7 thoughts on “Iraqi throws shoes at Bush

  1. The Rule of Law and the Executive Branch
    Posted by: “vox_vocis_res_publica” vox_vocis_res_publica@yahoo.com vox_vocis_res_publica
    Mon Dec 15, 2008 1:15 am (PST)

    During the last forty three presidencies, two noticeable tools of the president concerning the rule of law and the executive branch can be observed and should be considered as to the encroachment of the executive on the legislative and judicial branches. Executive orders and signing statements first used with scarcity have played an important tool for the executive and have increased in number and complexity over the years. The proper use of these tools enables the president to faithfully execute powers or administer the agencies underneath him. The improper use of them can lead to usurpations of the legislative power, aggrandize the office of the executive, or to attempt to establish legal precedent and justify an alternative position to the Judiciary.

    Several presidents, including the current forty third president, has used signing statements at the time of signing a bill into law to publicly declare that certain provisions within the bill would not either be enforced or declared unconstitutional and that the president will disregard the bill as it pertains to the office of the executive. There are three primary problems with presidents who take these positions.

    First, to declare that a provision of the law will not be enforced is a violation of the oath of office to uphold the constitution and the laws of the United States. It should also be considered an anticipatory breach of the law, as the president has declared intentions not to adhere to certain sections of it, thus violating the law he just signed. It is unclear as to why and how the congress has allowed any sitting president to declare this and not act upon it. But any violation of the law could be grounds for impeachment and removal from office. The secondary failure here is upon the congress who did not act knowing that a sitting president might be violating US law.

    Second, the president has not used his veto power under the constitution to reject the law. The law must be signed in whole, not in part, or it must be rejected via veto authority granted to him. This is an express authority granted to the president and a fundamental part of creating legislation in the United States. The president does not have the authority to selectively implement certain sections of the law and not others. To the extent this is done materially alters the spirit of the law created by congress and is an encroachment upon their authority.

    And lastly, it is not the office of the executive to determine constitutionality of any law. That is the purpose and responsibility of the Judiciary. By act of declaring something unconstitutional, the executive branch has encroached upon judicial proceedings in interpreting the meaning of the constitution. Any president who claims this after 1972 is in violation of the law. In the United States vs Nixon Supreme Court decision, the Supreme Court determined that no person, even the president of the United States is above the law or outside it. Thus any president publicly declaring such after this decision is in contempt of the Supreme Court. An in each instance, the Congress has been negligent and not acted to protect the population.

    The primary control concern with this failure of government is what is known in accounting circles is the creation of negative approval in the use of signing statements. To explain further, if congress passes law (A) and the president declares through a signing statement that he is not going to obey a provision of law (A) unless congress objects. This places the ownership of congress having to either create a second law related to law (A), subject to his veto, to make the president comply with all provision of law (A) or impeach him. But it must be noted that the president would merely sign the new law and again state that he is outside obeying that law, thus negating any affect of that law or enforcing the law. Thus, the only real option would be impeachment but that would require catching him in not obeying the law (A), and take up valuable congressional time doing the investigation as the Justice department reports to the president and its head appointed by the president. This in of itself is a serious control failure and to be discussed in a later essay.

    In August of 2006, the American Bar Association put together a task force to study signing statements and the president’s use of them and the constitutionality of using them in the ways described above. Their findings give reasonable provisions and preventive controls as a starting point to the constitution and should be adopted either in an amendment or be incorporated into a new constitution as a result of a constitutional convention to resolve all the problems with our current form of government. Their recommendations are listed below and at the following website:
    http://www.abanet.org/op/signingstatements/

    RESOLVED, That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress; 56

    FURTHER RESOLVED, That the American Bar Association urges the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;

    FURTHER RESOLVED, That the American Bar Association urges the President to confine any signing statements to his views regarding the meaning, purpose and significance of bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs him to approve or disapprove each bill in its entirety;

    FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements he issues, and in any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth in full the reasons and legal basis for the statement; and further requiring that all such submissions be available in a publicly accessible database; and

    FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review, to the extent constitutionally permissible, in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and urges Congress and the President to support a judicial resolution of the President’s claim or interpretation.

    Vox Vocis res Publica

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  2. Pingback: Afghans support Iraqi shoe-thrower | Dear Kitty. Some blog

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