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September 21, 2011 4:10 PM Obama can’t stop Davis execution

By Steve Benen

Michael Moore had an item this afternoon about the looming Troy Davis execution, which raised a point a couple of emailers asked about.

President Obama: Can’t you do like Kennedy & send in federal troops to stop this injustice in Georgia? The buck stops with u.

I can appreciate why it might seem as if the buck always stops with a president, but in the Davis case, it’s not Obama’s call.

For the record, I’ve long considered Davis’ death sentence a tragic injustice, and have said so more than once. But presidential clemency isn’t an option here.

Q. Can the president grant clemency or stop the execution in any way?

A. No. While President Obama has said he thinks the death penalty does little to deter crime, he has no legal authority to get involved, officially, with a state execution. When the death penalty is imposed for a state crime like murder, it is a state issue.

When presidents during the civil rights era ordered federal troops into the South, they were enforcing federal law. Eisenhower and JFK clearly had the authority to act.

In the Davis case, as outrageous as the sentence is, it’s a state case involving state charges, tried in state courts, appealed to state officials. Obama doesn’t have the authority to “send in federal troops” to stop the execution.

It’s sometimes tempting to think a president has limitless power, especially over domestic developments. He or she is, after all, generally called “the leader of the free world,” with the scope of presidential powers in mind.

But the powers of the office are not without limits. In the Davis case, even the governor of Georgia, if he wanted to intervene, doesn’t have the legal authority to do so. The state Board of Pardons and Paroles could reconsider, or the Georgia Supreme Court might be able to consider another appeal, though it’s apparently extremely unlikely to do so. Those are the options.

It’s unsatisfying, but under the rule of law, this buck doesn’t stop in the Oval Office.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • DAY on September 21, 2011 4:24 PM:

    Her name escapes me at the moment (And will appear just as i hit 'post"!), but didn't a republican congress move heaven and earth- Terri Schivo! still have a few brain cells left-to keep her alive?
    So, tit for tat, man/woman/black/white- our Defenders of Life GOP should be calling an emergency session any moment now. Right?

  • shortstop on September 21, 2011 4:25 PM:

    Thank you.

  • kevo on September 21, 2011 4:27 PM:

    The moral guilt for putting an innocent man to death under state authority rests squarely upon those who deny the substance to provide for the ritual!

    Such souls will be the ones to be damned upon their passing, but until then, they could repent and stay the execution of an innocent man!

    Their refusal to do so will guarantee their place in Canto XXXIII in their hellish afterlife! -Kevo

  • Eeyore on September 21, 2011 4:30 PM:

    Barney Frank once said the religious right believes the right to life begins and conception and ends at birth.

    In this case, the analogy would be that the right to life begins at conception and ends at conviction.

    Captcha: Fognment appalled. So true.

  • Eeyore on September 21, 2011 4:32 PM:

    Edit: the right to life begins AT conception.

  • Nexus6 on September 21, 2011 4:35 PM:

    Hey the quote I heard from someone in Texas about Perry's probable execution on an innocent man was, "It takes balls to execute an innocent man!" Unfortunately that's the sick and twisted attitude that pervades this country. The people of Florida simply don't care.

  • June on September 21, 2011 4:38 PM:

    Does Michael Moore ever pass up a chance to "blame Obama." Apparently not.

  • hells littlest angel on September 21, 2011 4:41 PM:

    Right-wingers believe in equality. If innocent Iraqi civilians had the opportunity to die in service of our glorious free republic, shouldn't innocent Americans also have the opportunity to serve?

  • Proudhon on September 21, 2011 4:43 PM:

    So he has the power to have American citizens killed without due process (see Anwar Al-Awlaki) but not to save the life of a citizen unjustly sentenced to death?

    That makes absolutely no sense.

  • slappy magoo on September 21, 2011 4:53 PM:

    Let's face it, if Obama had tried to intervene, even in an unofficial, can-I-please-say-this-about-that way, knowing he has no authority to demand anything...Georgia would have just executed Davis sooner. Gotta teach those uppity Negroes a lesson about knowing their place.

  • zeitgeist on September 21, 2011 5:01 PM:

    I'm not saying that Obama should intervene, that it is clearly authorized, or that there is any practical or pragmatic way for him to do so.

    But I don't find the distinction from federal intervention on behalf of federal civil rights laws over state and local Jim Crow laws to be persuasive.

    To suggest this is solely a state law issue ignores the supremacy of the federal Constitution. if there were no federal law "hook," state executions could never be appealed to the US Supreme Court, which clearly happens.

    A state cannot pass a law depriving one of due process, taking one's life (or property) without due process, or permitting cruel and unusual punishment without that law being subject to invalidation under the federal Constitution. There is, theoretically, just as much federal authority here as there was in the 1950s and 60s to intervene in public accomodations and public schools in the states.

  • shortstop on September 21, 2011 5:07 PM:

    Proudhon: I share your dismay about al-Awlaki, but is it really that hard to understand an action undertaken on behalf of the federal government and one that is limited to a state government? The president is not now and ever has been the chief executive of any state.

  • PBOisnottheProblem on September 21, 2011 5:10 PM:

    People like Zeitgeist who think PBO is some Messiah who refuses to use powers are dense! He legally has no say! Nathan Deal, the governor of Georgia, can't stop the execution.

    The courts have already said the execution should go on. In the case of the 1940s-1960s the Supreme Court had ruled over and over that the Southern states were breaking the 13-15th Amendments to the Constitution. They didn't just intervene because it was the right thing. They intervened because legally they had to and because there was a litany of grassroots protest propelling them to act.

  • Stevo on September 21, 2011 5:11 PM:

    In the Davis case, as outrageous as the sentence is, itís a state case involving state charges, tried in state courts, appealed to state officials.

    It was also appealed through federal courts, all the way to the U.S. Supreme Court, more than once. The Supreme Court denied cert in March. So, it's not true that the federal government can't do anything. It's just that the federal courts say he's guilty.

  • shortstop on September 21, 2011 5:12 PM:

    zeitgeist: but absent a federal law, the proper federal recourse is here through the judicial branch, no?

  • Epicurus on September 21, 2011 5:18 PM:

    Should we really be surprised at this? I mean, the GOP has spent years and years assuring us that the President is our "Big Daddy" who can do anything he wants! At least, that's what President Cheney told me.../s/ Bushie...xxooxx.

  • wimpy77 on September 21, 2011 5:20 PM:

    Stevo is correct. He has appealed it all the way to the Supreme Court which gave him a hearing to try and proclaim his innocence. He failed to do so. The Supreme Court a week ago denied his requests. He has indeed been given the opprotunities.

  • Lisa on September 21, 2011 5:29 PM:

    So you mean to tell me that the President can order his own troops to go and take over another COUNTRY, but he cannot stop something in one of his own States?

    I understand that even if he doesn't not have the authority to make orders, why isn't he speaking up?

  • Swellsman on September 21, 2011 5:31 PM:

    I know that Michael Moore gets up the nose of some people, but I consider myself a fan. Still, it always surprises me to hear people make statements that clearly indicate they have no conception of how federalism works. (It reminds me, years ago, of a chance meeting the federal judge I used to work for had with Al Franken on a plane. I love Al, but they guy she described to me seemed to have absolutely no idea how the federal and state governments legally intersect. Presumably, now that he is Sen. Franken, he's boned up on that.)

    The federal government and the state governments are parallel systems, equally sovereign unless they contradict each other. Then - and only then - does the Supremacy Clause come into play.

    Zeigeist: Yes, civil rights of due process are secured by the federal constitution. But that doesn't give the federal executive the ability to determine whether those rights have been violated. Shortstop is correct that any such claim would have to be presented to and argued before the judiciary -- and almost always first to the state judiciary and only then to the federal judiciary. Presumably, those avenues have been exhausted or have not been explored. But in either event, the president is completely without legal authority to substitute his executive will for that of the State of Georgia's.

    And, don't misunderstand me . . . I don't know much more than about this case than what I've read over the past few weeks, but this does seem like a miscarriage of justice. I just don't see how there is any legal way Obama (or anybody else in the federal government) can do anything to make a difference now. Not unless we, too -- like so many on the Right -- are willing to completely throw out our constitutional and legal system whenever we find the results it reaches unacceptable.

  • Proudhon on September 21, 2011 5:33 PM:

    Shortstop - not even the Obama administration has used federal law as the basis for such an assassination, so it's hard for me to agree with your argument. They have (see NYT article http://nyti.ms/ccQL3l) used international law as justification. So why cannot Obama use (for example) the Universal Declaration of Human Rights, approved by the UN without dissent, as a basis for intervention.

    My point earlier was that while Obama will seek a justification to deny civil liberties, he will apparently not seek one to save a life.

  • square1 on September 21, 2011 5:38 PM:

    Of course Obama shouldn't intervene.

    I know that it is not popular when I point out that Davis is guilty. But I have serious questions for people.

    What if I am right? What if, as I suspect, Davis has merely been maintaining his innocence because he knows that his life will only be spared if people believe that he didn't do it? What if the execution goes forward and in the final moments Davis accepts that execution is inevitable, admits his guilt, and asks for forgiveness?

    Will you admit that the cause of freeing the innocent from death row has been set back by the handwringing over Davis' falsely professed innocence?

    There is absolutely nothing wrong with being anti-death penalty; either because you believe that the death penalty is inherently immoral or because you simply do not believe that imperfect societies can administer it fairly.

    But there is something wrong with blindly championing a guilty cop killer merely because his case is the liberal cause du jour. There is something wrong with blindly accepting whatever talking points Davis' defense team sends out without checking their veracity.

    Because there will be other cases. There will be actually innocent people on death row. And when their execution days arrive, those innocent people will need a public outcry. And it will be a tragedy if the cases of actually innocent people receive even slightly less attention because people think that everyone cried wolf over Troy Davis.

    Death penalty opponents have an obligation to separate moral arguments over the death penalty itself from arguments about innocence in any one case.

  • RP on September 21, 2011 5:42 PM:

    "Do you mean to tell me that the President can order his own troops to go and take over another COUNTRY, but he cannot stop something in one of his own States?

    I understand that even if he doesn't not have the authority to make orders, why isn't he speaking up?"

    I find these kinds of comments baffling. Yes, the president's ability to use force unilaterally within the borders of the United States is very limited. THAT'S BY DESIGN. Do you really want to give the president the authority to send in troops whenever a state is doing something he doesn't like? There's a reason we have separation of powers between the executive, legislative, and judicial branches and between the federal government and the states.


  • Alli on September 21, 2011 5:49 PM:

    @LISA: How long have you been following politics? Because your comment is completely absurd. And so what if he says something? Is that going to stop the execution or just to make you feel better? I'd rather stop the execution myself. I don't anyone to prove anything to me or to make me feel better.

  • Mobley on September 21, 2011 7:56 PM:

    @square1 how do u know he is guilty, all of the witness recanted thier stories

  • Eld. Clark on September 21, 2011 11:51 PM:

    The MURDER of Troy Davis has done a great injustice in America. May God have mercy on your souls.

  • Jose Padilla on September 22, 2011 9:03 AM:

    The president has the obligation to uphold the constitution. If a state is acting in a way that violates the constitution, the president should step in to stop it. If he can act to prevent violations of federal statutes, he can act to prevent violations of the constitution.

  • RP on September 22, 2011 9:35 AM:

    "The president has the obligation to uphold the constitution. If a state is acting in a way that violates the constitution, the president should step in to stop it. If he can act to prevent violations of federal statutes, he can act to prevent violations of the constitution."

    The president doesn't get to decide what's constitutional and what isn't. Or do you think George Bush should have sent in troops to prevent abortions?

  • max on September 22, 2011 11:58 AM:

    TISHA - The Supreme Court could have prevented this execution but did not. The President has no legal authority to do so. If you want more Supreme Court Justices like Antonin Scalia, then by all means vote against Obama.

  • zeitgeist on September 22, 2011 12:50 PM:

    PBOisnot, you may want to cut back on the RedBull, as your incoherent and presumptuous rant is nonsensical.

    I never said O was the Messiah or anything close. Only a totally deluded O-bot would get so defensive of him.

    For me, this isn't about Obama at all. I am an attorney; I do a lot of preemption (i.e. Supremacy Clause) cases. So the question of when the federal government has a legal right to interfere with state processes and when it doesn't is of interest.

    Shortstop, I think, gets awfully close on this one. In the civil rights circumstance, you had affirmative Congressional support for the Presidential action. I'm still not entirely convinced that is a good distinction as the Constitution is an even better basis than a mere statute. But the Supreme Court (in that post-Plessy, pre-Bush v. Gore days when its decisions were generally well grounded) interpreted the Presidential power to be on a spectrum -- lowest when in opposition to Congress, highest when in concert with Congress, and somewhere in the middle when Congress hadn't spoken (arguably the case with any individual state law DP case).

    Again, I'm not saying Obama should have sent the troops in to prevent the execution or any such thing. There are a lot of arguments. My sole point is that I'm not sure there is such a difference between Presidentially-ordered intervention in other civil rights and a death penalty case. Just as the federal government brought a civil rights case post-Rodney King for example, how the state justice system treats a minority defendant is certainly a civil rights issue as much as pulic accomodations and public schools. The difference may be between an affirmative Congressional position and Congressional silence, but that seems a bit thin of a reed to support such different powers and outcomes.

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