Monday, July 24, 2006

ABA on signing statements

The American Bar Association -- admittedly, not a big fan of President Bush -- today releases a report on his use of signing statements.

Administration officials describe the practice as "routine" and comparable to the use of such statements by previous presidents.

But the ABA notes that Bush has issued more such statements than all previous presidents combined -- depending on how you count -- and that he often uses them to challenge the legality of various provisions, rather than simply make a statement or indicate how the law will be implemented.

And the administration's defense would be more believable were it not for all the other evidence that Bush believes in an ultrapowerful "unitary" presidency, which often ignores Congress, relies on "presidential authority" to ignore inconvenient laws and does not need to be scrutinized -- as when Bush blocked the Justice Department's inquiry into warrantless wiretapping.

The Cato Institute lays out the troubling aspects of Bush's signing-statement addiction quite clearly:

If the presidential signing statements are no big deal, why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

We elected a president, not a king. He does not get to decide for himself which laws are constitutional and which aren't; that's the job of the judicial branch. A spineless Congress deserves a large share of the blame for not acting as the strong check it was conceived as. But Bush has not just taken Congressional acquiescence and run with it -- he has found new and sweeping ways to simply ignore even those few restraints that Congress has imposed.

If the statements are just talk, fine. But if they are shaping policy -- if Bush truly is ignoring portions of the law he doesn't like -- then we have a problem.

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