US Presidential signing statements and the constitution

S.A.M.

uniquely dreadful
Valued Senior Member
Watched a panel on the book "The Invisible Constitution" by Laurence Tribe.

As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.

Got a question.

Can the President pass a law based on a personal reinterpretation of the constitution?

How binding is it? What is the effect of such a statement on the process of law and what effect does it have on the way the Supreme Court deals with that aspect of the constitution?
 
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Watched a panel on the book "The Invisible Constitution" by Laurence Tribe.

Got a question.

Can the President pass a law based on a personal reinterpretation of the constitution?

How binding is it? What is the effect of such a statement on the process of law and what effect does it have on the way the Supreme Court deals with that aspect of the constitution?

You badly misunderstand our system. In the first place, the president CANNOT "pass" a law. A law requires the action of both houses of congress and the president's signature (unless congress passes it by a 2/3 majority).

The closest a presiden can come to such a thing is called an Executive Order and there are strict limits on what those can cover. A "reinterpertation of the Constitution" would NOT be within the bounds of what's permitted.

And since it cannot happen, your question about the Supreme Court is moot.
 
Can the President pass a law based on a personal reinterpretation of the constitution?

No.

And in the US system of laws, the president actually can't do shit! There's separate branches of government that all have to work together to get anything done ...and it's one reason that it takes so long to get anything done.

Baron Max
 
You badly misunderstand our system. In the first place, the president CANNOT "pass" a law. A law requires the action of both houses of congress and the president's signature (unless congress passes it by a 2/3 majority).

The closest a presiden can come to such a thing is called an Executive Order and there are strict limits on what those can cover. A "reinterpertation of the Constitution" would NOT be within the bounds of what's permitted.

And since it cannot happen, your question about the Supreme Court is moot.

So if there was a statement by the President to suspend habeas corpus for non-citizens or install electronic eavesdropping devices through the secret service or direct the telephone companies to monitor the phone calls of people, how would the Supreme Court deal with it? What would be the consequences of such a statement on the process of law?
 
Sam as far as i know for US constitutional law (and DEFINTILY australian consitutional law) nither the executive NOR the legislative branch can interprate the constitution. There is only one agency with the power to do that and its the high court (or supreme court in the US). This is there responcability and though the president could put an argument to them during a case (through his own legal respresentation) it would just be an argument to be weighed the same as the other sides argument is.

There is a great case which deminstrates this in the australian context, Comunist party v commonwealth of australia where the legislative atempted to do EXACTLY what your suggesting and they put a prefeace in the bill arguing the case that as the defence of the country is a commonwealth responcability they have the right to pass this bill. The responce that "the parliment cant be alowed to judge the limits of its own power, only the High court can do that" was one of the strongest rebukes against the parliment
 
of course he can but all they can do is present an argument, its the judges of the court who will decide on the limits of power
 
Well, the President did suspend habeas corpus. And by passing the Military Commissions act through Congress, was allowed to "try" people for whom this was done and sentence them [see Hamdan] after the Supreme court dismissed all charges against them. So obviously its not a theoretical argument. Apparently, if there are enough Republican nominees on the Supreme Court and enough Republicans in Congress, the US Constitution is an evolving paradigm with postulates that can mean anything. I'm assuming it will be the same under a majority Democratic rule over all three facets of government.

So basically, the US constitution is not what is written by the founders, its whatever is the current fashion in the government.
 
Well, the President did suspend habeas corpus. And by passing the Military Commissions act through Congress, was allowed to "try" people for whom this was done and sentence them [see Hamdan] after the Supreme court dismissed all charges against them. So obviously its not a theoretical argument. Apparently, if there are enough Republican nominees on the Supreme Court and enough Republicans in Congress, the US Constitution is an evolving paradigm with postulates that can mean anything. I'm assuming it will be the same under a majority Democratic rule over all three facets of government.

So basically, the US constitution is not what is written by the founders, its whatever is the current fashion in the government.

Sorry, but you STILL misunderstand the process - badly! I don't recall habeas corpus being suspended "by the president." Can you provide a link that describes when/where/how that was done?

(And in the meanwhile, please note that your own second sentence (above) shows that particular action required the involvement of congress.)
 
Sorry, but you STILL misunderstand the process - badly! I don't recall habeas corpus being suspended "by the president." Can you provide a link that describes when/where/how that was done?

(And in the meanwhile, please note that your own second sentence (above) shows that particular action required the involvement of congress.)

Sure.

On Oct. 17, 2006, President Bush signed a law suspending the right of habeas corpus to persons "determined by the United States" to be an "enemy combatant" in the Global War on Terror.

http://civilliberty.about.com/od/waronterror/p/commissions.htm

Sure it requires approval by Congress. I'm not debating that. Let us assume the Congress supports the law and the Supreme Court judges were appointed by the President. I'm not interested in the relative bias of the people here. I'm interested in how it relates to the US Constitution and the interpretative weaknesses of the Constitutional postulates in a worst case scenario.

Then:

Can the President pass a law based on a personal reinterpretation of the constitution?

How binding is it? What is the effect of such a statement on the process of law and what effect does it have on the way the Supreme Court deals with that aspect of the constitution?

IOW, is it possible to rewrite the constitution to mean something completely different from what it currently means?
 
Can the President pass a law based on a personal reinterpretation of the constitution?

SAM, first you're throwing out such a hypothetical question that's so odd and wierd and virtually never done, that everyone is scratching their head trying to figure out your ulterior motive.

I know, deep in my heart, that you're just trying one more way to show that the USA is a fucked up country and all Americans are fucked up people. So no one wants to answer your stupid, fuckin' questions!

The answer, however, is that yes, it could happen. But the reallife answer is no, it won't ever happen the way you're trying to envision it. See?

IOW, is it possible to rewrite the constitution to mean something completely different from what it currently means?

No, he nor congress nor the Supreme Court can "rewrite" the Constitution.

Baron Max
 
Sorry, but you STILL misunderstand the process - badly! I don't recall habeas corpus being suspended "by the president."

Yes, SAM definitely misunderstands. But I suspect that SAM has ulterior motives for the questions. SAM is seeking one more reason to hate the USA and all Americans, that's all.

Oh, and that 'habea corpus' thingie was suspended by Lincoln during the Civil War ...ah, before, during or just after, I forget. But it can't ever happen again because of changes in presidential power ...or something like that.

Baron Max
 
No, he nor congress nor the Supreme Court can "rewrite" the Constitution.

Baron Max

So how is it that if the Supreme court decides that

1. habeas corpus cannot be suspended
2. the charges against Hamdan are thrown out

Hamdan is still in prison? And may be indefinitely detained?

Does this not mean that the US does not obey the Rule of Law and essentially the President and the military are not bound by the Constitution and the President is in effect interpreting it as he wishes? And the military is following the President rather than the Supreme Court? Is this not a legal precedent for continuing and enlarging on this interpretation?
 
SAM Read Only is correct, the POTUS is the chief enforcer of laws. He cannot create laws. He can issue, as RO pointed out, Executive Orders which are to conform to existing law and are issued to better execute existing law.

The Supreme Court is the final arbiturer of United States Law. The Suprem Court issues rulings but relies on the POTUS to enforce those rulings. Congress makes laws, but cannot enforce those laws as it has no executive structures...those belong to the president.

So you get some interesting things occuring in government like the issue of Karl Rove. He was issued a legal order by Congress to testify before them, and he ignored those orders. The Congress relies on the president to enforce the law, but the president decided in the case of Rove that the order was not legal and refused to execute the order.

The normal path would be for Congress to sue the president and the Supreme Court would rule on the issue. But given how little time remains in the Bush administration it really is not worth the time and effort to pursue the issue.

And then you have the issue of Andrew Jackson (the nation's 7th president), who refused to enforce an order by the Supreme Court (e.g. Trail of Tears).

http://www.usconstitution.net/const.html#A2Sec1

The president's performance is overseen by Congress and only Congress can remove the President. So if you have a situation, like the George II administration, in which one party controls both houses of congress the POTUS can pretty much do what he wants and get by with it because Congress allows him to do so.

So to your point, you have the law as it is written and the law as it is practiced. And sometimes there is a pretty good distance between what is written law and what is actual practice.
 
SAM Read Only is correct, the POTUS is the chief enforcer of laws. He cannot create laws. He can issue, as RO pointed out, Executive Orders which are to conform to existing law and are issued to better execute existing law.

Then could you explain to me the existing laws that describe the circumstances in post number 17?

So how is it that if the Supreme court decides that

1. habeas corpus cannot be suspended
2. the charges against Hamdan are thrown out

Hamdan is still in prison? And may be indefinitely detained?

Does this not mean that the US does not obey the Rule of Law and essentially the President and the military are not bound by the Constitution and the President is in effect interpreting it as he wishes? And the military is following the President rather than the Supreme Court? Is this not a legal precedent for continuing and enlarging on this interpretation?
 
First Baron Max knows little of which he speaks. I think there is a word for Baron that starts with "T" and ends with "L"

Second, the Republican Congress passed in response to legal rulings the Military Commisions Act of 2006 that allows for Habeas Corpus to be suspended for enemy combatants and it was signed into law by George II.

http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.htm

I am against the law, but so be it. The Republicans passed the law through Congress.
 
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