Libertarian candidate George Phillies took on President George Bush's signing statements, and threw in a slap for Libertarian Wayne Allyn Root.He makes a good case, but forgets an important precedent by rtbohan
(libertarian)
Friday, May 2, 2008
George Phillies, a candidate for the Libertaian Party nomination for President, issued a statement on April 30, condemning President Bush's use of signing staements to ignore and refuse to carry out what he considers incovenient provisions in the laws he signs. He took the occasion to assail a plank in the platform of one of his competitors for the Libertarian nomination.
Professor Phillies challenged the use of Presidential signing statements as the exercise of a line item veto over portions of laws, a power the President does not consitutionally possess.
"Our Constituion," says Professor Phillies, "provides a clear path to settle disagreements beteen our Congrss and the President. Congress passes a law. A President who disagrees may veto it. The Congress may then override the President's veto. The Founding Fathers knew that the united wisdom of dozens of senators and far more representatives is greater than the wisdom of one man. That's why they set into the Constitution the fundamental principle that in a dispute betweeen Congress and the President, Congress must...prevail."
Turning specifically to the actions of President Bush, Phillies says "In our constituional government, there is no room for a President to disobey a law....A President who refuses toobey our laws by issuing signing statements has only one objective. He is trying to exercise one-man rule...."
Turning from President Bush's approach to Presidential rule, Phillies takes on his Libertarian rival: "I am saddened to see a Libertarian candidate who proposes to go against our Consititution....Wayne Allen Root proposes to shrink our budget by usin 'impoundment, a process found nowhere in the checks and balances of our Constitution."
"I agree," says Phillies, "that there are precedents...notably the vast number of George Bush signing statements. These are bad precedents that we Libertarians should reject."
Dr. Phillies is probably correct in rejecting President Bush's signing statements as being unconstitutional. He is right that "impoundment" of funds authorized and appropriated by the Congress is not the best way to shrink the government.
But he should be aware of the origin of the equivalent of signing statements and impoundments, and of the judicial record on impoundments.
In 1801 when Thomas Jefferson became President he ordered a halt to all effort by the federal government to enforce the Alien Act and the Sedition Act passed by Congress and signed by President Adams. He went further and ordered the release of all those imprisoned for violating these Acts.
He justified these actions by saying the he believed the laws to be unconstituional and that it would be a violation of his oath to uphold and defend the Constitution to enforce them or keep confined those who had violated them. He added that this was not meant as a criticism of President Adams. President Adams, he said, believed the laws to be constitutional and was justified in enforcing them.
It is a good thing for the United States that Jefferson's claim of a retroactive presidental veto, which was not challenged at the time, has not been put forward by any other president. What President Bush is attempting to do by signing laws while issuing a statement that there parts of the law he does not intend to carry out is bringing into the United States a practice of the Spanish Empire. In that empire, the Vice Roys who received an order from the King with which they did not agree would accept the order with the statement "I obey, but I do not comply." Meaning, as Bush's statements do, "Yes, that's the law but you can't make me enforce it ." Phillies is right. This is a practice which cannot be allowed, and should have been challenged either in court or through a motion to impeach.
Jefferson, always a creative man, was also the first president to use impoundment as a way to evade congressional programs he disliked. When Congress appropiated money to build new gunboats for the Navy, President Joefferson, who believed that a larger navy would be a temptation to engage in overseas wars and imperialism, ordered the Treasury Department not to release the funds. Unlike the retroactive veto, this Jeffersonian precedent has been used regularly by President's of all parties and political philosophies.
During the nineteenth and twentieth centuries Presidents impounded appropriated fund for a variety of reasons. Sometimes the funds were temporarily impounded, usually for economic or budgetary reasons, and sometimes permanently because the President, like Jefferson, disagreed with the program. During this time there were a number of court actions against specific impoundments. The issue did not reach the Supreme Court, and the record of the lower federal courts was a mixed one, as each case was decided on its own merits.
The issue came to a head during the Nixon administration when President Nixon impounded more than $12 Billion in appropriated funds in an efffort to control inflation. The Congress responded by passing a deferral law which required the President to inform the Congress whenever funds were impounded. Both Houses of Congress were required to approve the impoundment or the funds would have to be released.
A similar provision in the Immigration laws reached the Supreme Court in 1983 in the case I.N.S. v. Chadha (462 U.S/919 (1983). The Supreme Court, by a 7-2 vote ruled that requiring separate approval from both Houses of Congress for an executive act in effect gave a veto power over the executive branch to a single house of the Congress. Since laws are required to be approved by both houses in the same form, the Court held that the single house veto was an unconstitutional legislative interence with the necessary discretionary power of the President. This, in effect, negated the deferral act.
In any case, the Balanced Budget Act of 1997 appears not only to allow for the impoundment of funds if spending them would unbalance the budget, it requires it. Of course, the "Balanced Budget" is a fiction. But this would seem to indicate that by historical, legislative, and court precedent, Mr. Root is correct about the use of impoundment to at least control the growth of government, if not to shrink it.
I have before criticized Mr. Root for his plans to increase liberty by expanding the power of the executive branch. I believe that this road leads to tyrany rather than liberty. But in this case I believe he is on firm ground in constitutional law, if not in the constitution.
Mr. Phillies wins his point against President Bush. But in the second match the point goes to Wayne Allyn Root.
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