Here's a Stupid Question!
Douglas Laycock
laycockd at umich.edu
Wed Apr 4 09:32:59 PDT 2007
This post is in response to mine, but just for the record, I am not
the one who used the phrase "a limited-time presidential dictatorship"
-- on this list or anywhere else.
Quoting "Rosenthal, Lawrence" <rosentha at chapman.edu>:
> My recollection of somewhat more recent events is that the Iraq war
> was authorized by Congress, and every penny spent in that war has
> been appropriated by Congress. The President has also repeatedly
> acknowledged that he may not spend further money on the war absent
an
> appropriation from Congress. I therefore fail to understand how a
> war fought under such circumstances can be properly characterized
as
> "a limited-time presidential dictatorship." Perhaps I do not
> understand what the word "dictatorship" means.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Douglas
Laycock
> Sent: Wed 4/4/2007 8:29 AM
> To: conlawprof at lists.ucla.edu
> Subject: Re: Here's a Stupid Question!
>
>
>
> This is my recollection too, although I last studied this stuff as
an
> undergraduate 40 years ago. My fading memory is that in the
Glorious
> Revolution of 1688 that put William of Orange on the English
throne,
> he had to promise (or the new Bill of Rights provided) that he
would
> not engage in any foreign wars without parliamentary approval. I
had
> always thought that this was the basis for giving Congress the
power
> to declare war.
>
> Quoting Robert Sheridan <bobsheridan at earthlink.net>:
>
>> If I recall British parliamentary history sufficiently, always a
big
>> risk, the monarch would enter the nation upon a war and expect
>> Parliament to come up with the pounds sterling, which it did not
>> always relish doing. Parliament's origin as an independent body
is
>> found in its power of the purse. I see the current Congress v.
>> President Bush controversy as rooted in that
British-Parliamentary-
>> U.S. Constitutional history. But we don't like to look that far
>> back, as though it had nothing to do with us.
>>
>> Don't the citizens of the U.S. have a say in the entering of a
war,
>> its conduct, and the circumstances of its ending? And if we do,
>> don't we express that through our Congress? The president seems
to
>> think that we express it primarily through Him, and that for
Congress
>> to take a contrary stance, as it has been doing, is disloyal to
the
>> country, the troops, and to Him. Yet this is why they invented
>> parliamentary bodies, such as Congress. To thwart the will of the
>> king, or the wannabe king, especially if he goes off on a wild
tear
>> and refuses to heed the call of a majority of the voting
electorate
>> to please come back before too much (more) damage is done.
Cromwell;
>> am I getting warm?
>>
>> Maybe I've got it wrong.
>>
>> rs
>> sfls
>>
>> On Apr 1, 2007, at 1:32 PM, Sanford Levinson wrote:
>>
>>> I cannot refrain from asking whether this is just another
>>> illustration of the costs, in the 21st century world, of the
>>> presidential policy-based veto. Even if, arguendo, the President
>>> cannot be forced by Congress to micromanage a war, a proposition
>>> being examined in a seminal article by Marty Lederman and David
>>> Barron, there is no plausible argument that setting a date for
>>> withdrawal is "micromanagement." If one agrees that Congress has
>>> the constitutional authority to compel withdrawal from a war (and
>>> is there any plausible argument that it does not?), and if such a
>>> law would be constitutional if passed over a presidential veto,
is
>>> here any good argument for giving a president the authority to
>>> negate the wishes of a majority of Congress that by stipulation
>>> represents a majority of the public? Does the Constitution
really
>>> establish a limited-time presidential dictatorship about the most
>>> central issues of war and peace (and life and death)?
>>>
>>> sandy
>>>
>>> >>
>>> 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
>>>>
>>>>
>
> _______________________________________________
> 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[1]
>
> 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.
>
>
>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
Links:
------
[1]
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Fconlawprof
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20070404/f22d71d6/attachment.html
More information about the Conlawprof
mailing list