Interview with Bruce Fein – NDAA
Mandeville, LA – Exclusive Transcript – “Bruce Fein, welcome back, sir. How do you score the match? It seems like we have inverted the adage. It seems like most of the American sheeple don’t really have much of a problem with our American monarchy. The term FLOTUS just rolls off the tongue. I thought we had a prohibition against titles of nobility, for example, but there she is with a checkbook in hand, and apparently now a seat in the House of Representatives and a seat on committees that draft legislation.” Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: Bruce Fein, welcome back, sir. How do you score the match? It seems like we have inverted the adage. It seems like most of the American sheeple don’t really have much of a problem with our American monarchy. The term FLOTUS just rolls off the tongue. I thought we had a prohibition against titles of nobility, for example, but there she is with a checkbook in hand, and apparently now a seat in the House of Representatives and a seat on committees that draft legislation.
Bruce Fein: That’s true. Not only is it the trappings in terms of titles of nobility, but when I came to Washington 46 years ago, the president would deliver a speech at one of the hotels and there would be a few police motorcycles in front and a car in back of him. They’d close off the street for a few minutes and you’d do your daily business. Now it’s like a Roman emperor. There are about 40 or 50 motorcycles with police on them, and not one car but about 20 of them all with video cameras of some sort or another. They shut off all the roads around Lafayette Park, block after block. It’s about 20 minutes and the whole city shuts down. That’s just, I think, the visual expression of this growing, growing, limitless executive power.
Mike: Can I tell you an anecdotal story real quick?
Mike: This kind of applies. I’m doing a little research for speeches and anecdotes and inconsequential trivial things that have happened on the Fourth of July for upcoming Independence Day. You were talking about security. Here’s what I discovered happened on the centennial in 1876. Vice President Ferry was giving the address at Independence Hall, a big stage in front, thousands of people gathered around. Guess who shows up? Susan B. Anthony and a gaggle of angry, ugly women. They storm the stage. They got on the stage and she almost got the dais from the vice president. They had to escort her off and show her to her own stage. Just hearing you talk about all the motorcycle cops and all that, there was Susan B. Anthony almost able to take out the vice president in 1876.
Fein: She had been arrested for having the audacity to cast a vote in New York contrary to their particular provisions at the time. You’re exactly right. It’s just another example of how far — it’s a year-by-year thing, Mike. What’s really troubling, it doesn’t matter whether it’s a Republican or Democrat in the White House. It keeps growing and growing. If you look at the authority that the president now claims and wields, and compare them with the indictments against King George III that provoked an American Revolution, the president today exercises vastly more authority than King George III ever did. The American people and Congress and lawyers are complacent about it. It’s just truly stunning. We need to awaken the American people of the danger they are confronting. Every precedent, every standard and practice that President Obama undertakes sets a precedent that will build and build and build for the next president. Even if you’re comfortable with President Obama, he’s not going to be there more than a couple more years. What about the next president? Will he be more of a megalomaniac? Where’s the rule of law to protect us? It’s like the man for all seasons. What’s going to happen when you tear down the laws and the devil is after you? You turn around for protection and the laws are all cut down. Who will protect you then? We’ve got to be long-headed and think about those consequences or otherwise we will have a one-branch, tyrannical government operating in secrecy in 30 years.
Mike: We will have or we will have another one? It seems that way. Bruce Fein is on the Dude Maker Hotline with us. Of course, Mr. Fein worked in the Reagan administration in the Justice Department, is well known as being one of the foremost authorities on the legal matters surrounding the U.S. Constitution that are alive today. I want to go back to your opening statement. Karen Tumulty at The Washington Post actually quoted you in her piece from June 2nd. She’s talking about the NDAA. She’s also talking about these signing statements and how President Obama has used these signing statements. If you would, please, sir, walk the audience back through the very brief but unprecedented abrogation or I would say seizure of power that — I believe it was President Bush started these — that started with the signing statement and what the problem with that is. What is Tumulty talking about?
Fein: The signing statements started before President Bush, but he increased the volume algorithmically. That, I think, is a smaller point. What is a signing statement and why should we care? We need to go back to a couple simple civics lessons. When the Constitution was drafted, it provided that the legislature, the House and the Senate, would have to pass a bill and present it to the president before it could become law. The president would have an option of signing the bill to become law or he could veto it. Then it would be sent back to the House and Senate and could be overridden by a two-thirds vote. As George Washington explained, the Constitution only authorizes the president to sign the bill in toto or to veto it in toto. Part of that was the importance of giving the legislature some kind of leverage over the president, that is, they could put in provisions that the president might like, some the president didn’t like, and then the president would have to make the political option: Do I want to sign the bill and take the good with the bad or veto it and tell them just to eliminate what I think is the bad and I’ll reconsider? It is an important component, that the president has to sign or veto it all, that gives the legislature some leverage. As I say, sticking in provisions, say with regard to the Keystone Pipeline, that Congress could pass something that President Obama wanted, it sticks in the Keystone Pipeline issue requiring it to be approved, and then the president has a difficult choice to make. He can veto it or sign it but it has to be in toto.
The signing statements attempt to create what’s the equivalent of an absolute line item veto in which the president says: I’m signing the bill, thereby making it a law, but I’m identifying the provisions that I don’t like and I’ll say they’re unconstitutional. I’m not going to submit that issue to a court of law. I will unilaterally decide this is unconstitutional and I’m not going to obey that portion of the law but the rest of the law goes through. Well, that’s simply wrong. The president has an obligation to uphold and defend the Constitution in all of his actions. If he believes a statute in whole or in part is unconstitutional, he is required to veto it and say: Eliminate the unconstitutional portion and then I’ll sign the bill. He’s not permitted unilaterally to decide on his own: I’ll just white out this provision of a bill. As I say, that’s the equivalent of a line-item veto that the Supreme Court has held is unconstitutional — a case called Clinton v. New York — and then just enforce the parts of the law that he likes. Remember going back to why this matters. It reduces the authority of Congress then to have its legislative agenda enacted because the president doesn’t have to pick and choose to take the good with the bad. He can just take the parts he likes and eliminate what he says is the bad by calling it unconstitutional.
That’s what Obama did with regard to this National Defense Authorization Act. He said: I don’t really like the 30-day notice requirement. I like other parts of the bill, so I’ll just say that’s unconstitutional. It constrains my authority to make Americans safe or rescue people or otherwise. That’s what he’s not permitted to do. Now, I sat on the American Bar Association Task Force on Presidential Signing Statements. We issued a very long report in 2006 or 2007 saying they’re unconstitutional. Mike, this was a group consisting of both Democrats and Republicans, liberals and conservatives, a unanimous report that the president must either sign or veto a bill in toto. He can’t pick and choose because it upsets the equilibrium of power between Congress and the president. That’s what Obama has flouted in this particular instance with his signing statement, which he followed up by ignoring a very clear federal mandate of 30-day notice.
Mike: Can I also add here, and cut me off or correct me where I’m wrong, but you can’t overlook the irony that the National Defense Authorization Act have things in it that are repugnant to the Fourth and Fifth Amendment. He should have vetoed it anyway. He didn’t veto it, but he had the chance to veto it and then he wouldn’t have the provision, right?
Fein: That is correct. He should have vetoed it in toto. The provision I think you’re alluding to is the one that authorizes him to detain Americans without accusation or charge at Guantanamo Bay. These are so-called enemy combatants. You don’t get accused for a trial, you just stay in prison indefinitely, which means forever because the war on terrorism will never end. He should have vetoed it on that ground. He didn’t, even though during his campaign in 2008 he said he disliked the NDAA. He said he disliked signing statements — that Charlie Savage of the New York Times who won a prize for exposing all the signing statements under Bush — but then he’s gone and continues to issue signing statements indistinguishable from Bush’s. Another example of his campaigning in one mood and then as president choosing the opposite.
Mike: When the NDAA came back up for reauthorization, the president, even though as you just noted, he did intimate that he probably would veto it. Of course, when he got the opportunity, he signed it. Then when the NDAA came back to haunt him when he wanted to make this deal to get Bergdahl back in exchange for five Talibanis, there’s a clause in there. He signed the bill. There’s a clause in there that says you’ve got to notify Congress, give us 30 days, and let us know who it is you’re trying to let out or make a deal with and then we’ll advise and consent you. It is the clause in the bill that he should have vetoed that ultimately now should have him on the block for an impeachment hearing. Bruce Fein, you say what?
Fein: Listen, we should be reluctant to race into impeachments. After all, the Constitution expects, in ordinary cases, the will of the people should be respected. But when you have a pattern here, it isn’t just this particular provision. Mike, he’s flat out said he doesn’t want to enforce the immigration laws on certain context or the drug laws on certain context. He doesn’t want to have to go to Congress for authority to fight wars.
He interprets the authorization to use military force to enable him to go all around the globe and kill everybody he wants based on secret evidence, including American citizens, which he’s done four times. Basically he’s said there is no limit on executive power when I echo the words national security. We can’t look at this in isolation. It’s part of an additional pattern that shows a total contempt toward the rule of law and process.
That’s what makes this, as I say, so menacing. Even if your listeners have some comfort level in Obama that you don’t think he’s a megalomaniac and go really crazy and use Predator drones in the United States, he has set a precedent that will enable his successors to do precisely that. I can guarantee you no president will enter the White House and give back power. They take power. We’re all living now, because of Obama, under a sort of Damocles which will enable any president, unless impeachment is forthcoming, to kill anyone he wants in secret and be unaccountable for it. That’s not what America is about. We ran a revolution for a king who boasted of far less powers over our liberty.
End Mike Church Show Transcript