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Observations on Constitutional Issues

June 28th, 2006

Three interesting constitutional issues have been in the news recently and I thought I’d post a little on the subject… you know, say a few things that might be damaging to a later political career. Fun stuff.

First up, flag burning. I’m on record as believing this to be a horrible amendment. It’s not that I think burning the flag is a celebrated activity which should be praised… it’s more the fear and temptation of adopting “exception” clauses into the Constitution. You know, things like, “no illegal search and seizure… except if you did something bad, in which case the police can just turn our life in side out.” Obviously a popular sentiment, right? I mean, the only people who would have anything to fear is those who are breaking the law. Thankfully a super majority of the Senate does not disagree with me, and the amendment will stay off the books for another year. Hopefully the 2006 elections will bring an end to all of this reckless constitutional gamesmanship.

Next up, the President has been pushing for line-item veto authority to help eliminate pork barrel spending from the Federal budget. First, let’s all say in unison how much we hate pork barrel spending… and then quickly respond how our district’s funding is actually critical and should be maintained. Thank god for hypocrisy. But less interesting than Congress’ inability to withhold its own spending is this somewhat crazy idea that this law will pass Constitutional review.

The Supreme Court struck down an earlier attempt to grant the President a line-item veto in the 90’s. The justices adopted a very formalist stance, saying the Constitution requires bicameralism and presentment, afterwhich the President’s only options are to (1) sign, (2) veto, (3) do nothing and the law will go into effect in 10 days. It’s an all or nothing, up or down, end of story.

The new line-item claims to fix those problems… but seems to be barking up the wrong tree. The articles I’ve read describe the biggest change between the 90’s version and this one as allowing the Congress to re-vote on any items struck, requiring only a simply majority to reinstate (instead of just 2/3rds). Well, folks, that doesn’t really get to the Supreme Court’s issue. The President is given an entire bill and either likes it or dislikes it, there is no middle ground under the Constitution. Unless the Court’s recent change is far more drastic then I’m lead to believe, this statute has no change of surviving review.

Last on the chopping block, signing statements. Recently the Senate Judicial Committee held hearings on the Bush Administration’s use of signing statements, which are essentially executive decrees on how he will interpret the law. These are not unprecedented in American history, and for good reason. The President in charged with faithfully executing the laws, which means he or she must interpret and apply.

What this does not mean, if you ask me, is that the President may ignore laws. When signing the torture ban last year, the President said in conjunction, “I reserve the right to ignore this law as I see fit.” That isn’t interpretation, that’s reading in a right not present in the law. How does he get away with it, you ask? The Administration claims the signing statements save the statute from being unconstitutional.

That’s not gonna fly. If a statute is unconstitutional, the executive branch cannot save it by narrowing it’s scope. This is basic rule of administrative law. Congress cannot act beyond it’s authority, period. Laws which do so are unconstitutional both in areas where it has no authority AND those where it would if it had been more narrowly drafted. If the bar on torture is, in fact, an unconstitutional incursion on the separation of powers (as the President contends) then the whole act is invalid.

Senator Spector, the chairman, said it best “”There’s a real issue here as to whether the president may, in effect, cherry-pick the provisions he likes and exclude the ones he doesn’t like.”

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