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smooth · 05-31-2006, 12:26 AM

Quote:

Originally Posted by dksuddeth

here's the thing with signing statements as it deals with the constitution.

The executive branch has 1/3rd the power to decide whether a law is constitutional or not. If the bush admin so chooses, it does not have to enforce a law it considers unconstitutional. When it does that, and it's obviously a constitutional law, the legislature has to do two things.

Take it to the USSC where the court can declare the constitutionality of such law and order the admin to follow/enforce the law, of which the admin can still say it's not constitutional and refuse to follow/enforce said law. If that happens, then the legislature has, as a final option, impeachment or censure.

Where are you getting this info from, dksuddeth?

Quote:

The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration
By JOHN W. DEAN
----
Friday, Jan. 13, 2006

Presidential signing statements are old news to anyone who has served in the White House counsel's office. Presidents have long used them to add their two cents when a law passed by Congress has provisions they do not like, yet they are not inclined to veto it. Nixon's statements, for example, often related to spending authorization laws which he felt were excessive and contrary to his fiscal policies.

In this column, I'll take a close look at President Bush's use of signing statements. I find these signing statements are to Bush and Cheney's presidency what steroids were to Arnold Schwarzenegger's body building. Like Schwarzenegger with his steroids, Bush does not deny using his signing statements; does not like talking about using them; and believes that they add muscle.

But like steroids, signing statements ultimately lead to serious trouble.

Relying On Command, Rather Than Persuasion

Phillip Cooper is a leading expert on signing statements. His 2002 book, By Order of the President: The Use and Abuse of Executive Direct Action, assesses the uses and abuses of signing statements by presidents Ronald Reagan, George H.W. Bush and Bill Clinton. Cooper has updated his material in a recent essay for the Presidential Studies Quarterly, to encompass the use of signing statements by now-President Bush as well.

By Cooper's count, George W. Bush issued 23 signing statements in 2001; 34 statements in 2002, raising 168 constitutional objections; 27 statements in 2003, raising 142 constitutional challenges, and 23 statements in 2004, raising 175 constitutional criticisms. In total, during his first term Bush raised a remarkable 505 constitutional challenges to various provisions of legislation that became law.

That number may be approaching 600 challenges by now. Yet Bush has not vetoed a single bill, notwithstanding all these claims, in his own signing statements, that they are unconstitutional insofar as they relate to him.

Rather than veto laws passed by Congress, Bush is using his signing statements to effectively nullify them as they relate to the executive branch. These statements, for him, function as directives to executive branch departments and agencies as to how they are to implement the relevant law.

President Bush and the attorneys advising him may also anticipate that the signing statements will help him if and when the relevant laws are construed in court - for federal courts, depending on their views of executive power, may deem such statements relevant to their interpretation of a given law. After all, the law would not have passed had the President decided to veto it, so arguably, his view on what the law meant ought to (within reason) carry some weight for the court interpreting it. This is the argument, anyway.
Column continues below ↓

Bush has quietly been using these statements to bolster presidential powers. It is a calculated, systematic scheme that has gone largely unnoticed (even though these statements are published in the Weekly Compilation of Presidential Documents) until recently, when President Bush's used a signing statement to attempt to nullify the recent, controversial McCain amendment regarding torture, which drew some media attention.

Pumping Up the Bush Presidency With Signing Statements

Generally, Bush's signing statements tend to be brief and very broad, and they seldom cite the authority on which the president is relying for his reading of the law. None has yet been tested in court. But they do appear to be bulking up the powers of the presidency. Here are a few examples:

Suppose a new law requires the President to act in a certain manner - for instance, to report to Congress on how he is dealing with terrorism. Bush's signing statement will flat out reject the law, and state that he will construe the law "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 upshot? It is as if no law had been passed on the matter at all.

Or suppose a new law suggests even the slightest intrusion into the President's undefined "prerogative powers" under Article II of the Constitution, relating to national security, intelligence gathering, or law enforcement. Bush's signing statement will claim that notwithstanding the clear intent of Congress, which has used mandatory language, the provision will be considered as "advisory."

The upshot? It is as if Congress had acted as a mere advisor, with no more formal power than, say, Karl Rove - not as a coordinate and coequal branch of government, which in fact it is.

As Phillip Cooper observes, the President's signing statements are, in some instances, effectively rewriting the laws by reinterpreting how the law will be implemented. Notably, Cooper finds some of Bush's signing statements - and he has the benefit of judging them against his extensive knowledge of other President's signing statements -- "excessive, unhelpful, and needlessly confrontational."

The Constitutional and Practical Problems With Bush's Use of Signing Statements

Given the incredible number of constitutional challenges Bush is issuing to new laws, without vetoing them, his use of signing statements is going to sooner or later put him in an untenable position. And there is a strong argument that it has already put him in a position contrary to Supreme Court precedent, and the Constitution, vis-à-vis the veto power.

Bush is using signing statements like line item vetoes. Yet the Supreme Court has held the line item vetoes are unconstitutional. In 1988, in Clinton v. New York, the High Court said a president had to veto an entire law: Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like.

The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. That Clause says that after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it" - that is, veto the bill, in its entirety-- if he does not.

Following the Court's logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill -- not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill. Yet that is exactly what Bush is doing. The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part.

The frequency and the audacity of Bush's use of signing statements are troubling. Enactments by Congress are presumed to be constitutional - as the Justice Department has often reiterated. For example, take what is close to boilerplate language from a government brief (selected at random): "It is well-established that Congressional legislation is entitled to a strong presumption of constitutionality. See United States v. Morrison ('Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.')."

Bush's use of signing statements thus potentially brings him into conflict with his own Justice Department. The Justice Department is responsible for defending the constitutionality of laws enacted by Congress. What is going to happen when the question at issue is the constitutionality of a provision the President has declared unconstitutional in a signing statement?

Does the President's signing statement overcome the presumption of constitutionality? I doubt it. Will the Department of Justice have a serious conflict of interest? For certain, it will.

Should thus Congress establish its own non-partisan legal division, not unlike the Congressional Reference Service, to protect its interests, since the Department of Justice may have conflicts? It's something to think about.

These are just a few practical and constitutional problems that arise when a president acts as if there is his government, and then there is the Congress' government. Signing statements often ignore the fact the only Congress can create all the departments and agencies of the Executive Branch, and only Congress can fund these operations.

And the power to create and fund is also, by implication, the power to regulate and to oversee. Congress can, to some extent, direct how these agencies will function without infringing on presidential power.

Impact Of Presidential Signing Statements

The immediate impact of signing statements, of course, is felt within the Executive Branch: As I noted, Bush's statements will likely have a direct influence on how that branch's agencies and departments interpret and enforce the law.

It is remarkable that Bush believes he can ignore a law, and protect himself, through a signing statement. Despite the McCain Amendment's clear anti-torture stance, the military may feel free to use torture anyway, based on the President's attempt to use a signing statement to wholly undercut the bill.

This kind of expansive use of a signing statement presents not only Presentment Clause problems, but also clashes with the Constitutional implication that a veto is the President's only and exclusive avenue to prevent a bill's becoming law. The powers of foot-dragging and resistance-by-signing-statement, are not mentioned in the Constitution alongside the veto, after all. Congress wanted to impeach Nixon for impounding money he thought should not be spent. Telling Congress its laws do not apply makes Nixon's impounding look like cooperation with Congress, by comparison.

The longer term impact of signing statements is potentially grave - and is being ignored by the Bush administration. But it cannot be ignored forever. Defiance by Bush of Congressional lawmaking will come back to haunt this President.

Watergate was about abuse of power. Nixon, not unlike Bush, insisted on pushing the powers of the presidency to, and beyond, their limits. But as Nixon headed into his second term with even grander plans than he'd had in the first term, the Congress became concerned. (And for good reason.)

Bush, who has been pushing the envelope on presidential powers, is just beginning to learn what kind of Congressional blowback can result.

First, there are the leaks: People within the Executive branch become troubled by a president's overreaching. When Nixon adopted extreme measures, people within the administration began leaking. The same is now happening to Bush, for there was the leak about the use of torture. And, more recently, there was the leak as to the use of warrantless electronic surveillance on Americans.

Once the leaks start, they continue, and Congressional ire is not far behind. The overwhelming Congressional support for Senator John McCain's torture ban suggests, too, that Congress will not be happy if leaks begin to suggest the President - as his signing statement foreshadows - is already flouting the ban.

In short, Bush's signing statements, which are now going over the top, are going to cause a Congressional reaction. It is inevitable. If Republican lose control of either the House or Senate - and perhaps even if they don't, if the subject is torture or an egregious violation of civil liberties -- then the Bush/Cheney administration will wish it had not issued all those signing statements.

Indeed, the Administration may be eating its words - with Congress holding the plate out, and forcing the unconstitutional verbiage back down. That, in the end, is the only kind of torture Americans ought to countenance.

-- http://writ.news.findlaw.com/dean/20060113.html

Quote:

jurisprudence
Sign Here
Presidential signing statements are more than just executive branch lunacy.
By Dahlia Lithwick
Posted Monday, Jan. 30, 2006, at 5:32 AM ET

There are two ways President Bush likes to wage war on your civil liberties: He either asks you to surrender your rights directly—as he does when he strengthens and broadens provisions of the Patriot Act. Or he simply hoovers up new powers and hopes you won't find out—as he did when he granted himself authority to order warrant-less wiretapping of American citizens. The former category seems more benign, and it's tempting to lump Bush's affinity for "presidential signing statements" in that camp. It's tempting to believe that with these statements he is merely asking that the courts take his legal views into account. But President Bush never asks anything of the courts; he doesn't think he has to. His signing statements are not aimed at persuading the courts, but at reinforcing his claim that both courts and Congress are irrelevant.

Many of us had never heard of a presidential signing statement until last month, when Bush used one to eviscerate the McCain Anti-Torture bill he claimed to endorse. We all saw the big Oval Office reconciliation with McCain; we heard Bush say he was dropping his opposition to the bill, which passed with broad bipartisan support (90-9 in the Senate, 308-122 in the House) and made it illegal for Americans to engage in the "cruel, inhuman and degrading" treatment of detainees held here or abroad. What we missed was the actual signing ceremony, which took place two weeks later, at 8 p.m. on Dec. 30.

Unless you spent New Year's weekend trolling the White House Web site or catching up on your latest U.S. Code Congressional and Administrative News as you waited for the ball to drop, you probably missed the little "P.S." the president tacked onto the McCain anti-torture bill. The postscript was a statement clearly announcing that the president will only follow the new law "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch ... and consistent with the constitutional limitations on the judicial power." In other words, it is for the president—not Congress or the courts—to determine when the provisions of this bill interfere with his war-making powers, and when they do, he will freely ignore the law.

Signing statements are presidential announcements added to a piece of legislation on signing. They range from benign executive branch throat-clearing—thanking and praising the bill's sponsors—to something that approaches a line-item veto: expressions of presidential reservations about the law. These statements are perfectly legal. Presidents have used them since Monroe, and, as Bush supporters are quick to point out, Bill Clinton was one of the most prolific issuers of signing statements. But, as professor Phillip W. Cooper's paper in the Sept. 2005 issue of Presidential Studies Quarterly reveals, the difference between President Bush's use of the statements and that of his predecessors is a matter of frequency and kind.

President Ronald Reagan, guided by his Attorney General Edwin Meese III (and urged on enthusiastically by a young lawyer called Samuel Alito), launched a concerted policy to start to use signing statements as a means of reinforcing the executive's message and consolidating its power. Meese arranged to have them published for this very reason. Until the Reagan presidency, the executive branch had only ever issued a total of 75 signing statements. Reagan, Bush I, and Bill Clinton deployed them 247 times between them. (Clinton issued more statements than Bush I, but fewer than Reagan). According to Cooper, by the end of 2004, Bush had issued 108 signing statements presenting 505 different constitutional challenges. He has yet to veto anything.

How important are these executive-branch constitutional challenges? Not very. While a few courts—including the Supreme Court on occasion—have nodded their heads at a signing statement in attempting to construe the intent behind a piece of legislation, they are consulted only rarely and given limited legal weight. Bush's legal claims that black is white and up is down won't likely trump the clear and express will of Congress in a courtroom anytime soon. Certainly you'd need at least three more Sam Alitos on the Supreme Court before you need to fear a judicial declaration that they represent some kind of binding legal authority. Does that mean the statements are legally meaningless and that the fretting over them represents yet more reflexive anti-Bush hysteria?

Not hardly.

Dismissing these statements because they carry so little legal force is as dangerous as writing off any of Bush's other extreme legal claims to boundless authority. Because while these cases slowly wend their way through the court system, there are real-life consequences to Bush's policies—and especially his torture policies—on the ground.

First, consider the substance of Bush's statements. Of the 505 constitutional objections he has raised over the years, Cooper found the most frequent to be the 82 instances in which Bush disputed the bill's constitutionality 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. Similarly, Cooper counted 77 claims that as president, Bush has "exclusive power over foreign affairs" and 48 claims of "authority to determine and impose national security classification and withhold information." Bush consistently uses these statements to prune back congressional authority and even—as he does in the McCain statement—to limit judicial review. He uses them to assert and reassert that his is the last word on a law's constitutional application to the executive. As he has done throughout the war on terror, Bush arrogates phenomenal new constitutional power for himself and, as Cooper notes, "these powers were often asserted without supporting authorities, or even serious efforts at explanation."

And if you believe that all this executive self-aggrandizement is meaningless until and unless a court has given it force, you are missing the whole point of a signing statement: These statements are directed at federal agencies and their lawyers. One of their main historical purposes was to afford agencies a glance at how the president wants a statute to be enforced. As Jack Balkin observed almost immediately after the McCain bill, signing statements represent the president's signal to his subordinates about how he plans to enforce a law. And when a president deliberately advises his subordinates that they may someday be asked to join him in breaking a law, he muddies the legal waters, as well as the chain of command.

Such mixed messages about torture allowed young, untrained guards to torture prisoners at Abu Ghraib. Where the rules for treatment of detainees had once been clear, the efforts of Jay Bybee and Alberto Gonzales and others in the White House telegraphed that some agencies could now follow different rules for torture; that not all torture really is torture; that sometimes the president may actually want you to torture; and that all this is largely for you to sort out on the ground. The McCain anti-torture amendment was an effort to create an absolutely clean distinction once more. Bush's signing statement obliterates that distinction and opens the door to yet more ambiguity and abuse.

And the future victims of such Bush-endorsed torture? They won't have a day in court, under President Bush's view of the law. Which means that—like all the mushrooming executive war powers—this ambiguous new torture regime will be secret and may never be tested in a courtroom at all.

Should we dismiss these statements just because President Bush is so brazen in his claims? So willing to take legal positions that are undefended because they're legally indefensible? Will all this just go away someday, when a court dismisses these statements as excessive and unfounded? No. Because President Bush isn't trying to win this war in the courts. Thus far, he has faced each legal setback as though it never happened; or—more often—he's recast it as a victory. He doesn't care what the courts someday make of his signing statements, just as he didn't care what the courts made of his enemy-combatant claims. He views the courts as irrelevant in his pursuit of this war. These signing statements are dangerous because they repeat and normalize—always using seemingly boilerplate language—claims about the boundless powers of a "unitary executive." By questioning the principle of court review in the McCain statement, Bush again erodes the notion of judicial supremacy—an idea we have lived with since Marbury v. Madison. When he asserts that he—and not the courts—is the final arbiter of his constitutional powers, he is calling for a radical shift in the system of checks and balances.

It's so tempting to laugh off Bush's signing statements as puffed-up, groundless claims that he is all-powerful, all-knowing, and also devastatingly handsome. But this is the president talking and instructing his subordinates—and also outlining a broad legal regime that may not technically be constitutional, but that hardly makes it laughable. These declarations promote a view of the law that may have no merit in the courts but may never have the chance to be resolved there in the first place.

-- http://www.slate.com/id/2134919/