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Wednesday, March 09, 2005

What's the Nature of the Presidential Order?

JMoore asks a good question:
It is obvious that the president can pre-empt the TX state law that says cases cannot be reopened. However once the law is pre-empted, can he then ORDER the court to rehear?
I guess it depends on what the "order" really is. I don't think he could order the Texas Attorney General to do anything. That, to me, is commandeering--barred by the 10th amendment. But his order can just be the equivalent to federal legislation or a treaty that preempts the state procedural rules. So the inmates can bring a habeas petition or a 1983 action or something challenging the state actor's violation of federal law, and the presidential order preempts the state procedure. If Texas actually refuses, and it gets up to the Supremes, then they reverse, not on any ICJ deference grounds, but on the presidential preemption.

That's my guess . . . I welcome my much-smarter co-contributors to weigh in.

UPDATE: Lyle Denniston has a post on SCOTUSBlog: Are the states "puppets of a ventriloquist President"? He takes issue with the consideration of the Bush memo as an executive order:
[T]here is no executive agreement; the President is moving on his own claimed authority in foreign policy matters to direct the states to follow the World Court ruling.
Lyle, therefore, seems to think this is solely a Printz commandeering issue.

But all this means is that the President needed to be more clear that this was an executive order declaring the state of the law and not an order commandeering the state actors. The mandate that state courts uphold federal law (Testa v. Katt) does not offend Printz. Otherwise this analysis makes every piece of federal legislation a commandeering action. Had he been more explicit, Garamendi would make the order preempt the state procedure.

I think, therefore, that the issue is the President's uncabined legislative power. I would prefer a limit to the President's effective ability to legislate domestically under the auspices of his/her foreign affairs power, see Youngstown; Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993), rather than an anti-commandeering band-aid.


Blogger Julian Ku said...

I think this is basically right.

8:23 PM  
Blogger Julian Ku said...

Sorry, didn't mean to be so brief. My further thoughts on this issue are on my blog. thanks.

8:27 PM  

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