On This Day in History (ok this was originally flagged November 18) 1883: Railroads create the first time zones

This is from History.com and it touches on points I like to make in class about the interrelationship between business and the national government in the expansion of the nation, as well as the expansion of the authority of the national government. The setting of time seems to have been primarily a local matter until technological change (faster transportation) made it necessary for localities to yield this power.

Railroad companies instigated the change, which were then adopted by many state legislatures. It would later be made legal by the national government - most likely under the constitutional authority of the interstate commerce clause, though I've yet to see that stated clearly anywhere. As you'll see below, the power to oversee was given to the Interstate Commerce Commission. That's a give away.

- Click here for the article.

The need for continental time zones stemmed directly from the problems of moving passengers and freight over the thousands of miles of rail line that covered North America by the 1880s. Since human beings had first begun keeping track of time, they set their clocks to the local movement of the sun. Even as late as the 1880s, most towns in the U.S. had their own local time, generally based on “high noon,” or the time when the sun was at its highest point in the sky. As railroads began to shrink the travel time between cities from days or months to mere hours, however, these local times became a scheduling nightmare. Railroad timetables in major cities listed dozens of different arrival and departure times for the same train, each linked to a different local time zone.

Efficient rail transportation demanded a more uniform time-keeping system. Rather than turning to the federal governments of the United States and Canada to create a North American system of time zones, the powerful railroad companies took it upon themselves to create a new time code system. The companies agreed to divide the continent into four time zones; the dividing lines adopted were very close to the ones we still use today.

Most Americans and Canadians quickly embraced their new time zones, since railroads were often their lifeblood and main link with the rest of the world. However, it was not until 1918 that Congress officially adopted the railroad time zones and put them under the supervision of the Interstate Commerce Commission.

The law referenced above was the Standard Time Act of 1918, which was passed during the 65th Session of Congress after being introduced by Senator William Calder, a Republican from New York. This was the Congress responsible for declaring war on Germany. Not surprisingly the bulk of the laws passed by Congress were related to WWI. The creation of a uniform time system - along with the more controversial daylight saving provision, was considered key to the wear effort. The uniformity was far less controversial that the daylight savings component.

The 65th Congress also passed the Child Labor Act of 1919, which would be found unconstitutional in the case of Bailey v. Drexel Furniture. The law placed an excise tax on the profits of companies that employed children. The Supreme Court ruled the tax was really a penalty, which was unconstitutional. The court has since argued that this process is in fact constitutional. Time zones in the United States are currently regulated by the system put in place by the Uniform Time Act, which was passed in 1966 by the 89th Congress.

For a look at the language in the U.S. Code that relate to time zones, click here:

- 15 U.S. Code Sec. 261: Zones for standard time; interstate or foreign commerce.

For more on the Interstate Commerce Commission, which originally implemented the law, click here:

- Wikipedia: Interstate Commerce Commission.

The ICC was the first independent agency established by Congress. It exists outside the tradition executive departments, which gives it greater autonomy from the president. The ICC's jurisdiction expanded considerably over its history. It began with regulating railroads and would eventually also regulate trucking, telephone, telegraph, and wireless companies. It was commonly argued to have been captured by the railroad companies, meaning that its regulations served to enhance - not limit - the power of railroads.

It is one of the few executive agencies that have ever been terminated. This was done in the ICC Termination Act of 1995 which was passed by the 104th Congress (the Contract With American Congress) and signed by President Clinton. Its functions were shifted to the newly created Surface Transportation Board, an agency within the Department of Transportation. This includes the implementation of policies related to time zones. For detail on the purpose of the shift, click here to read President Clinton's Statement on Signing the ICC Termination Act of 1995.

From NPR: Court Weighs President's Power To Recognize Nations

A case before the court challenges the President's authority over this aspect of foreign policy:

Ever since the creation of the state of Israel in 1948, the U.S. government has declined to recognize Jerusalem as part of any country. Palestinians have long claimed the city as their own, and so have Israelis.
The U.S. State Department has long viewed the city's status as one of the key items to be negotiated in a Middle East peace deal. Consequently, the U.S. has avoided even seemingly minor actions that might undermine its role in the peace negotiations by implying any endorsement of Israeli or Arab sovereignty over the city.

Israel's supporters in Congress, however, have long objected to the U.S. policy, and have sought, through legislation, to force U.S. recognition of Jerusalem as Israel's capital. In 2002, Congress enacted a law urging the president to move the U.S. Embassy from Tel Aviv to Jerusalem, and requiring the State Department to allow American citizens born in Jerusalem to list their place of birth as Israel on passport documents.

The case is Zivotofsky v. Clinton.

- From Scotusblog: Argument recap: Who controls foreign policy?

Not So Faithfully Executing the Laws

Charlie Savage, who investigates the use of signing statements by President Bush, notices that they are continuing under Obama. Or at least he continues to make the claim that a President does not have to execute laws he believes are unconstitutional.

Some history from the article:

Since the 19th century, presidents have occasionally used signing statements to declare that parts of a bill were unconstitutional and need not be enforced or obeyed as written. But the tactic was rare until the second term of President Ronald Reagan, whose legal team developed a strategy of issuing the statements more frequently to increase presidential power.
Reagan’s successors continued that approach. And the practice escalated again under Mr. Bush, who used it to advance expansive theories of executive power. He challenged about 1,200 sections of bills — more than all predecessors combined — including a ban on torture and oversight provisions of the USA Patriot Act.

Mr. Bush’s assertive use of the tactic set off a national debate over its propriety. The American Bar Association declared that signing statements “undermine the rule of law and our constitutional system of separation of powers,” and argued that the Constitution gave presidents only two choices: veto a bill, or sign it and obey all of it.

But other scholars said the tactic was appropriate if a president cited only mainstream legal theories. Mr. Obama, whose advisers sided with the latter camp, has characterized Mr. Bush’s use of signing statements as an abuse and pledged greater restraint.

Mr. Obama nevertheless challenged dozens of provisions early last year. The last time was in June, when his claim that he could disobey a new law requiring officials to push the World Bank and the International Monetary Fund to adopt certain policies angered Congress. The White House sought to reassure lawmakers that it intended to take those negotiating positions anyway and was merely noting its view that Congress cannot control foreign negotiations. Many lawmakers rejected that theory, and the House quickly voted 429 to 2 to bar officials from disobeying the restrictions.

- Some background from Findlaw.

Signing Statement on the Defense Authorization Act

President Bush issued another signing statement when he signed the Defense Authorization Act recently. The American Constitution Society gives a rundown and links to commentary.

Here are relevant quotes from the statement itself.

The executive branch shall construe sections 914 and 1512 of the Act, which purport to make consultation with specified Members of Congress a precondition to the execution of the law, as calling for but not mandating such consultation, as is consistent with the Constitution's provisions concerning the separate powers of the Congress to legislate and the President to execute the laws.

A number of provisions in the Act call for the executive branch to furnish information to the Congress or other entities on various subjects. These provisions include sections 219, 313, 360, 1211, 1212, 1213, 1227, 1402, and 3116 of the Act, section 427 of title 10, United States Code, as amended by section 932 of the Act, and section 1093 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375) as amended by section 1061 of the Act. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall construe as advisory section 1011(b)(2) of the Act, which purports to prohibit the Secretary of the Navy from retiring a specified warship from operational status unless, among other things, a treaty organization established by the U.S. and foreign nations gives formal notice that it does not desire to maintain and operate that warship. If construed as mandatory rather than advisory, the provision would impermissibly interfere with the President's constitutional authority to conduct the Nation's foreign affairs and as Commander in Chief.

The executive branch shall construe section 1211, which purports to require the executive branch to undertake certain consultations with foreign governments and follow certain steps in formulating and executing U.S. foreign policy, in a manner consistent with the President's constitutional authorities to conduct the Nation's foreign affairs and to supervise the unitary executive branch.

As is consistent with the principle of statutory construction of giving effect to each of two statutes addressing the same subject whenever they can co-exist, the executive branch shall construe section 130d of title 10, as amended by section 1405 of the Act, which provides further protection against disclosure of certain homeland security information in certain circumstances, as in addition to, and not in derogation of, the broader protection against disclosure of information afforded by section 892 of the Homeland Security Act of 2002 and other law protecting broadly against disclosure of such information.

Note that the text attempts to define certain presidential powers as off limits to congressional limitations. These would be the inherent powers the president claims during times of crisis, like the current war on terror. The question remains, because the Supreme Court has yet to rule on any of this, whether it within the president's authority to define what the inherent powers are and to refuse to carry out a law based on his interpretation of it.

Signing Statement on Sudan Legislation

Late last year Congress passed and President Bush signed into law, the Sudan Accountability and Divestment Act. The bill makes it easier for mutual funds and private pension fund managers to sell their investments and allows states to prohibit debt financing for companies that do business in Sudan. It also requires companies seeking contracts with the federal government to certify that they are not doing business in Sudan.

Sudan is a mess. Recent political conflict has included efforts to systematically kill off parts of the population. American reaction has been long in coming.

Bush did not initially support the bill, so while signing it, he issued a signing statement: Mr. Bush’s signature was accompanied by a proviso known as a signing statement, in which he said he was reserving the authority to overrule state and local divestment decisions if they conflicted with foreign policy. The statement said the measure “risks being interpreted as insulating” state and local divestment actions from federal oversight.

As stated previously, the president--and his vice-president--believe that presidential authority in foreign affairs has been unduly limited by Congress. The signing statements are his efforts to interpret the Constitution in a way that maintains his power. Some argue though that this is simply a power grab not only in terms of foreign affairs, but in terms of constitutional interpretation.

The statement has been criticized recently. The House Financial Services Committee held hearings on the statements, which the Bush administration refused to participate in.

The Son of Signing Statements Continued

Much commentary yesterday and today about the GAO report on presidential signing statements.

Slate reprints a comment from Dahlia Lithwick where she claims that the real problem with these statements doe not have to do with any dispute with a particular bill but "because Article II of the Constitution does not permit any interference with his 'power to supervise the unitary executive.' That's not an objection to some act of Congress. That's an objection to Congressional authority itself."

The clear intent of these statement, she claims is to minimize the ability of Congress to check the power of the executive.

Signing Statements Continued

BlueHerald and others blog on the president's continued use of signing statements and his citing of the unitary executive theory a justification for it.

The Government Accountability Office responded to a request by Sen. Robert Byrd (D-WV) and House Judiciary Chairman John Conyers (D-MI) and issued a report today (6-18-07) detailing their use. Click here for the press release from Byrd's office.

The report studies a small sample of bills and finds that over 30% were not implemented as Congress requested. Both Byrd and Conyers now call for a broader investigation.

Pulitzer Prizes

They were announced today.

If we have time we may go over them. I'd like to call attention to the prize given to Boston Globe reporter Charles Savage for uncovering President Bush's expansive use of presidential signing statements to effectively change the meaning of the bills Congress presents him for a signature. It has turned into an effective way to expand presidential power, though is argued by some to be potentially unconstitutional.

How soon before awards are given for web sites?

Signing Statements and the Constitution

More oversight from the Judiciary Committee, but this time its the House Judiciary Committee and the subject is the constitutional status of presidential signing statements.

The title of the hearings suggests their tone: "Presidential Signing Statements under the Bush Administration: A Threat to Checks and Balances and the Rule of Law?"

I'll do what I can to summarize the arguments made by the witnesses.