July 31, 2006
The non-executive power
Much of the blogosphere is linking to this article by Walter Dellinger on signing statements. One criticism that has been going around, and that I see most recently by Ethan Leib of PrawfsBlawg, is that presidents shouldn't be allowed to decline to execute unconstitutional portions of statutes because that would be the functional equivalent of a line-item veto:
think there is something to the binary choice that he should sign it and execute it (all) or veto it. Giving the president the right to enforce the law selectively risks furnishing him with a line item veto. Of course, if you think the president should have a line item veto (something the Court has ruled unconstitutional!), giving him this right seems to follow. But if you are against the line item veto, can you really sign onto Dellinger's thesis?
I think there is less to this argument than it seems. After all, nobody thinks that presidents can refuse to enforce mandatory statutes simply on the grounds that they dislike them, or find it political suicide to enforce them, or they're having a bad day, or what-have-you (although some statutes do give the president this degree of discretion). Rather, the argument extends only to unconstitutional statutes, or more precisely, to statutes that the president in good faith believes to be unconstitutional. Now, this may be a bad thing to give the president, and it may be a thing that our constitution doesn't give him, but a line-item veto simpliciter it ain't.
Confusing the two would be like confusing the Supreme Court's authority to strike down unconstitutional laws with a general authority to superintend and edit the judicial code to its liking.
Now, if you believe that constitutional provisions are generally indeterminate, that the president frequently acts in bad faith, or that there is some sort of cognitive bias that allows people to convince themselves that things they dislike are also constitutionally forbidden, then you might reasonably fear that the power to not-execute unconstitutional laws will act in fact as the power to not-execute any disfavored law. (That, I presume, is why Ethan writes only that the non-execution power "risks" giving the president the feared line-item-veto). But whatever one thinks of the current occupant of the Oval Office, I wonder if any of those are reasonable presumptions as a general rule.
In any case, I think it's important to remember that the president's power to enforce only those laws that don't conflict with the constitution is only a "line item veto" (for better or for worse) if you also hold a belief that the president's use of the constitution will be transparently political, or the equivalent.
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Its Art, Only its Art
I will condemn what appears to be Mel Gibson's anti-semitism as roundly as the next uninformed observer, and I have never been particularly inspired to go see The Passion of Christ either. So I have nothing substantive to say about his latest comments, or responsive boycotts. Anti-semitism is bad.
But I am pleased to see some discussions of separating art from the politics of its creator, on both sides of the aisle:
Matthew Yglesias:
I'm just old-school like this, but it seems to me that the work is the work and the author is the author and the one thing has very little to do with the other -- if we discovered tomorrow that The Birth of a Nation was actually directed by a talented African-American looking to make some cash by making a film that D.W. Griffith could put his name on that wouldn't alter the fact that it's a racist movie.
Ross Douthat:
Separating your feelings about an artist's politics from your feelings about his art is a hard thing to do (just ask Hollywood's conservative critics!), especially when the artist in question is raving about the Jews on the Pacific Coast Highway. But if you can't manage it, then you have no business doing criticism in the first place.
Separating your feelings about an artist's politics from your feelings about his art is a hard thing to do (just ask Hollywood's conservative critics!), especially when the artist in question is raving about the Jews on the Pacific Coast Highway. But if you can't manage it, then you have no business doing criticism in the first place.
I would add that the relationship between using stereotypes in a work of literature or a movie and actually having a racist work of literature or movie is often more complicated than it in fact appears, since the relationship between the is of a fictional world and its ought is rarely straightforward. That is why it is easy to see that Birth of a Nation is a racist movie, but harder to say about Heart of Darkness.
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