Tuesday, April 21, 2009

Restraining Executive Power: The Views of Arlen Specter

George_Washington,_1795_by_Gilbert_Stuart In a just published article in The New York Review of Books here, Arlen Specter, Senior Republican United States Senator from Pennsylvania and Ranking Member on the Senate Judiciary Committee, has signaled his intention to take "several concrete steps" to restrain the power of the executive.  He expresses  "the doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens."  

Yet he insists that there is a need for reform no matter who occupies the White House.

Generally, he is advocating three pieces of legislation.

First, he states he intends to "introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues."

Second, he states he will "reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008 . . . . [this] legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded."

Third, he will "reintroduce" the  "Presidential Signing Statements Act"  to "prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent."

The article is an extended argument for each of these three proposals.  It makes interesting reading - - - and could also be the basis of an exam question on Separation of Powers, including Congressional authority over Judicial power.

RR

http://lawprofessors.typepad.com/conlaw/2009/04/restraining-executive-power-the-views-of-arlen-specter.html

Congressional Authority, Executive Authority, Interpretation, Jurisdiction of Federal Courts, Separation of Powers, Teaching Tips | Permalink

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