The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Shouldn’t A Renowned Constitutional Scholar Know That?

Posted on | April 16, 2011 | 8 Comments

by Smitty

Bernstein at Volkh raises the ugly point, emphasis mine:

Remember Iran-Contra? The problem for the Reagan Administration there was that Congress banned the president from allocating money to the Contras. The Administration, quite illegally in my view, tried to get around that ban by using funds from arm sales to Iran to subvert the Congressional ban.
At least the Reagan Administration had the decency to do this secretly, knowing that it was acting unconstitutionally. Moreover, the Reagan folks at least were able to claim that they technically weren’t violating the Congressional ban, because they weren’t using Congressionally allocated funds, but the proceeds from arms sales.
The Obama Administration, by contrast, seems to be brazenly violating the Constitution. As I tell my constitutional law students, Congress’s ultimate power is the power of the purse. If Congress objects, for example, to military action engaged in by the president, it can simply refuse to allocate funds.
But the Obama Administration’s position seems to be that so long as it issues a signing statement refusing to abide by restrictions on funding that it deems to interfere with executive prerogatives, it can simply create the funding out of thin air. If there is no statutory funding for the czars, where exactly is the money coming from?
This is a very dangerous position for the Executive branch to take, and I hope even Obama partisans will recoil at this. Imagine if a future Republican president gets the U.S. involved in a deeply unpopular war. A Democratic Congress passes a military spending bill that specifically denies the president authority to spend any additional money on that war after a 60 day period to get the troops out. The president signs the bill, but with a signing statement that says that the bill’s ban on war funding violates the separation of powers and therefore “the executive branch will construe the relevant section not to abrogate these Presidential prerogatives.” Democrats, and anyone concerned with the Constitution for that matter, would be up in arms, and rightly so.
If Obama had such serious constitutional objections to Section 2262, he had only one constitutionally proper move to make, and that was to veto the bill.

So, now what? Does Sprinklerman call the bluff, or is this just another notch in the chastity belt? These are some mighty ugly precedents. If the line is not drawn here, then where? The Libya business, and now this, seems like it points to a Mel Zelaya-esque disregard for both spirit and letter of the Constitution, as well as the centuries of development since the signing.
More at The American Thinker.
Bonus: in case you missed it, the literary event of 2009! Yes: Czar d’Oz.

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Category: Barack Obama

Comments

  • SDN

    Doesn’t matter if Sprinklerman calls the bluff or not. Unless he’s got 2/3 + 1 Senators in his pocket, O! can do whatever the hell he wants to.

    At that point, Smitty and every other US military member will have to decide if O! meets the definition of a “domestic enemy” they swore to defend the Constitution against. And if the answer is Yes, they will have to remove him from office.

  • http://www.facebook.com/profile.php?id=1385852725 Richard Mcenroe

    Czar D’Oz was a major box office failure. The enormous ears on the giant flying head made it unmanageable.

    SDN — The last time the American military had to make choices like that, 600,000 Americans died. A certain reluctance to repeat that experience is prudent and laudable.

    Remember, there are four boxes to be used in good governance: the soapbox, the ballot box, the jury box and the ammo box. The trick is using them in the right order…

  • Anonymous

    Well I suppose that answers one of my questions from earlier in the week.
    IE: What happens to all that Unspent Funding?

  • TheMadItalian

    In practice, how does this differ from a “line item veto”? The Supreme Court has already said that the line item veto is not constitutional for the President to utilize. This seems to be basically the same thing.

  • http://twitter.com/Always_On_Watch Always On Watch

    Obama knows that he’s in violation of the Constitution with this signing statement.

    What he should have done is refused to sign the bill or vetoed it. But he dared not because of exposing his agenda to more Americans, specifically those Americans who rely on the mainstream media as their primary source of information.

    I also note the timing of this recent signing statement — just before the weekend. So often such “late breaking” stories never make the news or get ignored by those outside journalism.

  • SDN

    I’d love to avoid the repeat, and I suppose we can… just depends on how much tyranny we’ll put up with.

  • DaveO

    Then-candidate Obama promised not to use Presidential signing statements. So, another lie bites the dust.

    Agree that the big question becomes: what happens to all of the unspent money? Does it become discretionary, and at who’s discretion would it be spent? Have we basically opened the vaults to the largest heist in history?

    I would not count on our military to do anything. The ghosts of 1860 still speak. There are too many servicemembers who owe their service and hopes of position to this administration, and most of the rest are just plain worn out.

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