So Much for the President's Assent to the McCain Amendment

Sanford Levinson SLevinson at
Mon Jan 2 10:31:24 PST 2006

This is an extremely important point!  I have posted a blog on
Balkinization, that
suggests that the "real" reason for Alito's nomination is his predicted
endorsement of executive power, but this particular point did not occur
to me.  (I focused instead on his memo on absolute immunity for
constitutionally abusive executive officials.)  But Miguel has noticed
something far more important.  It does indeed suggest an important
amendment to the Charles Evans Hughes line:  We live under a
Constitution, but, for Samuel Alito, the Constitution is what the
President says it is.


From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Miguel Schor
Sent: Monday, January 02, 2006 1:13 PM
To: marty.lederman at; lawcourts-l at;
conlawprof at
Subject: RE: So Much for the President's Assent to the McCain Amendment 

It only curiouser and curiouser, as Alice once noted in a not dissimilar
situation, doesn't it?  Apparently Sam Alito was one of the key
strategists behind using presidential signing statements as a mechanism
for inverting the logic of separation of powers:
0100788.html.  The Alito quote I love from the article is the following:
"Since the president's approval is just as important as that of the
House or Senate, it seems to follow that the president's understanding
of the bill should be just as important as that of Congress."  


The article goes on to state:

President Bush has been especially fond of them, issuing at least 108 in
his first term, according to presidential scholar Phillip J. Cooper of
Portland State University in Oregon. Many of Bush's statements rejected
provisions in bills that the White House regarded as interfering with
its powers in national security, intelligence policy and law
enforcement, Cooper wrote recently in the academic journal Presidential
Studies Quarterly.

The Bush administration "has very effectively expanded the scope and
character of the signing statement not only to address specific
provisions of legislation that the White House wishes to nullify, but
also in an effort to significantly reposition and strengthen the powers
of the presidency relative to the Congress," Cooper wrote in the
September issue. "This tour d' force has been carried out in such a
systematic and careful fashion that few in Congress, the media, or the
scholarly community are aware that anything has happened at all."

I'm certainly going to be teaching separation of powers very differently
in the future . . . 






From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of
marty.lederman at
Sent: Monday, January 02, 2006 12:17 PM
To: lawcourts-l at; conlawprof at
Subject: So Much for the President's Assent to the McCain Amendment


So Much for the President's Assent to the McCain Amendment 

Marty Lederman 

The President signed the Defense Appropriations bill on Friday. In his
signing statement
<>  he
did at least two notable things.

First, with respect to several provisions of the bill, the President
signaled his intention to reserve his authority, as Commander in Chief,
to ignore statutory mandates. These include provisions that require
advance notice of congressional committees before the use of funds to
initiate a special access program, a new overseas installation, or a new
start program; and a "report and wait" provision that requires the
President to wait 15 days after notifying six congressional committees
before using certain appropriations to transfer defense articles or
services to another nation or an international organization for
international peacekeeping, peace enforcement, or humanitarian
assistance operatio! ns.

Most importantly, as to the McCain Amendment, which would categorically
prohibit cruel, inhuman and degrading treatment of detainees by all U.S.
personnel, anywhere in the world, the President wrote:

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.

Translation: I reserve the constitutional right to waterboard when it
will "assist" in protecting the American people from terrorist attacks.

You didn't think Cheney and Addington were going to go down quietly, did
you? (And this even though they took their opponents to the cleaners
<>  by
negotiating the Graham Amendments, which, by precluding substantial
avenues of j! udicial review, are far more beneficial to their detention
and interrogation policies than the McCain Amendment is detrimental.)

Questions of the hour: How, if at all, will McCain respond? And will
these questions of presidential authority to ignore statutory
restrictions on the conduct of war -- implicated as well in the current
NSA wiretapping scandal
l.html>  -- be front and center in the upcoming Alito hearings?

Second, the President unsurprisingly signals that the Administration
reads the Graham Amendments to cut off currently pending habeas cases,
including most importantly the Hamdan case that's now before the Supreme
Court and the Al Odah case (Rasul on remand) that the U.S. Court of
Appeals for the D.C. Circuit has under review:

[G]iven the decision of the Congress reflected in subsections 1005(e)
and 1005(h) that the amendments made to section 2241 of title 28, United
States Code, shall apply to past, present, and future actions, including
applications for writs of habeas corpus, described in that section, and
noting that section 1005 does not confer any constitutional right upon
an alien detained abroad as an enemy combatant, the executive branch
shall construe section 1005 to preclude the Federal courts from
exercising subject matter jurisdiction over any existing or future
action, including applications for writs of habeas corpus, described in
section 1005.

What this means is that we're about to see a major battle in the Supreme
Court, where the SG argues that the Court must dismiss the Hamdan case
and Hamdan's attorneys argue that the Graham amendment should be
construed to preserve pending cases.

The language of the ! McCain and Graham Amendments is here
.html> , from the Defense Authorization bill (which the President will
sign in the next few days). As far as I can tell, the language is
exactly the same in the Appropriations bill that the President signed on

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