House Democrats Sue President Bush Over Withdrawal From ABM Treaty (Desperation Tactics 2002)

Associated Press | Jun 11, 2002 | Jim Abrams

[Huck]

The precedent of Curtiss-Wright will probably hold up again

Maybe, but since most of Justice Sutherland's opinion was dictum, it needn't be treated as precedent. Hopefully, someone in Congress will make a case of it. I would really like to see the question of treaty authority--which Curtiss-Wright doesn't touch at all--dealt with head-on.

[hchutch]

If Goldwater v. Carter is any indication, the suit goes nowhere. Incidentally, goldstategop had some interesting info on the Tenure of Office Act - which addressed the termination of Cabinet Officers. The Act was thrown out in 1926.

It looks like a combination of Curtiss-Wright, Goldwater v. Carter, and that Tenure of Office Act case is here. And it looks like the Dems are out of luck on it. Then again, I'm not a lawyer.

[Huck]

If Goldwater v. Carter is any indication, the suit goes nowhere.

Don't be so sure. Have you looked at Goldwater lately?

Goldwater v Carter

The Supreme Court agreed with the court of appeals and ordered the lawsuit dismissed. In doing so, however, the justices disagreed among themselves over their reasoning and they wrote four separate opinions. Justice Powell argued that the issue was not ripe for judicial review because the Senate had not acted to preserve its constitutional prerogatives, but that in theory the lawsuit was justiciable. Justices Rehnquist, Burger, Stewart, and Stevens argued that the lawsuit raised political rather than legal questions, and hence was not a suitable issue for the Court to decide. Justices Blackmun and White argued that the lawsuit was justiciable and that the Court should hold a full hearing on the case. Justice Brennan argued that the case was justiciable and that the Court should find in favor of the president.)

Look at Justice Powell's concurrence, for example:

In this case, a few Members of Congress claim that the President's action in terminating the treaty with Taiwan has deprived them of their constitutional role with respect to a change in the supreme law of the land. Congress has taken no official action. In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution declaring that Senate approval is necessary for the termination of any mutual defense treaty...no final vote has been taken on the resolution....Moreover, it is unclear whether the resolution would have retroactive effect....It cannot be said that either the Senate or the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to do so. I therefore concur in the dismissal of this case.

I agree that according to the case law, it's an uphill fight. Fighting precedent, however flimsily based it may be (Roe v Wade?), is never easy. But the invitation is there for Congress to make it a Federal case, and I hope they do. The current situation is out of whack.

[hchutch]

I can see the point, but at the same time, I do not want the President to be micromanaged in foreign policy. Would you like a renegade dictator to use any "consent" power held by the Senate to hold a President hostage?

[Paul Ross]

The SMART WAY for GWB to completely shut this issue down as a Public Relations matter, is to merely point out to these partisan schmucks that CONGRESS ALREADY VOTED for a policy implicitly demanding we pull out of the ABM TREATY, 3-to-1 in the House and 99-0 in the Senate to DEPLOY a National Missile Defense in 1999. And Clinton signed it due to the veto-proof super-majority. Clinton just hated the idea of being overridden, which would have made it a bigger media case. As it was the media gave it almost no coverage, and Clinton continued to sabotage the 1999 National Missile Defense Act he had signed by continuing to interfere with systems R&D, misallocating the revenues the Congress had appropriated for the task, and delaying tests for purely political sabotage of the engineering timeline, and squandering money on a bogus system architecture.

[dvwjr]

I am sure that once the details of the case the 31 Democrats filed in District Court are made public, their backing legal rationale will be available. I wonder how they will attempt to justify this action?

For supporting the argument that the Congress, specifically the Senate, does not have the power to require its approval for the removal of executive branch officers that it has confirmed into office the following two brief articles will lend some support. The very parallel case of Senate confirmation of executive branch officers and the ratification of Treaties as presented by Professor Ramsey's article can be seen in the following historical events.

This very type of Constitutional question led directly to the first impeachment and trial of a President of the United States in 1867. The core constitiutional legal issue was finally resolved by the Supreme Court in 1926.

The charges against President Johnson stemmed from the Tenure of Office Act of 1867. This law, which the Supreme Court declared unconstitutional in 1926, required the president to get the Senate's permission to remove any officeholder whose appointment it had to confirm.

Johnson was so angered by this challenge to the power of the president that he tested the law by suspending Secretary of War Edwin M. Stanton, the only Radical sympathizer in his cabinet, and replacing him with Ulysses S. Grant.

Eleven articles of impeachment were brought, charging Johnson with unlawfully removing Stanton and violating the Reconstruction Acts. The House of Representatives passed a resolution impeaching Johnson by a vote of 126 to 47.

When the trial began in the Senate, Johnson`s attorneys argued that the act was unconstitutional and did not even apply to Stanton because he was appointed by Lincoln and not Johnson. On May 16 the Senate voted 35 to 19 in favor of impeachment. Seven Republicans voted for Johnson out of fear of weakening the presidency and the Republican party. The constitution requires for a vote of two thirds for impeachment so Johnson survived by one vote.

Source: PBS.org-Newshour

Tenure of Office Act

Tenure of Office Act, in U.S. history, measure passed on Mar. 2, 1867, by Congress over the veto of President Andrew Johnson; it forbade the President to remove any federal officeholder appointed by and with the advice and consent of the Senate without the further approval of the Senate. It also provided that members of the President's cabinet should hold office for the full term of the President who appointed them and one month thereafter, subject to removal by the Senate. With this measure the radical Republicans in Congress hoped to assure the continuance in office of Secretary of War Edwin M. Stanton and thus prevent any interference with the military occupation of the South in their Reconstruction plan. In order to bring about a court test of the constitutionality of the act, Johnson dismissed Stanton, but the Supreme Court, intimidated by the radicals, refused to pass on the case. Gen. Ulysses S. Grant, whom Johnson appointed Secretary ad interim, turned the office back to Stanton when the Senate refused to approve his dismissal. Johnson then appointed Gen. Lorenzo Thomas Secretary of War, but Stanton, barricading himself in the department, refused to yield. Johnson's alleged violation of the Tenure of Office Act was the principal charge in the impeachment proceedings against him. When this move failed (May, 1868), Stanton finally gave up. The act, considerably modified in Grant's administration, was in large part repealed in 1887, and in 1926 the Supreme Court declared its principles unconstitutional.

Source: InfoPlease.com

I think that the House Democrats will learn that the Judiciary will say they don't have a dog in this fight. First because the fight ain't legal. Second, because it ain't their dog, it belongs to the Senate.

dvwjr

[rightwing2]

The SMART WAY for GWB to completely shut this issue down as a Public Relations matter, is to merely point out to these partisan schmucks that CONGRESS ALREADY VOTED for a policy implicitly demanding we pull out of the ABM TREATY, 3-to-1 in the House and 99-0 in the Senate to DEPLOY a National Missile Defense in 1999.

Yep this lawsuit is a real laughable non-starter. No threat at all. Bush's decision to withdraw from the treaty will stand.