function of that branch considering how he discusses it, and it would stand to reason that others must have felt the same way. As your reference shows, this the very reason that the judiciary was left as a distinct and separate branch.

As far as Madison and Jefferson goes, Jefferson was in such avid support of small government, it is no surprise that Jefferson would disagree with this seemingly expanded role of the judiciary.

And as for Madison, it is interesting that he would oppose judicial review, since that is what won him the Supreme Court case. I wonder on what grounds did he not support it?

Thank you for posting a paper which better delves into the issue of judicial review, I merely flipped through mine and looked for the first highlighted section that dealt with the issue.

[Publius2006]

Jimmy Madison wrote: But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void.

Publius:

Try taking the one line you quote from Hamilton's federalist paper numbered 16 and read it in context. Hamilton is not asserting the judicial branch possesses the authority of judicial review here.

Furthermore, your claim the Founding Fathers/Framers believed the judicial branch had this authority by citing Hamilton is problematic. You assume ALL the Founders/Framers believed the judicial branch was divested with the authorithy of judicial review. However, Madison and Jefferson repudiated any such notion and after the Supreme Court seized this power in Marbury vs. Madison devoted some number of years seeking to constrain this authority.

The Federalist Paper you are looking for is number 78, penned by Hamilton. The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them.
· Hamilton believes that as long as the judiciary remains truly distinct from both the legislature and the executive departments it will never endanger the general liberty of the people. Hamilton said this, “there is no liberty if the power of judging be not separated from the legislative and executive powers."
· The complete independence of the courts of justice is peculiarly essential in a limited Constitution. Their duty is to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
· Rationally the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. If there should ever be an irreconcilable variance between the two, the Constitution ought to be preferred to the statute.
[/quote]

True, it is a stretch of faith to assume that because Hamilton believed in the idea of judicial review, then the other members of the convention did as well. However it would seem that the notion was at least mentioned at some point in their deliberations. Also it appears that Hamilton felt that judicial review was an obvious function of that branch considering how he discusses it, and it would stand to reason that others must have felt the same way. As your reference shows, this the very reason that the judiciary was left as a distinct and separate branch.

As far as Madison and Jefferson goes, Jefferson was in such avid support of small government, it is no surprise that Jefferson would disagree with this seemingly expanded role of the judiciary.

And as for Madison, it is interesting that he would oppose judicial review, since that is what won him the Supreme Court case. I wonder on what grounds did he not support it?

Thank you for posting a paper which better delves into the issue of judicial review, I merely flipped through mine and looked for the first highlighted section that dealt with the issue.

[Medius]

Jimmy Madison wrote: Medius wrote: The Prize Cases don't answer this. The arguments presented pertain to a declared state of war. There was no Congress convened to declare such a war, however, the war did exist and was an immediate threat to the United States. The applications were to those perpetrating war and not the general citizenry.


I suggest you re-read the Prize Cases. There was not a declared state of war. The opinion even uses this fact to support their claim the President's conduct was constitutional. The President did not have to wait for the Congress to baptize the conflagration with a name before acting.


I can see that the first line was not clear, however, the second line indicated that there was no declared war. The argument was as to whether a President can declare war under exceptional conditions. Those conditions specifically being the lack of a congress to fulfill its duties. The decision made was that the President was allowed to act as he did. His actions were clearly unconstitutional but they served the best interests of the country at the time. I see no basis for this to expand presidential powers when there are three fully functioning branches.

Jimmy Madison wrote: This seems to conform to the Framers' idea of the President possessing certain emergency powers when it comes to engaging the U.S. military forces. The original wording was Congress to possess powers to "make war" but the Framers were concerned this would impede the President's abilit to immediately call upon the military if exigent circumstances presented themselves requiring this type of response. So the Framers changed the wording from "make war" to "declare war" thereby allowing the President authority to use the military without congressional approval in some cases. (See Ralph Ketcham's book, James Madison, A Biography, see also James Madison's Constitutional Notes, Library of Congress).

While I disagree with the concept of the President "making war" without congressional approval, this is a side argument. We are talking about the expansion of presidential powers for the purpose of "National Security".

Jimmy Madison wrote:
Why is this relevant? Because at this time this nation is at war with Al Qaeda. Al Qaeda perpetuated a devastating attackss on a U.S. embassy, warship, and on this nation's soil. The U.S. responded with a military attack. Al Qaeda and the Taliban resisted and are still resisting. Al Qaeda has vowed more attacks on U.S. interests. The fact is this nation is at war.

No, we aren't. This is a matter of civil defense. There are always and will always be threats to our security. Terrorism isn't new and it isn't going anywhere.

Jimmy Madison wrote:
I only address this digression to correct some of the facts you rely upon.

Medius wrote: President Lincoln did attempt to exert power over the constitutional rights of the citizens at that time. He suspended Habeas Corpus in order to detain dissenters. This in fact was deemed unconstitutional.

"National Security" doesn't give the President any additional powers to ignore the rights of the citizens or the laws they create.


This is a digression because I am not arguing President Bush may do so and his signing statements do not make any such declaration. Furthermore, your assumption his national security policy is implicating the rights of U.S. citizens is at this time erroneous and unsupportable. Collection of numbers dialed is not an implication of privacy because the U.S. Supreme Court has held you do not have an expectation of privacy in the numbers you dial. See SMITH v. MARYLAND, 442 U.S. 735 (1979)


His signing statements are suspensions of the law, declared by the people through our representatives. We are talking about checks and balances here. The rights of the people are housed not only in the Bill of Rights but also in the balance of power. We the People have our interests bound in congress and our laws should not be ignored by anyone in this country except where the Judicial branch finds the law contrary to the constitution.

While I do think that the president is infringing upon our personal liberties, the real issue here is whether he can ignore a law because of "National Security" when there is no constitutional foundation for this.

Jimmy Madison wrote:
Medius wrote: What you are arguing is that when the government is impaired in such a way as to make the constitution invalid (meaning there are non-functioning branches) then the other branches may assume the powers which cannot be executed. The problem with this argument is that you are applying the constitution to a government that could not possibly function within its scope due to circumstances. If it could not, then it was not functioning under the constitution. This being the case, simply because such actions were not punished, does not by default make them constitutional.

No this is not my argument but a lovely fictional strawman you conjured up. You would be well advised to know the argument I am making and address it as opposed to making up arguments for me and then attacking these phantom positions.

It was not my intention to make a strawman here, this was my understanding of your argument. As far as I can tell it still seems to be the core of your argument. The Civil War was an exceptional situation. Excuse me if I don't accept a single terrorist threat as being anywhere close to the threat of our nation breaking apart.

Terrorism is not an exception, it is a constant. It exists, it will exists, it has always existed. It is a part of life and a part of our duty as citizens of the United States to defend against. It is not a reason to give the Executive Branch any powers beyond what is outlined directly in the constitution.

[Jimmy Madison]

Quote: His actions were clearly unconstitutional

Medius:

What on earth are you talking about? The very impetus of the Prize Cases are Lincoln's conduct was not unconstitutional. Re-read the cases.

Quote: I see no basis for this to expand presidential powers when there are three fully functioning branches.


This was not an operative premise upon which the Prize cases rested their conclusion so I am quite simply mystified as to why you keep brining it up in relation to the Prize Cases.

Quote: We are talking about the expansion of presidential powers for the purpose of "National Security".


No we are talking about signing statements. Why don't you get on board and discuss the relevant issue as opposed to all of these tangential points you keep discussing?

Quote: No, we aren't. This is a matter of civil defense.

Another digression and ultimately erroneous fact. We are at war with Al Qaeda. In addition, Congress authorized the use of force and this was not granted because we are at peace. frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ040.107.pdf

Quote: His signing statements are suspensions of the law, declared by the people through our representatives. We are talking about checks and balances here. The rights of the people are housed not only in the Bill of Rights but also in the balance of power. We the People have our interests bound in congress and our laws should not be ignored by anyone in this country except where the Judicial branch finds the law contrary to the constitution.

While I do think that the president is infringing upon our personal liberties, the real issue here is whether he can ignore a law because of "National Security" when there is no constitutional foundation for this.

No, NONE of this is an issue here. The issue is the use of signing statements not the antagonistic relationship between national security and individual rights. You are quite simply raising red herrings.

Quote: It was not my intention to make a strawman here, this was my understanding of your argument. As far as I can tell it still seems to be the core of your argument.

Then you have yet to understand my argument. My argument is not at all concerned with national security versus individual rights and liberties. My argument does not entertain any of the red herrings you illuminate for discussion here. Consequently, you have not grasped the core of my argument at all.

My argument has been and continues to be the signing statements are not necessarily unconstitutional depending on the "context" in which they are signed and based on my reading of the text of the U.S. Constitution. This is my argument and the issue. You are quite simply raising red herrings.

Quote: is not a reason to give the Executive Branch any powers beyond what is outlined directly in the constitution.

This is a great red herring. Perhaps you'd actually like to discuss the topic of signing statements?

[John Galt]

The problem with relying on Federalist 78 is that we look at it through the lens of modern day thinking, that of judicial supremecy, and not of the prevailing thought of the time, popular constitutionalism. Kramer's The People Themselves is an excellent read on the subject.

[Medius]

Jimmy Madison wrote: Quote: His actions were clearly unconstitutional

Medius:

What on earth are you talking about? The very impetus of the Prize Cases are Lincoln's conduct was not unconstitutional. Re-read the cases.

Quote: I see no basis for this to expand presidential powers when there are three fully functioning branches.


This was not an operative premise upon which the Prize cases rested their conclusion so I am quite simply mystified as to why you keep brining it up in relation to the Prize Cases.

Quote: We are talking about the expansion of presidential powers for the purpose of "National Security".


No we are talking about signing statements. Why don't you get on board and discuss the relevant issue as opposed to all of these tangential points you keep discussing?

Quote: No, we aren't. This is a matter of civil defense.

Another digression and ultimately erroneous fact. We are at war with Al Qaeda. In addition, Congress authorized the use of force and this was not granted because we are at peace. frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ040.107.pdf

Quote: His signing statements are suspensions of the law, declared by the people through our representatives. We are talking about checks and balances here. The rights of the people are housed not only in the Bill of Rights but also in the balance of power. We the People have our interests bound in congress and our laws should not be ignored by anyone in this country except where the Judicial branch finds the law contrary to the constitution.

While I do think that the president is infringing upon our personal liberties, the real issue here is whether he can ignore a law because of "National Security" when there is no constitutional foundation for this.

No, NONE of this is an issue here. The issue is the use of signing statements not the antagonistic relationship between national security and individual rights. You are quite simply raising red herrings.

Quote: It was not my intention to make a strawman here, this was my understanding of your argument. As far as I can tell it still seems to be the core of your argument.

Then you have yet to understand my argument. My argument is not at all concerned with national security versus individual rights and liberties. My argument does not entertain any of the red herrings you illuminate for discussion here. Consequently, you have not grasped the core of my argument at all.

My argument has been and continues to be the signing statements are not necessarily unconstitutional depending on the "context" in which they are signed and based on my reading of the text of the U.S. Constitution. This is my argument and the issue. You are quite simply raising red herrings.

Quote: is not a reason to give the Executive Branch any powers beyond what is outlined directly in the constitution.

This is a great red herring. Perhaps you'd actually like to discuss the topic of signing statements?

Signing statements are not a power given to the Executive Branch in the Constitution of the United States. The taking of any additional powers by any branch of the federal government is an infringement upon those branches to whom the power was delegated by the constitution.

These signing statements aren't a 'clarification' or an explanation of 'enforcement' they are an outright change by inserting a stipulation which was not included into the law by the Legislative Branch. Additionally they leave no recourse to congress. If the law is unconstitutional in an application that is not stipulated, then that law should be vetoed and returned to congress with an explanation of what stipulation must be made for the law to become constitutional.

[Jimmy Madison]

Quote: If the law is unconstitutional in an application that is not stipulated, then that law should be vetoed and returned to congress with an explanation of what stipulation must be made for the law to become constitutional.

What if the context, situation, event, occurrence, or circumstance in which the operation of the law would be unconstitutional is unknown to the president at the time of signing? Is he still required to veto the bill?