Speaking of arrogation of power
James G. Wilson
james.wilson at law.csuohio.edu
Fri Apr 6 08:01:42 PDT 2007
The concept of constitutional conventions gives us a way to
sometimes rise above partisan rangling, while also providing a tool for
distinguishing "purely legal questions" from those that should be
nonjusticiable. After all, I saw no restraint--nor any good reason for
restraint--when so many constitutional lawyers weighed in on whether or
not President Clinton committed an impeachable offense by being so
individually irresponsible, an issue that the Supreme Court would
probably avoid after refusing to hear Judge Nixon's procedural challenges.
The notion of conventions also may help us determine various forms
of "bad faith." It is certarinly arguable (even desirable) that the
Supreme Court's definition and application of the "bad faith" exception
to not permitting federal courts to enjoin state criminal prosecutions
be far narrower than our political assessment of any administration's
use of prosecutorial discretion. In other words, the Attorney General
may not have acted so egregiously as to violate any legal definition of
the "bad faith" doctrine (see also Yick Wo), but he may no longer be
faithfully executing the law. Constitutional lawyers might be able to
help society explore more precisely where that line should be drawn.
Furthermore, if you agree with Justice Jackson at all, the Court should
formuate its doctrine (at least in part) in light of the actual
distribution and application of constitutional power among the various
branches. Thus, it is both inevitable and desirable that we
collectively explore the law/politics continuum. Each of us will
probably find that some other posters have "gone too far" with some of
their diatribes, but that is a cost well worth bearing.
In terms of the particular issue, Eugene made some very persuasive
points demonstrating that Speaker Pelosi's actions violate
constitutional and political norms more than Speaker Gingrich's threat
did. There are a variety of factors that can help us determine the
seriousness of that particular violation. For instance, I doubt if
either of us with be upset if she hobnobbed with the Queen of England.
So it remains possible for people with significantly different political
perspectives to agree on important constitutional issues--both
justiciable and nonjusticiable.
Volokh, Eugene wrote:
> I appreciate Gene's point, but it's way too late for that. Lots
> of list members seem to be perfectly happy to have this be a forum for
> expressing their contempt for the Bush Administration on matters that
> are hardly closely focused on purely legal questions. I've tried to
> get people to focus on subject matters where we're more likely to get
> light than heat, and to get them to use a tone that's likely to do the
> same. Lord knows, I've tried -- but failed.
> I'm much looking forward to expressing my contempt for Pelosi et
> al. the same way. Words can't quite describe how appalled and
> disgusted I am by what she's been doing. But I plan on giving them
> the old college try! I strongly suspect no-one will be persuaded by
> this, at least no-one who isn't already converted. But that's OK; at
> least I'll have fun doing it.
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Gene Summerlin
> Sent: Thursday, April 05, 2007 10:24 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Speaking of arrogation of power
> 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
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet
> 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.
> 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?
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
>> Ratio Juris, Contributor: http://ratiojuris.blogspot.com/
>> Essentially Contested America, Editor:
>> See what's free at AOL.com
>> To post, send message to Conlawprof at lists.ucla.edu
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> Janet Cooper Alexander
> Frederick I. Richman Professor of Law
> Stanford Law School
> Stanford CA 94301-8610
>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
>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.
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