Here's a Stupid Question!
SLevinson at law.utexas.edu
Wed Apr 4 12:17:51 PDT 2007
I am the person who used the term, and I think it captures something
real about the Bush Presidency's claims. Yes, it's true, as a formal
proposition, that Congress refuse to fund an ongoing war (and put troops
in harm's way), but not even Lincoln, who vehemently (and correctly)
opposed the Mexican-American War, was willing to do that. So,
functionally speaking, an unyielding President, who cannot be displaced
through a vote of no confidence, is closer to a dictator than a proper
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, April 04, 2007 11:33 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Here's a Stupid Question!
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.
>> 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)?
>>> 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://
>>>> 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
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Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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