Tag Archives: James Madison

Never mind wise: is war on Libya even constitutional?

We’ve been at war with Libya for about a week. The question here is not whether we should be at war with Libya, but rather, does the President have the right to take us to war with Libya absent a provocation against the United States?

Giving the power to go to war to Congress, the U.S. Constitution states under Article I, section 8 that “Congress shall have the power … to declare war…” While the President is the Commander-in-Chief, the Constitution does not give him the right to use the armed forces at will. Does that, as CATO scholar John Samples and others have asked, make the acts of war in Libya unconstitutional?

Some members of Congress think so. Rep. Scott Ringell, a freshman from Virginia, said that the Libya hostilities “should trigger a debate within Congress and [among] the American people about proper interpretation and application of [the] Constitution. […]” Some Democrats have spoken out questioning the validity of the action. In the past, Senators Obama and Biden both said the president lacks the authority to do what President Obama has done.

Kind of reminds me of the old saying that “[w]here you stand on an issue depends on where you sit.” Now that he’s in the Oval Office, and after pressure to “do something,” the Barack Obama the President’s position is the opposite of Barack Obama the Senator from Illinois and candidate for President. Same for the Veep.

Flip-flops aside, does the President have the right bomb Libya? Does the Constitution support his unilateral action against Libya without the consent of Congress?

Perhaps Vice-President Biden can offer the President some guidance on the topic. As Samples notes, Biden has spoken on the original meaning of Art.1, Section 8 of the Constitution before:

Vice President (then Senator) Joseph Biden recalled that meaning in a speech on the Senate floor on July 30, 1998. He noted that the original draft of the Constitution would have empowered Congress to “make war.” James Madison and Elbridge Gerry moved that the language be changed to “declare war” so that the president would have the power “to repel sudden attacks.” Biden pointed out that only one framer, Pierce Butler of South Carolina, thought the president should have the power to initiate war.

Biden concluded that under the Constitution, the president could not use force without prior authorization unless it was necessary to “repel a sudden attack.” Presidential candidate Barack Obama agreed in 2007: “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

In the opinion of the Veep, then, the President is acting outside of his Constitutional powers. Biden went on:

The rationale for vesting the power to launch war in Congress was simple. The Framers’ views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.

Don’t for a minute think that it is only the conservatives in Congress that are questioning the President’s authority, either. Rick Warnick questions the rationale, too.

And so, once again America has attacked an oil-rich Arab country. This time by order of a Democratic commander-in-chief. Next time somebody tells me, “Elections have consequences,” I think I’ll ask for proof. When you look at it substantively, there is just too much bipartisanship in Washington.

It’s not just bipartisanship, Rick; it’s corruption. Power corrupts, on both sides of the aisle. All too often, that has nothing to do with the party, and everything to do with the system. As long as the White House is held by an individual more interested in “doing something” than in “doing the right thing,” then we will have the kind of lawless and dangerous actions that we’re seeing now in Libya.

Congress has to step up to the President if we’re to see a check to his little war in Libya. But I’m not optimistic. Pigs will fly before we see leadership necessary out of the House or Senate. While there have been a few speeches criticizing or condemning the action, we are unlikely to see anything more. The President has little to lose from Congress, and he knows that Congress will fold if backed against the wall.

Is the Madisonian Republic dead?

Eric Posner and  Adrian Vermeule have an interesting new book out that is going to raise the ire of folks on both the right and the left: “The Executive Unbound: After the Madisonian Republic.” Are we in a post-Madisonian republic?

I’ve not read it yet, but just the description on Amazon seems to indicate that what the book proposes–that the modern state requires a strong executive, to the detriment of the legislative and judicial branches–is form of government more akin to Schlesinger’s “imperial presidency” than Madison’s “checks and balances.”

Ever since Arthur M. Schlesinger Jr. used “imperial

presidency” as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done?

The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today’s level of executive power because it varies so dramatically from the vision of the framers of the Constitution. But Posner and Vermeule find fault with James Madison’s premises. Like an ideal market, they write, Madison’s separation of powers has no central director, but it lacks the price system which gives an economy its structure; there is nothing in checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority, noting that among strong presidents only Nixon has come in for severe criticism, leading to legislation which was designed to limit the presidency, yet which failed to do so. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

Piety toward the founders and a historic fear of tyranny have been powerful forces in American political thinking. Posner and Vermeule confront them both in this startlingly original contribution.

At a time when biographies of John Adams, George Washington, and Thomas Jefferson are more popular than ever, I can’t help but ask myself if the efforts of the right to channel the spirit of ’76 in the modern Tea Party are too little too late.

On the other hand, do we really want to turn the clock all the way back to 1789? Is a strong executive entirely evil?

Said one reviewer:

“This is a book that will, for many readers, both illuminate and infuriate. It is the most full-throated embrace in recent years of the very important (and always controversial) jurisprudential theories associated with Carl Schmitt, particularly with regard to the accretion of power in the Executive Branch. If their views become widely accepted, American law–or at least the American legal academy–will never be the same again.”–Sanford Levinson, Centennial Chair in Law and Professor of Government, University of Texas-Austin, and author of Our Undemocratic Constitution

I don’t know that the political system we live with now–far larger and more complex than Madison and Hamilton and others designed in 1789–is in fact evil, but I don’t necessarily think I am ok with it purports to do, either. I do know I look forward to reading Posner and Vermeule’s arguments.

“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.

Give Iowa a try…

Map of USA with Iowa highlighted
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Iowa judges are under attack for unpopular rulings that have permitted gay marriage in their state.  Unhappy about the rulings, and displeased that so few could overturn the will of the people, activists are looking to check the power of the judges by way of the ballot box. From the Wall Street Journal

[T]his year, conservatives in Iowa are waging a campaign to vote out of office three supreme court judges, who joined a ruling last year that Iowa’s law barring the recognition of same-sex marriage is unconstitutional.

This isn’t the first time I’ve noted the action of one piece of our political “family” (executive, legislative, and judicial) acting against another to check its power.  Our constitution was written in such a way as to disperse power and spread it out, limiting the ability of any one group to tyrannize another. In this case, we see the people, the legislative function by which laws are usually made, acting to check the power of the judiciary.

Judges are intended to be independent so as to be free from political pressure.  This is to enable them to make decisions that are based solidly in the law and the constitution and to act as a restraint against the power of the majority to protect minorities.  However, even this power can be checked. Even when Supreme Court of the United States finds that a law of Congress is misbegotten and unconstitutional, the right to amend the constitution, however high that bar has been set, is still available .

On the state level, because justices are often selected by the executive, they usually have to stand for a “confirmation” vote periodically in order to retain their office.  Usually, because of the low levels of interest in the predominantly mundane work of the courts, few voters follow or even care about confirmation of a judge, and voter turnouts are often low.  In Iowa, voter anger is seeing to assuring that changes.

“We need to vote them off the bench to send a message across Iowa that we, the people, still have the power,” said Bob Vander Plaats, a Republican state politician who is leading the campaign. “Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country.”

The effort in Iowa, the Post reports, worries gay rights advocates and legal experts who say it is wrong to punish judges for unpopular decisions. But on the flip side, campaign advocates say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority.

Vander Plaats announced this month the creation of Iowa for Freedom, which has rented office space and hired six full-time staff members, who plan to wage a political campaign replete with mailers, phone calls and door-knocking, according to the Post.

While the judges have not, yet, said anything in their own defense, this does raise the question of independence of the judiciary.  Can a judiciary that must cater to the winds of political whim ever be completely, to say nothing of partially, independent and objective sufficient to provide a fair trial?  How can a judge provide a fair trial when he, or she, knows that the parties before them may, or likely will, work to support or oppose their next election?  The result would be that the politically and financially powerful will end up winning their cases, while minorities and poor will lose.

On the other hand, there must be some check against the power of the judiciary to set policy from the bench.  If the judiciary, by one decision, can change a law established by the will of the people, what does it matter that the people have spoken or that the legislature has acted?

Immigration Debate: Federal or state purview?

The Constitution in Peril
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Recently, the local Deseret News has seen debate on its opinion page, and carried over in the Facebook-sphere, on the immigration issue, especially as it relates to whether immigration policy is the purview of states or the federal government, and in many respects, it returns to Constitutional interpretation by the political right (though I am not clear that it falls on party lines).  Two opinions in particular have debate it, and because one (“Immigration a matter for the federal government, which hasn’t delivered,” August 8, 2010) is in direct response to the other (“Border security not federal purview,” August 3, 2010), I’ve posted them below.

It’s an interesting discussion, and I believe it reflects, in many ways, a growing disenchantment with the expanding reach of the federal government in to the lives of American citizens.  However, the views expressed of the authors are their own, and I present them only as food for thought and consideration.  I do not blame the growth of the federal government on either party alone; indeed, much of what the Obama Administration has been able to accomplish has only been possible because of what the Bush Administration did during its eight year tenure.

The first opinion below is by Connor Boyack (he is found on Twitter as @cboyack), a blogger, communications coordinator for the Utah County Campaign for Liberty, “a 20-something web designerpolitical economist, and budding philanthropist.”

In the wake of Arizona’s immigration law and “the list” of 1,300 alleged illegal immigrants, people in Utah and around the country are debating the ever-present issue of immigration at a fever pitch. For all the resulting discourse, however, it seems that nearly everybody has assumed that federal immigration law is proper.

This view is mistaken, although understandable. More than a century of precedent has led Americans to believe that the power to regulate and restrict immigration is a federal one. Time, however, does not confer authority; if an individual health care mandate is unconstitutional today, yet still implemented, the passage of 100 years does not make it right.

It is an interesting exercise to ask supporters of federal immigration law where the government derives its authority on this issue. The varying responses given are as numerous as those offered by the U.S. Supreme Court over the years. One would think that if such a power existed, we could at least agree on what text in the Constitution applies.

A common citation of constitutional authority is Congress’ power to “establish a uniform rule of naturalization,” though both a colonial-era definition of the word naturalization, as well as a litany of quotes from framers of the document in question, clarify that naturalization has only to do with the specific process that makes an alien a citizen. The stretching of naturalization to somehow encompass an individual’s travel through and residence within the United States is without constitutional support.?

Some also point to Congress’ power to repel invasions, arguing that the flood of immigrants crossing the border invade our country, use our resources, burden our social welfare programs and bring with them gang violence and drug warfare. However, this supposed invasion is no orchestrated campaign by a distinct group; Juan’s peaceful and individual migration to America cannot reasonably be classified as being part of some coordinated effort to invade America.

James Madison argued in Federalist 43, in the Virginia Ratifying Convention, and in his Report of 1800 that the power to repel invasions only was meant for protection when a state was attacked by another state, or when the country was being subjected to a coordinated military strike. While some gang activity may possibly apply here, it is patently absurd to classify all migration as a legitimate and actual invasion.

Historically, the commerce clause was used to justify federal immigration law, but this dealt mainly with slavery or state-based migration taxes, and few would try to so twist this clause as to apply to the modern migration of individuals across our borders.

The last justification often used is a vague and boundless reference to the country’s sovereignty, where it is argued that the country must “secure its borders” as a matter of “national security” and that the power to do so comes as an inherent right of being a sovereign nation. Not only are the states the sovereign entities in our federal republic, but the federal government cannot legitimately act unless it has been delegated the power to do so by the states under the U.S. Constitution.

Federal immigration laws have no constitutional authority, and unless an amendment to the Constitution is ratified by the states to delegate that power, the states should retake and affirm their power to manage immigration within their borders. Given that “illegal immigrants” have violated federal immigration laws, which exist without proper authority, the proper action for those who support and uphold the Constitution is to advocate amnesty for those whose only crime is noncompliance with these illegitimate laws.

The response to Connor Boyack’s opinion piece was published in the same publication, the Deseret News, on Sunday, August 8, 2010.  It was co-written by Ben Lusty, an attorney in private practice in Salt Lake City, Utah, and Daniel Burton (he is found on Twitter as @publiusdb), an attorney in Utah and the Chair of the Utah Young Republicans.

We recently read the “My View” by Connor Boyack (“Border security not federal purview,” Aug. 2) with great interest, and feel it necessary to respond to Mr. Boyack’s extreme views. Were we to follow his logic, we would find our country crossed and conflicted with 50 separate immigration policies, creating uncertainty and jeopardizing freedom of movement. The federal government, despite its many faults and heretofore failure to act in this arena, is best situated to secure our borders and establish uniform immigration laws. We, too, are frustrated with the federal government’s immigration policy failures, and do not object to a state’s right to enforce existing federal immigration law. However, upending the constitutional infrastructure of the nation is no solution.

Mr. Boyack’s major flaw is his narrow-minded reading of the Constitution, especially Article I, Section 8, which includes a full grant of authority to Congress to establish rules of naturalization. Mr. Boyack argues, without citing evidence, that the framers understood this grant of federal authority absurdly narrowly and meant it only to empower Congress to grant citizenship to aliens, not as power to establish comprehensive immigration law.

Hundreds of years of Supreme Court precedent refute Mr. Boyack, but he blithely dismisses the constitutional authority of the judiciary with the aphorism that a hundred years of wrong precedent is still wrong. But Mr. Boyack’s way of thinking is illogical. How can Congress logically exercise its undisputed plenary power over naturalization if it lacks the authority to admit or exclude aliens from the country in the first place? What if Congress wants to grant citizenship to an individual that the state of California refuses to admit to the nation? We doubt the Founders were so shortsighted as to create such a painfully foreseeable crisis.

Further, Mr. Boyack’s analysis ignores other important constitutional language. For example, he largely ignores the commerce clause. Congress has authority to regulate interstate and international commerce, and there is no doubt that immigration affects national commerce. Moreover, Mr. Boyack completely ignores Article II of the Constitution. Article II grants the executive branch broad power to implement foreign and defense policy. Immigration affects both, but under Mr. Boyack’s vision, the states would seize this authority from the federal government.

More tellingly, Mr. Boyack has not accounted for Article IV, which provides that a properly ratified treaty is the supreme law of the land. States cannot have paramount authority to exercise control over immigration if the federal government can likewise enact a treaty with a foreign nation affecting immigration policy.

Mr. Boyack, wearing a guise of “originalism,” simply interprets away the plain meaning and clear intent of constitutional language, attempting to substitute the words of a few founders as definitive of the collective work of the founding generation. What Mr. Boyack posits is a radical interpretation — that states (all 50 of them) have the power to set their own immigration policy.

Despite our disagreement with Mr. Boyack’s interpretation of the Constitution, we agree with the majority of the population that the federal government has not effectively addressed immigration. Most people are not sensitive to the fine distinctions between federal and state power in our Constitution, but they do care about results, which the federal government has not delivered. We suspect that many advocates for enhancing the power of states at the expense of the federal government are more concerned with the failure of federal policy generally than with Constitutional jurisprudence.

The federal government is institutionally better situated than the states to deal with immigration. The question that Mr. Boyack fails to answer is whether we want 50 immigration policies. Therefore, based on reasons of pragmatism, law, and politics — the same reasons that the Founders came together at Philadelphia to “form a more perfect union,” we refute Mr. Boyack’s myopic view of state authority. Immigration policy is, by and in large, the purview of the federal government. What we do to bring about the changes in the federal government to resolve our immigration policy problems is another discussion altogether.