Posted on 03/13/2002 3:13:19 PM PST by buaya
I remember reading an interview with Billy Tauzin, author of the abominable Digitial Millenium Copyright Act (DMCA). Tauzin stated that Congress' authority to craft the DMCA relied more on the Interstate Commerce Clause than the "Copyright" Clause. Hence, it is necessary to slay this beast, if we are ever going to get copyright under control.
Although I disagree with the author on several points, there is nevertheless quite a bit of useful information in this article.
From the beginning of the New Deal until Lopez, the Supreme Court had given the commerce clause a wide berth.Ha ha. And Lessig doing the advocating. So sweet.
Yeah, I'm imagining it. And frankly, Evan Schultz can kiss my a** - that sounds like probably the most fabulous thing that could possibly happen to this country since FDR's perversion of the Constitution. Period.
Yeah, I waded through the entire article (which did contain a lot of valuable information), waiting to find out what this devisive, subversive legal argument was that constituted such a danger. And the only thing that came out is that Lessig is challenging the conventional wisdom that Congress has essentially unlimited power. He is providing the Supreme Court with (horror of horrors!) another opportunity to take baby steps in restricting Congress. And if the Supreme Court continued down this path, the entire edifice of modern gargantuan governmental power would tremble and risk shattering!
If only it were so...
I know I'm going to be losing a lot of sleep over the thought of Congress having its wings clipped. First off, even if they do strike it down, it's pretty unlikely that the court is going to go even one inch further than they absolutely have to. And second, for the life of me, if they did go all the way, I just can't bring myself to see that as a bad thing...
In 1950, Truman took us into a major war in Korea without Congressional authority. First time that ever happened. He got away with it, too, just as Clinton got away with exceeding the 60-day limit in Kosovo under the War Powers Act. In fact, when Clinton went into Haiti, he had the audacity to proclaim that the Constitution reserved the war-making decision to the executive. It's well known that presidents have gotten accustomed to making law through executive orders, and it's amazing how few of these are ever challenged or stricken down by Congress. The Supreme Court consistently refuses to hear cases concerning power struggles between the other two branches. All you have to do to realize how unequal Congress and the White House are, is to look at how the size and budget of the executive has grown since the 30s, relative to growth in the legislative branch.
The Constitution reserves to Congress the right to declare war, but the War Powers Resolution clearly states that the President can act with something called "specific statutory authorization", whatever that means. It certainly doesn't sound like a declaration of war to me, nor did it to Nixon, who vetoed the whole mess - the implication is that Congress has Constitutional powers far beyond the simple declaration of war granted by the Constitution.
Also, in light of INS v Chadha and subsequent cases, it is not at all clear that the War Powers Resolution could survive a challenge in the courts. Perhaps recognizing that fact, Congress has never chosen to exercise the remedies provided by the Resolution, such as ordering the removal of troops engaged in hostilities, and thereby provoking a court challenge.
Finally, if you want to look at expansion of powers, it is facile to do so without looking at the explosion of federal agencies over the last 70 years, all of which have been created at the behest of Congress, and exist as a result of congressional delegation of authority.
In any case, what this particular article is about is the expansion of federal powers, at the behest of Congress, by legislating virtually everything under the auspices of the Commerce Clause. Such an expansion of federal power has largely come at the expense of state power, not that of the Executive.
No one disputes that the President is CIC. However, the "recognition" of the constitutionality of legislation is a function reserved entirely to the courts, not the President. If legislation of any kind is passed into law, over his signature or over his veto, it doesn't matter what he thinks of it -- he is obliged to abide by it or refer it to the court. IOW, he is not supposed to be a law unto himself, he is only empowered to "faithfully execute" the law -- though that fact will not always impress him.
Infrequently, the court will actually do its job and put a stop to presidential excess, for example, when it stopped Truman from seizing the steel mills during Korea. I note that Johnson was very careful to get authorization from Congress for his action in Vietnam. Bush also took great care to obtain Congressional authority for his current war on terrorism. And similarly, his father did so before embarking on his Desert Storm campaign. Aside from the obvious issue of appropriations, it's often, though not always, politically expedient to do so.
The original wording of the war clause gave Congress the exclusive power to "make" war. This, however, was revised to "declare" in subsequent drafts when they realized that the President might have to repell a sudden attack or urgently pre-empt foreign encroachment before Congress could convene and decide. They never intended that one individual, acting on his own, should have the power to commit the country to full-scale war. They had seen this sort of thing done in Europe between rival royal families and would have none of it. It's all in Madison's 1787 notes (in fact, he's the one who proposed the change in wording.) By imposing a time limitation, the War Powers Resolution merely re-elaborates this principle, that the executive must be allowed some degree of flexibility but the ultimate decision to go to war rests with Congress.
"... that the President can act with something called 'specific statutory authorization,' whatever that means."
It means the same thing it did in 1798 and 1799, when Congress, unwilling to declare war on France, nonetheless gave Adams the go-ahead to engage in continuing hostilities with them. They enacted at least a dozen statutes to this end. The War Powers Resolution, if challenged, will do just fine -- if Congress has the intestinal fortitude to defend it, that is.
"...the explosion of federal agencies over the last 70 years, all of which have been created at the behest of Congress..."
Certainly with their collusion, and at times, their meek acquiescence. No question about it -- Congress has willingly abdicated much of its own power.
And I agree with you absolutely that states' rights have taken a terrific beating, and the commerce clause is grossly misconstued and misapplied.
Anyway, you're obviously up on the history - how about the law? There was a really interesting article in the Columbia Law Review about 15 years ago entitled "Suppose Congress Wanted a War Powers Act That Worked" - essentially, IIRC, it argued that the fatal flaw in the current WPR was the failure to account for the possibility that executives would just ignore the thing, and explores possibilities for repairing it. And if you want a hint about the current court, Justice Breyer had an article in the Georgetown Law Review way back in 1984 that was rather skeptical of the appropriateness of such legislative vetoes, and instead proposed some substantive alternatives. Not that such a thing would stop him from ruling against a Republican president, of course ;)
That's correct. Driven by their own petty political concerns, they continue to abdicate the powers of Congress, an institution most of them are unworthy of serving.
"The only direct case I know of, Dellums v Bush, didn't really go anywhere."
Of course it didn't. The court won't even hear an argument unless Congress itself brings the action -- not some gaggle of Representatives, staging a dog-and-pony for the rubes back in their districts. Ron Paul, Dan Burton and a dozen or so others tried the same thing 3 years ago, concerning Clinton's violation of the WPR -- with the same predictable result. Ron Paul, btw, disagrees with me about the WPR. He believes it gives away Congressional powers that are non-delegable. Too bad he doesn't have Madison and the Constitutional Convention on his side like I do.
"...it argued that the fatal flaw in the current WPR was the failure to account for the possibility that executives would just ignore the thing..."
The same flaw could be attributed to many provisions of the Constitution itself. For example, what happens if the President ignores his lawful removal from office by the Senate? The Constitution makes no specific provision for this. In the case of the WPR, Congress has some built-in options -- it can take the dispute to court as a body or it can initiate impeachment proceedings -- if it has the will to do so. I would never deny that some very bright students write for these law reviews, but what it all comes down to is whether the Congress is willing to stand up for its own laws or not.
What is he talking about here? Spinning the Framer's intent? The Framer's, as best I understand, did NOT consider things from a "public domain" concept -- that's novel, socialistic even. The Framers considered what is private property, and who's private property it is.
Abraham Lincoln, "Method of Buoying Vessels over Shoals," 1849.
"Next came the Patent laws. These began in England in 1624; and, in this country, with the adoption of our constitution. Before then, any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things."
-- Abraham Lincoln, February 11, 1859
Of course, this will probably infuriate all of the Lincoln haters on this site.
Moreover, the hyprocrisy of the Hollywood line is stunning: Disney makes a movie of The Hunchback of Notre Dame, freeely, based on previous copyright law, and then whines about Mikey Mouse going public domain.
It is clear the Framers did not buy into the "if this much protection is good, more must be better" line of reasoning.
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