Speaking of arrogation of power
Mae Kuykendall
mae.kuykendall at law.msu.edu
Sat Apr 7 09:09:44 PDT 2007
Sandy wrote: "If one doesn't like this reality, then I suggest that one
might ask whether separation of powers is really such a good thing,
rather than blame officials who might even be said, on occasion, to be
acting in accordance with Madison's prounouncements in Federalist 51
about the ambition of the person being linked to institutional
loyalties."
That brings me to ask how this sort of political tension works out in
England. What is the tacit convention, or the political norm, about the
behavior of the legislative minority in matters affecting foreign
relations? Is there complete ackowledgment, with no cheating, that the
government has only one voice in foreign affairs? If not, is is the
case that the concerns expressed about the impact of a trip by the
Speaker of the House, against the wishes of the chief executive, would
not loom so large? As is said of the Republicans who have visited
Syria?
Is this an instance where we are glad to have set ourselves apart? Or
perhaps not, because in England the possibility of accountability
through no confidence affirms the continuing legitimacy of the
government and persuades everyone to defer to the Prime Minister?
Mae Kuykendall
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 4/6/2007 11:25 AM
>>>
With respect, I don't see that our discussion can be reduced to being
about "political views and opinions" instead of "issues of
constitutional law." What constitutions purportedly do, among other
things, is allocate power, whether appointmentn of ambassadors or
conferring with officials of foreign countries). And, in addition, even
our own Constitution, as we've known at least since Karl Llewellyn (and
as will be developed in a forthcoming article by my colleage Ernie
Young, "The Constitution Outside the Constitution") consist of tacit
conventions as well explicit texts (not to mention legal cases that may
or may not pay much attention to explicit texts). These conventions are
presumably open to dynamic change. Consider the abhorren way that the
filibuster practice in the Senate has turned into an ordinary
legislative "rule," in effect, requiring 60% of the senators to approvve
most legislation before it can be enacted. (I recall our having a
vigorous debate about the constitutional basis of the "nuclear option"
to rid us of that rule with regard to judicial appointments. If that
met the standards of constitutional discussion (which it did), then I
believe that the practice of recess appointments amply meet it.)
And the Vice President, backed, it seems, by Eugene, appears to believe
that Speaker Pelosi is behaving not only unwisely (a political
judgment), but also unconstitutionally, in the face of a (purported)
constitutional convention that the leadership of We the People must
speak with one voice emanating from the White House. House. As Janet
Alexander has demonstrated, this assertion is demonstrably false, at
least as a descriptive matter. Indeed, as Edward Corwin pointed out
many, many years ago, the Constitution's division of powers creates an
endless battlefield for contention as to what our foreign policy should
be. I have written of my experience in China in 1987, when, in the very
same week, Congress (controlled by the Democrats) passed a resolution
condemning the Chinese repression of Tibet and the State Department
(controlled, of course, by that vigorous freedom-fighter Ronald Reagan)
declared that Tibet was an internal matter for the Peoples' Republic of
China. When asked by a Chinese scholar which statement was the official
view of the US Government, I explained that the US simply doesn't have a
government in the sense that Her Majesty the Queen does. I could offer
certain Holmes-like predictions as to whose views would explain more
about the behavior of various relevant institutions, including the
military or our delegate at the United Nations (the President's), but
that's entirely different from reducing White House pronouncements to a
definitive declaration of "governmental" policy. I trust, incidentally,
that many Chinese were equally confused after the trip made by Speaker
Gingrich, as described by Janet.
If one doesn't like this reality, then I suggest that one might ask
whether separation of powers is really such a good thing, rather than
blame officials who might even be said, on occasion, to be acting in
accordance with Madison's prounouncements in Federalist 51 about the
ambition of the person being linked to institutional loyalties. I have,
of course, repeatedly commended Daryl Levinson's demolition of Madison's
argument as a general proposition, but perhaps it makes a little bit of
sense in explaining the Speaker's actions, though, in line with
Levinson's argument, the fact that she is a leader of the opposition
political party may explain even more. Or, consider the possibility
that she realizes that she is a potential future president should
anything happen to Bush and Cheney (and, for the record, I have
repeatedly denounced the Succession in Office Act as both
unconstitutional and unwise, but that has not, alas, removed it from the
books or negated the Holmesian prediction that Ms. Pelosi would indeed
become President unless she (and Sen. Byrd) waived their claim to the
office and allowed Condoleeza Rice instead to assume it). Should she
imagine herself as having to be ready for such a contingency, she might
well believe it desirable to meet a number of political leaders around
the world with whom she would have to deal, not to mention the fact that
the first duty of the next President, regardless of political party,
will be to begin digging us out of the foreign-policy quagmire created
by the present ideologues and incompetents (a political judgment) who,
because of our defective Constitution, cannot be thrown out of office
via a vote of no confidence (a constitutional point).
Perhaps I am simply illustrating, yet once more, that I am unable to
recognize exactly where the line is between "political" and
"constitutional" discussion, and Dan, I think, recognizes himself that
the line is murky. I suspect that many people believe that
"constitutional" discussion is necessarily a discussion of decided
cases, most often of the US Supreme Court. This obviously has
ramifications for the whole notion of "the Constitution outside the
courts." In any event, to use Fred Schauer's example, even I can
recognize the difference between inky midnight and high noon (i.e., I
don't believe that everything is, as a pragmatic matter,
"indeterminate"), but deciding when dusk turns into evening or dawn into
morning is more difficult. I think the present discussion is comparable
to the latter. In any case, if you think I am wrong in anything I've
said above, I'm sure I will be corrected.
Sandy
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Conkle, Daniel O.
Sent: Fri 4/6/2007 9:40 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Speaking of arrogation of power
For what it's worth, I'd second Gene Summerlin's motion and urge Eugene
to revert to his usual (and, in my view, much appreciated) stance as
moderator: although there can be close questions about the dividing
line, I think the list should focus on issues of constitutional law and
theory as opposed political views and opinions.
Dan Conkle
*******************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana 47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
*******************************************
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh,
Eugene
Sent: Friday, April 06, 2007 10:18 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Speaking of arrogation of power
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
________________________________
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
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=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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