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

Trevor Morrison trevor-morrison at postoffice.law.cornell.edu
Mon Jan 2 11:42:15 PST 2006


Was anyone else struck by the reference to "the constitutional limitations on the judicial power" in the signing statement's passage on the McCain Amendment?  By grouping this reference together with the reference to the President's constitutional authority as Commander in Chief, the signing statement seems (at least to me) to suggest that constitutional limitations on the judiciary's power to enforce the McCain Amendment stand on the same footing as constitutional limitations on the permissible meaning of the McCain Amendment itself.    

But isn't that obviously wrong?  What about the Executive Branch's independent duty to abide by the statute, whether or not the courts are in a position to enforce it?  Is the President's responsibility under the Take Care Clause now reduced to taking care that the laws are faithfully executed only when a court says so?  If not, what is a reference to "the constitutional limitations on the judicial power" doing in a signing statement passage ostensibly devoted to construing the substantive meaning of the McCain Amendment?    


Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
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SSRN author page: http://ssrn.com/author=372569 

---------- Original Message ----------------------------------
From: marty.lederman at comcast.net
Date:  Mon, 02 Jan 2006 17:17:13 +0000

>http://balkin.blogspot.com/2006/01/so-much-for-presidents-assent-to.html
>
>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 operations.
>
>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 judicial 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 -- 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, 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 Friday.
>
>
 




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