Our dubious Constitution (continued)
Barksdale, Yvette
7barksda at jmls.edu
Fri Mar 17 13:14:08 PST 2006
Hi John:
Actually, I think this case proves my point. Correct me if I am wrong -
but this case does not involve any exercise of an actual Presidential
power. Rather, it involves alleged misconduct by administrative
officials in the exercise of their statutory delegated authority. Now,
it maybe that that alleged misconduct was directed by the President -
but the formal authority here was administrative, not Presidential. The
President's authority was derivative from his supervisory power over
executive branch administrative officials. This, of course, is an
irrelevant point to the businessperson who was sent off to Syria for
torture.
But my point was only that the President has few formal powers, and that
therefore, the extent of his actual influence (which I agree can be
considerable - again depending upon how powerful the particular
President) depends upon the acquiescence of others - who in fact have
the legal authority to act. (This is thus different from your
Congressional example. There Congress clearly has authority under the
Constitution to legislate - and there is no doubt that such legislation
is "the law of the land" even though, the executive may narrowly
enforce it, etc. ) But the formal power is Congress.
Here, the formal power is not the President's - it is the INS's and the
President's actual influence depends upon the willingness of the Justice
Department to do what he says. And of course, they usually are willing
since, after all they are his team. But the formal legal authority is
not the President's - it is the agencies.
My point was only that the President has few formal powers. Therefore,
his actual power, depends upon his or her ability to influence how other
people exercise their powers.
Ditto the Court here. You're right the Court's decision here is
frightening - holding that United States courts do not provide a remedy
to an alien (here, e.g., an apparently harmless businessperson or
tourist ) who claims that our government shipped him off to a foreign
country to be tortured.
But that doesn't undercut my point, I don't think, that the President's
has few formal powers. He/she may have considerable actual power, but
that depends upon the acquiescence of others (Here, first Justice and
then the Courts). These are checks short of impeachment. (And they don't
require civil disobedience - unlike violating a federal statute)
In any event, this case will surely be appealed, won't it. So, we'll see
how the other Courts address the issue. (one question is whether the
Court would have granted a stay of deportation ahead had the plaintiff
been able to get to Court.)
yb
***/////////////////////////////////////////***
Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)
***/////////////////////////////////////////***
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of John Bonine (U
of O)
Sent: Friday, March 17, 2006 11:59 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Our dubious Constitution (continued)
Yvette,
You wrote:
> Actually, the President is actually not that powerful. . . there is
> very little the President can do unilaterally without
> acquiesence from other branches of government.
Actually, what's that supposed to mean? Do you mean that the President
can order extraordinary rendition to torture-practicing nations only if
the courts do not stop him and only if they deny remedies to those who
have been tortured? (Cf. Arar v. Ashcroft (E.D. N.Y. Feb. 16, 2006),
http://www.justicescholars.org/pegc/archive/Arar_v_Ashcroft/opinion_DGT_
20060217.pdf) (Trager, J.).
"In sum, whether the policy be seeking to undermine or overthrow foreign
governments, or rendition, judges should not, in the absence of explicit
direction by Congress, hold officials who carry out such policies liable
for damages even if such conduct violates our treaty obligations or
customary international law. "
Ah, yes, I can see your point. Actually, the American Presidency is
actually a weak position because judges could actually enforce the
Constitution, treaties, and national legislation against the President,
and Congress could actually impeach the President, and it is only their
acquiescence in lawlessness that actually gives the President the
illusion of power -- as opposed to wielding real power.
But, it is equally true that actually the Congress is an actually weak
institution because it can only implement its policy decisions if the
President actually obeys legislation (which he contends he need not do).
And the courts are actually weak institutions as well, because people
could, you know, ignore them. Although, like sheep, the American people
acquiesce in the rule of law, the rule of law itself is weak because
they might some day not acquiesce.
But we can all rest assured that, in the end, things will be all right,
because the press is actually powerful and actually cares. I feel so
good about this prospect that I am practically dancing in the streets.
John Bonine
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu
<mailto:conlawprof-bounces at lists.ucla.edu> ] On Behalf Of
> Barksdale, Yvette
> Sent: Friday, March 17, 2006 8:55 AM
> To: DavidEBernstein at aol.com; hendersl at ix.netcom.com; isomin at gmu.edu
> Cc: Mark.Scarberry at pepperdine.edu; CONLAWPROF at lists.ucla.edu
> Subject: RE: Our dubious Constitution (continued)
>
> David Bernstein writes:
>
> "And really, the president, near as I can tell, was not
> initially meant to be nearly as powerful as he is now, but
> was largely supposed to be a rubber stamp for Congress, where
> the real power lay. Now that the president is as powerful as
> he is, it seems wrong to guarantee him four years of office
> absent blatant illegal behavior."
>
> Actually, the President is actually not that powerful, which
> is a reason the system perhaps ought to be able to survive
> incompetence without impeachment. My initial description of
> the President's powers for students is "Speak loudly, carry a
> small twig. " For example, other than the pardon power, and
> appointment of inferior administrative officers, there is
> very little the President can do unilaterally without
> acquiesence from other branches of government. (and even the
> appointment of inferior officers can be restricted by
> Congress, if need be.)
>
> The President's primary power comes in his or her power to
> persuade others to go along with his or her programs. And
> this power is a function of respect, and public support -
> which obviously wanes in the face of clear incompetence.
>
> And although the power of modern Presidents has clearly been
> benefitted by the expansion of the administrative state, in
> particular through his use of the appointments power which
> gives the President control over administrative personnel -
> still, any actual policy decision requires cooperation by
> those appointees - which also wanes in the face of
> diminishing Presidential support and stature (this is what
> happened to Carter, in part - rebellion by cabinet members).
>
> Moreover, even when the political appointees are supportive
> - their policies can be impeded by a recalcitrant permanent
> staff. In other words, the system can make an obviously
> incompetent President essentially irrelevant - which is
> beginning to happen to Bush.
>
> Even with respect to foreign policy - the President's strong
> suit, his or her actual power depends upon the power to
> persuade, which again is considerably weakened by lack of
> support at home.
>
>
> This lack of actual Presidential authority is why Bush has
> had to adopt the "war on terror" as an mechanism for trying
> to create unilateral Presidential powers. But yet again, his
> ability to sustain such theories of Presidential power
> depends upon the acquiesence of others, and this
> acquiescence will clearly depend upon the perception that he
> can be trusted with them. If he/she is perceived to be a
> boob, system will eventually shut him down (Congress, Supreme
> Court- etc. ) which we are beginning to see. And if the
> folks who are in power don't shut him down, mid-term
> elections provide a corrective check.
>
>
> What perhaps might be more dangerous than an incompetent
> President, might be overreaching bureaucracy in the face of
> Presidential weakness - thse folks are actually harder to
> check, I think, because they don't operate as much in the
> light of day. But again, legislative oversight and judicial
> review can provide a check here as well.
>
> (And don't count out the press - who generally feel more
> empowered to challenge an unpopular President (and his/her
> administration) than they do a popular one.)
>
> yb
>
>
>
>
>
>
>
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of
> DavidEBernstein at aol.com
> Sent: Thu 3/16/2006 9:16 PM
> To: hendersl at ix.netcom.com; isomin at gmu.edu
> Cc: Mark.Scarberry at pepperdine.edu; CONLAWPROF at lists.ucla.edu
> Subject: Re: Our dubious Constitution (continued)
>
>
> We'll have to agree to disagree about Carter's incompetence.
> But though I was twelve years old at the time, I vaguely
> recall his popularity rating sinking to an all-time low for
> any president since modern polling began of about 23%. The
> Democrats would have been thrilled to get rid of him and
> replace him with Mondale, or Kennedy. The Republicans would
> have been thrilled to get rid of him. The public didn't want
> him. I suppose he didn't commit any "high crimes or
> misdemeanors", but if regulating interstate commerce includes
> putting people in jail for giving away home-grown marijuana,
> misdemeanors could include presiding over the "fall" of Iran,
> Nicaragua, Ethiopia, etc, near hyperinflation, gas crisis, et
> al. And really, the president, near as I can tell, was not
> initially meant to be nearly as powerful as he is now, but
> was largely supposed to be a rubber stamp for Congress, where
> the real power lay. Now that the president is as powerful as
> he is, it seems wrong to guarantee him four years of office
> absent blatant illegal behavior.
>
> And, FWIW, I agree that Iran-Contra was an impeachable offense.
>
> In a message dated 3/16/2006 9:19:50 PM Eastern Standard
> Time, hendersl at ix.netcom.com writes:
>
> David, I cannot for the life of me figure out why
> Carter "deserved"
> impeachment. Carter was in his first term, and he
> wasn't re-elected.
> He wasn't incompetent or idiotic; he saw the issues,
> he just had some
> bad luck and a tin ear
>
>
> David E. Bernstein
> Visiting Professor
> University of Michigan School of Law
> Professor
> George Mason University School of Law
> http://mason.gmu.edu/~dbernste <http://mason.gmu.edu/~dbernste>
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