Bricker, I’ll throw your question back at you. As a matter of settled law – not your opinion or mine – under what circumstances if any is a warrantless search of an item of first class mail permissible? Kindly provide cites. This is not a partisan snipe – I stand with you that constitutional rights need to be protected but not everything that anyone believes is his constitutional right necessarily is. But I’m unaware of any circumstances other than the mailing of hazardous or otherwise illegal objects or substances (ricin, cocaine, etc.) which can be detected prior to opening the mailed parcel under which a warrantless search is permissible as a matter of constitutional law.
Jodi: the most miniscule of nitpicks: The State of the Union Address or reasonable equivalent is a constitutional requirement, as jayjay noted in passing; I’m unaware of any other provision requiring the President to answer to Congressional query in any way.
I mean, just because the President asserts the right to kneecap you in a signing statement, doesn’t mean he actually plans to bust a cap on you. He may merely be addressing a minor point of Constitutional law, as a means to protect future President’s perogatives and the vitally important concept of a unitary executive. And his Constitutional right to keep and bear arms is vigourously affirmed by his purchase of a .25 Patella Popper (Remington, available at Sharper Image, $400), and has no direct bearing on his intentions. Similarly, a series of photos of your kneecap with targets embossed thereon may be best interpreted as an artistic endeavor.
There is some area of concern. Some legal scholars suggest that the President cannot actually shoot you personally, but may authorize such a shooting as Commander in Chief, if he has “clear and compelling” evidence that you are an enemy combatant, ( i.e., a videotape of a Magic 8 Ball consultation, with affidavits testifying to its authenticity, or a pretty strong intuition on his part that you hate freedom.)
OK, one thing I need to clear up before I decide who I need to be most outraged at, due to confusion I’ve gotten from various blogs (and White House spokespeople): is this, or is this not, an assertion of new powers that the President didn’t have before? Please cite your answer.
If it is, Bush certainly deserves all the abuse he can get.
If it isn’t, he still deserves some abuse, but I’d save a lot more for whoever in the past thought this was a good idea.
Well, I can nitpick as well as you. The Constitution only requires that the President “from time to time” give information “as to the state of the union.” (Art. I, sec. 3.) It does not require a State of the Union Address “or reasonable equivalent,” although to be fair the information has been given in the form of a SotU Address since George Washington was president. It does not have to be delivered in person, generally wasn’t until Woodrow Wilson was president, and occasionally wasn’t thereafter. Therefore my statement that “he doesn’t even have to go talk to them if he doesn’t want to” is correct. And the SotU Address does not require him to answer to Congress, either.
Would your opinion change if you were to discover that the relevant case law prior to Mr. Bush’s outrageous action ALREADY contained an exception to the warrant requirement for what might fairly be described as “an emergency?”
Sure. One recognized exception to the Fourth Amendment’s requirement for a warrant prior to a search is the existence of exigent circumstances. See, as an example, U.S. v. Brooks, 367 F.3d 1128, 1135 (9th Cir. 2004); see also U.S. v. Reed, 935 F. 2d 641 (4th Cir.), cert. denied, 502 U.S. 960 (1991).
Exigent circumstances may be fairly, if not particularly rigorously, defined as “an emergency.”
The President says it isn’t; the ACLU asks, reasonably, if you’re not asserting any new power, why attach such a rider? Google “postal signing statement” and you’ll get a 100 news sites cites.
IMO, and in line with the ABA’s conclusions, I think there is at the least the appearance of a power grab. There is no need to say “I reserve the right to ignore this law if I decide it is unconstitutional or exigent circumstances exist to ignore it” unless (a) you intend to ignore the law or (b) you already have ignored the law. Is he actually doing something wrong? Not so far, at least as far as we know. That’s what makes the practice so hard to challenge. He’s only saying something. But what he is saying is IMO disturbing, because you have to ask why he would say it. At the least, it appears to be a not-so-subtle attempt to expand his authority but repeatedly asserting that he has it. Considering that he’s appended some 750 signing statements – more than all previous presidents combined – I would not mind at all if Congress jerked a knot in his tail on this. And it’s not like it’s a partisan issue; many Republican congresspeople dispise this practice, believing (correctly, IMO) that it is an infringement on their legislative powers.
“Letters, and sealed packages subject to letter postage, in the mail, can be opened and examined only under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers thus closed against inspection, wherever they may be.”
From US v. Ramsey, 431 U.S. 606, (1977)
“From Border search exception is grounded on the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country; there is nothing in the rationale behind the border search exception to the search warrant requirement which suggests that the mode of entry is critical; no different constitutional standard should apply merely because envelopes which are searched by customs officers are mailed rather than carried into the country; the critical factor is that the envelopes cross the border and enter the country, not that they are brought in by one mode of transportation rather than another.” (upholding warrantless searches of international mail by customs agents).
"The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.
The executive branch shall construe provisions of the Act that call for executive branch officials to submit legislative recommendations to the Congress in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and to recommend for congressional consideration such measures as the President shall judge necessary and expedient. Such provisions include subsection 504(d) and section 2009 of title 39, as amended by section 603 of the Act, and sections 701(a)(2), 702(b), 703(b), 708(b), and 709(b)(2) of the Act."
Now, I’m not Bricker, but I’m sure he’ll be along to tell everyone that they are overreacting because the President, in his signing statement, is only saying that he’ll operate legally under the exigent circumstances exception to the 4th Amendment. Then he’ll pat us all on the head and send us to bed.
However, there are two phrases that concern me. The first is “and the need for physical searches specifically authorized by law for foreign intelligence collection.” Now, this could mean that the President will utilize FISA in obtaining judicial orders before opening mail that he, in his sole discretion, determines to be for “foreign intelligence collection.” However, given this administrations track record of interpreting the Constitution and violating the law, I think there is a good argument that Bush thinks that “by law for foreign intelligence collection” means whatever, wherever, and to whomever he wishes. That seems to be the way he’s interpreted his duties to enforce the law under FISA, and it would fit this administrations distaste for the Constitution to argue that the entire 4th Amendment does not apply to ANY searches, no matter how, done “for foreign intelligence collection.” Of course, just like the NSA, we may never know what he’s actually doing.
The second is a much more minor phrase: “The executive branch shall construe provisions of the Act that call for executive branch officials to submit legislative recommendations to the Congress in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch”. The “unitary executive” are, to this administration, magic words that mean whatever the fuck I want. This wouldn’t be the first time this administration claims it need not report to the legislature about anything it does.
Translation: the statement doesn’t actually say anything that would change existing law, but I don’t like or trust Bush, so I’m going to act like it does.
Mine doesn’t. If by settled law the power to act under exigent circumstances already exists, there is no need to assert that power preemptively by attaching a signing statement declaring that you will “construe” the new law consitent with settled law. All laws are to be construed consistent with settled law.
Oh, come on, Bricker. The President has no say in how any new legislation is “construed,” constitutionally speaking. To the extent he’s trying to “ensure” a particular construction, he’s already on the wrong side of the separation of powers line. He is expected and required to “construe” the law in accordance with settled law. He doesn’t need to attach a signing statement to do that; it’s what he should be doing in every case.
No, not necessarily. “Exigenct circumstances” could easily be eliminated by act of Congress as an exception to the warrant requirement. It is perfectly reasonable to emphasize that this is NOT to be done here.
I don’t know about “emergency situations” but I have witnessed a local post office postmaster open a package that I identified as containing merchandise stolen from the post office collectable stamp display. He was pretty happy considering it contained IIRC about $600 worth of postage stamps.
Sure, if you have a cite that relevant case law already has an exception, with regard to Domestic First Class mail, I’d love to see it. As it stands now, I’m only aware of the postal inspector’s powers (ticking bomb and all that).
As an aside, if this is nothing new, then why add it at all, and why have so much wiggle room in the wording?
If a bill is fine, sign the damned thing. If it’s not, send it back. This “throw shit in the margins and let Justice cover my ass” doesn’t give me warm fuzzies.
On the contrary, the President is the very first entity that must construe a new law. The way he construes it will then generate the necessary “case or controversy” for the courts to do their job. He is merely explicitly signaling, in advance, how he will construe the law.
What? It is “perfectly reasonble” for the President to “emphasize” what Congress is not to do “here”?
If and when Congress eliminates exigent circumstances as an exception to the warrant requirement – a cold day in hell, as you well know – then the President will have no more right to claim “exigent circumstances” as a basis for warrantless action than anyone else. If he has that power now, he doesn’t need a signing statement to declare it. And if Congress takes it away, he won’t have it anymore – and no piddling declaration in a signing statement will put it back.
“Emphasis that this is NOT to be done here,” indeed. It’s not hard to see why Congress would be affonted by these sorts of statements.
My cites apply to Fourth Amendment law, period. Why would you believe that there is a particular exception for Domestic First Class mail? Like anything else, if exigent circumstances exist, mail can be opened without a warrant.
This objection is discussed in the conversation between Jodi and me, above.
The Constitution only requires that the President “from time to time” give information “as to the state of the union.” (Art. I, sec. 3.) It does not require a State of the Union Address “or reasonable equivalent,” although to be fair the information has been given in the form of a SotU Address since George Washington was president. It does not have to be delivered in person, generally wasn’t until Woodrow Wilson was president, and occasionally wasn’t thereafter. Therefore my statement that “he doesn’t even have to go talk to them if he doesn’t want to” is correct. And the SotU Address does not require him to answer to Congress, either.