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View Diary: ScAlito's Mistaken View of the President's Lawmaking Ability (96 comments)

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  •  It is naive to believe (none)
    that a President is capable (along with the courts) to solely implement what the law is without at any point implementing and enforcing what he believes law ought to be. Given that the law is open to multiple interpretations it is simply not possible to always follow the one "true" law--given that this one "true" law probably does not exist in the first place (unless you are Dworkin).

    Now clearly, if a law directs the Pentagon to spend 100 dollars on X and the Pentagon spends 500 dollars on X, we might say that it is obvious that the Pentagon has not followed the law. But in many cases administrative law is quite complex and open to policy manipulation. For example, there might be a second piece of legislation that allows the Pentagon to spend 500 on X in special circumstances. Now we must have a debate on what those circumstances are and if that burden has been met to see whether the Pentagon demonstrate that those now defined circumstances have occurred, warranting the larger expenditure. (yes, we could bring the Constitution in here, but that's just silly. The same problems of interpretation arise and the Constitution is even more open to policy manipulation).

    What is amusing about Alito's comments is that he seems to be articulating a position similar to legal realists or critical legal studies, at least in his point that the President ought to be more open in how he interprets the law. Considering that the Bush administration (and Alito apparently) claim to use original intent and all that other gunk to try to cover over their policy decisions of what the law ought to be, having the President explain his interpretations openly would be a big step forward. At least then we would know his interpretation, and not just have to guess based on what results from that interpretation, so we could
    determine if that interpretation is a good one or a bad one policy wise.

    Alito writes: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress". Alito seems to make a large logical jump when he concludes this from the fact that the President approves a bill, but the second part of the sentence is reasonable on its own. Now in the end, the Supreme Court's understanding of legislation is the most important, but is not the President's understanding important as well? The President can have a good or bad understanding of the bill, just like Congress can have one. In some cases, (we might feel that) the President's understanding may actually be superior.

    Imagine a situation in which a Democrat President decides to enforce an environment bill drafted by a Republican congress. Now both sides have their interpretation of what the bill says, and both will stick firmly to those beliefs. Chances are most liberal democrats would side with their President and most Republicans would side with their congress--the complete opposite of what is happening with Bush. Now we might say that an intellectually honest observer could pick out the correct interpretation, but both sides might have very compelling arguments for why their interpretation is the best one. The argument cannot be solved without making a policy decision of what the law ought to be using the political process decided in the end through elections.

    Let's face it, everyone involved in governments, be it the legislature, the courts or the executive is a lawmaker (or at least decides what policy ought to be). The one thing we can ask for is openness so that we can have a fair debate about policy, something our current President does not want to provide. It's unclear if Alito will work to provide such openness, but given who nominated him I doubt it (1986 writings aside).

    All of this just reinforces the idea that the best solution for Democrats is to ensure that their candidates win elections so that they, not Republicans, can implement policy and decide what the law ought to be.

    One final point, given that the White House essentially drafted the entire Patriot bill in just a few days, and most members of Congress had never read it, do we have any choice but to conclude that the bill was the President's?

    •  Disagree (none)
      and utterly.

      The President is NOT a lawmaker and neither is the Supreme Court.

      Both must be dedicated to being faithful to the Congressional intent.

      You confuse Constitutional interpretation with statutory interpretation with regard to the Supreme Court.

      The SCOTUS is extraordinary.

      by Armando on Mon Jan 02, 2006 at 10:18:38 AM PST

      [ Parent ]

      •  The President (none)
        and the courts aren't supposed to be lawmakers, but in practice they no doubt do sometimes do decide what the law ought to be, even if in good faith they don't intend to just because they are forced at a minimum to interpret the law drafted by Congress and then carry it out.

        There is a normative proposition (the President and Court ought not decide what the law ought to be) here and an explanatory proposition (the President and Court sometimes do decide what the law ought to be). You are I believe arguing for the former, I'm arguing for the latter, having lost faith that the former is actually possible even if it were desirable (a separate question).

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