Steve G.

Bob Barr testifies before Congress: “The American people are entitled to have a president who obeys the law”

In Libertarian on July 26, 2008 at 7:04 pm

Many kudos to Bob Barr on this testimony. Maybe there’s hope for him after all.

BARR URGES HOUSE JUDICIARY TO HOLD PRESIDENT ACCOUNTABLE;
Testifies on Executive Branch Abuses

Washington, DC — In appearing before the House Judiciary Committee, Bob Barr called for “a thorough inquiry into the Bush administration’s attack on the Constitution’s system of separation of powers and checks and balances.” He explained: “It is axiomatic that no matter how much power government has, it always wants more. While the executive branch under George W. Bush has taken this truism to new heights, it is not unique in its quest for power. Unfortunately, the other branches of government have failed to do enough to maintain the constitutional balance. Particularly disturbing has been Congress’ recent reluctance, in the face of aggressive executive branch claims, to make the laws and ensure that the laws are properly applied.

Barr informed Congress that the issue was more than an abstract legal controversy: The failure to check the executive “has inhibited the operation of the separation of powers, necessary to provide the checks and balances which under gird our system of constitutional liberty.” Thus, he added, “if the choice before this Committee is either a constitutional inquiry or a constitutional silence, then by God, I choose a constitutional inquiry” into administration misbehavior, “not silence.”

Barr pointed to multiple administration practices: claiming that the president was authorized to override statutes and the Constitution, conducting illegal surveillance of the phone calls of Americans, using executive privilege to frustrate congressional inquiries, claiming “state secrets” to defeat private lawsuits over administration abuses, issuing “signing statements” to justify violating bills that he signed into law, and contending the president alone was authorized to take the nation into war. “In most of these cases, President Bush admittedly built on the extravagant claims of his predecessors. But that makes it even more important for Congress and the courts to confront the executive branch when it pushes too far,” notes Barr. “Otherwise we may never reestablish the constitutional balance.”

Responding to a challenge issued by Rep. Walter Jones (R-NC), Barr said that, if elected president, “I will not use signing statements as has President Bush, to justify disobeying laws passed by Congress. I call on Senators McCain and Obama to promise the same. The American people are entitled to have a president who obeys the law.”

That isn’t all, however. In response to another congressional query, Barr added: “If I am elected, I will stop using the ‘state secrets’ doctrine to hide government misconduct, start following the Bill of Rights, urge Congress to roll back recent legislation expanding surveillance of American citizens under the Federal Intelligence Surveillance Act, order executive branch officials properly subpoenaed by Congress to testify, and stop misusing ‘executive privilege’ to avoid being accountable to Congress and the people. Then I would turn my attention to my next week.”

Many thanks to Steve Kubby for forwarding this to LFV!

  1. I hate to criticize Barr in this one instance (I really do) where he did a great job, HOWEVER is it really the president’s obligation to enforce all laws passed by Congress? I don’t think so. The president swears to uphold the Constitution, and as such, he should only enforce laws that are congruent with the Constitution and nullify the rest. The Supreme Court is not to have sole jurisdiction on what’s constitutional. A Libertarian president should be a nullifyer, not a servant of Congress.

  2. He might have just been alluding to Congressional oversight of the Executive Branch. Ex., Rove refusing the subpoena (most likely at direction of the administration).
    Checks and balances, checks and balances.

  3. No, he has said in the past that the president cannot choose which parts of laws should be enforced.

    He is saying this as a dig on Bush, who is one of the greatest tyrants in history.

    However, fundamentally, I think Barr is wrong. Bush’s abuses of power go well beyond his refusal to enforce certain parts of laws.

  4. The Constitution says that the President has to “take care that the laws be faithfully executed” or something to that effect. So if Congress passes a law, and it’s constitutional, then the President does have an obligation to enforce it.

    There’s also his obligation to follow the law, which again assuming the law is Constitutional he’s required to do just like everyone else regardless of being President.

  5. Also, GE, do you see with this kind of thing today how Libertarians can be willing to work within a broad coalition? I’m a radical at heart myself, but the ~500,000 radical libertarians in this country simply aren’t enough to accomplish anything of any significance on their own. With the LP, we have the chance to be at the center of a broad coalition of people who want to move in the right direction. We’re not in a position to turn our nose up at them because they’re imperfect.

  6. This is one of my 2 favorite blogs. I love coming hear. Thanks for the good work.
    The interaction and topics are great!

    My other favorite is a libertarian … economist guy….

    Byron 1776
    byron1776.blogspot.com

    His post today about 3rd parties is great.

  7. HOWEVER is it really the president’s obligation to enforce all laws passed by Congress? I don’t think so. The president swears to uphold the Constitution, and as such, he should only enforce laws that are congruent with the Constitution and nullify the rest.

    Oh Lordy.

    The president doesn’t have to enforce laws that he finds unconstitutional, but he does have to challenge them in the Supreme Court. A president cannot “nullify” laws he finds unconstitutional — he only can veto them. If he finds a particular law that has passed unconstitutional, he can refuse to enforce it (and accept the consequences) while challenging it in the SCOTUS. He does this accepting the potential consequences, including impeachment.

    There is NO power to “nullify” laws by the executive branch. Period. I wish Libertarians would stop making up phony “powers” like presidential or jury “nullification.” For all the bitching about the constitution that Ron Paul fans like yourself make, it’s pretty clear that a great deal of you haven’t read the bloody thing.

  8. I’m not really versed in the jury nullification theory, but wasn’t it used in civil rights matters — juries saying, yes, this person broke the law, but it’s a bad law so we won’t convict? Or am I getting this wrong?

  9. Jury nullification has been an established right for centuries. It played amajor role in the events leading up to the American revolution.

    http://en.wikipedia.org/wiki/Peter_Zenger

    http://en.wikipedia.org/wiki/Jury_nullification

  10. Jury nullification has been an established right for centuries.

    No it hasn’t. It’s been an effort that was popular in the United States prior to establishment, but there is no constitutional role for “citizen nullification.”

    If juries refuse to convict someone who is guilty under established law due to their objection to that law, they committed fraud by refusing to disclose their opposition to the law during the jury selection process and have perjured themselves.

    The proper venues for challenging a law are either the courts or the legislature. What’s amusing is that many right-wing “libertarians” have complained endlessly about “activist courts” overruling “the will of the people,” when that’s the proper role for courts — yet advocate policies like jury nullification that have literally no constitutional basis whatsoever.

  11. Jury nullification is a de facto and traditional power of juries, not normally disclosed to jurors by the system when they are instructed as to rights and duties. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors’ motivations during or after deliberations. A jury’s ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal; and the constitutional prohibition on retrying criminal defendants (see related topics res judicata and double jeopardy).

  12. That was from the wikipedia article.

  13. I’m completely aware of the arguments in favor. I’m also aware that there’s no Constitutional argument in favor of “nullification.”

    Right-wingers like Ron Paul are particularly comical on this point. They argue against the 14th Amendment, which is clearly IN the Constitution, yet argue that this “nullification” concept exists in law (when it doesn’t).

    The SCOTUS, ironically enough, held that “nullification” is a possibility as a realpolitic thing, if not as a constitutional principle. Yes, that Supreme Court, the nasty “activist jurors.”😉

    But they also held that it was not a “consistent right,” merely that jurors could — if not asked in the selection process — refuse to convict.

    Because of that ruling, EVERY law team selects juries based upon their belief in the law. If a juror perjures himself by claiming not to have a problem with a law he plans to “nullify,” he most certainly can be tried for perjury. Even if he isn’t tried, committing perjury is in and of itself immoral.

  14. I’m also aware that there’s no Constitutional argument in favor of “nullification.”

    9th and 10th Amendments.

    * Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    * Tenth Amendment – Powers of states and people.

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Jury nullification was a pre existing right of the people under common law, thus the constitution did not take it away.

  15. Slavery was a pre existing right of the people under common law, thus the Constitution did not take it away.

    Preferential treatment based on Crown noble affiliation was a pre existing right of the people under common law, thus the Constitution did not take it away.

    The King’s right to primacy over Parliament and the judiciary was a pre existing right of the people under common law, thus the Constitution did not take it away.

    Etc., etc., etc.

  16. Slavery was a pre existing right of the people under common law, thus the Constitution did not take it away.

    It did: see the 13th Amendment.

    Preferential treatment based on Crown noble affiliation was a pre existing right of the people under common law, thus the Constitution did not take it away.

    I seem to recall something about not granting titles of nobility. Preferential treatment based on Crown noble affiliation was a privelege under British coded law, not a right of the people under common law, thus independence from Britain nullified it.

    The King’s right to primacy over Parliament and the judiciary was a pre existing right of the people under common law, thus the Constitution did not take it away.

    See response about titles of nobility.

  17. Preferential treatment based on Crown noble affiliation was a privelege under British coded law, not a right of the people under common law

    Nobility is a common law practice. The US government doesn’t grant titles, but the Crown could (and does). The rights of nobles aren’t codified, but common law.

    There’s a curious problem with constitutionalism and libertarianism — many libertarians (not you, Paulie) reject libertarian interpretations of the constitution to embrace absurdities like “states’ rights,” and ignore the codified law (such as the primacy of the Bill of Rights over all government levels, and jurisprudence) in favor of extremism like jury nullification.

    That’s not an adherence to a consistent view of the Constitution, but rather an effort to reinvent the Constitution to fit one’s own world view. Very annoying, especially when it comes from self-described “constitutionalists” (or especially big-C constitutionalists, who are more about the Bible than the Constitution).

  18. Nobility is a common law practice. The US government doesn’t grant titles, but the Crown could (and does). The rights of nobles aren’t codified, but common law.

    You may have gotten me on that one. However:

    No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

  19. Titles of nobility pre-date the United States, and the common-law rights accorded to them aren’t explicitly nullified by the Constitution.

    New titles cannot be created, but under the old English common law, a title of nobility may not be nullified.

    One hilarious outcome of this is that there’s an active effort by “nobles” in Canada and the UK to have their hereditary rights to property in the US, abandoned by their ancestors during the revolution, restored.

    The legal argument against this is that the common law prior to establishment has no validity unless expressly recognized by the constitutions of the states or the federal government.

    Jury nullification never received that recognition, and is thus as valid as English hereditary titles — which predate the US, are common law, and weren’t granted or created by the US government but by the English crown. The Constitution clause you mentioned forbids elected individuals from accepting NEW titles, not from having prior common-law claims asserted, yet those claims remain invalid under the present order. Why wouldn’t the same thing happen for another English concept — jury nullification?

  20. Jury nullifaction is a long-established right of a jury; see Brailsford v. Georgia, 1798 (SCOTUS, maj. op by C.J. Jay).

    Recently my wife bodyslammed a MJ possession case because the judge asked her on empanelment if she had any problems with the case, and she responded, “I’m an agronomist. What’s so illegal about owning a plant?” in front of 10 empanled jurors. The judge let her go. The prosecution’s jaw fell on the floor. The defense counsel smirked. The defendant got acquitted.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: