Bush Picks Judge Samuel Alito for Supreme Court

There is no more laughable phrase among legal scholars than the one used by the activist USSC Judge Paul Douglas who used the incredible "specific guarantees in the Bill of Rights that have PENUMBRAS, formed by EMANATIONS from those guarantees that help give them life and substance>'

Those are not the traditions of the USA. They are the musings of a senile old man who was on the USSC too long.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Bush asserted that he could waive the torture restrictions in a ''signing statement," an official document recording a president's legal interpretation of a new law. Bush had resisted the torture restrictions, but Congress approved them by such a large majority that he could not veto the bill. . . .

Leahy said yesterday that he plans to connect Alito's 1986 memo to Bush's use of a signing statement last week to assert an interpretation of the torture law that clashed with the intent of Congress. ''It is disturbing that President Bush seeks authority to dictate the interpretation of laws written and passed by Congress," Leahy said. ''Tellingly, this president's current choice for the Supreme Court was instrumental in developing this strategy 20 years ago while serving in the Meese Justice Department. I will be interested to hear Judge Alito's current thoughts on presidential signing statements as a device to expand presidential power and to minimize congressional intent."

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

''Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. ''We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

. . . , the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.

In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties").

. . . Our primary objective is to ensure that Presidential signing
statements assume their rightful place in the interpretation of
legislation. . . .


. . . Theoretical problems. Because presidential intent has
been all but ignored in interpreting the meaning of statutes, the
theoretical problems have not been explored. For example:

- In general, is presidential intent
entitled to the same weight as legislative
intent or is it of much less significance?
As previously noted, presidential
approval of legislation is
generally just as important as congressional
approval. Moreover, the President
frequently proposes legislation.
On the other hand, Congress has the
opportunity to shape the bills that are
presented to the President, and the
President's role at that point is
limited to approving or disapproving.
For this reason, some may argue that
only Congressional intent matters for
purposes of interpretation. If our
project is to succeed, we must be fully
prepared to answer this argument.

- What happens when there is a clear
conflict between the congressional and
presidential understanding? Whose
intent controls? Is the law totally
void? Is it inoperative only to the
extent that there is disagreement?

- If presidential intent is of little
or no significance when inconsistent
with congressional intent, what role is
there for presidential intent? Is it
entitled to the deference comparable to
that customarily given to
administrative interpretations?

. . . Thus, under the plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 "from having legal force or effect." The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law.

In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. "[R]epeal of statutes, no less than enactment, must conform with Art. I." INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases.

The President "shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . ." Art. II, §3. Thus, he may initiate and influence legislative proposals. 27 Moreover, after a bill has passed both Houses of Congress, but "before it become[s] a Law," it must be presented to the President. If he approves it, "he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." Art. I, §7, cl. 2. 28

His "return" of a bill, which is usually described as a "veto," 29

is subject to being overridden by a two-thirds vote in each House.

There are important differences between the President's "return" of a bill pursuant to Article I, §7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U.S., at 951 . Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto." 30

What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the "finely wrought" procedure that the Framers designed. . . .

If there is to be a new procedure in which the President will play a different role in determining the final text of what may "become a law," such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).

You are correct, I erred.

That would be correct if I did err in every post,

...but why are you so brief, Joe? Do you hear an ambulance?

Why don't you comment on the liberal William Douglas and his goofy insertion of emanations and penumbras in his decisions complicated by his senility. Is it beyond your ken?

President Bush reversed position yesterday and endorsed a torture ban crafted by Sen. John McCain (R-Ariz.) after months of White House attempts to weaken the measure, which would prohibit the "cruel, inhuman, or degrading" treatment of any detainee in U.S. custody anywhere in the world. . . .

Bush gave his support publicly in a joint appearance with McCain in the Oval Office yesterday, one day after the House gave veto-proof support for the senator's language in a symbolic 308 to 122 vote. The Senate had already approved the provision 90 to 9. Bush praised McCain's effort.

"We've been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention [on] torture, whether it be here at home or abroad," Bush said.

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Legal specialists said the president's signing statement called into question his comments at the press conference.

''The whole point of the McCain Amendment was to close every loophole," said Marty Lederman, a Georgetown University law professor who served in the Justice Department from 1997 to 2002. ''The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism."

Elisa Massimino, Washington director for Human Rights Watch, called Bush's signing statement an ''in-your-face affront" to both McCain and to Congress.

''The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch," she said.

It will be interesting to see how Alito responds to questions during his confirmation hearing about executive branch power and the president's use of signing statements.