Here's a Stupid Question!

[Rosenthal, Lawrence]

A veto will not make the voters love the war, but what follows will make the Democrats seem unprincipled and irresolute.  After a veto, Congress will have to pass a clean bill for the same reason that President Clinton forced the Republicans into submission in 1995.  Shutting down the government was politically unattractive then; it will be even more so now, when it leaves troops overseas vulnerable.  By insisting on a clean bill, the President forces the Democrats to abandon their own principles while he remains true to his.  Perhaps the Democrats will succeed into obtaining something that they can call a symbolic victory, such as a clean bill that lasts for only three months, but I fail to see what they gain by having to pass clean bills every three months in the face of a veto.  To be sure, the President faces some problems that President Clinton did not; his "surge" policy may not succeed; and if not, the President runs the risk that his own party will abandon him by spring 2008.  But do not underestimate the Republicans' political acumen; I would not be surprised if the President himself declares victory and begins his own phased withdrawals by the spring of 2008 -- then withdrawals will begin on his timetable and not that of the Democrats.  Even so, the Democrats will be able to claim that they forced the President to change policy, and they will probably get some credit for that.  The President's veto strategy, however, is likely to produce the best political outcome that the Republicans can hope for; while the Democrats' strategy is likely to produce dissension in its own base and a picture of irresolution that will not quickly fade during the 2008 campaign.
 
If you look closely at the statements of the President and the Democratic leaders during the last few days, you see that it is the Democrats, not the President, who sound nervous.  The President is reveling in his veto threat, while the Democrats keep nervously saying that they support the troops and that we are not yet running out of money for operations in Iraq.  The tone of these various statements tells you something about who is more comfortable with the defense appropriations endgame right now.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Paul Finkelman
Sent: Sun 4/1/2007 10:44 AM
To: RJLipkin at aol.com; Rosenthal, Lawrence; marty.lederman at comcast.net; CONLAWPROF at lists.ucla.edu; jca at stanford.edu
Subject: RE: Here's a Stupid Question!



Who thinks a veto is going to make voters love the war?

Karl Rove, Dick Cheney

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386
pfink at albanylaw.edu
>>> Janet Alexander <jca at stanford.edu> 04/01/07 1:34 PM >>>
Why would Congress have to pass a "clean" funding bill?  Why not with a
differently worded withdrawal provision, or a 3-month bill?  The
President
is increasingly isolated on the war, from voters, from Congress, and
from
Republicans. 

At 10:02 AM 4/1/2007 -0700, Rosenthal, Lawrence wrote:
>There is another answer to this question, but it is not legal.  By
issuing
>a veto, the President forces Congress to back down and pass a "clean"
>funding bill.  When Congress must swallow its reservations and pass
such a
>bill, in some (swing voter?) eyes, the Democrats will look craven and
>cowardly -- battered into submission by a resolute President.  It has
>always been unclear to me what is gained by a Democratic strategy that
>requires the Democrats to eventually retreat from their opposition to
>funding the war.  I note that the other day, Senator Durbin said that
the
>President will have to "compromise"; perhaps the Democrats thought they

>would force negotiations.  The President, however, shows no inclination
to
>negotiate; and thus the Democrats seem to have left themselves with no
>"exit strategy" from their own position on funding the war.  The recent

>votes in the House and the Senate may please the Democratic base in the

>short run, but it seems to me that given the President's willingness to

>force passage of a clean bill, in the long run the Democratic strategy
>pleases no one, including the base.  Yet another example of the
>Republicans outmaneuvering the Democrats politically, in my view, but
what
>I regard as a successful Republican political strategy would be
undermined
>if the President signed even a nonbinding bill calling for phased
>withdrawal accompanied by a signing statement.
>
>Larry Rosenthal
>Chapman University School of Law
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Marty Lederman
>Sent: Sun 4/1/2007 9:35 AM
>To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
>Subject: Re: Here's a Stupid Question!
>
>
>Let's say the conferees agree on, and both houses vote for, the House
>bill, which requires redeployment out of Iraq by August 28, 2008.
(I've
>posted the language of provisions
>here:
>http://balkin.blogspot.com/2007/03/what-would-iraq-withdrawal-bills.html.)
>
>At that point, Bush could issue a signing statement to the effect that
>section 1904(d) -- requiring redeployment by August 2008 -- is
>unconstitutional, and signal that he won't comply with it.  He would be

>wrong about the constitutionality -- but if he were correct, the
>nonenforcement would be "permissible."  Of course, at the point in
August
>2008 when Bush fails to comply, Congress and the courts could step in
to
>try to force compliance.
>
>What I don't think would be permissible would be for Bush to do what he

>does all the time -- i.e., invoke the avoidance canon to "construe"
>section 1904(d) not to mean what it so plainly says.  In my view, he'd
>have to say flat-out that it's unconstitutional and that he won't abide
by it.
>
>         ----- Original Message -----
>         From: RJLipkin at aol.com
>         To: CONLAWPROF at lists.ucla.edu
>         Sent: Sunday, April 01, 2007 11:09 AM
>         Subject: Here's a Stupid Question!
>
>
>                 I know this is a stupid question, but I'll ask it
anyway.
> Why can't President Bush sign the congressional bill on funding for
Iraq
> and issue a signing statement saying, in effect, that he will
interpret
> it consistent with his executive powers?  See I told you it was
stupid. I
> think I can answer it, but would much prefer those who know more about

> signing statements than I do--that is, every other list member--to
show
> me the way.  Thanks.
>
>         Robert Justin Lipkin
>         Professor of Law
>         Widener University School of Law
>         Delaware
>         302-477-2193
>
>         Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
> <http://ratiojuris.blogspot.com/>
>         Essentially Contested America, Editor:
> http://www.essentiallycontestedamerica.org/
>
>
>
>
>________________________________
>
>         See what's free at AOL.com
> <http://www.aol.com/?ncid=AOLAOF00020000000503> .
>
>
>________________________________
>
>
>
>
>         _______________________________________________
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892

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