Wednesday, January 04, 2006

Signing orders, an End-run Around the Constitution

Someone was asking about the President’s peculiar habit of issuing “signing statements” after signing bills. By noting in such statements that he plans to only follow those aspects of the new law that he pleases to follow, he is able to increase his power. Normally, a Congress that wasn’t fat, corrupt and stupid would get upset about losing their ability to pass laws, but no such luck here. In fact, the Senate will probably install Alito on the Supreme Court, despite the existence of a memo in which he advised Bush to broaden his use of the “signing statement.” The following is an example of how Bush has used this innovative power-grab to widen his authority.
President Bush signed into law the 2004 intelligence authorization bill on December 13, while signaling a continuing posture of secrecy towards congressional overseers.
In a signing statement, he warned that he might not comply with several legislative provisions on intelligence accountability and reporting because, he said, they intruded on executive authority.
"Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
See the December 13 signing statement here:”

9 Thoughts:

Anonymous Zenaida said...

Color me naive, but I didn't even realize that "signing orders" exist! I realize that Congress is pretty much useless as a check or balance at this point but how can they not be outraged by this obvious abuse of power?

Has anyone seen a response from McCain on this matter? I wonder if Bush did this without McCain's knowledge or if McCain knew this would happen and accepted it as inevitable. It really seemed that McCain's heart was in the right place on this one, if someone wrote a "signing order" on my pet bill I'd be pissed beyond belief.

Sorry, I'm a little fired up about this. Thanks for the information, I learned something new today!

Wednesday, January 04, 2006 9:12:00 PM  
Anonymous Zenaida said...

By the way, this is GM. I've shut my blog down but I want to keep visiting Cyberpols!

Wednesday, January 04, 2006 9:22:00 PM  
Blogger Demotiki said...

I don't know what McCain thinks. Frankly the guy leaves me scratching my head. My hunch is that McCain doesn't really care about torture. He picked up the issue from a Democratic Senator. I suspect he thought it would possition him as a moderate for 2008.

Wednesday, January 04, 2006 9:35:00 PM  
Blogger pawlr said...

Yeah, also, exactly how do "signing statements" jibe with the Constitution? I don't see any mention of them in there as it relates to presidents duty to "take care that the laws be faithfully executed" in Article II, Sec. 3.

Looks like another hypocrisy brought to you by the "strict constructionist" crowd.

Thursday, January 05, 2006 2:15:00 AM  
Anonymous Zenaida said...

There is one thing about the whole "strict constructionist" crowd that I don't understand.

It seems that on their moral stances everything is black and white...Abortion bad, gay bad, atheist bad. But when they interpret the law they are constantly weaseling around looking for loopholes and grey areas in the wording. It's like they purposefully look for ways in which the law doesn't apply to THEM. It seems really diabolical.

I never graduated from college, so my formal education is somewhat limited by lack of experience, but aren't there ethics classes in law school that cover this sort of underhanded way of interpreting the law?

Thursday, January 05, 2006 6:01:00 AM  
Blogger Demotiki said...

Don't get me wrong, the signing statement is complete bullshit. Clearly the Constitution doesn't allow such a thing.

I assume that the logic behind the signing statement is more of a directive to the enforcement officers in the executive branch. The idea is to flag possible problems at the moment of signing and to keep hammering on them to prevent compliance. All presidents have slacked off from time to time on the enforcement of laws they didn't agree with, that's normal. However, this is different because it is up front, confrontational and wide-spread.

Thursday, January 05, 2006 7:30:00 AM  
Blogger Demotiki said...

As for ethics, lawyers typically understand the philosophy behind the law better than your average Joe. That's why even a hack like Ashcroft was upset by the NSA spying program.

The NSA spying program and signing orders are throwbacks to the late 1700s. The way they intend to interpret the Constitution mirrors Hamilton's argument for the fist Federal Bank. Madison argued that unless the Constitution made explicit mention of a power, that power was denied. Hamilton interpreted the Constitution far more broadly (at least in this situation). He argued that the Constitution gave the Congress the "implied power" to create the Federal Reserve Bank. He believed that these powers were "implied" by the Constitution because a bank was an essential element of national sovereignty. Since the Constitution clearly aimed to create a sovereign state, the Constitution must have granted Congress the powers to create all institutions needed for that new state.

Hamilton also made a distinction between the “ends” and the “means” of Congressional action. The Constitution called for the “end” of a sovereign state, it couldn’t have possibly have enumerated all of the “means” of achieving that “end.” He gave the example of Federal lighthouses. Clearly the Constitution didn’t specifically enumerate that Congress could set up and run lighthouses, yet they were created because the Federal Government thought they were needed, and nobody in their right mind would have objected.

The big difference between Bush and Hamilton is that Bush believes that his implied powers are superior to both the Congress and the Constitution. He argues that Constitutional restrictions imposed on other state action, like the 4th Amendments prohibitions against search and seizure; do not restrict the executive because as “commander in chief,” he must be able to collect war-time intelligence. He further argues that the checks and balances of judicial or congressional oversight would infringe on these “implied powers” and therefore are unconstitutional.

This argument is really so stupid and self serving that no reasonable legal scholar would support it. The Constitution and the bill of rights place limitations on state action. To argue that the enforcement branch of the government (the Executive) is not restricted by such limitations in a time of war (as defined by the executive), effectively means that there is no Constitution. I am quite sure that the founders (and every legal scholar in history) would disagree that when the President says we are at war the Constitution is dissolved. For example, if the president needs to wave the 4th Amendment to conduct the war, what about Article I powers of Congress. Couldn’t the president take over both the right and duty to declare war and the powers to raise taxes and authorize spending for said war? Following the President’s logic to its logical extreme, during time of war Congress would be dissolved and replace by Executive fiat, all in the name of democracy.

A number of defendants will challenge the domestic spying program. However, a far stronger challenge will come when we discover the President’s spying program on John Kerry, or Cindy Sheehan. Even this Supreme Court would strike down such and obviously partisan program.

Thursday, January 05, 2006 1:09:00 PM  
Anonymous Zenaida said...

Wow. Very interesting, thanks for the explanation. Do you keep all this information in your brain or do you have to look it up? :)

I just found a follow up article in the Boston Globe. McCain, Warner and Graham are all angry about the signing order. It ought to be interesting to see how this develops.

Thursday, January 05, 2006 3:34:00 PM  
Blogger Demotiki said...

I just studied this in my Constitutional Law course, but I was raised to respect the constitution and have always paid attention to the legal debates surrounding the Constitution.

I think it's fair to say that the next 11 months will witness some of the most interesting political action in our lifetimes. It's funny, the gestation time for an elephant is 11 months, I wonder what it is for a donkey.

Congress is in recesss mainly because the GOP didn't want to go through the process of picking a new majority leader until they had determined that Delay was cleared or not. Now we all know Delay is out, that sets the stage for massive infighting in the GOP, in an election year. It's going to be great to see!

Thursday, January 05, 2006 11:48:00 PM  

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