So Much for the President's Assent to the McCain Amendment
Bob Sheridan
bobsheridan at earthlink.net
Mon Jan 2 22:36:55 PST 2006
One point of these very interesting posts is that it is difficult indeed
to pin a president down when being pinned down is deemed by the White
House to be not in the national interest. I suspect that presidents,
too, make best efforts to avoid joining constitutional issues, the
exception being when the president or a significant portion of the party
that put him in office regards an issue as having constitutional
dimension, as Jackson did with the Bank, and Lincoln with first
secession and slavery next in time.
Many acts of Congress may seem small potatoes to a president not anxious
to stir up hornets' nests on measures too obscure to appear above the
political radar.
A change in system that forced constitutional issues to the front burner
prematurely may not do more than to make it more difficult for
government to function.
rs
sfls
Marty Lederman wrote:
> No, the refusal to enforce has been based on a constitutional
> objection that it impermissibly intrudes on the President's
> recognition power. The principal OLC opinion was written by Walter
> Dellinger:
>
> http://www.usdoj.gov/olc/s770.16.htm
>
> I tend to think it's wrong; but it's a longstanding Executive branch view.
>
> (Disclosure: I worked at OLC when the opinion was written, but had no
> involvement in the matter.)
>
> ----- Original Message -----
> *From:* Sanford Levinson <mailto:SLevinson at law.utexas.edu>
> *To:* Marty Lederman <mailto:marty.lederman at comcast.net> ;
> forwarding for fcross <mailto:crossf at mail.utexas.edu> ;
> RJLipkin at aol.com <mailto:RJLipkin at aol.com> ;
> conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> *Sent:* Monday, January 02, 2006 10:36 PM
> *Subject:* RE: So Much for the President's Assent to the McCain
> Amendment
>
> What is the legal case with regard to moving the American Embassy
> to Jerusalem. I seem to recall (but I'm obviously not sure) that
> Congress mandated such a move quite a few years ago, and that, by
> now, a gaggle of presidents have refused to do so? Is it
> ostensibly compulsory? Or is there some kind of discretionary
> fudge factor that allows presidents to keep the Embassy in Tel
> Aviv under certain "findings"?
>
> sandy
>
> ------------------------------------------------------------------------
> *From:* Marty Lederman [mailto:marty.lederman at comcast.net]
> *Sent:* Monday, January 02, 2006 10:32 PM
> *To:* Sanford Levinson; forwarding for fcross; RJLipkin at aol.com
> <mailto:RJLipkin at aol.com>; conlawprof at lists.ucla.edu
> *Subject:* Re: So Much for the President's Assent to the McCain
> Amendment
>
> Well, executives exercise discretion not to enforce laws only when
> such discretion is afforded in the law itself. Prosecutorial
> discretion, for instance, is presumed to be granted by the
> legislature, which is not assumed to have required the executive
> to prosecute every suspected violation of every crime. But even
> as to a "positive" statutory command, if the legislature expressly
> eliminates the discretion ("The President must do X."), then the
> Executive /must /implement (assuming it's constitutional). To do
> otherwise is to exercise a dispensing power that is (in the
> federal system) a violation of the Take Care Clause.
>
> This came up a lot in the old debates about the President's
> "impoundment" of appropriations. For many, many years, the
> President's argument was that every statutory directive to spend
> appropriations was implicitly presumed to be discretionary. On
> rare occasion, Presidents have even argued (not very persuasively,
> in my view) that certain /required/ spending mandates
> unconstitutionally impinged on one of the President's
> constitutional powers. (Kennedy refused to build the number of
> bombers that Congress required, for instance.) But I don't know
> of any modern case in which a President has failed to implement a
> concedely /required/ spending provision simply on the ground that
> he'd prefer not to "enforce" the law.
>
>
> ----- Original Message -----
>
> *From:* Sanford Levinson <mailto:SLevinson at law.utexas.edu>
> *To:* Frank Cross <mailto:crossf at mail.utexas.edu> ;
> RJLipkin at aol.com <mailto:RJLipkin at aol.com> ;
> marty.lederman at comcast.net <mailto:marty.lederman at comcast.net>
> ; conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> *Sent:* Monday, January 02, 2006 10:17 PM
> *Subject:* RE: So Much for the President's Assent to the
> McCain Amendment
>
> Frank makes an extremely interesing point in his last
> sentence. It's obvious that executives (including DAs) have
> discretion not to enforce a whole bunch of laws, and that we
> often applaud them for doing so (independent of the fact that
> there isn't enough time and money to enforce every law that's
> on the books). We can obviously rely on an act-omission
> distinction to distinguish between failure to enforce and
> aggressive violation of the law (such as warrantless
> wiretaps). But does that fully capture the reasons for our
> sometime support of non-enforcement (or overt violation) and
> our condemnation of same?
>
> sandy
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of
> *Frank Cross
> *Sent:* Monday, January 02, 2006 9:30 PM
> *To:* RJLipkin at aol.com; marty.lederman at comcast.net;
> conlawprof at lists.ucla.edu
> *Subject:* Re: So Much for the President's Assent to the
> McCain Amendment
>
>
> It's not really a line item veto. The statutory provision
> remains on the books. The next Pres may enforce it, or the
> current Pres may change his mind. Plus, most of the signing
> statements do not declare a particular provision
> unconstitutional, they declare it unconstitutional as applied
> to a given set of circumstances that may arise in the future.
>
> This really isn't different from the executive declaring not
> to enforce a particular law in a particular case, which is so
> central as to be generally judicially unreviewable.
>
>
>
> At 07:23 PM 1/2/2006, RJLipkin at aol.com wrote:
>
>> Then the signing statement in effect becomes a back
>> door line-item veto of the particular provisions to which the
>> President objects. If it is constitutionally and politically
>> critical for the President to have such a power, it should
>> /not /be his or hers for the taking. Let's change the system.
>>
>> Bobby
>>
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
>> Delaware
>
> **********************************************************
>
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
>
>------------------------------------------------------------------------
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: bobsheridan.vcf
Type: text/x-vcard
Size: 73 bytes
Desc: not available
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060102/99be183b/bobsheridan.vcf
More information about the Conlawprof
mailing list