Posted on 01/18/2020 12:05:58 PM PST by bitt
The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.
To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.
Even if the GAO were correct in its legal conclusion — which it is not — the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents.
If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law.
U.S. Government Accountability Office (GAO) has gotten the constitutional law exactly backwards. It said that the "faithful execution of the law" — the Impoundment Control Act—"does not permit the president to substitute his own policy priorities for those congress has enacted into law ." Yes, it does — when it comes to foreign policy. The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.
To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.
Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority. Or consider the actual situation that former President Barack
(Excerpt) Read more at gatestoneinstitute.org ...
“” “” The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). “” “”
It was repeated numerous times here on FR.
REALITY CHECK---WRT foreign policy..........
The Constitution does not permit Congress to substitute its foreign policy preferences for those of the president......
.....the president has sole authority over foreign policy.
I think that's right. I think it was a clear violation of the ICA but so what? The law doesn't have any teeth and it's been ignored before.
Trump, through his SOS and SECDEF, certified that the reforms necessary to release the funds had been made.
If conditions changed Trump could have withdrawn those certifications or asked Congress to rescind the appropriation. He did neither.
And please don't make the stupid argument that SECDEF sending an official notification letter to Congress doesn't count as Executive certification.
I'm in! Assuming your facts are correct (big assumption...), and your logic is sound, your argument must be correct. But if your facts aren't correct, or your logic isn't sound, then your conclusion is on much shakier ground. So let's see how your argument goes:
The following are facts::
The President has the sole power to set foreign policy and conduct foreign affairs under the Constitution. Yes, he does.<> Stop right there, because that's your flawed premise. Exactly where -- and please cite the specific Article, Section, and Clause -- where the Constitution actually states "the President shall have the sole authority over foreign policy." Because it doesn't. I know Dershowitz makes that claim in his article, but he doesn't cite to any specific constitutional provision in support of that either. Because he made it up.
Heh.
Let's see...I graduated from a top ten law school in 1993, and have been practicing law ever since. Only had one case before the U.S. Supreme Court, but I've had a bunch of cases before federal circuit courts addressing Constitutional claims, as well as some cases before my state Supreme Court. So I've been through constitutional issues pretty exhaustively.
And before you accuse me of being a lefty hack, I've also been a member of the Federalist Society since my first year at law school. You know...the group that serves as the source of recommendations for President Trump? Met a few of the justices too, including both Scalia and Thomas. Kennedy as well, but I usually try to forget that one.
But...you took a free online course!
I normally don't believe in flopping credentials on the table, but since you played that card, I thought it only fair. I'll address the substance of your argument in a different post.
If this spending falls under foreign policy and foreign affairs, by definition it is the Constitutional prerogative of the President of the United States, Correct? Yes, it is.
What's the limiting principle? Can the President spend as much taxpayer money as he wants, without Congressional approval, if he spends it on foreign affairs?
The problem with your logical construct is it runs afoul of reality and ignores the Article 1 powers of Congress:
"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
You can say that there's an exception if it's related to foreign affairs, but the framers didn't think so or they would have said that.
More to the point, history shows that the power of the purse does apply, even to foreign affairs. Consider the Foreign Assistance Act of 1974. It essentially ended the Vietnam war by cutting off funding. Under your scheme POTUS could have continued the war despite the clear will of the people.
Or look at the Iran-Contra affair. If Reagan didn't need congressional approval to send money to the Contras he wouldn't have had to deal with Iran.
You seem to want POTUS to have unlimited authority in all matters of foreign affairs. You may have an argument when it comes to setting policy, but the Constitution and actual history both make clear that his unilateral authority stops when it comes to using the taxpayers' money.
There is no specific Article on Foreign Affairs....
Well, you've got that part right.
...but it’s there in several sentences and several phrases in two articles the Framers included that they fully understood the power they were bestowing on the President by including. They were not wordy, but quite succinct. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties... [I omitted the other specifically enumerated powers] he shall receive Ambassadors and other public Ministers. . . — United States Constitution, Article II, Section 3 (in part).
To make a long argument as short as I can, the legal reasoning being used here is similar to that in Griswold v. Connecticut and Roe v. Wade, both of which are decisions absolutely detested by most judicial conservatives. In short, you're taking specific grants of authority (or rights), drawing from them a much more general grant of authority (or rights), and then using that more general power to create new specific powers that weren't stated. That's how we got the non-existent "right to privacy" that let the Court just make stuff up.
The Framers were excellent writers. And if they wanted to give the President "sole authority over foreign policy", why didn't they just say exactly that, in far fewer words? Why did they instead choose to list some specifically enumerated powers, but not include the much more powerful general grant of "sole authority" that you and Dershowitz both claim are in there?
Here's what it boils down to: the Constitution actually is silent on the issue of funds appropriated for foreign governments. And where the Constitution is silent, that's where Congress - by passing a bill, and the President -- by signing that bill into law -- are supposed to fill in the gaps.
All that being said, I think the impeachment is a joke, and a technical violation of that one law is the slimmest of possible threads on which to claim impeachment.
I'd also point out that this is a stupid argument for Dershowitz to make to the Senate, because even Republican Senators won't like hearing that they really don't have any say at all over "foreign affairs", and any such laws they pass can freely be ignored by this (or any other) President.
“Furthermore, there is no historical evidence supporting the notion that Congress can use the faithful-execution duty as a means by which it may strip away any presidential prerogative, let alone the executive's essential task of executing the laws. Such a reading would make the Constitution's Executive Vesting Clause surplusage and would undermine the Constitution's separation of powers.” — Heritage Foundation commentary on the Constitution’s “Take Care Clause”
I would point out that this is the exact same argument used by Obama to ignore federal immigration law, order ICE to stop deporting anyone, and then use the lack of deportation as justification for granting green cards.
If you're going to say that the "Take Care" clause is utterly meaningless -- seems odd that Framers would have included something if they thought it was meaningless but whatever -- then you're backing Obama's right to issue DACA.
If you're making a legal argument, you have to consider the ramifications of what it will mean in different contexts, not just try twist it into whatever you want for a particular result and ignore the precedent.
Take it up with the Constitution! I could give a flying crap what they like and don't like. All a bunch of rats anyways.
If this spending falls under foreign policy and foreign affairs, by definition it is the Constitutional prerogative of the President of the United States, Correct? Yes, it is.
OK, I now see that in other posts you abandon this silly notion and admit that the President's ability to spend money on foreign affairs is limited by Congress.
What you're really arguing is that he can't be forced to spend money even if the law says he should.
Like the Impoundment Control Act or not, it's the law. In essence, if POTUS signs a bill requiring spending (assuming the stated conditions are met), then he has an obligation under the "take care" provision of the Constitution to spend it.
If conditions change POTUS can request that Congress modify the requirements of the law, but otherwise he's legally obligated to spend the money.
This may conflict with your notion of Executive supremacy in foreign affairs, but it's just that, your notion, not the law.
Dershowitz is a throwback. He hearkens to the day when democrats like Scoop Jackson were pro-union, and pro-a lot of stuff subsidized, and ALSO pro-military and anti-Soviet (when that mattered). It’s refreshing.
Abandoning? ABANDONING?! You ARE completely delusional and setting up a strawman. I never advocated that, you idiot. I know every well how our government works. YOU are the one who doesn’t seem to. DO NOT PUT WORDS IN MY POST THAT ARE NOT THERE SO YOU CAN MAKE POINTS!
This may conflict with your notion of Executive supremacy in foreign affairs, but it's just that, your notion, not the law
It’s NOT my “notion of Executive supremacy in foreign affairs,” it IS the Constitutions, and the history of the United States’ 241 years of practice that the President sets Foreign Policy, NOT CONGRESS. It’s YOUR notion that the Executive does not have supremacy in foreign affairs. Even the three other supposed experts the Democrats paraded before the Judiciary Committee agreed that the President had supremacy in foreign affairs.
Your attempts to claim otherwise shows you’re totally in the tank for impeachment and the Democrat line toeing that you are doing. LIBERAL PROGRESSIVE SHILL! Have you yet posted the name of Eric Ciaramella on FR? No? I thought not. Why not? Do you get docked some of what you get paid by the DNC if you post it?
With that, I will not respond to you again on this thread, it has finished its run.
Fire the a$$hole!!
Against my better judgment I did it the first time you made the sophomoric request.
Is the problem that that you can't read, can't remember, or can't tell the truth?
Here I am breaking my own resolve to not address you again in this thread.
You claim that is a stupid argument. Why? In what way does a law that cuts the PRESIDENT out of the loop between the DOD, a subordinate department of the Executive Branch, and the Legislative Branch, at all Constitutional? It can’t be. Especially when Foreign Affairs are concerned.
YOUR assertion that it is stupid is the one that is stupid. The attempt to control Foreign Affairs by the House of Representatives with this provision is blatantly Unconstitutional. It was unconstitutional when it was introduced, it was unconstitutional when it was passed, and it was unconstitutional when it was signed. Just because it wasn’t recognized as unconstitutional does not mean it wasn’t. There are plenty of laws that go through that process that aren’t caught as being unconstitutional. They are LATER ruled unconstitutional when litigated.
Dershowitz is pointing out how obviously unconstitutional the spending control basis this one is. The reporting that Congress included in the more current version is a consequence of the unconstitutionality of 1974 Spending Control Act not recognizing that certain spending had implications in the area of Foreign Affairs that SHOULD have been addressed in that act but were not. Had they been, it would have better met the constitutional questions, but likely still would not have met constitutional muster.
Your absurd idea that President Trump certified through his Secretary of State and through his Secretary of Defense, without his active, positive decision is patently absurd. That makes them all equivalents to Jonathan Swift’s Brobdingnagian Flappers, servants who would flap the mouths and ears of their masters when in the opinion of the servants it was OK for their masters to hear or say anything. ABSURD, semimojo. As I’ve told you many times before, such a decision is NOT THEIR’S TO MAKE, but you keep on, keeping on ignoring that fact. You turn the facts on their head.
What part of the literal fact that ALL power in the Executive Branch resides in the President, do you fail to grasp? All else derives from the Constitutional power and authority granted to that person. In that position, the chief executive is entitled to confidential and candid advice without threat of having that confidence and candied advice ever being revealed to be second guessed by criticism from people who look back with later knowledge of after the fact knowledge, lest advisors be less than open and candid in their honest opinions for fear of later retributions. This was much discussed in the Federalist Papers.
These others whom you want to have the power to make these decisions, to pass on communications Willy-nilly to Congress, bureaucrats of whatever stripe setting spending dates, etc., are only mere advisors to the President to help him do his job of faithfully executing the laws of the country, which have a hierarchy of primacy, with the CONSTITUTION atop all of them, and in meeting with foreign nations, or in addressing the problems of the nation. Get those basic facts through your head!
I did not say that. I said I took constitutional law classes. That was over 50 years ago. I didn’t say I took a free online course. I suggested you take one and linked to the one offered by Hillsdale, which is very good.
There have been multiple Law School Professors who have stated that the President has sole constitutional authority for Foreign Affairs. . . Yet you come on here and claim that is not the case. As the head of the Executive Department, that is where that authority lies, not in Congress. Please elucidate how someone below the President in the Executive Branch can TRUMP the power of the President to set foreign policy. I agree the SENATE can override the President’s choices of Ambassadors, Secretary of State and inferior officers in that Department, but exactly how does the HOUSE set foreign policy except by refusing to fund it?
I don’t agree that modern law schools are necessarily teaching Constitutional Law in a proper philosophical and historical foundation. In fact, from what I’ve heard, many lawyers finish law school, pass the bar, and from their statements, have no clue about the fact the Constitution is the supreme law of the land and still believe the Constitution is mutable and bendable Willy-Nilly, a living, breathing document, and often safely ignorable, because that apparently was what they were taught.
I’m not saying that was what you were taught, but we’ve been told by three Constitutional Lawyers, Mark Levin, Alan Dershowitz, and Jonathan Turley, that the President has sole authority in the area of Foreign Policy per the constitution. I was taught that many years ago. . . Yet you say that isn’t the case. Please elucidate. Respectfully, what were you taught that is different?
I am not even close to suspecting you of being a “lefty hack,” Bruce. You seemed to me to be someone who was honestly questioning Dershowitz’s claims, unlike semimojo, who has repeatedly toed the Democrat talking points in every thread he’s posted comments on the impeachment topic.
If we are name dropping, I used to chat with Chief Justice Earl was Warren when he was on vacation visiting his best friend . . . of course, I have to admit I was only 13-14 years old at the time. ;^) . . . but we did discuss serious issues.
Who said it was without his participation? Certainly not me.
In fact, if Trump's SOS or SECDEF provided this certification without Trump's consent I hope and expect that they would have been fired.
Do you think Trump is such a weak executive that his direct reports would make these certifications against his wishes and with no consequence?
Have you heard Trump say that he didn't agree with the certifications?
Congress puts restrictions on all kinds of spending and requires certification from the Executive that the conditions have been met. This includes domestic spending, but probably even more often on foreign aid.
Your contention that the President has to personally sign each of these certifications, and can't delegate to his cabinet secretaries, is, yes, stupid.
It was unconstitutional when it was introduced, it was unconstitutional when it was passed, and it was unconstitutional when it was signed.
This is the problem we're having communicating. I'm saying the law is what it is, and the ICA that was signed into law by Nixon required the spending unless Trump certain actions, which he didn't take.
I'm not arguing that the law is pure, just, constitutional or wise, only that for now it's the law and the GAO's ruling was probably correct.
As I said earlier, I think the ICA was violated and I also think it's not a big deal. The law is toothless and the violation wasn't that big.
Perhaps someday SCOTUS will rule on the constitutionality of the ICA but I haven't heard a good argument that it wasn't violated.
Bruce, you and I actually agree. I am pretty much a strict constructionist of the Constitution. I don’t like the ideas that have resulted in the behemoth of a government that finding all kinds of powers in our constitution’s penumbra and other shadows somehow can be seen there by wishful thinking. I was demonstrating how it’s determined that by reading “. . . make treaties. . .” imputes the power to negotiate with foreign nations to the Chief Executive. That implication along which the power to appoint and receive ambassadors, has many penumbrae, implies the “sole power doctrine.” The question arises who else can negotiate with foreign powers? You are correct the Constitution is silent about any others, but because it does mention the President, that implies there are no others.
As I described, the Framers did not want foreign policy be made by a gaggle of disparate opinions, fighting over supremacy. They discussed it in the Federalist Papers. They settled on putting that under the aegis of the Executive Branch so that it more closely resembled the way it worked in governments around the world, so those governments would be comfortable treating with our government. What I was taught was that the philosophy and rationale behind the decision to make the President front and center in foreign policy, making and signing treaties, but requiring the ratification by two-thirds of the Senate, who represented the Sovereignty of the several states, which the President represented when performing foreign policy and negotiating treaties, which was the check and balance on the potential of a rogue President. To one way of thinking that does limit the “sole power doctrine,” as does the Senate’s simple majority to approve ambassadors, ministers, and consuls, and the Secretary of State.
Similarly, the House of Representatives are now imputing to themselves the amazing extraordinary power to have free-reign access to anything and everything, documents, testimony, without fetters of any kind, privilege be damned, in the Executive Branch, merely because they are on an impeachment investigation search for anything and everything that may lead to bringing down a president they detest. . . even though they cannot coherently describe exactly what they are seeking. That doesn’t matter, they claim, they’ll know what it is when they find it in their grand fishing expedition. Of course, they’ll be able to use whatever they’ll find anyway, and construct their crime from, well, whatever comes up. But that power they claim to have found in the penumbra of the “Sole power to impeach,” so it must be they figure “unlimited,” and ergo, must not require the assistance of the courts, or any other agency to wield.
I particularly liked Pelosi’s threat (suggestion?) that she could send the House Sergeant-At-Arms over to the DOJ to seize the Special Counsel Office’s Grand Jury Russian Collusion testimony, and if their was any resistance from Federal Marshall’s, they could have a shoot-out in the halls of a Federal office building. You can’t make this stuff up.
As for the foreign affairs and US government spending to benefit foreign nations, frankly, I don’t think our Constitutional Framers ever conceived of Congress ever thinking such a thing would be possible. It was, in fact, inconceivable to them that the United States would ever deign to expend the public’s money to aid a foreign nation. Go to war to aid an ally, yes, but to send money? Absurd. I think I addressed that in an earlier post. I think they would have considered that malfeasance and would have expected the population to rise up and tarred and feathered any politician who even considered such a thing. I think we are a lesser people for having disposed of that tradition. I have a list of politicians who would look much better with a feather suit.
Were you aware that it’s reported that George Washington padded his expense accounts? For example, Washington charges the Continental Congress $831.45 for his tack, including saddle, bridle, etc, made of Russian Leather. $81 of that was for his letter case, for his horse. As was observed, Washington loved to use “&c” in his books, which covered a lot of “etc” expenses he did not itemize. From September 1775 to March 1776, he spent over $6000 on booze. I guess General Washington was worth those incidentals.
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