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Dead Constitution
See other Dead Constitution Articles

Title: Bush's Absolute Power Grab
Source: Consortium News
URL Source: http://www.consortiumnews.com/2006/102106a.html
Published: Oct 25, 2006
Author: Carla Binton
Post Date: 2006-10-25 10:11:56 by Zoroaster
Keywords: None
Views: 170
Comments: 15


Bush's Absolute Power Grab By Carla Binion October 21, 2006

Editor's Note: Many Americans are in denial about what is happening to the United States. They don't want to believe that a totalitarian structure could be put in place in their own country. They don't want to view the various pieces of George W. Bush's "anti-terror" system in that broad a context. They hope that someone or something -- the Supreme Court maybe -- will strike down the excesses of the Republican-controlled Congress and the Executive Branch.

Though there are still obstacles that stand in Bush's way -- the Nov. 7 elections, for instance -- America's march down a road to a new-age totalitarianism has advanced farther than many understand, as freelance reporter Carla Binion argues in this disturbing guest essay:

On October 17, George W. Bush signed into law the Military Commissions Act of 2006. This new law gives Bush power similar to that possessed by Stalin or Hitler, and grants agencies within the Executive Branch powers similar to those of the KGB or Gestapo.

Bush justifies this act by claiming he needs it to fight the "war on terror," but a number of critics, including former counterterrorism officials, have said the administration has greatly exaggerated the threat and used illogical methods to combat terrorism. (Examples are listed below.)

Except for MSNBC's Keith Olbermann, few television news reporters have bothered to mention that the Military Commissions Act has changed the U.S. justice system and our approach to human rights. As Olbermann said of the new law on his October 17 Countdown program, the new act "does away with habeas corpus, the right of suspected terrorists or anybody else to know why they have been imprisoned."

Jonathan Turley, George Washington University Constitutional Law Professor, was Olbermann's guest. Olbermann asked him, "Does this mean that under this law, ultimately the only thing keeping you, I, or the viewer out of Gitmo is the sanity and honesty of the president of the United States?"

Turley responded, "It does. And it's a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president…People have no idea how significant this is. What, really a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values."

Although we have a free press, rather than follow Olbermann's good example, most television news reporters have responded to this nullification of America's fundamental principles by avoiding the subject. News networks which voluntarily relinquish their right and duty to challenge government officials function more as the Soviet Union's Pravda or Hitler's Nazi press program than as a genuinely free press.

Just as the mainstream media failed to adequately question the Bush administration's many shifting rationales for invading Iraq in the lead-up to the war, they're now failing to challenge Bush's logic and motives as he justifies eviscerating the Constitution in the name of his ever-expanding "war on terror." How realistic is this so-called war, and is the Bush administration conducting it effectively?

Robert Dreyfuss covers national security for Rolling Stone. He interviewed nearly a dozen former high-ranking counterterrorism officials about Bush's approach to the war on terrorism. In his article, "The Phony War," (Rolling Stone, 9/21/06) Dreyfuss says these officials conclude:

· The war on terror is bogus. Terrorism shouldn't be treated as if it were a nation to be battled with the military, but should instead be fought with police work and intelligence agencies.

· Terrorism is not an enemy, but a method. Even if the United States were to wipe out every terrorist cell in the world today, terrorism would be back tomorrow.

· Bush lacks a clear understanding of the nature of the "enemy" and has no real strategy for dealing with them.

· The Bush administration confuses the issue by grouping "Al Qaeda" with everything from Iraq's resistance movement to states such as Syria and Iran.

· Today, there's virtually no real "Al Qaeda threat" to Americans.

· Bush's policies have spawned a new generation of "amateur terrorists," but there are few of them, and they're not likely to pose a major threat to the U.S.

· Though Bush has said he will fight his "war" until every last terrorist is eliminated, terrorism can never be defeated, merely "contained and reduced."

Dreyfuss says, "In the short term, the cops and spies can continue to do their best to watch for terrorist threats as they emerge, and occasionally, as in London, they will succeed. But they are the first to admit that stopping a plot before it can unfold involved, more than anything, plain dumb luck."

Not only has the Bush administration falsely characterized and exaggerated the threat of terrorism; they have gone out of their way to mislead the public by claiming credit for preventing attacks. Dreyfuss points out that although Bush has claimed we've fended off 10 terrorist plots since 9/11, "on closer examination all 10 are either bogus or were to take place overseas."

Dreyfuss also notes that, although in 2002 the Bush administration leaked to the press that Al Qaeda had 5,000 "sleepers" in the U.S., there were, in fact, none. (Or, as Dreyfuss says, not a single one has been found.) If the administration believes the facts bolster their case for a war on terrorism, why do they find it necessary to leak false information?

The administration has done little to secure U.S. borders, ports, airports and nuclear facilities. What could logically explain their inattention to these vulnerabilities if they believe a terrorist threat here is likely? Bush has said he'll do anything it takes in order to protect the American people. Why hasn't he secured our nuclear facilities?

Exaggerating the terrorist threat does give the Bush team an excuse to seize more power for the Executive and shred the Constitution. In an article for Foreign Affairs (September/October 2006), political science professor John Mueller supports Dreyfuss's view that the war on terrorism is bogus.

Mueller points out that not only have there been no terrorist incidents here in the past five years, but there were none in the five years before 9/11. Mueller asks: "If it is so easy to pull off an attack and if terrorists are so demonically competent, why have they not done it? Why have they not been sniping at people in shopping centers, collapsing tunnels, poisoning the food supply, cutting electrical lines, derailing trains, blowing up oil pipelines, causing massive traffic jams, or exploiting the countless other vulnerabilities that, according to security experts, could be so easily exploited?"

He also bolsters Dreyfuss's conclusion that the Bush administration can't take credit for the fact that we haven't been attacked again. He says, "the government's protective measures would have to be nearly perfect to thwart all such plans. Given the monumental imperfection of the government's response to Hurricane Katrina, and the debacle of FBI and National Security Agency programs to upgrade their computers to better coordinate intelligence information, that explanation seems far-fetched."

Mueller addresses Bush's irrational argument that we're "fighting terrorists in Iraq so we don't have to fight them here." He points out that terrorists with Al Qaeda sympathies have managed to carry out attacks in a variety of countries (Egypt, Jordan Turkey, the United Kingdom), not merely in Iraq.

He adds that a reasonable explanation for the fact that no terrorists have attacked since 9/11 is that the terrorist threat "has been massively exaggerated." He notes that "it is worth remembering that the total number of people killed since 9/11 by Al Qaeda or Al Qaeda-like operatives outside of Afghanistan and Iraq is not much higher than the number who drown in bathtubs in the United States in a single year, and that the lifetime chance of an American being killed by international terrorism is about one in 80,000 - about the same chance of being killed by a comet or a meteor."

Although Bush's justification for the war on terror has been illogical and deceptive, the administration has used it as an excuse to abuse the U.S. military in Iraq, tear down our system of government at home and seize power on his own behalf. As Jonathan Turley told Keith Olbermann on his October 17th program, with the signing of the Military Commissions Act, "Congress just gave the president despotic powers…I think people are fooling themselves if they believe that the courts will once again stop this president from taking - overtaking - almost absolute power."

Bush's many power grabs and refusal to submit to usual constitutional checks and balances indicates he prefers monarchy or dictatorship to the government set up by America's founders. The framers of our Constitution provided checks on tyranny by writing into law separation of powers, granting the legislative and judicial branches of government the ability to curb abuses by the executive. Today, the Congress has abdicated its constitutional obligation and serves only as a rubber stamp for the despotic president, and to date, the courts have done much the same.

Can George W. Bush be trusted with absolute power? Here are some things he has done with his unchecked power:

· Stolen two presidential elections.

· Exaggerated and falsely characterized the terrorist threat.

· Misled the country into war with Iraq.

· Urged the U.S. intelligence agencies to fix the intelligence around the Iraq war policy (as confirmed by the Downing Street Memo and other sources) in order to mislead the Congress and public into supporting war with Iraq.

· Abused human rights by promoting the use of torture and setting up virtual gulags.

· Suspended habeas corpus for some.

· Tried to silence political opposition by pronouncing them "weak on terrorism" or somehow "with the terrorists," and

· Placed himself above the law by issuing more legislation-challenging signing statements (around 800) than all of his predecessors put together.

Bush's unnecessary invasion of Iraq alone has cost nearly 3,000 American lives. An October 11, 2006 article by Greg Mitchell at Editor and Publisher says that a new study from the Johns Hopkins Bloomberg School of Public Health, "suggests that more than 600,000 Iraqis have met a violent or otherwise war-related end since the U.S. arrived in March 2003."

The Bush administration's policies have not only resulted in high death counts, but also in widespread, out of control torture. A September 22, 2006 Christian Science Monitor report says:

"The United Nation's special investigator on torture said Thursday that torture may now be worse in Iraq than it was during the regime of deposed leader Saddam Hussein. The Associated Press reports that Manfred Nowak, who was making a brief to the United Nations Human Rights Council about the treatment of detainees at the U.S. prison in Guantanamo Bay Cuba, said the torture situation in Iraq was 'totally out of hand.'"

The CS Monitor mentions the fact that the recent compromise between the Bush White House and dissident Republicans (including Senator John McCain) allows torture to continue. The article quotes a Washington Post piece:

"The bad news is Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects…It's hard to credit the statement by [McCain] yesterday that 'there's no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved.' In effect, the agreement means that U.S. violations of international human rights law can continue as long as Mr. Bush is president, with Congress's tacit assent."

Congress has given Bush a blank check as he's bulldozed toward an imperial presidency. We have the outward forms of democratic institutions such as Congress and a so-called free press. However, the people currently managing those institutions behave as if they're being forced to serve a totalitarian dictator.

A perfect example of this surrender to Bush's virtual despotism is Congress's and the mainstream media's compliance regarding Bush's Military Commissions Act. While Keith Olbermann and Jonathan Turley see the extreme danger posed by Bush's authoritarian moves, Congress has done little to challenge Bush, and, overall, the press is eerily silent.

In The Rise And Fall Of The Third Reich, William L. Shirer said the Reich Press Law of October 4, 1933, ordered editors not to publish (among other things) anything which "tends to weaken the strength of the German Reich or offends the honor and dignity of Germany." According to Shirer, Max Amman, Hitler's top sergeant during the war and head of the Nazi Party's publishing firm and financial head of its press said that after the Nazis seized power in 1933, it was "a true statement to say that the basic purpose of the Nazi press program was to eliminate all the press which was in opposition to the party."

The U.S. mainstream press doesn't have to be coerced by a government Press Law to avoid publicly opposing Bush's most egregious policies. Television news networks, in particular, have voluntarily held back serious scrutiny. They have not only failed to discuss the recent Military Commissions Act at length, but in the run-up to the Iraq war, liberal talk show host Phil Donahue and comedian Bill Maher were fired for challenging the White House spin about Iraq and the 9/11 attacks.

Shirer also describes the ease with which the German Reichstag gave Hitler the power to change the nature of Germany's parliamentary democracy. He writes:

"One by one, Germany's most powerful institutions now began to surrender to Hitler and to pass quietly, unprotestingly, out of existence…It cannot be said they went down fighting. On May 19, 1933, the Social Democrats - those who were not in jail or in exile - voted in the Reichstag without a dissenting voice to approve Hitler's foreign policy."

Shirer concludes: "The one-party totalitarian state had been achieved with scarcely a ripple of opposition or defiance, and within four months after the Reichstag had abdicated its democratic responsibilities."

The U.S. Congress, like the German Reichstag, has abdicated its democratic responsibilities by granting Bush an inordinate amount of power - "with scarcely a ripple of opposition or defiance." The U.S. press has abandoned its role as democracy's watchdog by failing to question this development. Both of these institutions have failed the American people.

Considering Bush is using the war on terror to justify seizing undue power, both Congress and the media should question his reasoning and offer opposition. Just as they didn't effectively challenge the administration's shifting excuses for attacking Iraq, these institutions haven't scrutinized Bush's claims about the need for the Military Commissions Act and the apparently endless war on terrorism.

Among things Congress and the media should challenge is George W. Bush's false claim that the United States does not torture. In an article published at the http://CommonDreams.org site, journalist Molly Ivins reports that in one case of death from torture by Americans, the military at first said the prisoner's death was caused by a heart attack. Ivins adds that the coroner later said the heart attack occurred after the prisoner "had been beaten so often on his legs that they had 'basically been pulpified.'"

She adds that the Bush administration's officially sanctioning torture "throws out legal and moral restraints as the president deems necessary -- these are fundamental principles of basic decency, as well as law." Ivins isn't inclined to hyperbole, yet she says of Americans' passive acceptance of this new law: "Do not pretend to be shocked when the world begins comparing us to the Nazis."

As Jonathan Turley said on Olbermann's program, "I think you can feel the judgment of history. It won't be kind to President Bush. But frankly, I don't think that it will be kind to the rest of us. I think that history will ask, 'Where were you? What did you do when this thing was signed into law?' There were people that protested the Japanese concentration camps; there were people that protested these other acts. But we are strangely silent in this national yawn as our rights evaporate."

Future generations will wonder why the U.S. Congress and mainstream press helped Bush build up an imperial presidency and eliminate Constitutional protections. If they're able to sort through the administration's fallacies and lies and clearly see what went wrong with America during this time, they'll wonder why there were so few Molly Ivins's, Keith Olbermann's and Jonathan Turley's.

Coming generations will also ask why by comparison there were so many who failed to notice the obvious holes in Bush's logic and why so many turned a blind eye to his numerous false assertions and cruel policies. They'll wonder why so many supported, whether by direct action or by silence, the Bush administration's changing the fundamental nature of the democratic Republic we were given by America's founders, based on the flimsy excuse of fighting a war on terrorism - a "war" Bush defines falsely and fights ineffectively.

Generations to come might ask why this president who lied so often, about Iraq and other critical matters, was ever entrusted with enough power to damage this country's founding principles and wage endless, unprovoked war on other nations. If Congress and the media would ask these questions now, they might prevent Bush from doing further harm. This might save many lives, prevent much unnecessary suffering and possibly steer this country out of its present darkness.


Carla Binion is a freelance researcher and writer whose essays have been published at various Web sites.

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Begin Trace Mode for Comment # 6.

#5. To: Zoroaster (#0)

Military Commission Act Not Lawfully Passed President’s Inaction Equals ‘Pocket Veto’ by Pat Shannan

Talk show host Alex Jones’ brief interview last week with an unknown caller has sent constitutionists and legal researchers scurrying for the law books.

“The Military Commission Act is not law!” the man barked. “The ‘pocket veto’ clause of the constitution has already nullified it.”

He then pointed out to the national radio audience exactly what the part about “pocket veto” in Article One, Section 7 of the U. S. Constitution means. Indeed, it appears that President Bush’s signing of the infamous “6166,” which in effect eliminates the 4th Amendment protection of citizens in their homes and a whole lot more, is moot. He was too late.

Now Jones and many others are wondering, who in an official capacity is going to point this out and enforce it?

Here is what the law says and what happens when a sitting president sticks a bill passed by congress into his pocket instead of signing it and sending it back:

A Pocket Veto occurs when the President fails to sign a bill within the 10 days allowed by the Constitution. Congress must be in adjournment in order for a pocket veto to take effect. If Congress is in session and the president fails to sign the bill, it becomes law without his signature. Now to the current specifics. From the U.S. Constitution Article 1, Section 7: "...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 prevents its Return, in which Case it shall not be a Law." Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden. A pocket veto is a legislative maneuver in American federal lawmaking. The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays). If he does not, then it becomes law by default. The one exception to this rule is if Congress adjourns before the ten days are up. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. Ignoring legislation, or "putting a bill in one's pocket" until Congress adjourns is thus called a pocket veto. Congress passed 6166 on September 29th, presented it to the President on October 10th, and adjourned on October 13th. Bush signed it on October 17th, the week after Congress had adjourned, thereby rendering it “vetoed” by constitutional standards. On September 6, 2006, President Bush asked Congress to pass the Military Commission Act of 2006. This Act – among other things – sought to re-define U.S. obligations under Common Article 3 of the Geneva Conventions, international treaties signed by every country in the world. Common Article 3 places an absolute prohibition on inhumane treatment of detainees during an armed conflict. Specifically, the President wanted Congress to replace the absolute prohibition on inhumane treatment of Common Article 3 with a "flexible" standard, which would assess on a case-by-case basis whether particular conduct would amount to cruel, inhuman or degrading treatment. Human Rights First criticized the Administration's proposal for adding ambiguity to an otherwise clear standard of Common Article 3, and would open the door to more Abu Ghraib-style abuses. In response to the administration's proposal, more than 45 retired senior military leaders wrote to members of the U.S. Senate expressing their opposition to redefining Common Article 3 on the grounds that it would compromise the safety of U.S. Service men and women. They were joined by Former Secretary of State Colin Powell and former U.S. Chairmen of the Joint Chiefs of Staff John Vessey, Hugh Shelton, and William Crowe, who also sent letters expressing their opposition to redefining Common Article 3. Spearheaded by Republican Senators John McCain, John Warner, and Lindsey Graham, the Senate Armed Services Committee passed an alternative bill, sponsored by McCain, Warner, and Graham, that preserves Common Article 3. The Administration then agreed to negotiate with the key Senators, and a compromise was reached on September 21, which preserved the meaning and requirements of Common Article 3. Human Rights First welcomed this aspect of the compromise. Human Rights First opposed the final version of the Military Commissions Act, however, because it contained a number of provisions that raised serious concerns about compliance with the Geneva Conventions and with fundamental fair trial and due process principles. Among the most troubling aspects of the Military Commissions Act are provisions that purport to: · Grant unprecedented and unchecked authority to the Executive Branch to label as “unlawful enemy combatants”, and possibly to detain indefinitely, an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States · Deny independent judicial review, through habeas, of detentions of U.S. legal permanent residents and non-citizens · Limit the sources of law to which the courts may look and the scope of review on appeal · Narrow the scope of the War Crimes Act and seek to eliminate accountability for past violations of the law by the president and his administration. · Permit evidence obtained through coercion to be used in the military commission proceedings, with certain limitations. · Permit the introduction of classified evidence against the accused even if the accused has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence. · Restrict full disclosure to the accused of exculpatory evidence · Give the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials Courts have never fully clarified when an adjournment by Congress would "prevent" the President from returning a vetoed bill. Some Presidents have interpreted the Constitution to restrict the pocket veto to the adjournment sine die of Congress at the end of the second session of the two-year Congressional term, while others interpreted it to allow intersession and intrasession pocket vetoes. In 1929, the United States Supreme Court ruled that a bill had to be returned to the chamber while it is in session and capable of work. A three-day recess of the Senate was considered a short enough time that the Senate could still act with "reasonable promptitude" on the veto. However, a five-month adjournment would be a long enough period to enable a pocket veto. Within those constraints, there still exists some ambiguity; Presidents have been reluctant to pursue disputed pocket vetoes to the Supreme Court for fear of an adverse ruling that would serve as a precedent in future cases[1].

For matters regarding the authority of the federal government, the place to start the analysis is with the United States Code. In 1 U.S.C. § 106a, we find the following: Section 106a. Promulgation of laws Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President, or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Archivist of the United States from the President; and whenever a bill, order, resolution, or vote is returned by the President with his objections, and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both Houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Archivist of the United States from the President of the Senate, or Speaker of the House of Representatives in whichsoever House it shall last have been so approved, and he shall carefully preserve the originals.

Attorney and constitutional expert Harmon Taylor of Dallas, Texas harbors some consternation about the federal courts disregarding the constitution in recent years and ruling on federal statutes and court precedent.

He points out, “This language is curiously silent regarding the "10-day Rule" set forth in Art. I, § 7, cl. 2. It is also noticeably silent about adjournment and any effect that adjournment may have on the "’10-day Rule.’

”Therefore, the next source to check is judicial construction, and the best starting place for that is with Supreme Court opinions. While Clinton v. City of New York, 524 U.S. 417 (1998), specifically addresses and thwarts executive law-making efforts via the so-called "Line Item Veto," and, so, is not directly on point with our current question, it's very helpful on the applicability of Art. I, § 7, cl. 2, generally, thus, the "10-day Rule," in particular. The Court cites the law-making procedure in full in n.28. Clinton, 524 U.S. at 438-39 n.28. Even more importantly, the Court identifies that the "veto" power being analyzed is read in terms of the whole context. This is the point raised by n.29.

Applying that to the present circumstance, it's difficult to picture how the Supreme Court would read the whole of Art. I, § 7, cl. 2 for purposes of "veto" analysis but then read only part of it for purposes of a question under the "10-day Rule." So, where all of Art. I, § 7, cl. 2 is material, then both the "10-day Rule" and "adjournment" are material procedural facts in determining whether an act by the "congress" and presented to the "president" actually produced federal law.”

Taylor also pointed out to us that a separate new question arises as to whether the congress may enact legislation inconsistent with the Geneva Conventions to which the federal government is a signatory. In the recent case of Hamdan v. Rumsfeld, __ U.S. __, 126 S. Ct. 2749 (2006), the Supreme Court clearly identified several variances between the "military commission" process being utilized by the present administration and the trial process contemplated by the Geneva Convention. Should it turn out that the most recent legislation implements that same, or a very similar, "military commission" trial process, already characterized by the Court as "illegal," then the question arises as to whether legislation that strays from the Geneva Convention standards is federal law.

“The answer may seem intuitively obvious,” Taylor said, “but this one will take some additional study and reflection. Your conclusions are correct, constitutionally speaking,” he said, referring to President Bush’s delayed signing of the bill, “but you can bet that the Supreme Court, if it comes to that, will do everything it can to avoid making a constitutionally based decision.”

Indeed. Even as the most amateurish constitutional historians realize, we have not been able to keep the republic Ben Franklin feared we could not 220 years ago. Now it seems we may have to be concerned with that piece of philosophy from Mao -- the one about “Power coming out of the barrel of a gun.” =======================================

Pat Shannan's Explosive Report! THE PHOTOGRAPHIC EVIDENCE OF APPARENT EXPLOSIONS ... "Pat Shannan's Investigative Reports" national broadcasts ...

SOURCE: http://disc.server.com/discussion.cgi?disc=149495;article=105629;title=APFN http://www.patshannan.com/index.html

Itisa1mosttoolate  posted on  2006-10-25   17:18:21 ET  Reply   Untrace   Trace   Private Reply  


#6. To: Itisa1mosttoolate, Zoroaster, Christine (#5)

Talk show host Alex Jones’ brief interview last week with an unknown caller has sent constitutionists and legal researchers scurrying for the law books.

“The Military Commission Act is not law!” the man barked. “The ‘pocket veto’ clause of the constitution has already nullified it.”

He then pointed out to the national radio audience exactly what the part about “pocket veto” in Article One, Section 7 of the U. S. Constitution means. Indeed, it appears that President Bush’s signing of the infamous “6166,” which in effect eliminates the 4th Amendment protection of citizens in their homes and a whole lot more, is moot. He was too late.

* * *

Congress passed 6166 on September 29th, presented it to the President on October 10th, and adjourned on October 13th. Bush signed it on October 17th, the week after Congress had adjourned, thereby rendering it “vetoed” by constitutional standards.

Additional sources cited within Edwards which is quoted below:

LA ABRA SILVER MIN CO v. UNITED STATES 175 U.S. 423 (1899)

THE POCKET VETO CASE, 279 U.S. 655 (1929)

-------------------------

The whole argument served up by the Alex Jones call has no legal merit. President Bush signed the bill into law well within the 10-day limit. That Congress had adjourned is irrelevant.

As the Supreme Court stated, precisely on point, in Edwards v. United States in 1932, "The provision that a bill shall not become a law if its return has been prevented by the adjournment of Congress is apposite to bills that are not signed, not to those that are signed."

The Court further stated, "The authority of the President to approve bills during a recess of the Congress, but within the time fixed by the Constitution, has been sustained by this Court. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S. Ct. 168. ... the reasoning of the opinion applies with as much force to the case of an adjournment, whether it is at the close of a session or is the final adjournment of the Congress, as to the case of a recess for a specified period."

U.S. Supreme Court
EDWARDS v. UNITED STATES, 286 U.S. 482 (1932)
286 U.S. 482

EDWARDS
v.
UNITED STATES.
No. 790.

Argued April 11, 1932.
Decided May 31, 1932.

Attorney General Mitchell for the United States.[ Edwards v. United States 286 U.S. 482 (1932) ]

Mr. M. Walton Hendry, of Washington, D. C., for Edwards.

Mr. Hatton W. Summers, of Dallas, Tex., for the Judiciary Committee of the House of Representatives, as amicus curiae, by special leave of Court.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Private Bill No. 510 of the 71st Congress (chapter 595, 46 Stat. 2163) provided that the Court of Claims should have jurisdiction to adjudicate a certain claim of the plaintiff against the government. The court states that the bill was approved by the President on March 5, 1931, that is, within ten days (Sundays excepted) after it was presented to him, but after the final adjournment of the Congress which passed it. The following question is certified:

'Did the Act of March 5, 1931 (46 Stat. 2163), becomes law when it was approved by the President on March 5, 1931, after the final adjournment on March 4, 1931, of the Congress which had passed it?'

No difference of opinion between the parties as to the validity of the measure, as thus approved, is disclosed in the argument at bar. The President approved the bill upon the advice of the Attorney General (36 Op. Attys. Gen. 403) who, in accord with the plaintiff, submits that the certified question should be answered in the affirmative. In view of the opinion at one time expressed by the Judiciary Committee of the House of Representatives (H. R. Report No. 108, 38th Cong., 1st sess., June 11, 1864), the Attorney General advised the Judiciary Committee of that House of the pendency of the present cause, and we granted to Mr. Sumners, the chairman of that Committee, at his request, leave to appear as amicus curiae. He has stated to the Court that the Judiciary Committee of the House of Representatives is now of the opinion that the President has the power asserted and he has presented an argument in support of the President's action. While no contention to the contrary has been urged upon us in the instant case, our attention has been directed to opposing views strongly held in the past, and these-no less than those now advanced- we have carefully considered in reaching our conclusion.

The question arises under the second paragraph of section 7 of article 1 of the Constitution, which reads as follows:

'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. ... 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.'

The last sentence of this provision clearly indicates two definite and controlling purposes: First, to insure promptness and to safeguard the opportunity of the Congress for reconsideration of bills which the President disapproves; hence, the fixing of a time limit so that the status of measures shall not be held indefinitely in abeyance through inaction on the part of the President. Second, to safeguard the opportunity of the President to consider all bills presented to him, so that it may not be destroyed by the adjournment of the Congress during the time allowed to the President for that purpose. As this Court said in The Pocket Veto Case, 279 U.S. 655, 677, 678 S., 49 S. Ct. 463, 466, 64 A. L. R. 1434: 'The power thus conferred upon the President cannot be narrowed or cut down by Congress, nor the time within which it is to be exercised, lessened, directly or indirectly.' The constitutional provision is explicit as to the consequences in case the bill is not signed by the President within the time fixed. The bill then becomes a law, unless the Congress by adjournment has prevented the return of the bill, and, in the latter event, it is not to be a law. But the provision is not explicit as to the consequence in case the bill is approved by the President within the time fixed and in the meantime the Congress has adjourned.

The proceedings and debates of the Constitutional Convention throw no light upon this question. See The Pocket Veto Case, supra, at page 675 of 279 U. S., 49 S. Ct. 463. Nor has the provision received a practical construction so positive and consistent as to be determinative. The general practice of Presidents, in being present at the Capitol for the purpose of signing bills during the closing hours of the sessions of the Congress, has indicated the existence of doubt and the desire to avoid controversy. [1] It appears that the question was raised during the administration of President Monroe, and, in view of a difference of opinion among his advisers, the bill in question was not signed. [2] President Lincoln, on March 12, 1863, approved a bill after the Congress had adjourned sine die on March 4, 1863, the bill having been passed on March 3, 1863 (chapter 120, 12 Stat. 820). This action was not left unchallenged. The Judiciary Committee of the House of Representatives made a unanimous report, in response to a resolution of the House, that the act was not in force. [3] It does not appear that the House acted upon this report. But the Congress soon after passed an act which referred to the Act of March 12, 1863, as having been approved, and added to its provisions. Act of July 2, 1864, c. 225, 13 Stat. 375. [4] The Act of March 12, 1863, was the subject of several decisions of this Court, and in these no question appears to have been raised as to its validity in view of the time of its approval by the President. [5] President Johnson refused to sign a bill which he received on April 1, 1867, as the Congress had taken a recess from March 30, 1867, to July 3, 1867. [6]

It appears that President Cleveland was urged to approve a bill after the adjournment of the Congress, but he did not do so. [7] President Harrison, acting on the advice of Attorney General Miller (20 Op. Attys. Gen. 503), signed a number of bills during a recess of the Congress. Upon the opinion of Attorney General Palmer that the action was constitutional (32 Op. Attys. Gen. 225), President Wilson singed several bills after the adjournment sine die of the Second Session of the Sixty-Sixth Congress. [8] This precedent was followed in the instant case by President Hoover, relying upon the opinion of Attorney General Mitchell that there was no ground for a distinction as to the President's power in this respect between the case of adjournment at the close of a session and the final adjournment of the Congress.

The authority of the President to approve bills during a recess of the Congress, but within the time fixed by the Constitution, has been sustained by this Court. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S. Ct. 168. It appeared in that case that on December 22, 1892, two days after presentation of the bill to the President, the Congress had taken a recess until January 4, 1893. The bill was signed by the President on December 28, 1892. The Court expressly reserved the question, as one not before the Court, whether the President could approve a bill 'after the final adjournment of Congress for the session.' But the reasoning of the opinion applies with as much force to the case of an adjournment, whether it is at the close of a session or is the final adjournment of the Congress, as to the case of a recess for a specified period.

The Court effectively answered the opposing contention based upon the legislative character of the President's function in approving or disapproving bills. See Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. -. The fact that it is a legislative function does not mean that it can be performed only while Congress is in session. The President acts legislatively under the Constitution, but he is not a constituent part of the Congress. [9] In the La Abra Case the Court said (p. 454 of 175 U. S., 20 S. Ct. 168, 178): 'It is said that the approval by the President of a bill passed by Congress is not strictly an executive function, but is legislative in its nature; and this view, it is argued, conclusively shows that his aproval can legally occur only on a day when both Houses are actually sitting in the performance of legislative functions. Undoubtedly the President when approving bills passed by Congress may be said to participate in the enactment of laws which the Constitution requires him to execute. But that consideration does not determine the question before us. As the Constitution, while authorizing the President to perform certain functions of a limited number that are legislative in their general nature, does not restrict the exercise of those functions to the particular days on which the two Houses of Congress are actually sitting in the transaction of public business, the court cannot impose such a restriction upon the Executive.' From this point of view, and so far as the character of the President's function is concerned, it obviously makes no difference whether the Congress has adjourned sine die or to a day named.

The Court's reasoning in the case cited also meets the objection that, if the President may approve bills after adjournment, his action would be free of any limitation of time. The constitutional provision does not admit of such a construction. The intention is clearly shown that in any event the President must act within the prescribed ten days, and the opinion in the La Abra Case is explicit as to the President's duty in this respect. The Court said (pages 453, 454 of 175 U. S., 20 S. Ct. 168, 178): 'The time within which he (the President) must approve or disapprove a bill is prescribed. If he approve a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duly presented to him-if the bill is to become a law merely by virture of such approval-must be manifested by his signature within ten days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him.' But, if this limitation of time applies to the President's action when the Congress is in recess, it is apparent that the limitation equally governs his action when the Congress has adjourned. The constitutional provision affords no basis for a distinction between the two cases.

There is nothing in the words of the Constitution which prohibits the President from approving bills, within the time limited for his action, because the Congress has adjourned, and the spirit and purpose of the clause in question forbid the implication of such a restriction. The provision that a bill shall not become a law if its return has been prevented by the adjournment of Congress is apposite to bills that are not signed, not to those that are signed. There is no requirement that bills that are signed should be returned. No further action is required by Congress in respect of a bill which has been presented to the President, unless he disapproves it and returns it for reconsideration as the Constitution provides. We may quote again from the opinion in the La Abra Case (Id.): 'It has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded. But the essential thing to be done in order that a bill may become a law by the approval of the President is that it be signed within the prescribed time after being presented to him. That being done, and as soon as done, whether Congress is informed or not by message from the President of the fact of his approval of it, the bill becomes a law, and is delivered to the Secretary of State as required by law.' [10]

Another objection has been raised that, if the authority of the President to approve bills continues after adjournment of the Congress, an incoming President might approve bills passed during the official term of his predecessor. [11] But it does not follow that because an incoming President, to whom a bill has not been presented by the Congress, cannot approve it, that a continuing President, to whom a bill has been presented by the Congress, must be debarred of his opportunity to give his approval within the time which the Constitution has prescribed.

Regard must be had to the fundamental purpose of the constitutional provision to provide appropriate opportunity for the President to consider the bills presented to him. The importance of maintaining that opportunity unimpaired increases as bills multiply. The Attorney General calls attention to the fact that at the time here in question, that is, between February 28, 1931, and noon of March 4, 1931, 269 bills were presented to the President for his consideration, 184 of which were presented to him during the last twenty-four hours of the session. No possible reason, either suggested by constitutional theory or based upon supposed policy, appears for a construction of the Constitution which would cut down the opportunity of the President to examine and approve bills merely because the Congress has adjourned. No public interest would be conserved by the requirement of hurried and inconsiderate examination of bills in the closing hours of a session, with the result that bills may be approved which on further consideration would be disapproved or may fail although on such examination they might be found to deserve approval.

In the instant case, the President, to whom the bill was presented, approved it within the time prescribed by the Constitution, and upon that approval it became a law. The question certified is answered in the affirmative.

It is so ordered.

Footnotes

[ Footnote 1] See Memoirs of John Quincy Adams (1875), vol. 7, pp. 233, 234.

[ Footnote 2] John Quincy Adams gives the following account of this incident:

'Another question discussed was, whether the President could now sign the Act concerning the Florida wreckers, which was examined and actually announced to the House as having been signed, but accidentally, among forty or fifty other Acts approved the last evening before the close of the session, remained without his signature. Could the President sign an Act, Congress not being in session? Wirt thought he could. So did I. The article of the Constitution concerning the signature of the President to Acts of Congress was read and analyzed. Nothing in it requiring that the President should sign while Congress are in session.

'Calhoun said that uniform practice had established a practical construction of the Constitution.

'I observed that the practice had merely grown out of the precedents in the British Parliament. But the principles were different. The King was a constituent part of Parliament, and no Act of Parliament could be valid without the King's approbation. But the president is not a constituent part of Congress, and an Act of Congress may be valid as law without his signature or assent.

'Calhoun still thought that the uniform practice made the law. ... And as the Act was to commence its operation only in October, and was not of an urgent character, it was concluded to be the safest course to leave the Act unsigned, and state the facts to Congress at their next session.' Memoirs of John Quincy Adams (1875), vol. 6, pp. 379, 380.

[ Footnote 3] The Committee said that the act had been approved by the President 'under the belief that the last clause of the section of the Constitution, above quoted, was designed more especially to prevent Congress from enacting laws without the approval of the Executive, which might be done by the passage of bills by the two houses, followed by an adjournment, before the President could examine and return them, were it not for the declaration that in such cases the bills shall not be laws; and did not relate to cases wherein the Executive should approve bills sent to him by Congress within ten days, even though an adjournment should occur before the return of the bills.

'That there is force and plausibility in this position, a little reflection will discover to any mind; but the committee cannot receive it as a correct interpretation of the Constitution.

'The ten days' limitation contained in the section above quoted refers to the time during which Congress remains in session, and has no application after adjournment. Hence if the Executive can hold a bill ten days after adjournment, and then approve it, he can as well hold it ten months before approval. This would render the laws of the country too uncertain, and could not have been intended by the framers of the Constitution.

'The spirit of the Constitution evidently requires the performance of every act necessary to the enactment and approval of laws to be perfect before the adjournment of Congress.

'The committee, therefore, conclude that the act referred to, approved March 12, 1863, is not in force; and in this conclusion the committee are unanimous.' H. R. Report No. 108, 38th Cong., 1st Sess., June 11, 1864.

[ Footnote 4] Other references to the Act of March 12, 1863, as approved, are found in the Act of July 28, 1866, c. 298, 8, 14 Stat. 329; Act of July 27, 1868, c. 276, 3, 15 Stat. 243.

[ Footnote 5] Mrs. Alexander's Cotton, 2 Wall. 404, 420, 423; United States v. Anderson, 9 Wall. 56, 64; In re Zellner, 9 Wall. 244, 245, 666; United States v. Padelford, 9 Wall. 531, 540; United States v. Klein, 13 Wall. 128; Carroll v. United States, 13 Wall. 151; Armstrong v. United States, 13 Wall. 154; Pargoud v. United States, 13 Wall. 156. See Hodges v. United States, 18 Ct. Cl. 700; United States v. Weil, 29 Ct. Cl. 523.

[ Footnote 6] President Johnson filed the bill in the State Department with an indorsement, stating his belief that approval in these circumstances was not authorized by the Constitution. 4 Hinds' Precedents, 3493. A resolution directing the re-enrollment of the bill was passed by the House of Representatives but not by the Senate. Id.

[ Footnote 7] The statement has been made that Attorney General Garland advised President Cleveland that he was without authority to sign bills after Congress had adjourned (see 32 American Law Review, p. 212), but we are informed that there is no record in the Department of Justice of any opinion by Attorney General Garland upon the subject. See 36 Op. Attys. Gen. at page 404.

[ Footnote 8] The session adjourned sine die on June 5, 1920, 41 Stat. 363, 1639. The following bills were subsequently approved by the President: Act of June 10, 1920, c. 285, 41 Stat. 1063 (16 USCA 791-823); Acts of June 14, 1920, cc. 286, 287, 288, 289, 290 and 291, 41 Stat. 1077-1079. See 30 Yale Law Journal, 1.

[ Footnote 9] See Note 2.

[ Footnote 10] Compare Seven Hickory v. Ellery, 103 U.S. 423; People v. Bowen, 21 N. Y. 517; State ex rel. Belden v. Fagan, 22 La. Ann. 545; Solomon v. Commissioners, 41 Ga. 157; Lankford v. County Commissioners of Somerset County, 73 Md. 105, 20 A. 1017, 22 A. 412, 11 L. R. A. 491.

[ Footnote 11] See opinion of Chief Justice Richardson in United States v. Weil, 29 Ct. Cl. 523, 549.

nolu_chan  posted on  2006-10-26   6:35:56 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 6.

#7. To: nolu_chan, christine, Itsalmosttoolate (#6)

What if the War Party retains control of both chambers of Congress in November? It may be a bit of a stretch on my part, but a War Party victory would provoke civil unrest and the Military Commissions Act could be the pretense for policing up dissenters. The fix may be in with the electronic voting systems, which may be why Bush and Rove are so confident of victory.

Zoroaster  posted on  2006-10-26 07:07:15 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 6.

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