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

[Sanford Levinson]

Trevor is absolutely right:  We are in what seems to be complete
agreement (including the Laycock addendum).

sandy 

-----Original Message-----
From: Trevor Morrison
[mailto:trevor-morrison at postoffice.law.cornell.edu] 
Sent: Monday, January 02, 2006 3:39 PM
To: trevor-morrison at postoffice.law.cornell.edu;
marty.lederman at comcast.net; conlawprof at lists.ucla.edu; Sanford Levinson
Subject: RE: So Much for the President's Assent to the McCain Amendment

I believe I'm in virtually complete agreement with the substance of
Sandy's post.  So to the extent he means to express disagreement with my
post, I think there's been some miscommunication.  To clarify:

1.  In terms of the constitutional catholic v . constitutional
protestant debate, I understand my post to express a rather protestant
view.  In particular, I was trying to suggest that questions about
whether the courts have the constitutional authority to enforce the
McCain Amendment are not the same as questions about how the Executive
Branch should construe the McCain Amendment.  (On this general point, I
would also note that, as an OLC alum, I am a great admirer of the
Dellinger memo to which Sandy refers.) 

2.  Sandy says that the President's Take Care duty only extends to laws
that are constitutional.  I entirely agree.  The point of my post was to
suggest that the constitutionality of a law is not the same as its
judicial enforceability.  The President's Take Care duty obviously would
not extend to a law that invaded his authority under Article II.  Thus,
while I disagree strongly with the substance of the Article II argument
that the administration is advancing, I think Article II considerations
are perfectly relevant to the President's determination whether the
McCain Amendment is constitutional (and to how to construe it in order
to ensure it is constitutional).  

3.  My point is that such matters have no (or at least not much)
connection to whether the Constitution limits *the courts'* power to
enforce the McCain Amendment.  Thus, e.g., if OLC were asked whether the
McCain Amendment's constraints on executive action are constitutional,
it should have been (and would have been, when I was at OLC) a non
sequitur for OLC to answer that the courts lack the authority to enforce
the Amendment.  Maybe the statute is completely nonjusticiable, but
maybe it also imposes valid restrictions on executive action.  In that
case, I think the President would have a constitutional obligation to
abide by those restrictions.  That is, we would have a statutory version
of Larry Sager's underenforced constitutional norms thesis:  the statute
would be judicially underenforced, but that would not excuse the
Executive Branch from having to abide by it.  I suspect Sandy agrees
with me here, which is why I think we must be miscommunicating.

4.  Doug Laycock suggests that the relevant passage in the signing
statement likely amounts to a statement that the President intends to
argue that some of his Cmdr-in-Chief arguments are not subject to
judicial review, and that the President may defy the Court if it
examines those arguments anyway and rejects them.  I think that may very
well be right as a descriptive matter, and I regard it as really scary.

   


Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page: http://ssrn.com/author=372569 

---------- Original Message ----------------------------------
From: "Sanford Levinson" <SLevinson at law.utexas.edu>
Date:  Mon, 2 Jan 2006 13:56:22 -0600

>Trevor Morrison writes:
>
> 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?
>
>*********************************************
>
>The President has a duty to enforce only constitutional laws.  I think 
>it's surprisingly difficult to come up with an argument that says that 
>he/she is bound to enforce laws that are plausibly deemed 
>unconstitutional.  The basic tension between constitutional "catholics"
>and "protestants" (even of a relatively modest type), is whether the 
>President is prevented from articulating and enforcing his/her own 
>understanding of what the Constitution requires.  I think what is 
>lurking in the signing statement is the overtone of Jackson's Bank 
>Veto, which said that judicial precedents are entitled only to so much 
>respect as their reasoning deserves, which, effectively, junks any 
>theory of precedent, including "superprecedents," or, for that matter, 
>Lincoln's abject defiance of Taney's opinion in Ex parte Merryman.  
>There is an excellent memorandum by Walter Dellinger, written when he 
>was at OLC, substantially excerpted in Processes of Constitutioinal 
>Decisionmaking, that is well worth reading in this regard.  As a
confirmed "protestant,"
>so to speak, my objection is not to Bush's assertion of a duty to come 
>to independent conclusions about the constitutionality of congressional

>legislation.
>
>In any event, Bush is raising absolutely basic constitutional issues, 
>in every sense.
>
>sandy
>
 




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