Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » January 2006 » Why We Need Some *Statutory Interpretation*...

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01/04/2006: Why We Need Some *Statutory Interpretation*...

And Speaking Of Statutory Interpretation --we were – weren’t we? And Impeachment.

There is yet more about the “Government inside a Government” this bAdmin has been running in its Un-Constitutional Version of Supreme Executive Powers.

Jonathan Schell has written this perceptive piece:The Hidden State Steps Forward:

"With Bush's defense of his wiretapping, the hidden state has stepped into the open. The deeper challenge Bush has thrown down, therefore, is whether the country wants to embrace the new form of government he is creating by executive fiat or to continue with the old constitutional form. He is now in effect saying, "Yes, I am above the law--I am the law, which is nothing more than what I and my hired lawyers say it is--and if you don't like it, I dare you to do something about it."

Members of Congress have no choice but to accept the challenge. They did so once before, when Richard Nixon, who said, "When the President does it, that means it's not illegal," posed a similar threat to the Constitution. The only possible answer is to inform Bush forthwith that if he continues in his defiance, he will be impeached.

If Congress accepts his usurpation of its legislative power, they will be no Congress and might as well stop meeting. Either the President must uphold the laws of the United States, which are Congress's laws, or he must leave office.

And Further, that the Executive has the Power to produce his own *Statutory and Legislative Interpretation* -- Marty Lederman (Balkinization) and Sandy Levinson (Balkinization) have an informative pieces on these issues -- but to read further, click on the "more" button.


-- Marty Lederman (Balkinization) has this informative piece: So Much for the President's Assent to the McCain Amendment and this bit from the White House Press Release signing of that bill:
"The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief."

and reading this in conjunction with this piece by Sandy Levinson (Balkinization) about the Alito views on Executive Statutory Interpretation Powers (citing this from the WaPo : “In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.”) and her concerns that this raises a host of problems for the Courts:
“…what should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn't ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that's not what Alito means, it's hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer's "clear mistake rule" for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President.

The ultimate question, of course, is what happens when the Court tells the President that there is indeed something that he/she cannot do, however much the President believes, in entirely good faith, that it is "necessary" (in some sense of that slippery word) to safeguard some important public value, including national survival. I don't know that Judge Alito has ever spoken to this question directly. It should be enough, though, that there is now fairly dispositive evidence that [Alito] was, while in the Reagan Administration, a full-scale adherent of what might be termed the "liberated" (and possibly "unfettered") Executive, and it would be astonishing if the Justice-pickers in the Bush Administration did not believe that this represents his view today.

So, as before, we now need to see what Senator Specter (whose name I consistently misspelled in my earlier posting) will do. If he exhibits some backbone, the nomination is in big trouble. If not, then it will be up to the Democrats. Generally, that sentence does not lead one to feel better about future events.”

Though the WaPo article also states:
“The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)

President Bush has been especially fond of them, issuing at least 108 in his first term…”

I'd really like to know if any Courts have cited to or given deference to these "presidential legislative interpretations." And under what authority these would or should have any *weight* in court. [Drat not having access to the Lexis/Nexis database. :-( ]

One commentator at Balkinization (Lederman post) said this interesting tid-bit (and a weird comparison to *veto* powers of the President):

"Where enacted legislation is ambiguous, the Executive gets to interpret it (or, execute it)."

But what Constitution are they reading?

Mine says very clearly that in Art. III, Sec. I:

"The judicial Power of the United State shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Look up the plain meaning of words like:


And what you find is the "power to form an authoritative opinion" in relation to matter of law brought before a Court. And to have "the power, right, authority to interpret and apply the law."

Similarly that Congress, under Art. I, Sec. I:

"All legislative Powers herein granted shall be vested in a Congress of the United States..."

(and you can look up "legislate" too - means to make LAWS.)

None of which is granted to the Executive (Art. II). Plus there is loads of case law and judicial *interpretations* of these separations of powers - the Back-Bone of our Constitutional government.

So, before we allow this whole-sale re-writing the basics of our system...There is no *power* of the Executive to provide his own (contrary) statutory *interpretation* of any laws - ambiguous or NOT.

Nor can a POTUS make up his own laws under the Constitution (legislate unilaterally) nor Ignore the Laws and Constitutions - subvert or suspend them.

Under his Oath of Office he must "protect and defend" -not "subvert or suspend".

Where are these *Conservative Constitutional Originalists* when ya need em? And its Time for some good Statutory Interpretations from our High Courts.

Karen on 01.04.06 @ 12:18 PM CST

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