Full Version: Presidential Signing Statements
According to the Boston Globe:
QUOTE
Since taking office in 2001, President Bush has issued signing statements on more than 750 new laws, declaring that he has the power to set aside the laws when they conflict with his legal interpretation of the Constitution. The federal government is instructed to follow the statements when it enforces the laws.
The link goes on to list 10 examples of signing statements Bush has used.
Today, Senator Arlen Specter has called for hearings into Bush's use of signing statements to determine if the Bush Administration has overstepped its power. (link)
QUOTE
WASHINGTON -- The chairman of the Senate Judiciary Committee, accusing the White House of a ''very blatant encroachment" on congressional authority, said yesterday he will hold an oversight hearing into President Bush's assertion that he has the power to bypass more than 750 laws enacted over the past five years.
''There is some need for some oversight by Congress to assert its authority here," Arlen Specter, Republican of Pennsylvania, said in an interview. ''What's the point of having a statute if . . . the president can cherry-pick what he likes and what he doesn't like?"
Specter said he plans to hold the hearing in June. He said he intends to call administration officials to explain and defend the president's claims of authority, as well to invite constitutional scholars to testify on whether Bush has overstepped the boundaries of his power.
''There is some need for some oversight by Congress to assert its authority here," Arlen Specter, Republican of Pennsylvania, said in an interview. ''What's the point of having a statute if . . . the president can cherry-pick what he likes and what he doesn't like?"
Specter said he plans to hold the hearing in June. He said he intends to call administration officials to explain and defend the president's claims of authority, as well to invite constitutional scholars to testify on whether Bush has overstepped the boundaries of his power.
Signing statements, to be clear, have been used by all presidents of recent record, dating back as early as Reagan. In this Presidential memo from Bernard Nussbaum to President Clinton, he describes the three primary functions of signing statements.
QUOTE
To begin with, it appears to be an uncontroversial use of signing statements to explain to the public, and more particularly to interested constituencies, what the President understands to be the likely effects of the bill, and how it coheres or fails to cohere with the Administration's views or programs.(3)
A second, and also generally uncontroversial, function of Presidential signing statements is to guide and direct Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch. See Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992). In the exercise of that authority he may direct such officials how to interpret and apply the statutes they administer.(4) Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986) ("[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."). Signing statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other Executive Branch officials.(5)
A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced.
A second, and also generally uncontroversial, function of Presidential signing statements is to guide and direct Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch. See Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992). In the exercise of that authority he may direct such officials how to interpret and apply the statutes they administer.(4) Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986) ("[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."). Signing statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other Executive Branch officials.(5)
A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced.
While the first two functions seems constitutional on face, it is the third function that seems to call in to question whether a separation of powers conflict exists. Bush's use of this 3rd option in particular seems to be the focus of the hearings. In particular, this is due to the fact that many of his statements seem to resemble line item vetos, which SCOTUS has ruled is unconstitutional. (link)
QUOTE
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 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.
Questions for Debate:
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
Let's make it clear, first of all, that we are only talking about those Presidential statements which rely on the President's interpretation of the constitutionality of the law. It seems quite clear to me that the President has only one choice when confronted with a law which she interprets as unconstitutional; veto it. The power of veto, by itself, gives the President enormous control over the lawmaking process; why would she need any more? It's interesting to note that the current President seems to have little or no interest in using the power of veto; perhaps this is because Presidential statements seem to be so much more powerful. (For one thing, a veto can be overridden by Congress; but what can Congress do about a Presidential statement?)
1. To me, it seems more important that Presidential statements of this kind usurp the power of the Supreme Court. The President has a very limited role in judging the constitutionality of the law, as I have said; extending this role is very dangerous.
2. Because it oversteps the limited powers of the Presidency, Presidential statements of this kind seem unconstitutional to me.
3. It seems to me that the most direct course to settling this issue would be for the Supreme Court to decide whether the current President use of Presidential statements is constitutional or not. The great danger of attempting to censure or impeach the current President on this issue is that such an effort is very likely to fail, which would only encourage the President, and future executives, to continue issuing such Presidential statements. If nothing else, a Supreme Court judgment would force the question of this aspect of Presidential power to some sort of conclusion.
1. To me, it seems more important that Presidential statements of this kind usurp the power of the Supreme Court. The President has a very limited role in judging the constitutionality of the law, as I have said; extending this role is very dangerous.
2. Because it oversteps the limited powers of the Presidency, Presidential statements of this kind seem unconstitutional to me.
3. It seems to me that the most direct course to settling this issue would be for the Supreme Court to decide whether the current President use of Presidential statements is constitutional or not. The great danger of attempting to censure or impeach the current President on this issue is that such an effort is very likely to fail, which would only encourage the President, and future executives, to continue issuing such Presidential statements. If nothing else, a Supreme Court judgment would force the question of this aspect of Presidential power to some sort of conclusion.
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
Yes they do. Through his use of signing statements, he bypasses the veto process and prevents Congress from having a say in the issue taken by the President in his signing statement for a particular piece of legislation.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
Yes. This is a point on which the Constitution is very clear. If the President does not approve of any portion of a piece of legislation he is to send it back in its entirety to Congress. That is his only option under the Constitution.
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
This President has questioned the constitutionality of around 750 pieces of legislation that he has subsequently signed into law unchanged and declared in his signing statements that he will interpret them in such a way as to avoid the consitutional question (which in this case means he will ignore those sections he believes are unconstitutional). In reading some of the legislation in question, I have found that there are, indeed, some constitutional issues in some cases, but the response should be a veto not a signing statement.
750 direct violations of the Presentment Clause. Censure is silly when it comes to dealing with the actions of a President. It is non-binding and will do nothing to stop the President from using signing statements in the manner he is currently. Congress can either take the issue to the Supreme Court or it can impeach the President. I'm all for impeachment.
Yes they do. Through his use of signing statements, he bypasses the veto process and prevents Congress from having a say in the issue taken by the President in his signing statement for a particular piece of legislation.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
Yes. This is a point on which the Constitution is very clear. If the President does not approve of any portion of a piece of legislation he is to send it back in its entirety to Congress. That is his only option under the Constitution.
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
This President has questioned the constitutionality of around 750 pieces of legislation that he has subsequently signed into law unchanged and declared in his signing statements that he will interpret them in such a way as to avoid the consitutional question (which in this case means he will ignore those sections he believes are unconstitutional). In reading some of the legislation in question, I have found that there are, indeed, some constitutional issues in some cases, but the response should be a veto not a signing statement.
750 direct violations of the Presentment Clause. Censure is silly when it comes to dealing with the actions of a President. It is non-binding and will do nothing to stop the President from using signing statements in the manner he is currently. Congress can either take the issue to the Supreme Court or it can impeach the President. I'm all for impeachment.
QUOTE(Doclotus @ May 4 2006, 03:02 PM)
Questions for Debate:
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
1. Yes, Bush is engaged in a massive power grab by the Executive Branch over the Legislative. Congress, in their present state of "bend-over-and-grab-yer-ankles" has not challenged the President. They need to.
Here's an example of a signing statement by Bush:
March 9: Justice Department officials must give reports to Congress by certain dates on how the FBI is using the USA Patriot Act to search homes and secretly seize papers.
Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
http://www.boston.com/news/nation/washingt...ing_statements/
So operating on his say-so, Bush can tell the Justice Department not to provide to Congress ANY information he decides could harm "national security or executive branch operations." There's a lot of coverage under that umbrella. Richard Nixon probably wishes he could have said the same thing regarding the release of his tapes. Whatever happened to Congressional oversight?
2. That would be for the Supreme Court to ultimately decide. The President gets a lot of latitude as Commander-in-Chief to act unilaterally in times of war, but Bush is greedily trying to expand his power. There has to be something vaguely unconstitutional about a president who arbitraily decides what laws he'll enforce and which ones he'll ignore.
3. Bush=Republican. Specter=Republican. Both Houses of Congress=Republican dominated. No censure. No impeachment. Just trying to talk the issue to death. Same as it ever was.
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
No it does not.
The President cannot enforce a law that he feels is unConstitutional and neither can any other government official.
The Supremacy Clause clearly states that the Constitution is the supreme law of the land and any laws which contradict it are invalid. If the President (or other enforcement official) deems a law to be unConstitutional, he has no obligation to enforce it. Indeed he may be civilly liable if he does so and he has a discretion in regards to enforcement. U.S. Supreme Court : EX PARTE YOUNG 1908
Let's take a look at something similar that happened in San Francisco. The mayor there issued marriage licenses to gay couples despite a state law specifically banning the practice. The mayor felt that the marriage law was counter to the state's constitution and refused to enforce it. The first two courts in the matter did not issue immediate injunctions ordering the Mayor to stop this practice.
Here's a link
Another example: this issue came up during the torture hearings. Did Al Gonzales say the president can authorize torture?
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
The question is not a reasonable one. Signing statements are not laws, and thus cannot be un-Constitutional. I disagree with the path being taken by Bush here: he should simply veto these laws if he feels they are, or parts of them are, unConstitutional. Heck, he should veto 90% of the laws the Congress sends him. However, as I said before, Bush has no requirement to enforce a law he believes to be un-Constitutional. Bush does not have the backbone to take this approach however and so this imperfect situation has developed.
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
Haven't we gone over this before? The Congress is free to censure the President. They simply lack the will to do so. The Congress is free to try to impeach Bush and they may do so after the November elections. If the Congress disagrees with Bush, they probably should censure him, but impeachment over this issue is unlikely and unwarranted.
No it does not.
The President cannot enforce a law that he feels is unConstitutional and neither can any other government official.
The Supremacy Clause clearly states that the Constitution is the supreme law of the land and any laws which contradict it are invalid. If the President (or other enforcement official) deems a law to be unConstitutional, he has no obligation to enforce it. Indeed he may be civilly liable if he does so and he has a discretion in regards to enforcement. U.S. Supreme Court : EX PARTE YOUNG 1908
Let's take a look at something similar that happened in San Francisco. The mayor there issued marriage licenses to gay couples despite a state law specifically banning the practice. The mayor felt that the marriage law was counter to the state's constitution and refused to enforce it. The first two courts in the matter did not issue immediate injunctions ordering the Mayor to stop this practice.
Here's a link
QUOTE
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted....
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
16 Am Jur 2d, Sec 177 late 2d, Sec 256
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
16 Am Jur 2d, Sec 177 late 2d, Sec 256
Another example: this issue came up during the torture hearings. Did Al Gonzales say the president can authorize torture?
QUOTE
Pressed for an answer, Gonzales concedes, "I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional," and therefore the president may ignore it.
<snip>
Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says.
<snip>
Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
The question is not a reasonable one. Signing statements are not laws, and thus cannot be un-Constitutional. I disagree with the path being taken by Bush here: he should simply veto these laws if he feels they are, or parts of them are, unConstitutional. Heck, he should veto 90% of the laws the Congress sends him. However, as I said before, Bush has no requirement to enforce a law he believes to be un-Constitutional. Bush does not have the backbone to take this approach however and so this imperfect situation has developed.
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
Haven't we gone over this before? The Congress is free to censure the President. They simply lack the will to do so. The Congress is free to try to impeach Bush and they may do so after the November elections. If the Congress disagrees with Bush, they probably should censure him, but impeachment over this issue is unlikely and unwarranted.
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
Yes. But more importantly to me, I do not see that the Pres. is given (or has legitimately) this "statementing" power in the Const. And, all powers not "specifically given in the Const., etc." (my sloppy paraphrase) are reserved for the states and the people.
I agree with some of the above posts that, he can only sign, veto, or ignore. But I say only we and states get to do this level of "statementing". And we should; but don't have a strong enuf (The Commons) practices/methods in use yet. So let's go for it!
Let's take him at his word though, that these are statements of how he will interpret, execute presumably, "those laws" he signs with "statementing". And, if the"statementing" is at variance with Congressional intent for that law, then we and Congress should scream, investigate, re-legislate, post to AD, etc.!
I read an above comment that it's the Supreme Court's (SC) job to do all such "interpretation". I fear that waiting for a case to come up (through the court system), then time to deliberate, gives the Pres. a game playing agenda whereby he does what he has "interpreted" for quite a while, and maybe forever if the SC decides not to hear it! I know of past efforts to try to get faster SC reviews processes, and they all died. I think cuz they launced another "mad" bureaucracy!
This "statementing process" then literally becomes a Pres. "game playing strategy" that he can replay over and over. So I guess, I'd go even outside the present Const. interpretations, and Amendment this "statementing" away if that's necessary to stop it!! (It could be worse possibly in the Pres. not so openly letting the country know what his intent is; and we will have to learn it over time.)
I guess I'd also like Congress to exercise its role/job (my interpretation) of specifying details of gov't operations on this problem and try a US Code type mandate to stop it. All in all though I think this "statementing" really stinks!!!
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
No, see comments of !. above. I believe the details are the same here.
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
Best gov't. responses for me are methods stated in 1 above. Censure and impeachment considerations is this "plus all the rest" for me personally. I then get that they are both reasonable, and both should be pursued in crafted responses to "this and all the rest."
Yes. But more importantly to me, I do not see that the Pres. is given (or has legitimately) this "statementing" power in the Const. And, all powers not "specifically given in the Const., etc." (my sloppy paraphrase) are reserved for the states and the people.
I agree with some of the above posts that, he can only sign, veto, or ignore. But I say only we and states get to do this level of "statementing". And we should; but don't have a strong enuf (The Commons) practices/methods in use yet. So let's go for it!
Let's take him at his word though, that these are statements of how he will interpret, execute presumably, "those laws" he signs with "statementing". And, if the"statementing" is at variance with Congressional intent for that law, then we and Congress should scream, investigate, re-legislate, post to AD, etc.!
I read an above comment that it's the Supreme Court's (SC) job to do all such "interpretation". I fear that waiting for a case to come up (through the court system), then time to deliberate, gives the Pres. a game playing agenda whereby he does what he has "interpreted" for quite a while, and maybe forever if the SC decides not to hear it! I know of past efforts to try to get faster SC reviews processes, and they all died. I think cuz they launced another "mad" bureaucracy!
This "statementing process" then literally becomes a Pres. "game playing strategy" that he can replay over and over. So I guess, I'd go even outside the present Const. interpretations, and Amendment this "statementing" away if that's necessary to stop it!! (It could be worse possibly in the Pres. not so openly letting the country know what his intent is; and we will have to learn it over time.)
I guess I'd also like Congress to exercise its role/job (my interpretation) of specifying details of gov't operations on this problem and try a US Code type mandate to stop it. All in all though I think this "statementing" really stinks!!!
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
No, see comments of !. above. I believe the details are the same here.
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
Best gov't. responses for me are methods stated in 1 above. Censure and impeachment considerations is this "plus all the rest" for me personally. I then get that they are both reasonable, and both should be pursued in crafted responses to "this and all the rest."
Amlord,
Actions can be considered unconstitutional. The President's actions – using signing statements in this manner – violate the Presentment Clause. The President can't sign a piece of legislation into law disapproving of certain sections (believing them to be unconstitutional) and then just say he'll ignore the unconstitutional parts of the legislation. The Constitution very clearly states that if the President does not approve of a piece of legislation he vetoes it in its entirety – to do otherwise violates the Constitution.
So, why would the President sign an unconstitutional piece of legislation into law – an act that illustrates the President's approval of that law? Can he officially approve of a law that he knows he will ignore and doesn't believe he should be bound by?
The difference between this situation and the example you present regarding the Mayor of San Francisco is that the Mayor did not sign the law he was ignoring into the books.
The argument you put forth has been used before by a President before... his actions resulted in his impeachment:
The President and the Law
Actions can be considered unconstitutional. The President's actions – using signing statements in this manner – violate the Presentment Clause. The President can't sign a piece of legislation into law disapproving of certain sections (believing them to be unconstitutional) and then just say he'll ignore the unconstitutional parts of the legislation. The Constitution very clearly states that if the President does not approve of a piece of legislation he vetoes it in its entirety – to do otherwise violates the Constitution.
So, why would the President sign an unconstitutional piece of legislation into law – an act that illustrates the President's approval of that law? Can he officially approve of a law that he knows he will ignore and doesn't believe he should be bound by?
The difference between this situation and the example you present regarding the Mayor of San Francisco is that the Mayor did not sign the law he was ignoring into the books.
The argument you put forth has been used before by a President before... his actions resulted in his impeachment:
The President and the Law
QUOTE
Before this paper is issued the question of impeachment will probably be decided. The offense of the President is plain. He assumes to put himself above the law, upon the ground that in his judgment the law is unconstitutional. A plea more preposterous can hardly be conceived, for if he be the judge of one law he is the judge of all, and no law will be executed until he approves it. Mr. James Brooks, in the very unwise and braggadocio speech which he made in the House upon the presentation of the resolution of impeachment, said that the President had as much right to judge of the constitutionality of the Tenure-of-Office Act as the Senate or the House. Undoubtedly he has; but the Constitution expressly declares that if the President objects to an act upon the ground of want of constitutionality, or upon any other ground, if he can not persuade Congress to agree with him, and the act is again passed by a two-thirds vote, it becomes the law of the land, notwithstanding the judgment of the President.
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
Not only is this a usurpation of Congress’ power, but the courts as well. Since when does the President determine which laws are constitutional and which are not? Historically that is the job of the courts. Bush sure as hell isn’t qualified to make a determination of legality.
He’s not a lawyer and Harriet Miers' advise is suspect at best. Bush wanted to become a lawyer, but was rejected by The University of Texas Law School.
http://www.burntorangereport.com/archives/003112.html
This means he’s attempting to usurp power without knowledge of what to do with that power.
If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
I think Bush has done more than enough to warrant impeachment and removal, but I don’t think that’s going to happen. Bush seems like the “new improved” Nixon, with one major difference. Nixon was smart (academically, at least); Bush's intellect resembles a burned out light bulb. There’s no chance of impeaching Bush, and less of removing him from office unless, that is, he becomes an unbearable liability for Republicans. Meanwhile, I’m enjoying watching Bush stumble around, like a man in the dark, looking for a flashlight.
Not only is this a usurpation of Congress’ power, but the courts as well. Since when does the President determine which laws are constitutional and which are not? Historically that is the job of the courts. Bush sure as hell isn’t qualified to make a determination of legality.
He’s not a lawyer and Harriet Miers' advise is suspect at best. Bush wanted to become a lawyer, but was rejected by The University of Texas Law School.QUOTE
However, while I think it's great that the President is a Longhorn fan, I can't help but note that the University of Texas rejected him for Law school, so he had to settle for Harvard Business School instead.
http://www.burntorangereport.com/archives/003112.html
This means he’s attempting to usurp power without knowledge of what to do with that power.
If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
I think Bush has done more than enough to warrant impeachment and removal, but I don’t think that’s going to happen. Bush seems like the “new improved” Nixon, with one major difference. Nixon was smart (academically, at least); Bush's intellect resembles a burned out light bulb. There’s no chance of impeaching Bush, and less of removing him from office unless, that is, he becomes an unbearable liability for Republicans. Meanwhile, I’m enjoying watching Bush stumble around, like a man in the dark, looking for a flashlight.
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
The key aspect to this question is current usage. Signing statements by themselves can serve a valuable purpose in interpreting law in the efforts to execute it. Currently, though, Bush is using this technique to gut the laws, many times when the constitutional grounds aren't even germane to the signing statement.
For example, in response to the amendment that stated "US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment." Bush agreed not to risk the political suicide of vetoing the bill and instead added this signing statement:
This has the effect of saying, "I'll do it if I want to." Yes, this can be twisted into a constitutional challenge, but nothing of the sort exists in that signing statement. That is a clear usurpation of Congress' ability to pass laws and violation of the presentment clause.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
Amlord dubs this an unfair question, but his reasoning misses the mark. If the signing statement has the effect of representing a line item veto (ie. I'll enforce what I want to enforce), he is violating the presentment clause by function. I'm not sure if "more unconstitutional" is really valid, but it seems to exceed the reasoning from the line-item decision because at least in that scenario Congress had an ability to challenge the line item decision. In the current context, Congress has no clear recourse when a signing statement effectively guts the intent of the law. If they simply pass another law, the President can simply append another statement. That is an unchecked power by the executive branch.
If the President has a specific challenge to a law's constitutionality, he can simply veto it. I would love someone to ask Bush why he has chosen not to veto a single piece of legislation but has instead chosen to abuse an executive device to record levels.
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
This is a tougher question, due to the majority party dominating both branches of government. I would support a two pronged approach. First, a handful of the more obvious abuses should be challenged in court (not sure of the legal logistics here). Second, after the hearings conclude a non-censure resolution should declare such sweeping statements as violating the separation of powers and the President should refrain from doing so.
This sets the table as level if there is even a hint of question whether this use of power is valid. If the other two branches of government decide the chief executive is out of line and he chooses that course again, the censure or impeachment is in order. This is checks and balances at its finest.
The key aspect to this question is current usage. Signing statements by themselves can serve a valuable purpose in interpreting law in the efforts to execute it. Currently, though, Bush is using this technique to gut the laws, many times when the constitutional grounds aren't even germane to the signing statement.
For example, in response to the amendment that stated "US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment." Bush agreed not to risk the political suicide of vetoing the bill and instead added this signing statement:
QUOTE
The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
This has the effect of saying, "I'll do it if I want to." Yes, this can be twisted into a constitutional challenge, but nothing of the sort exists in that signing statement. That is a clear usurpation of Congress' ability to pass laws and violation of the presentment clause.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
Amlord dubs this an unfair question, but his reasoning misses the mark. If the signing statement has the effect of representing a line item veto (ie. I'll enforce what I want to enforce), he is violating the presentment clause by function. I'm not sure if "more unconstitutional" is really valid, but it seems to exceed the reasoning from the line-item decision because at least in that scenario Congress had an ability to challenge the line item decision. In the current context, Congress has no clear recourse when a signing statement effectively guts the intent of the law. If they simply pass another law, the President can simply append another statement. That is an unchecked power by the executive branch.
If the President has a specific challenge to a law's constitutionality, he can simply veto it. I would love someone to ask Bush why he has chosen not to veto a single piece of legislation but has instead chosen to abuse an executive device to record levels.
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
This is a tougher question, due to the majority party dominating both branches of government. I would support a two pronged approach. First, a handful of the more obvious abuses should be challenged in court (not sure of the legal logistics here). Second, after the hearings conclude a non-censure resolution should declare such sweeping statements as violating the separation of powers and the President should refrain from doing so.
This sets the table as level if there is even a hint of question whether this use of power is valid. If the other two branches of government decide the chief executive is out of line and he chooses that course again, the censure or impeachment is in order. This is checks and balances at its finest.
QUOTE(entspeak @ May 5 2006, 06:13 PM)
Amlord,
Actions can be considered unconstitutional. The President's actions – using signing statements in this manner – violate the Presentment Clause. The President can't sign a piece of legislation into law disapproving of certain sections (believing them to be unconstitutional) and then just say he'll ignore the unconstitutional parts of the legislation. The Constitution very clearly states that if the President does not approve of a piece of legislation he vetoes it in its entirety – to do otherwise violates the Constitution.
Actions can be considered unconstitutional. The President's actions – using signing statements in this manner – violate the Presentment Clause. The President can't sign a piece of legislation into law disapproving of certain sections (believing them to be unconstitutional) and then just say he'll ignore the unconstitutional parts of the legislation. The Constitution very clearly states that if the President does not approve of a piece of legislation he vetoes it in its entirety – to do otherwise violates the Constitution.
Bernard Nussbaum's memo explains that this is not un-Constitutional and has in fact been used by Presidents exactly in this manner dating back to at least Thomas Jefferson.
The memo explains, as I did with another basis, the historical uses of the Presidential signing statement and the "selective" enforcement of statutes.
In the case of torture (which the President has said the US will not use), there may be a conflict between the bill and Presidential powers. Bush was merely reserving the right (and informing Congress of this fact) to use the means within his power to protect US citizens from attack. This is not an indication that he approves of torture, it is simply a statement to Congress that he will not allow them to encroach upon his Constitutional duty.
QUOTE(Doclotus)
Amlord dubs this an unfair question, but his reasoning misses the mark. If the signing statement has the effect of representing a line item veto (ie. I'll enforce what I want to enforce), he is violating the presentment clause by function. I'm not sure if "more unconstitutional" is really valid, but it seems to exceed the reasoning from the line-item decision because at least in that scenario Congress had an ability to challenge the line item decision. In the current context, Congress has no clear recourse when a signing statement effectively guts the intent of the law. If they simply pass another law, the President can simply append another statement. That is an unchecked power by the executive branch.
Your analysis is different from the Clinton Department of Justice and the Bush Department of Justice. I have cited court cases where state officials can be held personally liable for enforcing laws which are un-Constitutional.
If a bill is dubious and could be viewed as unConstitutional, the President can elect to choose an enforcement interpretation that will allow the bill to withstand Constitutional review. The Supreme Court has used this approach (as reference in Nussbaum's memo):
QUOTE
Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions.
Let's look at the examples given in the Boston Globe:
QUOTE
March 9: Justice Department officials must give reports to Congress by certain dates on how the FBI is using the USA Patriot Act to search homes and secretly seize papers.
Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
National security is in the hands of the executive. While this may seem controversial, it shouldn't be. Given the history of leaks coming out of Congress, some caution is advised.
QUOTE
Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.
Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
Again, national security. The President has said that we will not use torture, but to allow Congress to say that is a breach of the Separation of Powers (at least in the mind of the President).
QUOTE
Dec. 30: When requested, scientific information ''prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."
Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.
Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.
Again, national security. Members of Congress are not privy to all of the nuclear secrets of this country (although select committees are). The broad nature of the law would allow any Congressman to ask for highly sensitive documents.
QUOTE
Aug. 8: The Department of Energy, the Nuclear Regulatory Commission and its contractors may not fire or otherwise punish an employee whistle-blower who tells Congress about possible wrongdoing.
Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.
Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.
Same as above...nuclear secrets.
QUOTE
Dec. 23, 2004: Forbids US troops in Colombia from participating in any combat against rebels, except in cases of self-defense. Caps the number of US troops allowed in Colombia at 800.
Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."
Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."
A ridiculous resolution. The President is Commander in Chief and how many people think that troop actions should be limited by Congress?
QUOTE
Dec. 17: The new national intelligence director shall recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community.
Bush's signing statement: The executive branch shall construe the law in a manner consistent with a constitutional clause guaranteeing ''equal protection" for all. (In 2003, the Bush administration argued against race-conscious affirmative-action programs in a Supreme Court case. The court rejected Bush's view.)
Bush's signing statement: The executive branch shall construe the law in a manner consistent with a constitutional clause guaranteeing ''equal protection" for all. (In 2003, the Bush administration argued against race-conscious affirmative-action programs in a Supreme Court case. The court rejected Bush's view.)
Congress mandates quotas?
Certainly EEOC guidelines, but why specifically instruct one Executive branch official as to what his hiring practices should be?QUOTE
Oct. 29: Defense Department personnel are prohibited from interfering with the ability of military lawyers to give independent legal advice to their commanders.
Bush's signing statement: All military attorneys are bound to follow legal conclusions reached by the administration's lawyers in the Justice Department and the Pentagon when giving advice to their commanders.
Bush's signing statement: All military attorneys are bound to follow legal conclusions reached by the administration's lawyers in the Justice Department and the Pentagon when giving advice to their commanders.
QUOTE
Nov. 5, 2002: Creates an Institute of Education Sciences whose director may conduct and publish research ''without the approval of the secretary [of education] or any other office of the department."
Bush's signing statement: The president has the power to control the actions of all executive branch officials, so ''the director of the Institute of Education Sciences shall [be] subject to the supervision and direction of the secretary of education."
Bush's signing statement: The president has the power to control the actions of all executive branch officials, so ''the director of the Institute of Education Sciences shall [be] subject to the supervision and direction of the secretary of education."
This one should be obvious.
Bush is using these signing statements to advise Congress against attempts to breach the Separation of powers in almost every instance. These examples fall within a few categories: national security, foreign policy, military conduct, and executive branch administration all of which are the responsibility of the President and not Congress.
QUOTE(Amlord @ May 9 2006, 11:58 AM)
In the case of torture (which the President has said the US will not use), there may be a conflict between the bill and Presidential powers. Bush was merely reserving the right (and informing Congress of this fact) to use the means within his power to protect US citizens from attack. This is not an indication that he approves of torture, it is simply a statement to Congress that he will not allow them to encroach upon his Constitutional duty.
That is as vague as it gets. Bush has basically said, "as commander-in-chief I can do whatever I want to under the guise of 'protecting the country'". His signing statement on the torture amendment specifically says he reserves the right to torture (using a different word(s), of course) to protect the US. Sorry, but that doesn't cut it. Congress passes the laws, the President executes it. If Congress says you can't torture, then you can't torture. There is nothing in the Constitution that gives the Executive Branch that authority, even in a time of war.
QUOTE
Your analysis is different from the Clinton Department of Justice and the Bush Department of Justice. I have cited court cases where state officials can be held personally liable for enforcing laws which are un-Constitutional.
Of course it is. Each administration is using mouthpieces to defend what they want to do. That doesn't make either of them right. The state officials analogy doesn't apply here because their are (to my recollection) differing levels of immunity from civil action at the Federal level.
QUOTE
If a bill is dubious and could be viewed as unConstitutional, the President can elect to choose an enforcement interpretation that will allow the bill to withstand Constitutional review. The Supreme Court has used this approach (as reference in Nussbaum's memo):
I don't have a problem with this aspect of it for the most part, but why resort to this when the President has a far clearer and undisputed authority to simply veto the legislation and tell Congress why he did so?
Note that while he implied that it merited a separate discussion, Nussbaum seemed to agree that selective enforcement did function as a line item veto and thus was suspect constitutionally.
QUOTE(AMLord)
Let's look at the examples given in the Boston Globe:
Again, national security. The President has said that we will not use torture, but to allow Congress to say that is a breach of the Separation of Powers (at least in the mind of the President).
QUOTE
Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.
Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
Again, national security. The President has said that we will not use torture, but to allow Congress to say that is a breach of the Separation of Powers (at least in the mind of the President).
I think even you have to admit Amlord that this one is hands down the toughest to defend. Bush is basically subverting the will of Congress here. Or do you believe Congress has no authority to regulate how the executive branch operates?
QUOTE
QUOTE
Aug. 8: The Department of Energy, the Nuclear Regulatory Commission and its contractors may not fire or otherwise punish an employee whistle-blower who tells Congress about possible wrongdoing.
Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.
Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.
Same as above...nuclear secrets.
The first one I'll give you. This one, not so fast. This one again has the premise of subverting the law to state in effect, we can eliminate a whistle blower even if what they blew was in fact breaking the law. Seems like a check is being made unbalanced here.
QUOTE
QUOTE
Dec. 23, 2004: Forbids US troops in Colombia from participating in any combat against rebels, except in cases of self-defense. Caps the number of US troops allowed in Colombia at 800.
Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."
Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."
A ridiculous resolution. The President is Commander in Chief and how many people think that troop actions should be limited by Congress?
This one might merit a debate on its own. What is Congress' authority as it related to the War Powers Act here?
QUOTE
Bush is using these signing statements to advise Congress against attempts to breach the Separation of powers in almost every instance. These examples fall within a few categories: national security, foreign policy, military conduct, and executive branch administration all of which are the responsibility of the President and not Congress.
So in advising not to breach the separation of powers he's going to breach the separation of powers? Admittedly, not all 750 signing statements are without merit. Some have a useful purpose. But, some significant ones seem to seriously breech that separation of powers idea and if nothing else Congress should review these statements and seek opinions as to their constitutionality. If the executive branch is in error, they should correct the behaviour.
This is my main issue with this matter, why doesn't he just veto the darn thing and tell em why?
QUOTE(Doclotus @ May 9 2006, 04:42 PM)
This is my main issue with this matter, why doesn't he just veto the darn thing and tell em why?
Again, I will restate that most of the signing statements are simply clarifications where something could be unConstitutional or a breach of separation of powers.
The Executive branch does have wide latitude when it comes to national security and the Supreme Court has upheld this. If Congress attempts to put a check on this, it is an unConstitutional act by the Congress, not by the President ignoring the Congress.
Certainly many of the issues here are debateable in and of themselves. I don't think anyone doubts that Bush has stood up for a strong executive branch during his term. It could be argued that this route is more open than the traditional "ah well, ignore that part" type of enforcement we have seen in the past (immigration, is just one glaring example where the executive is not enforcing the letter of the law).
Amlord,
I agree with you that the President has no obligation to enforce an unconstitutional law. I agree with Easterbrook when he claims that Constitutional interpretation is an kind of "every man for himself" situation. I am under no obligation to abide by an unconstitutional law. The question becomes: What role does the President have in preventing unconstitutional laws from being on the books? And who has the final word? This part is very clear in the Constitution. If there is a question of constitutionality regarding a piece of legislation put before the President to be signed into law he vetoes it. If Congress passes the legislation again by two-thirds vote it becomes law despite what the President believes. He can then go to the Supreme Court to have them make a decision regarding the constitutionality of the law. If they decide the law is constitutional then the President just has to accept it and enforce that law despite what he believes. That is the way it is supposed to work. I don't care how many other Presidents have used signing statements or documents like them in a manner that flat out refuses to enforce an item he is signing into law, it doesn't make them any less unconstitutional. The Constitution is set up this way for a reason. It prevents tyranny. I'm sure you'd agree that allowing a President to determine what is constitutional and unconstitutional with no checks and balances opens the door to tyrannical behavior.
When the President uses a signing statement to interpret an item in such a way that it prevents a constitutional question but the item still has the force of law, that is an appropriate use of a signing statement in my opinion. If the President claims that he does not have to abide by a particular law if he doesn't want to, that is a completely different scenario and is, in effect, a line-item veto. This is clearly unconstitutional.
If there is no way for an item to be constitutionally interpreted, the President has the obligation to veto the entire bill. This prevents him from signing into law an item for which he will not be able to fulfill his Constitutional duties of faithful enforcement.
I agree with you that the President has no obligation to enforce an unconstitutional law. I agree with Easterbrook when he claims that Constitutional interpretation is an kind of "every man for himself" situation. I am under no obligation to abide by an unconstitutional law. The question becomes: What role does the President have in preventing unconstitutional laws from being on the books? And who has the final word? This part is very clear in the Constitution. If there is a question of constitutionality regarding a piece of legislation put before the President to be signed into law he vetoes it. If Congress passes the legislation again by two-thirds vote it becomes law despite what the President believes. He can then go to the Supreme Court to have them make a decision regarding the constitutionality of the law. If they decide the law is constitutional then the President just has to accept it and enforce that law despite what he believes. That is the way it is supposed to work. I don't care how many other Presidents have used signing statements or documents like them in a manner that flat out refuses to enforce an item he is signing into law, it doesn't make them any less unconstitutional. The Constitution is set up this way for a reason. It prevents tyranny. I'm sure you'd agree that allowing a President to determine what is constitutional and unconstitutional with no checks and balances opens the door to tyrannical behavior.
When the President uses a signing statement to interpret an item in such a way that it prevents a constitutional question but the item still has the force of law, that is an appropriate use of a signing statement in my opinion. If the President claims that he does not have to abide by a particular law if he doesn't want to, that is a completely different scenario and is, in effect, a line-item veto. This is clearly unconstitutional.
If there is no way for an item to be constitutionally interpreted, the President has the obligation to veto the entire bill. This prevents him from signing into law an item for which he will not be able to fulfill his Constitutional duties of faithful enforcement.
Here's a couple of noteworthy updates on this topic.
First, the American Bar Association has released the results of their task force regarding PSS. Their recommendations can be found here (pdf) (editors note: this is a pretty good historical reference for signing statements)
Here's some of the recommendations(summarized):
Second, apparently Sen. Arlen Specter is preparing a lawsuit over the use of signing statements. (link)
First, the American Bar Association has released the results of their task force regarding PSS. Their recommendations can be found here (pdf) (editors note: this is a pretty good historical reference for signing statements)
Here's some of the recommendations(summarized):
QUOTE
- Signing Statements Must Respect the Rule of Law and Our System of Separation of Powers
- Presidential Concerns Regarding Constitutionality of Pending Bills Should Be Communicated To Congress Prior To Passage
- Signing Statements Should Not Be A Substitute For A Presidential Veto
- Legislation Is Needed To Ensure That Congress And The Public are fully informed about the use of Presidential Signing Statements
- Legislation Is Needed To Provide For Judicial Review Of Presidential Signing Statements In Appropriate Cases
Second, apparently Sen. Arlen Specter is preparing a lawsuit over the use of signing statements. (link)
QUOTE
A powerful Republican committee chairman who has led the fight against
President Bush's signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.
ADVERTISEMENT
"We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.
President Bush's signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.
ADVERTISEMENT
"We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
No. I've seen no evidence by anyone either on AD or in Congress that supports the idea that these statements carry any legal weight. If they aren't legal documents then they do not violate the Constitution in any way. As far as I can see now, this business of "the President is picking and choosing what parts of laws to follow" is non-sense unless someone can show a concrete example of the President doing so...and if no one can, then this is a complete non-issue.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
I'm with Amlord here; this question assumes that the statements carry legal weight, and no evidence has been given to support that theory.
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
They can do whatever they want, but they don't have the votes for impeachment and if they do censure him, they better KNOW that these signing statements are legal documents, and again, I don't see any reason to believe that they are.
I know I'm repeating myself, but I feel like I'm missing something, can anyone prove that these statements are legal documents?
CP
No. I've seen no evidence by anyone either on AD or in Congress that supports the idea that these statements carry any legal weight. If they aren't legal documents then they do not violate the Constitution in any way. As far as I can see now, this business of "the President is picking and choosing what parts of laws to follow" is non-sense unless someone can show a concrete example of the President doing so...and if no one can, then this is a complete non-issue.
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetos, constitutional? Why or why not?
I'm with Amlord here; this question assumes that the statements carry legal weight, and no evidence has been given to support that theory.
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
They can do whatever they want, but they don't have the votes for impeachment and if they do censure him, they better KNOW that these signing statements are legal documents, and again, I don't see any reason to believe that they are.
I know I'm repeating myself, but I feel like I'm missing something, can anyone prove that these statements are legal documents?
CP
QUOTE(ConservPat @ Jul 25 2006, 06:08 PM)
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
No. I've seen no evidence by anyone either on AD or in Congress that supports the idea that these statements carry any legal weight. If they aren't legal documents then they do not violate the Constitution in any way. As far as I can see now, this business of "the President is picking and choosing what parts of laws to follow" is non-sense unless someone can show a concrete example of the President doing so...and if no one can, then this is a complete non-issue.
Some actions would be more provable than others, CP. For example, when the President's signing statement on torture basically says, "I'll do it if I deem it necessary", when the law says "don't torture", isn't that willful subversion of Congress with zero due process (ie. veto consideration)? Can I prove someone has been tortured during that time? Probably not.
Here's another example that is just oozing with irony. Its basically a signing statement on signing statements and probably what got Specter considering a lawsuit. From Slate's Timothy Noah:
QUOTE
The ABA report recommends, among other things, that Congress pass a law requiring the president to inform Congress in timely fashion of those parts of existing legislation he intends to ignore, and why. The report then poses the inevitable question: "Could a president, in a signing statement, disregard even this legislation?" This, the ABA explains, is "precisely what occurred in 2002" after Congress, exasperated by Bush's use of signing statements to withold all sorts of information that he was required by law to share with the legislative branch, passed a law requiring the attorney general to submit to Congress a detailed report of every instance in which he or any Justice Department official ignored these or any other legislative mandates.
You see where this is going. Bush signed the bill into law (U.S. Code 28 § 530D). Then the White House issued a signing statement that completely negated it.
You see where this is going. Bush signed the bill into law (U.S. Code 28 § 530D). Then the White House issued a signing statement that completely negated it.
If this doesn't prove Wertz's unitary executive complaint, I don't know what does.
QUOTE(Doclotus @ Jul 27 2006, 04:48 PM)
From Slate's Timothy Noah:
QUOTE
The ABA report recommends, among other things, that Congress pass a law requiring the president to inform Congress in timely fashion of those parts of existing legislation he intends to ignore, and why. The report then poses the inevitable question: "Could a president, in a signing statement, disregard even this legislation?" This, the ABA explains, is "precisely what occurred in 2002" after Congress, exasperated by Bush's use of signing statements to withold all sorts of information that he was required by law to share with the legislative branch, passed a law requiring the attorney general to submit to Congress a detailed report of every instance in which he or any Justice Department official ignored these or any other legislative mandates.
That proposal sounds a bit like trying to get cattle rustlers to register with the sheriff's office. If the President ignores acts of Congress, what makes anyone think another act of Congress will do anything at all about the problem? Talk about a classic example of politicians pretending they're doing something when in fact they're doing nothing.
QUOTE(Blackstone @ Jul 27 2006, 07:16 PM)
QUOTE(Doclotus @ Jul 27 2006, 04:48 PM)
From Slate's Timothy Noah:
QUOTE
The ABA report recommends, among other things, that Congress pass a law requiring the president to inform Congress in timely fashion of those parts of existing legislation he intends to ignore, and why. The report then poses the inevitable question: "Could a president, in a signing statement, disregard even this legislation?" This, the ABA explains, is "precisely what occurred in 2002" after Congress, exasperated by Bush's use of signing statements to withold all sorts of information that he was required by law to share with the legislative branch, passed a law requiring the attorney general to submit to Congress a detailed report of every instance in which he or any Justice Department official ignored these or any other legislative mandates.
That proposal sounds a bit like trying to get cattle rustlers to register with the sheriff's office. If the President ignores acts of Congress, what makes anyone think another act of Congress will do anything at all about the problem? Talk about a classic example of politicians pretending they're doing something when in fact they're doing nothing.
Blackstone,
This is your first “contribution” to this thread. Instead of tearing down Doc’s proposal, why don’t you come up with some positive solution of your own to curb a president and vice president who think they can make, break, inforce or ignore laws at will? Enlighten us with a set of "premises."
Better yet, you might do well to answer Doc’s original questions.
To refresh your memory, here they are:
1. Does Bush's use of signing statements represent a usurpation of Congress' power? Why or why not?
2. Is President Bush's use of signing statements, in particular those which appear to closely resemble line item vetoes, constitutional? Why or why not?
3. If Specter's hearings reveal a consensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
3. If Specter's hearings reveal a concensus as to whether the President has encroached on Congressional authority, what is the best course to counter its use? Is censure or impeachment an option?
Impeachment!
What he is doing IS unconstitutional. I think it's sad that the ABA had to be the ones who came out against it.
But at least someone brought it up. I think this is the straw that is going to break the camels back.
Impeachment!
What he is doing IS unconstitutional. I think it's sad that the ABA had to be the ones who came out against it.
But at least someone brought it up. I think this is the straw that is going to break the camels back.
QUOTE(BoF @ Aug 6 2006, 07:39 PM)
Enlighten us with a set of "premises."
Actually only one premise is necessary, and I'm sorry if it didn't come through clearly enough the first time: We have procedures for dealing with those who break the law, whether we're talking about cattle rustlers or anyone else. If we want the law enforced, we have to use those procedures. Simply passing a new law requiring lawbreakers to register their illegal activities with the authorities is extreme folly.
QUOTE(Blackstone @ Aug 7 2006, 12:23 PM)
Simply passing a new law requiring lawbreakers to register their illegal activities with the authorities is extreme folly.
The remedy is impeachment, but that's not going to happen with Republicans controlling both houses of Congress. Even if Democrats control both houses after the 2006 election, there would not be enough votes in the Senate to remove Bush.
A new law, especially one passed by Bush's own party, would put the president on notice that he's in for a fight. It might not help, but it wouldn't hurt.
If Democrats gain control either house after the November elections, I favor endless investigations exposing Bush and Cheney on this and other matters. This would be good fodder for 2008. The real solution is having regime change of our own.
Lawrence Tribe, hardly a Bush defender, wrote this article in today's Boston Globe: `Signing statements' are a phantom target
I think Mr. Tribe has been reading my posts...
The actions of the Executive can be un-Constitutional, if they result in injury to parties (either via action or inaction). Advisories that certain actions might occur (or not occur) are not, and cannot be, un-Constitutional.
QUOTE
THE FINAL REPORT of the American Bar Association Task Force opposing presidential ``signing statements" barks up a constitutionally barren tree. It's not the statements that are the true source of constitutional difficulty. On the contrary, signing statements, which a president can issue to indicate the way he intends to direct his administration to construe ambiguous statutes, are informative and constitutionally unobjectionable. So too are many signing statements signaling a president's intention not to enforce a particular provision that he deems constitutionally offensive in an otherwise unobjectionable omnibus measure that he's not prepared to veto.
<snip>
Challenging the signing statements themselves, or the general practice of using them, does not represent even a plausible way of contesting this president's manifestly unreviewable decision to sign rather than veto any particular law, however cynical that decision might be and however unconvincing his explanations are. Nor does challenging such statements represent a plausible way of contesting the overblown character of this president's views of his constitutional prerogatives. That is something that can be tested judicially only in a genuine ``case or controversy" that arises out of a decision to carry out the threat of non-enforcement made by his signing statement, and by someone with the constitutional standing to press such a challenge against what amounts to an executive omission to act.
<snip>
Challenging the signing statements themselves, or the general practice of using them, does not represent even a plausible way of contesting this president's manifestly unreviewable decision to sign rather than veto any particular law, however cynical that decision might be and however unconvincing his explanations are. Nor does challenging such statements represent a plausible way of contesting the overblown character of this president's views of his constitutional prerogatives. That is something that can be tested judicially only in a genuine ``case or controversy" that arises out of a decision to carry out the threat of non-enforcement made by his signing statement, and by someone with the constitutional standing to press such a challenge against what amounts to an executive omission to act.
I think Mr. Tribe has been reading my posts...
QUOTE(AMLord)
Signing statements are not laws, and thus cannot be un-Constitutional. I disagree with the path being taken by Bush here: he should simply veto these laws if he feels they are, or parts of them are, unConstitutional.
The actions of the Executive can be un-Constitutional, if they result in injury to parties (either via action or inaction). Advisories that certain actions might occur (or not occur) are not, and cannot be, un-Constitutional.
That's all well and good, Amlord, and I happen to agree with Mr. Tribe's assessment. The only problem is that your point only addresses the middle question of constitutionality. Luckily, Mr. Tribe's analysis tackles some of the other questions as well.
I will concede that, because PSS's don't represent law, they themselves cannot be found unconstitutional. Even though I disagree with that interpretation.
It is the abuse of power concept, and the failure or subversion of Congressional oversight, in matters such as Guantanamo detainees and NSA warrantless wiretapping, that makes the use or rather, the abuse of such tools (like signing statements) so alarming. Obeying and executing the law has become an act of convenience for this administration. 9/11 and the resulting AUMF have seem to become the equivalent of "get out of the constraint of law free" cards and that is an incredibly dangerous precedent for any administration to set.
When the US gets hit again with another attack of 9/11 proportions or worse, it makes me truly fearful for what this Country will look like. How many people will stay silent while our civil liberties wind up on the endangered species list?
I share his concern for the manner in which the balance of power struggle, as it currently stands, is being waged. Congress doesn't quite seem to know what to do with itself in trying to respond to this crisis of oversight. Signing statements are merely a symptom of a larger problem. Hopefully November will empower enough new blood in Congress that can offer a hope of drawing some sanity from this fight, and return some of the balance that the framers had in mind. One thing seems for certain, however. The current Congress is wholly incapable of doing so.
QUOTE
Far more useful would be deflating the concept itself (of the Unitary Executive), demonstrating its obfuscatory character, and insisting, in some more focused form than the Task Force report does, that the Necessary and Proper Clause of Article I of the Constitution empowers Congress, not the president, both to structure and to regulate the overall conduct of officials in the executive branch -- an undertaking entailing an exercise of lawmaking authority that is not part of ``the executive power" vested by Article II in the president.(emphasis mine)
I will concede that, because PSS's don't represent law, they themselves cannot be found unconstitutional. Even though I disagree with that interpretation.
It is the abuse of power concept, and the failure or subversion of Congressional oversight, in matters such as Guantanamo detainees and NSA warrantless wiretapping, that makes the use or rather, the abuse of such tools (like signing statements) so alarming. Obeying and executing the law has become an act of convenience for this administration. 9/11 and the resulting AUMF have seem to become the equivalent of "get out of the constraint of law free" cards and that is an incredibly dangerous precedent for any administration to set.
When the US gets hit again with another attack of 9/11 proportions or worse, it makes me truly fearful for what this Country will look like. How many people will stay silent while our civil liberties wind up on the endangered species list?
QUOTE
What the ABA Task Force attack on the phantom of the Bush signing statements, the legislative platform for challenging those statements judicially that its position is inspiring, and the phony Bush-Specter deal for an asymmetrical whitewash of the contested program of NSA surveillance have in common is that all three compound rather than correct the distortions in the separation of powers and the system of checks and balances that the Framers had the farsightedness to design but that latter-day pretenders to the throne of constitutionalism and the crown of original intent routinely flout even as they profess fealty to the ideals they embody.
It's about time to take the Constitution seriously rather than playing it for whatever partisan advantage its symbols appear to offer. Durable though the constitutional system has been, and enduring though I have long believed it to be, there's only so much abuse that even it can take without collapsing under the weight of the garbage being heaped on its sturdy but far from invincible frame.
It's about time to take the Constitution seriously rather than playing it for whatever partisan advantage its symbols appear to offer. Durable though the constitutional system has been, and enduring though I have long believed it to be, there's only so much abuse that even it can take without collapsing under the weight of the garbage being heaped on its sturdy but far from invincible frame.
I share his concern for the manner in which the balance of power struggle, as it currently stands, is being waged. Congress doesn't quite seem to know what to do with itself in trying to respond to this crisis of oversight. Signing statements are merely a symptom of a larger problem. Hopefully November will empower enough new blood in Congress that can offer a hope of drawing some sanity from this fight, and return some of the balance that the framers had in mind. One thing seems for certain, however. The current Congress is wholly incapable of doing so.
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