In his column at the Post-Gazette this Sunday, Jack Kelly swerves a full 180. He starts with:
Is obeying the law optional?Jack's fellow travelers over on the Scaife editorial board have already tried this one and in general I am surprised that our friends on the right would even think of writing this.
President Barack Obama seems to think it is -- at least insofar as it applies to him.
The administration announced this month that it plans to delay enforcement of the provision in Obamacare which requires employers with 50 or more full-time employees to provide them with health insurance (which contains certain government-mandated provisions), or pay a fine of $2,000 per worker.
Section 1513(d) of the Obamacare law states clearly that "The amendments made by this section shall apply to months beginning after December 31, 2013."
This is important because the Constitution says the president "shall take care that the laws be faithfully executed" (Article II, Section 3).
Where the hell were they when this happened?
In October, 2005 Senator John McCain (a well-known Republican) offered up an amendment to the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (H.R. 2863) which became Title X of the bill. It states:
No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.And specifically:
(a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.The Amendment was agreed to overwhelmingly by the Senate (The vote was 90-9. Even Rick Santorum voted for it).
(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.
(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
The whole bill passed both the House and the Senate and was signed by President George W. Bush, who included this section in the now infamous "signing statement" attached to the bill:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.You may need to read that twice to get a better idea of what's in there.
But here's how Charlie Savage of the Boston Globe described what Bush did:
When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.Though they try to reassure the skittish terrorist-enablers:
After approving the bill last Friday, Bush issued a ''signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.
''We are not going to ignore this law," the official said, noting that Bush, when signing laws, routinely issues signing statements saying he will construe them consistent with his own constitutional authority. ''We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment."Not that means much:
But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.
David Golove, a New York University law professor who specializes in executive power issues, said that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.Interestingly, something Savage writes in the very next paragraph also resonates this story:
''The signing statement is saying 'I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me,' " he said. ''They don't want to come out and say it directly because it doesn't sound very nice, but it's unmistakable to anyone who has been following what's going on."
Golove and other legal specialists compared the signing statement to Bush's decision, revealed last month, to bypass a 1978 law forbidding domestic wiretapping without a warrant. Bush authorized the National Security Agency to eavesdrop on Americans' international phone calls and e-mails without a court order starting after the terrorist attacks of Sept. 11, 2001.Authorizing previously unauthorized NSA eavesdropping? Ignoring laws banning the torture of human beings? Anyone remember those offenses? Jack? Don't you?
And yet when the Obama Administration delays by a year the implementation of a section of the Affordable Healthcare Act, that's when the conservatives from Maine to Malibu judge as the time to point out the President's legal obligations under Article II.
Oh, the hypocrisy!