[lbo-talk] USA scoffs laws

andie nachgeborenen andie_nachgeborenen at yahoo.com
Sat Jul 12 05:41:59 PDT 2003


You contradict yourself. You don't like the fact that the judge refused to get the judiciary involved in maters textually delegated coordinate branches (foreign policy) because that is what the Constitution says, because you think thye judiciray should be involved every time the other branches does something you think on your reading of the text is unconstitutional.

But look, Shane, I am sorry to say that you are out of your depth here. The law is what the lawyers say it is. It only _looks_ like English. It's actually Law-ish; maybe we should go back to doing in in law French to remove the natural confusion.

The judge got the case exactly right. Btw, a Senate suit would have fared just as badly. The matter is still nonjusticiable. The proper remedy for a presidential invasion of a Congressional prerogative is impeachment. And, moreover, there no plausible case that there was any such invasion, unless you insist, nontextually! -- that "enter" also means "leave."

jk

jks

--- Shane Mage <shmage at pipeline.com> wrote:
> Justin wrote:
>
> >The judge got it exactly right. I would have have
> >written the opinion along just those lines. If
> >Congress wants to mix it up with the Prez and
> assert
> >its power to ratify withdrawals from treaties, I'd
> be
> >pleased as punch, of course. jks
>
> The judge got it right, but very inexactly so. The
> suit should
> have been dismissed because it was brought by
> members
> of the House only--who could be denied standing
> because
> the treaty-making (and consequently unmaking)
> process
> involves only the Senate and the President. A
> Senator
> would therefore have standing because she was denied
> her constitutionally specified right to advise and
> consent
> to the [un]making of a treaty.
>
> The judge is wrong that the judiciary is debarred
> from
> >acting since the Constitution "clearly relegates
> authority
> >> over foreign affairs to the Executive and
> >> Legislative Branches, with no role for the
> Judicial
> >> Branch to second-guess or reconsider foreign
> policy
> > decisions." If Bush's withdrawal proclamation
> was
> unconstitutional, then any subsequent action he or
> a successor might take in violation of the treaty
> would
> be flatly illegal and thus justiciable. But since,
> presumably,
> no such action had been taken before the suit was
> decided,
> he would have been right to dismiss it as premature.
>
> Of course all this is based on the proposition that
> the
> Constitution means what it *says*. I realize that
> most
> lawyers have been indoctrinated to believe the
> opposite--
> that the Constitution means whatever lawyers in
> robes
> say it means.
>
> Shane Mage
>
> "When we read on a printed page the doctrine of
> Pythagoras that all
> things are made of numbers, it seems mystical,
> mystifying, even
> downright silly.
>
> When we read on a computer screen the doctrine of
> Pythagoras that all
> things are made of numbers, it seems self-evidently
> true." (N.
> Weiner)
>
>
>
> >--- Jordan Hayes <jmhayes at j-o-r-d-a-n.com> wrote:
> >> I found a discussion of the ABM treaty
> termination
> >> issue (and the lawsuit that was filed by 32
> >> congressfolx) here:
> >>
> >>
>
>http://www.armscontrol.org/act/2003_01-02/briefs_janfeb03.asp#abm
> >>
> >>
> >>
> >> ABM Lawsuit Dismissed
> >> A federal judge dismissed a lawsuit December 30
> by
> >> 32 members of the House of Representatives
> charging
> >> that President George W. Bush could not
> unilaterally
> >> withdraw the United States from the 1972
> >> Anti-Ballistic Missile (ABM) Treaty. It is
> unclear
> >> if the representatives, led by Dennis Kucinich
> >> (D-OH), will appeal the decision. (See ACT,
> >> July/August 2002.)
> >>
> >> Judge John D. Bates, citing two points, rejected
> >> hearing the representatives' claim that Congress
> >> needs to give its assent for the United States
> to
> >> withdraw from a treaty. Bates ruled that the
> >> representatives did not have the proper standing
> to
> >> bring the case because they were not personally
> >> injured by the president's act and because the
> issue
> >> of treaty termination is a "nonjusticiable
> >> 'political question' that cannot be resolved by
> the
> >> courts."
> >>
> >> On the first point, Bates asserted that, since
> the
> >> representatives were claiming that they suffered
> "a
> >> grievous institutional injury by being deprived
> of
> >> their constitutional right and duty to
> participate
> >> in treaty termination," they could not claim
> >> personal injury, a prerequisite for bringing a
> >> lawsuit. Bates also denied that the
> representatives
> >> could even claim an "institutional" injury,
> >> declaring that they "have not been authorized,
> >> implicitly or explicitly, to bring this lawsuit
> on
> >> behalf of the House, a committee of the House,
> or
> >> Congress as a whole." He further observed that,
> in
> >> the time after the United States withdrew from
> the
> >> ABM Treaty in June 2002, neither the House nor
> the
> >> Senate has objected as an institution to the
> >> president's action.
> >>
> >> Explaining his second reason for dismissing the
> >> case, Bates noted that no branch of government
> is
> >> assigned the authority to terminate a treaty but
> > > that the Constitution "clearly relegates
> authority
> >> over foreign affairs to the Executive and
> > > Legislative Branches, with no role for the
> Judicial
> >> Branch to second-guess or reconsider foreign
> policy
> > > decisions." He added that, since Congress had
> not
> >> asserted itself on the issue, neither should the
> >> court. Doing so "would preempt what is clearly
> the
> >> prerogative of Congress," Bates concluded.
> >>
> >> John Burroughs, a lawyer for the
> representatives,
> >> took heart from one aspect of the judgment,
> noting
> >> in a January 1 statement that Bates' decision
> "does
> >> not foreclose Congress from asserting its
> >> constitutional role in the treaty termination
> >> process."
> >>
> >>
> >>
> >
> >
> >__________________________________
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