Tag Archives: George W. Bush

Darth Cheney, unleashed.

Dick Cheney’s memoir, “In My Time,” is out today. As Daniel Henninger at the WSJ says

No one should have expected that Dick Cheney’s memoir would be anything but frank. Make that brutally frank. Such as this characterization of Secretary of State Condoleezza Rice’s description to President George W. Bush of her proposed nuclear-weapons agreement with North Korea. It’s on page 487:

“Looking for a way to explain this situation, Rice said, ‘Mr. President, this is just the way diplomacy works sometimes. You don’t always get a written agreement.’ The statement was utterly misleading, totally divorced from what the secretary was doing, which was urging the president, in the absence of an agreement, to pretend to have one. . . . “

Would anyone expect anything less from the man the Left compared to Darth Vader?

Also, from Henninger’s piece, and perhaps the most telling about Cheney’s character as a public servant:

After two event-filled terms as George W. Bush’s No. 2, I asked Mr. Cheney to sum it up. Characteristically, the answer had nothing to do with anyone’s approval rating:

“I think we did a pretty good job after 9/11 for those seven and a half years. I think the record reflects that. I think the president gets a lot of credit for that. Partly it’s a question of political leadership. It’s important to have people at the helm who are prepared to be unpopular, to take the criticism and the hits that go with implementing policies.”


In any case, will you read it?


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Guest Post: “John Adams: From Boston to Guantanamo to DOMA” by Michelle Mumford

John Adams: "the man who at certain point...

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Recently, the Honorable Monroe G. McKay, Senior Judge on the United States Tenth Circuit Court of Appeals, addressed a group of young lawyers at the Utah State Bar’s annual Law Day luncheon on the theme of “The Legacy of John Adams, from Boston to Guantanamo”. Judge McKay recited a number of instances throughout history where lawyers have taken on noble yet unpopular causes.  He reminded lawyers that there will always be opportunities to do the right thing.  I found Judge McKay’s remarks especially poignant in light of the recent failure of the Atlanta law firm of King & Spalding to honor its commitment to defend the Defense of Marriage Act (DOMA). Continue reading

Terror Alerts in a time of elections

There are October surprises (“some unforeseen or otherwise dramatic development that prompts millions of voters to rethink their assumptions and allegiances“) and there are terror alerts.

During the Bush Administration, initially because of nationwide fears after 9/11, terror alerts began with corresponding increases in “chatter” amongst the terrorist networks, as intercepted by our intelligence agencies. Because it often seemed that the alerts increased in the month just before federal elections, skeptics questioned whether the terror alerts were legitimate, or whether they were manufactured to create a “rally around the chief” effect, bumping the President’s party a few percentage points.

Over at the fantastically fascinating blog Information is Beautiful, they’ve taken the data available from Google to examine this hypothesis, noting that the effect does not seem to have been limited to President Bush.  Indeed, it appears that we see it happening right now. Below, the graph shows how the key words “terror alert” and “election time” tracked on Google.  The key words increased as the events approached or occurred. As they explain “It tracks the intensity of keywords over time- an interesting barometer of the group mind.”

Ironically, the complaints–that the President is raising the threat level for political gain–are coming from Pakistan, asserting that intelligence cited by the Americans, and followed by the UK and France, is unspecific.

“I will not deny the fact that there may be internal political dynamics, including the forthcoming midterm American elections. If the Americans have definite information about terrorists and al-Qaida people, we should be provided [with] that and we could go after them ourselves,” Hasan, [a veteran diplomat who is close to Pakistan’s president], said.

What do you think? Are increased threats at this time probable? Are the threats spurious?

I personally don’t see how the increased threat level can help President Obama, or his party, nor do I think the evidence suggests that he is trying to levy a threat level to helping him politically.  If he was, I think we would see more talk about the treat of terrorist attacks, not the usual campaign fare that Democrats and Republicans are spewing right now. So while I see in the graph a correlation, I don’t think that it is convincing that there is causation.

If it is intended as a political bump to the President’s party, and right now the Democrats could use a bump, it’s getting lost in all the noise.

For more graphs, check out Google Insight, here.

(Thx to Information is Beautiful)

Amending the Constitution? A B.F.D.

With Constitution Day just passed (September 17th), hopefully we’ve all increased our awareness about the governing document for our nation’s political processes.  Written over two hundred years ago, the US Constitution is now the oldest written constitution.  And yet, it is still important, if not essential, to our nation’s governance.

Included among its clauses is guidance on how to amend it. The Founding Fathers knew that the document they had created was a result of compromise, and that over the years our nation would grow and change.  As a result, they knew that succeeding generations would need the ability to amend the constitution without scrapping the document and starting all over.  The means to do that is found in Article V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Constitution has been amended several times, with the most notable amendments occurring directly after the Constitution’s ratification (the “Bill of Rights“) and after the Civil War.

Politics is often the driving force behind the amendments.  In recent years there has been increased political polarization across the country, especially seen in the rise of the Tea Party movement in response to the enormous growth of government during the George W. Bush and Barack Obama administrations. Government spending has reached historic highs, and without the tax revenues to support it, the federal government has taken on levels of debt that have caused great alarm to many Americans worried about the effect debt will have on the economy, on freedom, and on our country.

Among the responses that have been proposed–the efforts, really to offer institutional checks on the growth of the power of the federal government–are two amendments to the Constitution. The first is called the “Repeal Amendment” and the second is known as the “Madison Amendment” (not the first to be known by this name).

The Repeal Amendment

Proposed initially to the Virginia legislature, the “Repeal Amendment” purposes to restore to states a balance of the power that was held by state legislatures until the passage of the 17th Amendment.

Map of USA with Virginia highlighted
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Previous to passage of the 17th Amendment, Senators were chosen by state legislatures.  If a senator voted for a bill in Congress that the state did not like, the legislature had the ability to bring that

senator home.  It was a check on the ability of the federal government to pass laws that states did not like.

Not to be confused with the power of federal courts to “nullify” federal laws, Randy Barnett and William Howell describe the amendment in the Wall Street Journal.

Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

The specific language of the amendment states:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

In many respects, this is a very federalism based proposal. It allows states to exert their will relative to the federal government and act as a check to the federal government’s policies. As former Utah Supreme Court Justice Dallin H. Oaks has said, “A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional.” This would allow public discourse to discuss the merits of a proposal without using the Constitution as a weapon.

It would also have an effect on the litigation against unpopular laws and the possibility of activist judges. It would move the debate over unpopular laws out of courts and into the democratically elected branches of government where public policy decisions ought to be decided.

The Madison Amendment

The “Madison Amendment” is far less dramatic than the “Repeal Amendment,” but in effect seeks to do the same thing: restore a balance to the tug between states and the federal government.  The”Madison Amendment” is drafted to state:

The Congress, on Application of the Legislatures of two thirds of the several  States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V.

Based on the premise that Congress will not check its own power, the “Madison Amendment” puts pressure on Congress to listen to state legislatures. Why should Congress be limited to only proposing amendments?  Why not allow the states do propose amendments, too?  That’s what this amendment proposes to do.

Interestingly, the proposal has bipartisan support and has been sponsored in the House by Rep.  Walt Minnick (D, ID), Rep. John Culberson (R, TX),Rep. Rob Bishop (R, UT), and Rep. Henry Cuellar (D, TX).

The difficulty?  Getting two-thirds of the states to agree on an identical amendment.


The long and short of both of these, however, and what should be primary in anyones mind as they consider amendment of the Constitution is this: changing the Constitution is a big deal. It lies at the very heart of our republic and our society, and we should tread lightly as we consider changing it.

“Don’t create a passive President”: Looking at “Signing Unconstitutional Laws” by William Baude (part 3, Conclusion)

President George W. Bush signs the reauthoriza...

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Part three of my look at William Baude’s “Signing Unconstitutional Laws” (86 Ind. L. J. (forthcoming 2011))… today we are looking at the risks associated with signing unconstitutional laws.

What are the risks? Even if, enlightened as he may be, the President signs the law with no intention of acting or executing it, there is no promise that the law will not be acted on by others, future Presidents, private actors, or perhaps the judiciary. Once on the books, Baude says, it is “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” (Korematsu v. United States, 323 U.S. 214 (1944) (Jackson, J., dissenting). Baude cites the examples of Miranda v. Arizona (384 U.S. 436 (1966)) and Amore v. Novarro (Amore v. Novarro, ___ F.3d ___ (No. 08-3150) (2d Cir., June 22, 2010))  for examples where courts followed their own reading of the law “on the books,” regardless of the perception and belief of the President on the law’s constitutionality. So signing a law, however much the President does not believe it unconstitutional, presents very real risks of future violations of the Constitution by signing the law.

Risks aside, when is a bill unconstitutional? Is it even a problem if the bill goes into statute unconstitutional?

There are situations, Baude argues, where there are constitutional obligations on the President to sign and enact a bill, however unconstitutional. In reality, there is no conflict between a law’s passage, its subsequent ruling as unconstitutional, and its remaining “on the books.”  The statutes affected in United States v. Eichman (496 U.S. 310 (1990)) (overturning flag burning prohibitions) and United States v. Booker (543 U.S. 220 (2005)) (holding statutes on sentencing guidelines to be unconstitutional) are both still “on the books” in the federal statutes, despite Supreme Court action to overturn their constitutionality.  Indeed, Baude states that there really is no problem with passage of a law that may later, in different situations, be found to have unconstitutional applicability.  He is merely putting the question of constitutionality aside until a later day.

And this is where we get to “signing statements.”  Signing statements are the President’s way of making known his views on the law he is signing. It allows the President to warn parties about his view of how the law is to be or should be executed, especially within the executive branch. For this reason, Baude seems to suggest that a signing statement allows the President the flexibility to sign a bill that has parts both constitutional and unconstitutional.  In essence, as Baude summarizes, it is as if a President were saying:

“[N]ow, to be clear, Chapter Two of this law is unconstitutional, and I am signing it only because I am confident that I and my successors will never enforce it, and the courts would disregard it in the unlikely event that it was enforced. Moreover, I am only willing to take the risk of placing it on the books because Chapter One does something very important—indeed, it helps me fulfill some of my other constitutional duties.” “now, to be clear, Chapter Two of this law is unconstitutional, and I am signing it only because I am confident that I and my successors will never enforce it, and the courts would disregard it in the unlikely event that it was enforced. Moreover, I am only willing to take the risk of placing it on the books because Chapter One does something very important—indeed, it helps me fulfill some of my other constitutional duties.”

At this point, Baude begins to shift to evaluating the Constitutional obligations–the duties–under which the President works when he evaluates whether to sign a bill, some of which duties may even require the President to sign a bill he deems to contain unconstitutional aspects. “Our Constitution is mostly a charter of structural rules and negative liberties,” he says, generally limiting government, but not requiring it to affirmatively take action, with some exceptions, including bills that may be necessary to preserve and protect the Constitution itself.

This is not the same thing as suggesting that it is okay to violate the Constitution in times of great necessity. Remember, there is no don’t-sign-unconstitutional-bills-clause, so signing an unconstitutional bill does not violate the Constitution per se. The point of this analysis is to explain why a sensible President would ever have a constitutional reason to sign an unconstitutional bill, especially in light of the constitutional risks entailed by doing so.


  • The Voting Rights Act in 1970.  In addition to extending the soon to lapse voting rights established by the Voting Rights Act of 1965, which had been intended to force the states to comply with the 15th Amendment, the Voting Rights Act of 1970 forced states to change the minimum voting age from 21 to 18 in not only congressional elections, which Congress could do under its Article I authority, but also for all state elections, something that Article I did not grant Congress authority to do. President Nixon recognized this, and he tried, unsuccessfully to convince Congress to amend the bill.

When the Voting Rights Act of 1970 was passed by both Houses of Congress, it thus contained a number of provisions enforcing the Fifteenth Amendment, and a voting-age provision that exceeded Congress’s enumerated powers. With no line-item veto, the President had to either sign it into law and thus put his name to a provision that he thought violated the Constitution, or veto it and thus permit violations of the constitutional rights of thousands of black voters.

President Nixon signed it, anyway, the Supreme Court struck down the unconstitutional portion, and the next year an amendment to the Constitution was passed solving the problem. “President Nixon is an unlikely exemplar of presidential constitutionalism, but this time he nailed it.”

  • President George W. Bush in 2001 signed intelligence appropriations bills that he felt contained provisions requiring more executive reporting to Congress than he thought proper.  Article IV grants that the federal government must “guarantee to every State . . . a Republican Form of Government and . . . protect each of them against Invasion.”  A positive affirmation of Presidential duty, this requires protection of a state’s security from invasion and guarantee of a republican form of government. “If the law is signed, an unconstitutional provision might be enforced in the future. If the law is not signed, an invasion might succeed or a republican government might be overthrown.”  Therefore, the President signed the intelligence appropriations bill because he felt that his duty to protect the country outweighed the potentially unconstitutional reporting requirement to sit, ignored, in the Statutes at Large.

    Other appropriations bills he signed through this period included similar reporting requirements that he thought unconstitutional and that he similarly pushed to the wayside. Whether he was correct as to the level of risk to national security, President Bush was correct, by Baude’s measure, to balance the importance of the law for upholding his constitutional duties against the risk of putting the unconstitutional provisions on the books.

  • 1867 Army Appropriations Act.  President Andrew Johnson signed it in spite of his belief that it “deprive[d] the President of his constitutional functions as Commander in Chief” and “denie[d] to ten States . . . their constitutional right to protect themselves.”  He used his other executive powers to mitigate what he saw as the unconstitutionality of Reconstruction. (See Joshua Chafetz, Impeachment and Assassination 95 Minn. L. Rev. (forthcoming 2010) at 55, available at http://ssrn.com/abstract=1568950.)

With the assumption that there are laws that a President must, categorically, veto, what kind of criteria exists for a President to justify signing a law containing unconstitutional provisions?  Baude suggests that such a law must be partially constitutional and partly required by the President’s duties.  He must consider the size of the risk and the magnitude and importance of the possible violations. It’s a dynamic analysis, and in the end, regardless of the choice to sign or veto, the President must be prepared to mitigate the results.  His is the duty to uphold the Constitution, first and foremost.

In conclusion, Baude quotes the always memorable Justice Scalia: “The Constitution . . . is not an all-purpose tool for judicial construction of a perfect world.”  And, to take the inverse, Baude warns us not to underestimate the Constitution, either: “We must be just as wary of the reverse–assuming that yesterday’s formalisms are inadequate for today’s government.”

It’s an interesting proposition, and perhaps one that bears consideration.  The President has obligations, as well as his often recited limits.

There is also a broader lesson about what we remember and what we forget. We are all too eager to remember the long list of things the President must not do. We more easily forget that there are many things that he must do, and even more after the Reconstruction amendments. Our Constitution does not create a passive President. We should not make him into one.