Wednesday, March 29, 2006

We don't need no steenkin' separation of powers!

Again, not some crank, crackpot, or anonymous blogger, but a reporter for the Boston Globe. The subject is Presidential signing statements:

This is not a proclamation that says, "I'm really glad that I signed the bill; it's going to help us." It's a technically legal document that lays out how he's going to enforce the bill, what it is he says that he signed that day. And previous presidents have issued these, but they've never issued them the way President Bush has, both in terms of frequency and in terms of the aggression with which he says, ‘I am not bound by this, I'm not bound by that, I will take this law in bits and pieces, I'll enforce the measures I like, and I have the power as president and commander-in-chief to ignore the provisions I don't like.’
It is almost cute the way Bush issues these statements as if he were a legislator, capable on his own of drafting and enacting a bill into law simply by the authority of his office. It is telling that he feels compelled to reduce his reasoning to paper. This may seem obvious to us, until we reflect on the fact that the President has no such power. Even a veto statement has no legal effect, and is purely a political document. No court of law ever reviews a veto statement to determine Congressional intent in considering the statutory history of a law, precisely because the veto ends the law, and that is all the effective power the President has. The Presidential power over law also ends when the President signs a bill into law, so, again, the courts never consider "signing statements" when taking into account the Congressional history of the law. (And the courts do consider the Congressional record when examining the intent of Congress in passing a law, something that prompted a blogistan kerfluffle in the Hamdan case, but which the Supreme Court clearly stepped around yesterday in oral arguments.)

How serious is this?

And so, in this case, in the PATRIOT Act case, all the provisions in which Congress said, ‘We'll give you these powers, we'll renew this act. But you've got to tell us how you're using them, so we make sure that they're not being abused,’ he said ‘as president and commander-in-chief and the head of the executive branch, I will decide what I tell you, if anything, and that's just what I can do under the Constitution.’
What Bush is doing, effectively, is instituting his own version of a line-item veto:

And the Bush team has never vetoed a single bill in the five years he’s been president now. Instead, they’ve used these signing statements to say that ‘we will take, you know, the bits that we want and ignore the other parts.’ And no one has been used to looking at these things.
But, as I say, what's really interesting is the apparent compulsion to put his reasoning for this on paper, as if writing it down somehow makes it both legal and effective. Exaggeration? No:

After approving the bill [outlawing the torture of detainees] last Friday, Bush issued a ''signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.

''The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," Bush wrote, adding that this approach ''will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks."

Some legal specialists said yesterday that the president's signing statement, which was posted on the White House website but had gone unnoticed over the New Year's weekend, raises serious questions about whether he intends to follow the law.
Rare? No:

When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers.

The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates.
Kevin Phillips insists that Bush is not guilty of "high crimes and misdemeanors" but simply of incompetence. The soft bigotry of low expectations? At what point do we decide that our Constitution is the document whereby we grant power to government officials, and their determined efforts to ignore those restrictions and assert powers they do not have renders them unfit to hold that office, whatever the political costs? When do we reach the point when we must tell the President: you are not fit to hold office because of the way you have abused the power of your office? This is no longer about the decision to go to war, or the decision about how to provide national security. This is government run amok, and it's even leaving us a paper trail.

If not now, when?

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