Sunstein: Obama, not courts, should interpret law

[Gerry Clinchy]

This guy Sunstein is really something else:

In the Harvard paper, Sunstein even suggests animals could be granted the right to sue humans in court.

"We could even grant animals a right to bring suit without insisting that animals are in some general sense 'persons,' or that they are not property," he wrote.

Sure wonder how he would argue that "a piece of property" can bring a lawsuit. Scientists have some evidence that plants can feel "pain". I don't really think we're in danger of being sued by a head of lettuce, but what about food animals? We already know the guy is against hunting.

The Harvard paper referred to cites an 1879 discourse on slavery in France. I think the reference is mis-used by Sunstein.

[YardleyLabs]

That is as outrageous as Bush's similar beliefs.

Say what? What similar beliefs? This should be good

In all issues related to detainees and rights of due process, the Administration argued that both under the war powers of the President and under the general executive powers of the President (the so-called "unitary" executive) that the President had the exclusive right to interpret the law and that his determinations should not be subject to court review. This is also the basis for the Bush administration's unprecendented (by volume and qualitative nature) use of Presidential signing statements. This argument was repeatedly rejected in numerous court challenges although the Supreme Court opened the door for some of these arguments in some of its more recent decisions. Before commenting on any specifics of Sunstein's argument, it might be interesting to see the actual article in question rather than WND's interpretation's of it and very political representation. Personally, however, I believe that Bush was completely wrong and, if Obama should take a similar position, I believe he would be equally wrong. Obama has flirted with some of the Bush administration approach in the arguments that US law and US courts should have no right of review for prisoners held in US administered prisons in Afghanistan.

[YardleyLabs]

Why is it that liberals MUST mention Bush 43 whenever ANY mention of a dolt in the CURRENT administration comes up? WHY??????

Good thing they'll only have about another 38 months to wear those blinders....

kg

Because most things happen in a continuum despite the desires of the right to pretend that history,if it is "good". is the sole property of the right and that everything that is "bad" is the sole property of liberals.

After WWI, the role of the Presidency was diminished and Congress ruled almost supreme. FDR acted to garner more power to the Presidency even before the war made that easier. That included efforts to stack the Supreme Court which stood in opposition to most of what he was trying to do. In reaction to FDR's three terms and powerful role, the years following FDR saw a reduction in Presidential power (including Constitutional term limits for the President). Nixon moved to expand Presidential power again but got caught with his head in the toilet. That led to further restrictions on Presidential power. Reagan began centralizing power again and Clinton sought to build on that leading to a clash where impeachment hearings were used to emasculate him. GWB moved to reverse that decline in executive power in a manner reminiscent of FDR. As a candidate, Obama criticized the extent of the WH power grab. As President, however, I suspect that he is reluctant to give up too much.

With respect to Cass Sunstein, it should be noted that he has frequently come under fire from the left because of his statements supporting many of the presidential powers claimed by Bush. The Salon describes him as follows: "Cass Sunstein -- protector of Bush lawbreakers, advocate of illegal Bush spying and radical presidential powers, and fierce critic of blogs as "anti-democratic"" [http://www.salon.com/opinion/greenwald/2008/07/19/law/] The Daily KOS has criticized Sunstein for years because of his defense of Bush expansions of executive power (see http://www.dailykos.com/storyonly/2005/12/23/14176/260).

[YardleyLabs]

I finally managed to track down the article that WND and right wing blogs report as if it is news discovered among the secrets of the Cabal. The article was written and ppublished in 2006 in the radical publication known as The Yale Law Journal.It may be found in its entirety at http://www.yalelawjournal.org/pdf/115-9/Sunstein.pdf.

The abstract reads:

"Under Marbury v. Madison, it is “emphatically the province and duty of the judicial department to say what the law is.” But in the last quarter-century, the Supreme Court has legitimated the executive’s power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, the most cited case in modern public law. Chevron is not merely a counter-Marbury for the executive branch, but also the Erie Railroad Co. v. Tompkins of the last half-century It reflects a salutary appreciation of the fact that the law’s meaning is not a “brooding omnipresence in the sky”—and that the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. The principal qualification has to do with certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient."

Sunstein argues that:

"...Marbury might be said to rest on a theory of “implicit nondelegation,” to the effect that the Constitution is not properly taken to grant the President (or, for that matter, Congress) the final authority to interpret its ambiguities. That authority has been granted to the courts.

"This judgment—the foundation of Marbury—has not been uncontroversial. Foxes should not guard henhouses; but who is the fox? In a famous article, James Bradley Thayer contended that the Court should uphold democratic judgments unless they plainly violate the Constitution."

This argument mirrors traditional conservative arguments that the courts should not be in the business of legislating; that instead deference should be given to the decisions made by elected officials. Personally, I tend to distrust the foxes guarding the henhouse enough that I would prefer to trust the courts. It is ironic, however, that Sunstein is now being characterized as a form of protagonist for dictatorial powers when what he argues is a dinstincly conservative position. For the record, Sunstein's article was in large part a defense of the Bush administration's decisions to exclude greenhouse gases from regulation under the clean air act.

[Bob Gutermuth]

George W Bush was an OK POTUS. He wasn't Ronald Reagan but he was far better than Osama and the gang of radical America haters that are running the country currently. 2012 Cannot get here soon enough so that we can remove the current administration from office.

[Terry Britton]

This guy Sunstein is really something else:


Sure wonder how he would argue that "a piece of property" can bring a lawsuit. Scientists have some evidence that plants can feel "pain". I don't really think we're in danger of being sued by a head of lettuce, but what about food animals? We already know the guy is against hunting.

The Harvard paper referred to cites an 1879 discourse on slavery in France. I think the reference is mis-used by Sunstein.

I am not sure about pain, but there are several examles of plants feeling, and acting on those sensors such as with the Venus Fly Trap, or Catsclaw Sensitive Briar. Even your household plants will move towards the sunlight a little bit. So, the question is when will plants have a descrimination lawsuit against Vegans and Vegitarians?

[TXduckdog]

That is as outrageous as Bush's similar beliefs. It should be noted that Sunstein is writing about an 1803 Supreme Court precedent and citing powers that he believes should rest with the President, whether that President be Obama, Bush, or someone as yet unknown.

Geez Jeff......you're a broken record dude...who gives a flying phuck what Bush did in the context of the current administration....it is so irrelevant now it's pathetic. And you're getting pathetic.

[YardleyLabs]

Geez Jeff......you're a broken record dude...who gives a flying phuck what Bush did in the context of the current administration....it is so irrelevant now it's pathetic. And you're getting pathetic.

See posts 12 an 13. The issue for which Sunstein is being criticized in the right wing press now is one where he has been repeatedly criticized in the liberal press since he has been arguing what, until now, has been the conservative position argued by the Bush administration in support of their theory of the unified executive. The article cited was writen in 2006 in part as a defense of Bush actions that weakened the clean air act and were widely praised by conservatives at the time. History did not end with Bush nor start with Obama, no matter how much conservatives wish that were true.

[Bob Gutermuth]

So long as the left can try and throw mud at W they are obfuscating the horrible goofs that Osama is making, like being tied up with ACORN, Van Jones and Cass Sunstien.

[dnf777]

Geez Jeff......you're a broken record dude...who gives a flying phuck what Bush did in the context of the current administration....it is so irrelevant now it's pathetic. And you're getting pathetic.

That's like my wife asking who's gives a FF what she bought with the visa card last month, in context of me sitting down THIS month to pay the bills!

Those who don't study history are doomed to repeat it!

Phoolish regards,
Dave