Monthly Archives: July 2006

An Excellent Explanation of Why Bush’s Policy on ‘Signing Statements’ is So Rotten

Seven former OLC members, including Walter Dellinger and Marty Lederman have jointly authored, Untangling the Debate on Signing Statements. It’s a great explanation of the issues and why the Bush position on them is so troubling, and I’m in very substantial agreement with it.

Like the authors, I don’t for a second dispute the right, indeed duty, of the President to instruct the members of the executive branch in how to do their jobs — absent contrary congressional commands anyway. And Presidents have the right to say whatever they want when signing legislation. Like the authors, I don’t think this has much relevance to what a court should do if asked to decide the constitutionality of the statute. It’s certainly not on a par with legislative history — really nothing more than an argument in a brief. But there’s no harm in that.

And I accept that modern practice has for many years accepted that Presidents can sign a bill that they believe contains an unconstitutional provision then seek to have that part severed from the bill via court action — although the purist in me would prefer that the President veto the whole thing on constitutional grounds: Judicial severing of parts of legislation is not a particularly principled process and seems to be one that, for all its pragmatic short-run virtues, in the long run we might well be better-off without.

It’s no small matter when a President fails to execute or observe a statute — although constitutional grounds and subsequent court approval have in rare cases justified this stance. And the problem is more than doubled when — as is the case with the current administration — a President fails to observe the law in a manner which is designed to hide the ball, rather than make clear to the public and the courts that the President believes there’s a serious constitutional problem. It’s not ironic but deadly serious that this administration considers the statute requiring it to report when it fails to observe a law to be one of the many laws it doesn’t actually have to follow.

The other problem, of course, is that this administration has abused the ‘constitutional objection’ card beyond all credibility. Claiming that there are hundreds of bills that require executive correction betrays a worldview which says the President is a king, with fully and plenary powers not subject to legislative constraint and indeed has more-than-royal power to rewrite legislation at will.

A healthy democracy would have antibodies to this sort of thing. Ours seem very slow to swing into action. A big chunk of the blame lies in Congress, which has taken so much of this lying down for so long. And to be fair, part of it lies with the American people who voted this crew back into office in 2004. I hope 2006 will be a different story.

Posted in Law: Constitutional Law | 1 Comment

Notes from the Sharp End

I don’t know enough immigration/4th Amendment law to know if customs agents demanding to read the contents of your laptop when you come into the country, as described in this account of a search experience on “border”, is constitutional — but it should not be.

I do, however, think I know enough about the law regarding privacy in public places to say that if this story is accurate (and I know nothing about the original source) then this student busted for photographing an arrest was either wrongly arrested or the underlying law/ordinance (if it exists) is unconstitutional.

Posted in Civil Liberties | 4 Comments

TSA Airport Detention Authority Questioned by Travel Expert

Edward Hasbrouck, aka “The Practical Nomad” is both a noted travel writer and a civil liberties activist. He got stopped at Dulles Airport, and has been trying to find out under what authority ever since. The latest is the rather limited but still interesting fruits of his FOIA request: TSA report on what happened to me at Dulles Airport.

Ed’s earlier reports in this series

Posted in Law: Right to Travel | Comments Off on TSA Airport Detention Authority Questioned by Travel Expert

Andrew Chin Is/Is Not “Voiceless”

University of North Carolina School of Law Prof. Andrew Chin has a new blog, ironically entitled voiceless. Prof. Chin modestly suggests he is “blogging from the long tail” although in fact he’s writing about “the legal and technological structures that keep almost all of us voiceless”.

“Blogging from long tail” almost reminds me of the “On fringes of the public sphere”, so that has to be good. Although I should note that someone one asked me, fairly enough, how a sphere could have a fringe, and I’m still working on a good answer.

Posted in Blogs | 4 Comments

Edwards as the ABC Candidate

I’m delighted to report that the growing conventional wisdom has former Senator John Edwards as the “ABC” (Anyone But Clinton) candidate for the 2008 Democratic Presidential nomination. Edwards, along with Gen. Wesley Clark, is one of my two favorite likely Democratic presidential candidates. Senator Clinton has already raised about $20 million for her campaign, and has a surrounded herself with experienced campaign staff, making her seem like the candidate to beat for the nomination.

Edwards is a huge beneficiary of changes to the Democratic party’s primary schedule, which has front-loaded caucuses in states where he should do well. But as far as I know, he’s lagged badly in the money-raising department ever since former Va. governor Warner and Sen. Feingold starting gaining traction. Although I like a lot (but not all) of what Feingold says, I don’t think he has a chance of winning a national election. Warner has nice demographics — but has yet to demonstrate that he stands for anything much. Certainly the people attracted to his campaign so far are in it on the “he can win” theory, not because of any issue they can point to. If the guy has taken an interesting stand on a controversial national issue (as opposed to local Virginia issues), I sure haven’t heard about it, nor has anyone I know.

By contrast, Edwards is just impressive — someone running a campaign of optimism rather than either cautious triangulation or fear and demonization.

The way these races usually work, the media gravitates to a narrative in which there’s a front runner, an insurgent, and the “others”. Clinton gets to be front-runner for now because she probably has raised more money than everyone else put together. Given that Edwards was being squeezed a little by the profusion of other candidates, getting noticed now as the likely/possible ABC candidate is on balance a good thing, although there’s an awful lot of time before the election, which creates the risk of a “he peaked too early” narrative developing in six, twelve or even eighteen months.

Posted in Politics: US: 2008 Elections | 5 Comments

Birds of a Feather

It’s a long way from Mary Poppins. Calling them “rats with wings” London Mayor Ken Livingstone tried to get rid of the thousands of pigeons in Trafalgar square by prohibiting the Londoners and tourists from feeding them. This spawned a protest to Save The Trafalgar Square Pigeons, and eventually a lawsuit giving long-time feeders the right to continue to feed the birds but prohibiting casual feeders. (While kind-hearted, this effort does provide further evidence for the critics who say that the British care more about animals than people. Exhibit “A” for this claim is that the society for the prevention of cruelty to animals is enjoys royal patronage, but there is no corresponding royal imprimatur for any group seeking to prevent cruelty to children.) [Update: see the comments for a contrary view.]

Cut to Las Vegas, where the city is declaring war on unsightly homeless people. It hasn’t called them rats with feet thumbs [edit because, after all, rats do have feet…], but that’s the general idea. Las Vegas has just passed an ordinance banning the feeding of poor people in the parks. Yes, in a Las Vegas park you can give a sandwich to a rich person, but not to the starving.

The ordinance, an amendment to an existing parks statute approved by the Council on July 19, bans the “the providing of food or meals to the indigent for free or for a nominal fee.” It goes on to say that “an indigent person is a person whom a reasonable ordinary person would believe to be entitled to apply for or receive” public assistance.

That’s America today: banning charity.

A blanket feeding ban regardless of income level would I am sure be constitutional. I leave it to others to parse equal protect law and opine whether the distinction between rich and poor in this rule will survive equal protection review. I suspect that judges will not be inclined to uphold this rule if doctrine permits them to strike it down.

Meanwhile, click here:

Posted in Law: Everything Else | 4 Comments