The Pelosi Controversy: Some (Legal) Context
bobsheridan at earthlink.net
Mon Apr 9 17:43:52 PDT 2007
I was heartened to see Eugene provide a more nuanced view of the
current problem, and would like to extract for better focus, one
sentence from his remarks, namely,
"But even if the conventional wisdom is therefore sometimes wrong as
a matter of policy, it looks right as a matter of constitutional
Isn't this a triumph of form over substance? The majority of members
of Congress, say, view the president's foreign/war policy as
misguided and likely to drive us off a cliff, and the only
prescription is to pass a measure condemning it, when the Speaker can
speak to our adversaries, or invite them to testify before Congress?
Maybe the form is wanting in such a case.
On Apr 9, 2007, at 4:35 PM, Volokh, Eugene wrote:
> Yes; I agree with Michael Dorf's view that the Constitution "is
> best read to forbid [such] congressional freelancing," http://
> The Bush administration undoubtedly overreaches when it contends
> that the President's power as Commander in Chief precludes
> Congress---which has more enumerated powers relative to war than
> the President does---from "micro-managing" the war through troop
> withdrawal deadlines and the like. Yet surely the administration
> has a point (albeit a different one) in objecting to Speaker
> Pelosi's acting as messenger to Syria on Israel's behalf at a time
> when the State Department opposes direct talks with Syria. (Whether
> that opposition makes sense is a different matter.) The
> Constitution's Article II gives the President the power to "receive
> Ambassadors and other public Ministers," while providing Congress
> with no parallel authority for conducting diplomacy---other than
> the power to confirm U.S. diplomats.
> The conventional wisdom holds that the government should speak with
> one voice on matters of foreign relations, and having Congress
> conduct its own diplomatic missions certainly contradicts that
> wisdom. To be sure, it's not obvious that the conventional wisdom
> is right. For example, recently the administration has been using
> congressional threats of funding cuts to Iraq and Pakistan as a bad
> cop to its own good cop, and even if the tactic fails in these
> particular cases, it can be generally useful. That strikes me as
> true even if the good cop and bad cop are not simply playing a game
> but are in fact pursuing different policies. The resulting
> ambiguity can turn out to be productive.
> But even if the conventional wisdom is therefore sometimes wrong as
> a matter of policy, it looks right as a matter of constitutional
> interpretation. The Constitution is best read to forbid
> congressional freelancing (to be distinguished from such things as
> congressional factfinding missions to foreign countries for the
> purpose of oversight of appropritations and related matters).
> Speaker Pelosi may undermine her public position on Iraq---where
> the Constitution clearly contemplates a substantial role for
> Congress---by asserting authority in an area where the Constitution
> truly supports Presidential prerogrative.
> The way to better cement this constitutional norm is for the
> House to speak out institutionally against such conduct (whether
> through a formal bill of censure or a resolution doesn't much
> matter to me). I think it's unlikely it will do so, precisely
> because she's majority leader, but I would think it eminently
> legitimate for her critics to introduce such a measure.
> From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
> Sent: Friday, April 06, 2007 4:14 PM
> To: RJLipkin at aol.com; marty.lederman at comcast.net;
> CONLAWPROF at lists.ucla.edu; Volokh, Eugene
> Subject: Re: The Pelosi Controversy: Some (Legal) Context
> For what it's worth, I agree with Bobby's posting below. I'm
> curious: would Eugene support a proposal for a formal bill of
> censure based on her "unconstitutional" use of the Office of the
> Speaker to confer with a foreign head of state in violation of the
> express desire (order?) of the President as "sole organ" of
> foreign policy?
> - Sanford Levinson
> (Sent from a Blackberry)
> ----- Original Message -----
> From: conlawprof-bounces at lists.ucla.edu <conlawprof-
> bounces at lists.ucla.edu>
> To: marty.lederman at comcast.net <marty.lederman at comcast.net>;
> conlawprof at lists.ucla.edu <conlawprof at lists.ucla.edu>;
> VOLOKH at law.ucla.edu <VOLOKH at law.ucla.edu>
> Cc: RJLipkin at aol.com <RJLipkin at aol.com>
> Sent: Fri Apr 06 17:12:58 2007
> Subject: Re: The Pelosi Controversy: Some (Legal) Context
> I agree "there's nothing at all wrong with Eugene
> expressing outrage on this list" or anyone else expressing outrage
> for that matter. Eloquently expressed or succinctly stated outrage
> often unearths important truths about the topic of the argument and
> the character of the argument itself. But this discussion waffled
> between the purported legitimacy of expressing outrage at Ms.
> Pelosi or Mr. Bush and whether her decision to meet with Assad has
> any relevance to this List. I suspect the first issue trumped the
> second. That's unfortunate. Mark Tushnet raised the issue of
> "constitutional pathologies" and I was trying to get an answer from
> those condemning Ms. Pelosi, not so much whether she was carrying
> out foreign policy, but assuming she was, under which
> circumstances, if not these, would a Speaker be justified in
> carrying out foreign policy against a wayward president. I might be
> a minority of one, but I think questions of this sort--about
> constitutional, nonactionable political acts--are important for
> understanding constitutional law and theory as well as being
> intrinsically interesting. But I am painfully aware that most
> members of this List do not agree.
> Robert Justin Lipkin.
> Professor of Law
> Widener University School of Law
> Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ <http://
> Essentially Contested America, Editor: http://
> See what's free at AOL.com <http://www.aol.com?
> ncid=AOLAOF00020000000503> .
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