Speaking of arrogation of power

Thu Apr 5 22:23:33 PDT 2007

This list is wonderful, in part, because the content of the posts tends
to stay primarily focused on issues related to constitutional law.
While I certainly understand the current concerns related to the
executive powers of the presidency, I hope the posts will remain focused
on the constitutional issues related to the exercise of those powers.
Otherwise, this list could quickly become just another forum for
divergent political views to engage in endless debate over matters that
are unrelated to the purpose for which we have all joined this list.

Gene Summerlin
Ogborn, Summerlin & Ogborn, P.C.
610 J Street, Suite 200
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (facsimile)
(402) 730-5344 (mobile)
gene at osolaw.com
www.osolaw.com

________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet Alexander
	Sent: Friday, April 06, 2007 12:13 AM
	To: RJLipkin at aol.com; VOLOKH at law.ucla.edu;
conlawprof at lists.ucla.edu
	Cc: RJLipkin at aol.com
	Subject: Re: Speaking of arrogation of power

	I was just checking the Internet to see how often Newt Gingrich
took foreign trips in which he did not get 100% behind Clinton's foreign
policy.  In Apr 1997, Gingrich traveled to China and while there
expressed views about Washington's commitment to Taiwan that "exceed[ed]
the normal State Department formulations on American commitments to
Taiwan."  Gingrich then went to Taiwan and "elaborated on a pledge he
first made in Shanghai" that "It is important to be explicit with both
the People's Republic of China and Taiwan that should Beijing seek to
unify Taiwan with the mainland by force or intimidation, the United
States will use all means necessary to prevent it."  Not surprisingly,
this provoked a protest from China's foreign ministry.
http://select.nytimes.com/search/restricted/article?res=F20D13F839590C77
8CDDAD0894DF494D81  I think we can say Nancy Pelosi is safely within
this standard of appropriate behavior for Speakers of the House.

	On the same search, up popped March 12, 1999: while Clinton is
on a foreign trip the Republican House leadership holds a vote on
deploying troops to Kosovo despite Clinton's asking them not to while
negotiations were going on; although the vote winds up supporting
deployment, the Senate leadership talks about scheduling a vote of their
own against deployment.

	I'm sure it was quite different then, perfectly all right.

	At 12:41 AM 4/6/2007 -0400, RJLipkin at aol.com wrote:

		It might be helpful if Eugene would specify just how Ms.
Pelosi was "carrying on foreign policy." She cannot negotiate any
treaties, appoint any ambassors, or even for that matter, guarantee any
economic aid. Indeed, even if she was inclined--and it's not clear that
she was--she could not make any sort of promise to Syria for future
consideration.

		That said, I would like to pose the following question
to Eugene. There are many Americans, like me, who believe Mr. Bush's
invasion of Iraq and the failures that ensued are examples of the least
responsible, least competent, and most morally bankrupt phase of
American foreign policy in at least my lifetime. His mistakes, I fear,
have caused a multifarious range of problems that will take Americans
decades to overcome. In my view, whatever general rules about the
conduct of congresspersons have little purchase at this time. 

		But, I'm sure, Eugene will disagree.  Fair enough.  What
I am intensely interested in is what, in Eugene's view, would warrant a
Speaker of the House to actually carry on foreign policy--whatever that
would like--because the President has dangerously spent our moral
capital and put our role in the world and our safety in an extremely
perilous state. Alternatively stated, is Eugene's condemnation of Ms.
Pelosi based on a general (exceptionalness) principle that Speakers
should never carry on foreign policy? If not, then what are the
circumstances that would warrant a Speaker to act in this fashion?  More
generally, I suspect some conservatives and some liberals differ on what
they believe is appropriate political action because their perceptions
of our circumstances differ radically.  If that's right, then what kinds
of circumstances need to exist before governmental officials and
ordinary citizens can conclude that the situation cannot be governed by
having a "business as usual" attitude. What circumstances would have to
exist before it was morally permissible or required to engage in any
legal conduct which attempts to rectify a contemporary disaster however
unusual that conduct might be? 

		Bobby

		Robert Justin Lipkin
		Professor of Law
		Widener University School of Law
		Delaware

		Ratio Juris, Contributor:
http://ratiojuris.blogspot.com/
		Essentially Contested America, Editor:
http://www.essentiallycontestedamerica.org/

________________________________

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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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