Sayhey
Jan 18, 2006, 01:38 AM
There is a very good article over at Findlaw (http://writ.news.findlaw.com/dean/20060113.html) by John Dean about Bush's use of Presidential Signing statements to aggregate more and more power in the office of the President. It is worth the time to read, especially after Bush's performance at the signing of the McCain amendment against torture. Here's a sample.
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. and further,
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.
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. and further,
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.
