presidents, war, and *statutes*

Bob Sheridan bobsheridan at
Mon Dec 19 09:22:21 PST 2005

"The president has, I think, made up a law that we never passed," said 

That was the problem that the Court in Youngstown said HST's seizure of 
the steel mills during the Korean War (when troops were on the ground 
fighting and dying daily) suffered from, in dumping it, with Justice 
Jackson's famous concurring analysis of the tide of presidential power.

Query:  Since the Constitution refers to the suspension of habeas corpus 
(by Congress, Art. I, Sec. 9, Cl. 2), and the Constitution pre-dates all 
statutes enacted by Congress, necessarily, mustn't the notion of 
'Constitutional habeas' mean the importation of British common law which 
includes a right of habeas corpus, i.e. w/o the need of any statute?

Re: Suspension:  In California, /judges/ are empowered to both suspend 
the imposition of sentence (ISS) and the execution of sentence (ESS).  
Shoot for the former if you find yourself in a pickle, as in the former 
you haven't been sentenced (but you will when you violate probation) and 
in the latter you have, in which case the imposed sentence is executed 
when you violate probation.  ISS gives you one more shot to argue 
against durance vile.

Didn't the Bush Administration seek to suspend a prevailing wage law in 
the aftermath of Hurricane Katrina?  Was that an executive suspension of 
a legislative act?


Sanford Levinson wrote:

> This just in from the Wasington Post:  
> <>
>  *Gonzales Defends Eavesdropping Program*
> Congress 'Authorized' Domestic Surveillance in Iraq War Resolution, 
> Claims Attorney General
> By Fred Barbash and Peter Baker
> Washington Post Staff Writers
> Monday, December 19, 2005; 10:48 AM
> Attorney General Alberto R. Gonzales this morning defended the Bush 
> administration's domestic eavesdropping operation, saying it derived 
> its legality from the congressional resolution permitting the use of 
> force to fight terrorism in the wake of September 11, 2001 as well as 
> from the "inherent powers" of the president as commander in chief....  
> "There were many lawyers within the administration who advised the 
> president that he had an inherent authority as commander in chief 
> under the Constitution to engage in this kind of signals 
> intelligence," said Gonzales, speaking on CNN.
> "We also believe the authorization to use force that was passed by the 
> Congress . . . constituted additional authorization for the president 
> to engage in this kind of signals intelligence." ....
> Speaking on CBS this morning, Gonzales also said that the Foreign 
> Intelligence Surveillance Act was outdated. "We've had dramatic 
> changes in technology. And we are confronting a new kind of enemy and 
> a new kind of war, and we need to have the speed and agility and 
> utilize all the tools available to this president in confronting this 
> enemy," he said....
> Sen. Feingold responded to Gonzales' comments in an NBC interview: 
> "There's two ways you can do this kind of wiretapping under our law. 
> One is through the criminal code, Title III; the other is through the 
> Foreign Intelligence Surveillance Act. That's it. That's the only way 
> you can do it. You can't make up a law and deriving it from the 
> Afghanistan resolution.
> Democrats and Republicans called separately yesterday for 
> congressional investigations into President Bush's decision after the 
> Sept. 11 terrorist attacks to allow domestic eavesdropping without 
> court approval.
> "The president has, I think, made up a law that we never passed," said 
> Feingold.
> Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary 
> Committee, said he intends to hold hearings. "They talk about 
> constitutional authority," Specter said. "There are limits as to what 
> the president can do."
> So isn't the question clearly joined:  Under the Yoo-Paulsen reading 
> of the Commander-in-Chief (and Oath) Clauses (and I assume that the 
> Attorney General is drawing his constitutional theory from Yoo and 
> Paulsen), are there "limits as to what the president can do," at least 
> with regard to those the president deems to be "enemies" (even if US 
> citizens) so long as he/she is making a good-faith effort to prosecute 
> something the president defines as a war (even though Congress did not 
> formally declare war)?  Paulsen does not, incidentally, defend 
> Truman's seizure of the steel mills because, among other things, the 
> owners were not "enemies," unlike, say, each and every resident who 
> owned a slave within the unconquered Confederacy (whether or not there 
> was a scintilla of evidence that the slaveowner actually did anything 
> to support the presumptively treasonous insurrection), who could 
> indeed have his or her lawful property seized by presidential fiat 
> (also known as the Emancipation Proclamation). 
> Obviously, there is also a question of statutory interpretation re the 
> AUMF.  But I think it's telling that Gonzales is basically going 
> straight to "inherent powers" and the "right" of the president simply 
> to ignore laws that are "outdated" or "quaint" (as with the Geneva 
> accords).   I keep emphasizing Carl Schmitt as the central figure in 
> this discussion.  But one can also go back to John Locke and his 
> theory of "prerogative"  The point is that this is a far cry from the 
> notion of "limited government and assigned powers," unless one simply 
> reads the Commander-in-Chief Clause as an assignment of de facto 
> unlimited power so long as certain magic words ("enemy," "war," and 
> "commander-in-chief") are said.  (Of course I am aware that 
> contemporary Federalists think that only Congress is "limited" in what 
> it can do, since Article II doesn't contain the magic words "herein 
> granted.")
> sandy
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