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June 16, 2006


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I'd like to commend you on being nearly the only commentator I've seen to bring up the issue of Section 8's "rules for the government and regulation" clause. This appears to be an incredibly explicit Congressional check on the President. The President has total vertical authority, not horizontal. The difference has been addressed uncomplicatedly by the Constitution itself; those who claim that Congress has no right whatsoever to limit the President's abilities as "commander in chief" need merely consult Article I.


I'm puzzled by your recognizing that the executive can refuse to enforce a law and then worrying that the use of executive signing statements will somehow be worse because executive department agents may be more strongly influenced than otherwise. Did I get that right? One recalls President Jackson's "Now that John Marshall has pronounced the law, let him enforce it!" No executive signing statement there but the challenge seems quite direct.
Then too there is the reverse situation in which the court simply ignores the executive signing statement as having nothing to do with legislative intent, as indeed it doesn't. Or, as John Marshall might have said, "The President has interpreted the law but we do not agree and his interpretation is, therefore, unenforceable in this court."

Kimball Corson

Substantive Executive signing statements step on the toes of the judiciary in that as suggested, Marbury v. Madison (1803) affirmed placement of the function of judicial review in the courts. They step on the toes of Congress too by compromising on legislative history. However, a bully Executive is to be expected when we have an overly sympathetic and patsy Congress and High Court. But it is the Chief Executive stepping out of his bounds in my view, but -- if it would -- the judiciary has the power to correct the matter, but it is harder for Congress to do so. Problems emerge most here when Congress and the Judiciary no longer serve as effective checks on Executive power, as presently.

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