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A Fourth of July Quotabull

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The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

— from the Declaration of Independence; July 4, 1776.

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.

— from a March 13, 2006, signing statement by President Bush explaining how he will interpret the USA PATRIOT Improvement and Reauthorization Act of 2005; despite oversight provisions in the law that directed he inform Congress regarding the FBI’s use of the act’s expanded police powers, President Bush, in effect, told Congress he felt no obligation to do so; emphasis added.

In the annals of the human race, the separation of one people into two, is an event of no uncommon occurrence. The successful resistance of a people against oppression, to the downfall of the tyrant and of tyranny itself, is the lesson of many an age, and of almost every clime. It lives in the venerable records of Holy Writ. It beams in the brightest pages of profane history.

— from “An address, delivered at the request of the committee of arrangements for celebrating the anniversary of Independence, at the City of Washington on the Fourth of July 1821 upon the occasion of reading The Declaration of Independence” by John Quincy Adams.

Provisions of the Act, such as sections 2104 and 6024, purport to require congressional committee approval prior to certain obligations or expenditures of funds appropriated by the Act. The executive branch shall construe such provisions to require only prior notification to congressional committees, as any other construction would be contrary to the constitutional principles set forth by the Supreme Court of the United States in 1983 in INS v. Chadha.

— from an Aug. 2, 2005, signing statement by President Bush attached to the Department of Interior, Environment, and Related Agencies Appropriations Act, 2006; emphasis added.

Now even as we speak, there are those who are preparing to divide us — the spin masters, the negative ad peddlers who embrace the politics of “anything goes.” Well, I say to them tonight, there is not a liberal America and a conservative America — there is the United States of America. There is not a Black America and a White America and Latino America and Asian America — there’s the United States of America.

The pundits, the pundits like to slice-and-dice our country into Red States and Blue States; Red States for Republicans, Blue States for Democrats. But I’ve got news for them, too. We worship an “awesome God” in the Blue States, and we don’t like federal agents poking around in our libraries in the Red States. We coach Little League in the Blue States and yes, we’ve got some gay friends in the Red States. There are patriots who opposed the war in Iraq and there are patriots who supported the war in Iraq. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.

— from the keynote address by Sen. Barack Obama to the 2004 Democratic Convention; July 27, 2004.

I cannot give you that list.

— response of Michelle Boardman, deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice, after Sen. Edward Kennedy, D-Mass., asked her during a Senate Judiciary Committee hearing to provide a list of laws that President Bush has decided, through signing statements, not to enforce; June 28, 2006.

I am proud that we worked together with such bipartisan spirit in the weeks following the despicable attacks on our Nation. My Administration will work together with the Congress to address additional needs as they become known during the second session of the 107th Congress.

— from a Jan. 10, 2002, signing statement by President Bush attached to the Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act of 2002; emphasis added.

A realistic president recognizes that he is president within the Constitution and that the Constitution provides the framework in which he can exert considerable power. But the power depends on persuasion, and it depends on consent. And our great presidents have, on the whole, exerted that power within the Constitution.

— from a 1980s clip of Arthur M. Schlesinger, author of “The Imperial Presidency,” aired on PBS; March 1, 2007; emphasis added.

The executive branch shall construe as calling solely for notification the provisions of the Act that purport to require congressional committee approval for the execution of a law. … Section 513 of the Act purports to direct the conduct of security and suitability investigations. To the extent that section 513 relates to access to classified national security information, the executive branch shall construe this provision in a manner consistent with the President’s exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief, to classify and control access to national security information and to determine whether an individual is suitable to occupy a position in the executive branch with access to such information.

— from an Oct. 9, 2006, signing statement by President Bush attached to the Department of Homeland Security Appropriations Act, 2007 in which he tells Congress he has the power to edit DHS reports regarding whether it obeys privacy rules while handling background checks, ID cards and watchlists; emphasis added.

Section 503(c) of the Homeland Security Act of 2002, as amended by section 611 of the Act, provides for the appointment and certain duties of the Administrator of the Federal Emergency Management Agency. Section 503(c)(2) vests in the President authority to appoint the Administrator, by and with the advice and consent of the Senate, but purports to limit the qualifications of the pool of persons from whom the President may select the appointee in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the office. The executive branch shall construe section 503(c)(2) in a manner consistent with the Appointments Clause of the Constitution.

— from an Oct. 9, 2006, signing statement by President Bush attached to the Department of Homeland Security Appropriations Act, 2007; according to The Boston Globe’s Charlie Savage, “To shield FEMA from cronyism, Congress established new job qualifications for the agency’s director in last week’s homeland security bill. The law says the president must nominate a candidate who has ‘a demonstrated ability in and knowledge of emergency management’ and ‘not less than five years of executive leadership”; Oct. 6, 2006; emphasis added.

The president hasn’t vetoed any bills, but basically he has done a personal veto. He has said which laws he will not follow and … put himself above the law, even the same law he has signed.

— Sen. Patrick Leahy during a Senate Judiciary Committee hearing; June 28, 2006.

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

— from a Jan. 28 signing statement by President Bush attached to the National Defense Authorization Act for Fiscal Year 2008; emphasis added.

Congress is Republican-controlled. Polling shows that a large majority of Americans are willing to give up their civil liberties to prevent another terror attack. The USA Patriot Act passed with overwhelming support. So why didn’t the President simply ask Congress for the authority he thought he needed?

The answer seems to be, quite simply, that Vice President Dick Cheney has never recovered from being President Ford’s chief of staff when Congress placed checks on the presidency. And Cheney wanted to make the point that he thought it was within a president’s power to ignore Congress’ laws relating to the exercise of executive power. Bush has gone along with all such Cheney plans.

No president before Bush has taken as aggressive a posture — the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security — although Richard Nixon, my former boss, took a similar position.

excerpt from FindLaw column by John W. Dean, former counselor to President Richard M. Nixon; Dec. 30, 2005; emphasis added.

Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.

— from a Jan. 2, 2006, signing statement by President Bush attached to the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006; emphasis added.

As the letter from the Acting Attorney General explained in considerable detail, the assertion of Executive Privilege here is intended to protect a fundamental interest of the Presidency: the necessity that a President receive candid advice from his advisors and that those advisors be able to communicate freely and openly with the President, with each other, and with others inside and outside the Executive Branch. In the present setting, where the President’s authority to appoint and remove U.S. Attorneys is at stake, the institutional interest of the Executive Branch is very strong. The Acting Attorney General’s letter clearly identifies the subject matter of the deliberations and communications at issue and provides an extensive treatment of the issues implicated by the subpoenas and the legal basis for the President’s assertion of Executive Privilege.

— from a July 7, 2007, letter from Fred F. Fielding, counsel to President Bush, to Sen. Patrick J. Leahy and Rep. John Conyers Jr. asserting executive privilege “with respect to the testimony sought from Sara M. Taylor and Harriet E. Miers covering White House consideration, deliberations or communications, whether internal or external, relating to possible dismissal or appointment of United States Attorneys”; emphasis added.

I have to wonder if the White House’s refusal to provide a detailed basis for this executive privilege claim has more to do with its inability to craft an effective one.

comment of Sen. Patrick J. Leahy following receipt of Mr. Fielding’s letter; July 11, 2007.

The clear message of these decisions taken together is that the Court is willing to allow Congress some leeway in putting limitations on executive power but that it is wholly unwilling to permit Congress to participate in administering the laws itself or through its agents.

— Alan B. Morrison, a Washington lawyer who filed a brief as a friend of the Court supporting a special prosecutor law adopted by Congress in the wake of investigations of Reagan Administration officials and former officials; the law provided for judges to appoint special prosecutors in such cases, insulated from presidential control. The Reagan Administration argued that this was an unconstitutional encroachment on the president’s power; the Court ruled 7-1 against the administration; June 30, 1988.

The executive branch shall construe section 11(c) of the Act, relating to executive branch reports to the Congress concerning investigations of alleged criminal and fraudulent activities in connection with a specified project, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair the performance of the Executive’s constitutional duties, including the conduct of investigations and prosecutions to take care that the laws be faithfully executed.

— from a Dec. 25, 2006, signing statement by President Bush attached to the National Transportation Safety Board Reauthorization Act of 2006; emphasis added.

In late 1947 Clark Clifford and James Rowe instructed Harry Truman, “The worse matters get, up to a fairly certain point—real danger of imminent war—the more is there a sense of crisis. In times of crisis the American citizen tends to back up his President.” The result was the famed war scare of 1948, in which that accidental President started trumpeting “the critical nature of the situation in Europe,” the necessity for “speedy action,” the “great urgency” of the problem of the Soviet threat. He did this even though, as State Department counselor Charles Bohlen explained in a confidential January 1948 memo, the government considered its position “vis-à-vis the Soviet better now than at any time since the end of the war.”

— excerpt from a commentary in The Nation. by Eric Alterman; Feb. 7, 2002.

RUSH LIMBAUGH: Is this really part of an effort by some in the Senate to try to convince the American people we don’t face a threat anymore, and there’s no reason to run the risk of violating people’s civil liberties, blah, blah, blah?

THE VICE PRESIDENT: Well, it’s been focused especially on the Democrats in the Senate Judiciary Committee. Pat Leahy, chairman of the committee, has opposed parts of the statute that we think are essential in terms of going forward, including specifically this retroactive liability provision. But I don’t like to question people’s motives. I assume he’s got reasons why he believes the way he does, but the fact is it’s their inability to resolve that issue that’s delayed passage on this legislation.

I think there are people out there, frankly, Rush, that don’t like what we’ve done, that are opposed to the bold action and tough decisions the President has made since 9/11. I think there were a lot of people who were panicky in the aftermath of 9/11, but now that we’ve demonstrated our ability to defend the country for the last six-and-a-half years, they want to act as though there’s no threat and we don’t need to take these important measures.

But the fact of the matter is, the threat is still there, it still exists. I look at it every day in our intelligence brief. We need to perpetuate and protect our capabilities here, as well as in terms of our ability to interrogate prisoners.

— excerpt from radio interview of Vice President Dick Cheney, conducted by Rush Limbaugh; Jan. 30; emphasis added.

Debates about the extent of presidential constitutional powers are as old as the republic itself, as the debates between James Madison and Alexander Hamilton illustrated. There is, however, general agreement that the past wartime presidents, including Lincoln, Wilson and F.D.R., have exerted their constitutional powers to the utmost. At the same time, any president should endeavor to work cooperatively with Congress as much as possible.

— from a written statement from the presidential campaign of Sen. John McCain, quoted in a New York Times analysis by James Risen; June 22.

photo credits:

• Declaration of Independence: Library of Congress
• Agenda for America poster: 4president.org
• Michael Brown, former head of FEMA: Allen Fredrickson, Reuters
• President Nixon leaving the White House, Aug. 9, 1974: Nixon Presidential Library & Museum
• President Bush: Joyce N. Boghosian, The White House
• President Harry S. Truman with pistols: Harry S. Truman Library and Museum
• Vice President Cheney: David Bohrer, The White House

Quotabull is a weekly feature of Scholars & Rogues.

xpost: Scholars and Rogues

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Written by Dr. Denny Wilkins

July 3, 2008 at 1:30 pm

Posted in Uncategorized

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