Laws Schmlaws - PeachParts Mercedes-Benz Forum

Honus · #1 12-21-2005, 01:58 PM

Quote:

Originally Posted by Botnst

You maybe right, I'm not sure what the word is when it comes to presidential precedent. I do know that the first Dubyuh (Washington) was hyper-aware that anything NOT specificially mentioned in the Constitution, that he did as an official act as president would establish precedent. And he was right.

The specific duties of the president outlined in the Constitution ain't much. It's often the unstated portions that define the president's powers both in limit and reach. Like the unwritten "Executive Privilege." Extraconstitutional but something that presidents jealously guard, regardless of party.

Bush is claiming the precedent of Carter and Clinton. (Which begs the question of why did Reagan not assert this power. He was the raving warmonger).

Presidential precedent doesn't work the same as court precedent. It can be overturned by public opinion or by Congressional legislation or by the courts.

It will be interesting to see how this one unfolds.

Bot

Good point. What presidents do becomes part of the legal tradition that courts consider in deciding individual cases. So, precedent is probably the proper term. On the other hand, if what Clinton did violated a statute, then that particular precident should be given no weight by any court who has to weigh in on these issues, IMHO.

Botnst · #2 12-21-2005, 02:22 PM

Quote:

Originally Posted by dculkin

Good point. What presidents do becomes part of the legal tradition that courts consider in deciding individual cases. So, precedent is probably the proper term. On the other hand, if what Clinton did violated a statute, then that particular precident should be given no weight by any court who has to weigh in on these issues, IMHO.

I guess I can argue on both sides to some degree, but my heart is against the president's precedence. I hate the idea of the president having some unchecked power to look into the lives of private citizens. That just plain strikes me as wrong. Our whole theory of divided government is to prevent government from infringing on personal liberty and this precedent extends and establishes the Executive Branch's power over us.

So my (weak) argument in support of this President is as you said, "Jimmy did it, Billy did it, so what's the problem?" I think this gets him off the legal hook. But for me, it jams the sharp point of the hook deep into the heart of what it means to be a country founded on liberty for all. Time for Congress to step in and make a good law for us. I don't think they'll do it unless there is a groundswell of resentment by the people. To me this shouldn't be a partisan issue, it is an issue of civil liberty and government intrusion.

OTOH, I do not want to extend these civil liberties to non-citizens. I have no problem with the Executive snooping non-citizens either abroad or domestically. If they don't like it, show them the door.

Bot

koop · #3 12-21-2005, 02:37 PM

There is actual legal precedent in this area. Truman tried to nationalize the steel plants during the Korean war. There was a case and if I'm not mistaken the holding was that the president cannot act where congress has already exercised authority. Congress had passed some legislation regulating the steel insdutry, and therefore the pres couldn't assume authority. In this case congress has passed legislation regulating wiretaps, even set up a special court, so I think the law is against Bush.

charlie7 · #4 12-21-2005, 02:40 PM

Quote:

Originally Posted by koop

There is actual legal precedent in this area. Truman tried to nationalize the steel plants during the Korean war. There was a case and if I'm not mistaken the holding was that the president cannot act where congress has already exercised authority. Congress had passed some legislation regulating the steel insdutry, and therefore the pres couldn't assume authority. In this case congress has passed legislation regulating wiretaps, even set up a special court, so I think the law is against Bush.

Good point. And you have to wonder why would they not get the FISA Courts approval, when that approval is virtually assured?

Honus · #5 12-21-2005, 03:10 PM

Quote:

Originally Posted by koop

There is actual legal precedent in this area. Truman tried to nationalize the steel plants during the Korean war. There was a case and if I'm not mistaken the holding was that the president cannot act where congress has already exercised authority. Congress had passed some legislation regulating the steel insdutry, and therefore the pres couldn't assume authority. In this case congress has passed legislation regulating wiretaps, even set up a special court, so I think the law is against Bush.

That sounds right to me. A basic rule of statutory construction is that specific terms override general terms. The specific prohibitions in FISA override the general language of the statute authorizing W to take action in Iraq.

dlssmith · #6 12-21-2005, 05:33 PM

Does the FISA statute apply to communications with persons outside the borders of the US?