Another Newsitorial

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Back in March I wrote about a newsitorial -- an editorial masquerading as a news story -- that claimed Bush often engaged in "straw man" logical fallacies.

Apart from being incorrect on most of its claims, the article simply was not news. It was pushing a particular opinion of the President and trying to make it look like a news article.

This morning I read another such piece, Bush challenges hundreds of laws. It purports to show that Bush asserts "he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution."

Now, the first thing to note is that this statement in the article's lede is apparently intended to be remarkable. Far from remarkable, the President takes an oath to do just that. The only caveat is that the Supreme Court trumps the President in most matters of Constitutional interpretation (though, contrary to popular belief, the Court's power in this regard is not absolute: if it told the President that the Supreme Court had to approve his nominations to the Supreme Court, he would and could and should defy them).

So let's skip ahead to where this gets to the important part of the story: where the article tries to prove Bush defies the Supreme Court. It's under the heading "Defying Supreme Court."

The author gives only two examples of "defying" the Supreme Court. Both are, if you'll pardon my bluntness, complete bullshit.

In the latter, yes, the Court did uphold an affirmative action program in 2003; but, if you will recall, they struck down an affirmative action program at the same time, and the one that was upheld was specific to the goals of education to provide a diverse student body. So yes, while "the Supreme Court has repeatedly upheld affirmtive-action programs, as long as they do not include quotas," is true, the reverse is also true: the Supreme Court has also repeatedly struck down non-quota affirmative action programs (including the "20 points" rule for minority students in the 2003 case that was struck down).

So to then add "despite the court's rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants" is to, simply, lie, because the cited Court ruling in 2003, supporting the goal of a diverse student body, has absoltely nothing to do with government jobs, contracts, or grants.

The former example suffers from a similar logical flaw: it incorrectly implies that the Supreme Court has ever recognized that Congress blanket authority to make laws giving officials of the Executive Branch authority to act independently of the President, and then implies that any resistence to Congress trying to do just that is therefore defying the Supreme Court.

That's utter nonsense, of course. The "power of Congress to make such arrangements" is not a blanket authority, but specifically tailored to individual cases; otherwise, the Congress could take away virtually all Presidential authority, by simply giving every department head the power to act independently of the President.

And there's a strong case to be made -- which is not made in the article, of course -- that such arrangements, despite past Court decisions, are inherently unconstitutional, and are due for another Court challenge, and that this is a good way to go about doing it.

But -- of course -- the article does not give voice to any of the significant arguments against the arguments pushed by the article. And this is really what makes it not-news. There is not one line offered by one of the many legal experts about how the President has a right, even an obligation, to defy laws he thinks are unconstitutional; this would be fine, if not for the fact that the article tries to push "legal scholars" who support the author's thesis. It says, for example:

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty "to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to "execute" a law he believes is unconstitutional.
What is that "however" doing in there? If he believes a law is unconstitutional, then the Constitution supercedes any Congressional law, and he has a Constitutional responsibility to take care that the Constitution be faithfully executed.

And yet there is not one word in the article describing this Presidential conundrum, nor one legal scholar supporting the President, despite the fact that there are a great many out there. The closest the author comes to offering any defense for Bush is saying that his actions are not unprecedented, and that what he does -- issue signing statements -- is legally meaningless anyway. And both of these facts are at the end of the article, and the legal meaningless of signing statements -- which is a fact, make no mistake -- is offered as merely an opinion. And even then, the author quotes only a single scholar.

There is so much wrong with this article and I have limited time. I want to mention one other thing, though, that is so egregious it bears a staggering "Whaaaaaa- ?" The author quotes Senator Lindsey Graham saying:

I do not believe that any political figure in the country has the ability to set aside any ... law of armed conflict that we have adopted or treaties that we have ratified.
By leaving this out of context and unremarked, the author leaves the impression that Graham is claiming Bush has set aside any ratified treaty, and this is simply not true (nor is it true that Bush has done so).

I am not defending everything Bush has done. Sometimes I disagree with his interpretation of the Constitution in such matters, although I absolutely agree with his right to resist Congress' interpretation in favor of his own. Further, I believe, as the article mentions, that it is proper for the President to veto a law he thinks is unconstitutional (although the article also blurs the line between disagreeing with the text of the law, and disagreeing with the Congress' interpretation of that law, and there's a world of difference between the President giving his interpretation of a law, and the President saying he thinks the law itself is unconstitutional, though sometimes the line between the two is, itself, hard to determine).

The bottom line is that the author does not give opposing arguments to most of the main points, and the main support he needs to really make his case -- that Bush is defying the Supreme Court -- is completely fabricated. Its lack of even attempting to provide argument for the President's legitimate legal case makes this not a news article. And what's left of the article is, in all key areas, woefully inaccurate.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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This page contains a single entry by pudge published on May 1, 2006 9:09 AM.

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