Thursday, October 07, 2004
Interpreting the Law
I watched the DVD "Bushisms" last night, and while some of the verbal gaffes made me laugh out loud, one caught my attention because it was not a mistatement or a misunderstanding of how the political process works.
In one scene, President Bush says: "The legislature's job is to write the law. It's the executive branch's job to interpret the law." After he says this, Jacob Weisberg appears, and in a condescending tone says that it is the president's job to execute the law and the judiciary's job to interpret the law. This sort of one-dimensional thinking has caused journalists to overlook how recent presidents have argued that it is their constitutional right to say what the law is, despite what the other branches say.
Beginning with the Reagan administration, the president's legal advisors have pushed presidential prerogatives to the limits, and then pushed a little more.
Where they start is with Federalist 49. In Federalist 49, Madison says:
The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers...
The Reagan Justice Department, in particular, pushed this principle of coordinancy to mean that the branches of government have no constitutional right to tell the other branches what is and is not constitutional. Hence, the president has a coordinate right to determine the constitutional meaning of the legislation he signs--as such, it means that if he determines parts of the legislation to be constitutionally suspect, he is in his right to refuse to enforce it or defend it.
Indeed, in 1987, Attorney General Ed Meese told an audience that gathered at Tulane University that "constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government." This was backed up by a concurring opinion issued by Justice Antonin Scalia in the case "Freytag v Commissioner" (1991):
??it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws?or even to disregard them when they are unconstitutional.?
But this deals with constitutional interpretation, you might ask? What about the interpretation of bills alone independent of the constitutional problems a president might find with it?
Also beginning, in any consistent fashion, with the Reagan administration, the President has asserted that the "Take Care" clause of the Constitution means that, since he is the only nationally elected political figure, it is his obligation to tell the administrative state how to interpret and thus execute the provisions of a law signed by the President. In areas in which the Congress is vague on the meaning of sections of a bill, it is the President's obligation to breathe meaning into it.
For example, when Congress gave to President Reagan the "Immigration Reform and Control Act" in 1986, a provision of the bill that dealt with discriminatory intent was left vague. It was feared that the IRCA would allow employers to discriminate against employees by firing them, claiming they feared that they were illegal aliens. In Congress, the section of the bill was added by Congressman Barney Frank, and Frank intended for it to mean that if an employee was released due to discrimination, it would be up to the employer to defend the reasons why he was fired. In conference, the meaning was stripped out. When it got to the Reagan administration, the President defined the vague section in such a way that it placed the burden of proof on the employee--it was an interpretation that was business friendly.
So while reporters and others can giggle at how President Bush hasn't a clue how the political process works, know that the joke is on all of you. In fact, President Bush would prefer that you continued to "misunderestimate" him.
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In one scene, President Bush says: "The legislature's job is to write the law. It's the executive branch's job to interpret the law." After he says this, Jacob Weisberg appears, and in a condescending tone says that it is the president's job to execute the law and the judiciary's job to interpret the law. This sort of one-dimensional thinking has caused journalists to overlook how recent presidents have argued that it is their constitutional right to say what the law is, despite what the other branches say.
Beginning with the Reagan administration, the president's legal advisors have pushed presidential prerogatives to the limits, and then pushed a little more.
Where they start is with Federalist 49. In Federalist 49, Madison says:
The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers...
The Reagan Justice Department, in particular, pushed this principle of coordinancy to mean that the branches of government have no constitutional right to tell the other branches what is and is not constitutional. Hence, the president has a coordinate right to determine the constitutional meaning of the legislation he signs--as such, it means that if he determines parts of the legislation to be constitutionally suspect, he is in his right to refuse to enforce it or defend it.
Indeed, in 1987, Attorney General Ed Meese told an audience that gathered at Tulane University that "constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government." This was backed up by a concurring opinion issued by Justice Antonin Scalia in the case "Freytag v Commissioner" (1991):
??it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws?or even to disregard them when they are unconstitutional.?
But this deals with constitutional interpretation, you might ask? What about the interpretation of bills alone independent of the constitutional problems a president might find with it?
Also beginning, in any consistent fashion, with the Reagan administration, the President has asserted that the "Take Care" clause of the Constitution means that, since he is the only nationally elected political figure, it is his obligation to tell the administrative state how to interpret and thus execute the provisions of a law signed by the President. In areas in which the Congress is vague on the meaning of sections of a bill, it is the President's obligation to breathe meaning into it.
For example, when Congress gave to President Reagan the "Immigration Reform and Control Act" in 1986, a provision of the bill that dealt with discriminatory intent was left vague. It was feared that the IRCA would allow employers to discriminate against employees by firing them, claiming they feared that they were illegal aliens. In Congress, the section of the bill was added by Congressman Barney Frank, and Frank intended for it to mean that if an employee was released due to discrimination, it would be up to the employer to defend the reasons why he was fired. In conference, the meaning was stripped out. When it got to the Reagan administration, the President defined the vague section in such a way that it placed the burden of proof on the employee--it was an interpretation that was business friendly.
So while reporters and others can giggle at how President Bush hasn't a clue how the political process works, know that the joke is on all of you. In fact, President Bush would prefer that you continued to "misunderestimate" him.
