"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Wednesday, January 04, 2006

The Constitutional Doctrine of Separation of Powers: Toward a More, Um, Flexible Approach 

See if you can spot the error in this generally good Boston Globe piece:
When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.

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

The error comes when the author refers to the so-called "signing statement" (which you can read yourself, here) as "an official document in which a president lays out his interpretation of a new law." It is, in fact, both much less and much more than that.

Describing the White House statement as an "official document" implies that it carries some sort of inherent weight, that presidents systematically issue such statements when signing legislation (note the phrase "in which a [generic, unnamed] president lays out his interpretation"), perhaps even that it has some constitutional basis. That is hogwash - aside from being printed up all pretty on official White House stationery, there is nothing "official" at all about this remarkable statement. In that sense, it is less than the Globe represents it as being.

Here is everything the Constitution has to say about presentment and the Presidential signature, from Art. I, sec. 7, cl. 2 and 3:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

That's it. The President may refuse to sign a bill, in which case Congress should be provided with an explanation why; otherwise, the President may sign the bill and then pipe down. There is no provision for the President to sign a bill with a nod and a wink, as the Boy King has done in this case. There is no provision for the President to sign a bill contingent on some specific interpretation of what the statutory language might mean - interpretation is strictly a matter for the courts. And, there is certainly no provision which empowers the President to sign a bill into law while reserving the right to ignore it, which is what has happened in this case. Back to the Globe:
A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security.

"We are not going to ignore this law," the official said, noting that Bush, when signing laws, routinely issues signing statements saying he will construe them consistent with his own constitutional authority. "We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment."

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a "ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

"Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. "We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

David Golove, a New York University law professor who specializes in executive power issues, said that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.

"The signing statement is saying 'I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me,' " he said. "They don't want to come out and say it directly because it doesn't sound very nice, but it's unmistakable to anyone who has been following what's going on."

It is in this sense that the purported "signing statement" is something much larger than the Globe coverage would suggest. It is, in fact, a thumbed nose, directed at the legislative branch and, by extension, the constitutional tripartite form of government itself. As such, it is breathtaking in its arrogance - but then, the Bush family has never lacked for arrogance. Here's some background, from a very good post at Whatever It Is, I'm Against It:
His father tried to pull much the same stunt in 1990. After years of presidents trying to get a line-item veto, Bush the Elder’s people announced one day that the president already had such a power, which no one had ever noticed before – possibly it fell behind a filing cabinet for 200 years, you know how those things happen – and he could sign budget bills while stating that he would choose to ignore some of its provisions. So Bush signed a State Dept authorization bill while announcing that he would ignore several of its provisions (denying funds for the Middle East peace process if any PLO officials known to have participated in terrorism against an American were involved, barring from the US any representatives to the UN who had engaged in espionage against the US, etc). The ElderBushies were sending up a trial balloon, which didn’t go over well and since they never tried to act on their chimeral line-item vetoes, nothing came of it.

Many wags have commented on this administration's tendency to govern as though 1984 was an owners' manual for the federal government, rather than a cautionary tale. I think, however, that the administration's favorite Orwell is probably not so much 1984 as it is Animal Farm - once again, we see the characteristic, firm conviction that, while the three branches of government are co-equal, some are more co-equal than others. And there can be no doubt that the executive branch is at the top of the heap.

And which branch is at the bottom of the heap? Here's a hint: Would Bush have nominated a nobody like Harriet Meiers to the Supreme Court if he thought for a moment that it was an important job? Because it is interesting to note that although the Empty Flight Suit is greatly vexed by the language of the McCain Amendment, other provisions of the defense appropriation bill are just peachy, with no signing statement required:
The Bush administration said it will ask a federal court to throw out lawsuits by suspected terrorists who claim they are being illegally held at the U.S. naval base in Guantanamo Bay, Cuba.

Legislation signed by President George W. Bush on Dec. 30 eliminates U.S. court jurisdiction over suits filed by more than 150 prisoners at the base challenging their confinement, White House Counsel Robert Loeb said in a letter to the U.S. Court of Appeals for the District of Columbia Circuit....

A provision in the fiscal 2006 defense authorization bill bars detainees from going to U.S. courts to challenge their confinement. The measure, sponsored by Republican Senator Lindsey Graham of South Carolina and Democrat Carl Levin of Michigan, calls for them to go through a military-based system of hearings and trials. It allows Guantanamo inmates to seek review of military verdicts in U.S. appeals courts.

So, to put it in terms even an unfrozen caveman lawyer can understand: "Graham Amendment good. McCain Amendment baaaaad!"

At the risk of stating the obvious, this is not how our government is supposed to work. I haven't mentioned this in a couple of days, but it bears repeating: This government must fall.




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