One Sided Rules
As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”
The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally).
Given the hearing scheduled to begin on Monday, when AG Alberto Gonzales will be testifying before the Senate Judiciary Committee, they entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:
… Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).
Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).
This was the position that officials in the Clinton White house took. However now there is a republican in the White House and they take a 180 degree turn on where they stand.
The controversy of alledged domestic spying is nothing more then a red hering. A political game trying to once again discredit and and interrupt the current administration from doing its job. Political games in a time when we as a nation face enemies from outside as well as from within. When security and survival at leasts faces us. We have elitists playing games because they are not in power.
The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally).
Given the hearing scheduled to begin on Monday, when AG Alberto Gonzales will be testifying before the Senate Judiciary Committee, they entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:
… Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).
Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).
This was the position that officials in the Clinton White house took. However now there is a republican in the White House and they take a 180 degree turn on where they stand.
The controversy of alledged domestic spying is nothing more then a red hering. A political game trying to once again discredit and and interrupt the current administration from doing its job. Political games in a time when we as a nation face enemies from outside as well as from within. When security and survival at leasts faces us. We have elitists playing games because they are not in power.
