Louis Fisher

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Publications

“Signing Statements: Constitutional and Practical Limits,”
  • Issue:
  • Constitutional Interpretation
16 Wm. & Mary Bill of Rights J. 183 (2007). May a President, through a signing statement, nullify or dilute a bill that both houses of Congress pass and present to him? Does that assertion of authority give the President, in effect, an item veto? What happens to the President’s constitutional obligation to “take Care that the Laws be faithfully executed”? If signing statements replace Congress-made law with Executive-made law and treat a statute as a mere non-binding starting point for what executive officials want to do, the rule of law is undermined. The threat is especially grave when implementation of a law is not made public, as when interrogating detainees.
“Interpreting the Constitution: More than what the Supreme Court Says,”
  • Issue:
  • Constitutional Interpretation
“Interpreting the Constitution: More than what the Supreme Court Says,” Extensions, Fall 2008. In a democratic society, questions of constitutional law require a political dialogue that involves all three branches of the national government, all fifty states, and the general public. If the meaning of the Constitution depended solely on unelected federal judges, popular sovereignty would be undermined and replaced by judicial, hyper-technical interpretations increasingly alien to the public. There is no historical support for the view that judges are better positioned to safeguard minority and individual rights. Mutual respect among the branches (and between the branches and the public) provides continuing legitimacy and vitality to the Constitution.
“Congress, Don’t Cede Budgetary Power to the President,”
  • Issue:
  • Constitutional Interpretation
Roll Call, January 19, 2010 p. 4. The current magnitude of budget deficits has drawn attention to a form of “item veto” that might find acceptance in the courts. The version currently under consideration (“expedited rescission”) would permit the President to sign an appropriations bill and then return to Congress a list of projects to be canceled. Congress would have to vote on his proposal, without amendment. The procedure would weaken Congress as an institution and reward the President who has been the major cause of deficits by recommending tax cuts and unpaid military interventions. Savings from this process would be minuscule and might even increase spending through quid pro quos.
Line-Item Veto – Constitutional Issues
  • Issue:
  • Constitutional Interpretation
Statement before the House Committee on the Budget, “Line-Item Veto — Constitutional Issues,” June 8, 2006. It is possible to write legislation giving the President a form of item-veto authority that satisfies the standards set forth in Clinton v. City of New York (1998). However, members of Congress have an independent and non-delegable obligation to protect their institutional rights, duties, and prestige. The item-veto proposal considered by the committee damaged the prerogatives of Congress by signaling to the public that lawmakers cannot properly conduct their constitutional duties over federal spending. Moreover, no evidence supports the view that the President is more responsible on fiscal affairs than Congress, either on aggregate amounts or particular projects.
Statement before the Senate Committee on the Judiciary, “Restoring the Rule of Law,”
  • Issue:
  • Constitutional Interpretation
September 16, 2008. In previous periods of emergency and threats to national security, the rule of law has often taken a backseat to presidential initiatives and abuses. This statement identifies some basic steps for returning to the rule of law and constitutional government. Damage comes when the executive branch depends on the state secrets privilege, secret law, signing statements, misuse of executive privilege, and dependence on the illusory claim of “inherent” powers. The rule of law is weakened when Congress and the judiciary defer to broad claims and assertions by executive officials and fail to exercise checks and balances.
“Saying what the law is: On campaign finance, it’s not just for the Court; Congress has a co-equal say,”
  • Issue:
  • Constitutional Interpretation
Nat’l L. J., February 22, 2010, p. 38. The Supreme Court decision in Citizens United v. FEC (2010) claimed that judicial rulings on campaign finance law are final unless the Court alters its position or the Constitution is amended. This article argues that members of Congress have equal, if not superior, competence, authority and legitimacy to decide the law on campaign finance. New legislation is needed to assure that the level of campaign expenditures does not corrupt the political system, drain power from the general public, and weaken Congress as an independent branch of government.
Statement before the House Committee on the Judiciary, “Congress, the Court, and the Constitution,”
  • Issue:
  • Constitutional Interpretation
January 29, 1998. In the last four decades, Congress has on only one occasion held general hearings on its duties to independently interpret the Constitution. Is the legislative branch coequal with the judiciary in this task or must it defer to the courts? Does Marbury v. Madison (1803) stand for the proposition that when the Supreme Court decides a case its interpretation is final and binding on the other branches and may be changed only by the Court or by constitutional amendment? The record demonstrates that members of Congress may act not only in advance of court rulings but afterwards as well, creating a broad and constructive interbranch dialogue.
No Labels Would Hurt Separation of Powers
  • Issue:
  • Constitutional Interpretation
CQ Roll Call, July 19 2012. No Labels favors new powers for the president, such as authority to recommend the deletion of individual items in spending bills. It explains that when a president receives an appropriations bill he must choose between vetoing the entire bill and accepting "some really unappealing" items. The solution: authorize the president to return those items to Congress for an expedited, up-or-down vote. This may sound appealing, but the procedure would shift the spending power from Congress to the president.
“No Labels Would Hurt Separation of Powers”
  • Issue:
  • Legislative Vetoes
CQ Roll Call, July 19 2012. No Labels favors new powers for the president, such as authority to recommend the deletion of individual items in spending bills. It explains that when a president receives an appropriations bill he must choose between vetoing the entire bill and accepting "some really unappealing" items. The solution: authorize the president to return those items to Congress for an expedited, up-or-down vote. This may sound appealing, but the procedure would shift the spending power from Congress to the president.
Military Operations in Lybia: No War? No Hostilities?
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