FW: Speaking of arrogation of power

Fri Apr 6 09:35:02 PDT 2007

	A fellow list member, whose opinion I generally much respect, wrote me off-list, "In case you're counting, here's one vote against meeting out-of-bounds comments with more of the same and then justifying it with sarcasm."  I took the off-list nature of the message as reason not to mention the member's name, but I thought it fair to quote the text and respond it on-list.

	I appreciate  the list member's vote, but I'm afraid we're long past that.  The bounds are what practice has made them.  I have no desire to sit quietly while others express their contempt against the Administration, and keep bottled up the outrage and disgust I feel for Pelosi.  The list is what list members have made it to be.  I accede to that change, and intend to act accordingly.

	Of course, if others had spoken up more to identify the various past out-of-bounds comments as being out-of-bounds, I might have taken a different view.  But virtually no-one did that; and it's a little late, it seems to me, for this to be done retroactively.  And as I said, I do understand why others were so happy to push the bounds.  It feels good to express exactly what you feel about political figures that you have come to loathe.  I'm happy to finally have a chance to do that.

	Eugene 

At 10:17 AM 4/6/2007, you wrote:

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	    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.

	    Eugene

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				From: conlawprof-bounces at lists.ucla.edu [ mailto: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

		www.osolaw.com 

________________________________

						From: conlawprof-bounces at lists.ucla.edu [ mailto: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=F20D13F839590C778CDDAD0894DF494D81 <http://select.nytimes.com/search/restricted/article?res=F20D13F839590C778CDDAD0894DF494D81 > 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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				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

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			650.723.2892

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