and also makes me feel vindicated as a teacher. Se. Feinstein asked a question about signing statements in the previous administration. Sotomayer noted that given how courts are also wrestling with some of the issues raised by things like signing statements, she was limited in what should could say. Nevertheless, she pointed at the concurrence by Associate Justice Robert Jackson in Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579. Jackson's three-part test has been the framework by which the Supreme Court has since adjudicated disputes between the political branches.
I require my Advanced Placement students to read and understand that concurrence.
For those who are not aware of it, let me offer the key parts of that concurrence below the fold.
Here is the clear statement by Jackson of his three-part test:
- When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
- When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
- When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
SCOTUS has adopted this as the framework they use for more than half a century. It would seem to me that the approach the Bush administration took with its broad assertions in signing statements and in many actions it took without legislation from the Congress or in violation of the clear requirements of law (FISA) or ratified treaties (Geneva, International Convention on Torture, etc.) is clearly outside the bounds of acceptability based on the framework of Jackson.
As I listen to Sotomayor's response to questions (and remember, many of the words from Senators are not framed as questions, and thus she has not had an opportunity to respond) I hear a person who has thought deeply, understands the balance between stare decisis and the occasional need to change the guidance the Court gives the rest of the nation. She is knowledgeable, which should surprise no one. She is not easily shaken by challenges, which speaks well of her ability to stand up to the intellectual firepower of a Scalia.
All that is well and good. My reaction, however, is quite personal. I heard the next Associate Justice emphasizing something that I have tried to teach my students is important. I feel somewhat validated in my efforts as a teacher.
Pdeace so I didn't check PEACE.