Presidential signing statements to be challenged?

[RonHack]

Just refreshed my Congresspedia, and this caught my eye:

(snip)

Congress vs. the President (http://www.prwatch.org/node/5078)
August 14, 2006

About two weeks ago, on July 26, 2006, the American Bar Association issued a report condemning President Bush's use of "signing statements." These statements are essentially a "P.S." written underneath his signature on a piece of legislation that states how he interprets and intends to enforce the law. (This is part of the Unitary Executive Theory.)

The ABA is not happy about this. From the press release (http://www.abanet.org/media/releases/news072406.html) for the report:

"Presidential signing statements that assert President Bush’s authority to disregard or decline to enforce laws adopted by Congress undermine the rule of law and our constitutional system of separation of powers... To address these concerns, the task force urges Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress, and urges the President to veto bills he feels are not constitutional."

The ABA asked and it shall receive: two days later Sen. Arlen Specter (R-Pa.) filed a bill that would allow the House or Senate to file a lawsuit to have the Supreme Court rule on the constitutionality of signing statements.

Here's where Congresspedia comes in. I called Sen. Specter's office and confirmed that while the bill has been referred to Specter's Senate Judiciary Committee, there has yet to be a hearing and no other Senators have signed up to be cosponsors. So, where do members of the Senate stand on Specter's bill? Citizen journalists, help us find out. So far, we've got supporting statements from Susan Collins (R-Maine), opposition from John Cornyn (R-Texas) and Jeff Sessions and ambivalence from John McCain (R-Ariz.) and John Warner (R-Va.).

Help us nail down where the rest of the Senate stands on this important issue by emailing me at Conor AT sourcewatch.org or by going to our page on presidential signing statements, clicking "edit", and entering it in yourself. In keeping with our policy of strict sourcing, only edit it yourself if you've got a verifiable, outside source. Above all, we want Congresspedia to be accurate.

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I think we should jump on this. Bush's use of signing statements have been a sore point for all Americans; what good is the rule of law if the President holds himself above it?

Congresspedia: From the Editor

[Demeter]

1. It's Evidence for the Trials

much better to let them dig the hole so deep, they can never get out. Don't stop them until we can put them in jail forever!

[acmejack]

2. If Specter is involved, he will retroactively OK it.

Lip service r him.

[babylonsister]

3. Nom! I'm curious about where everyone stands on this, too. Might

be difficult to get any idea at the moment w/everyone on vacation. And welcome to DU, RonHack! :hi:

[RonHack]

10. Thanks!

I am so proud of my first sighting; yet worried that no-one will notice.:*

I guess it's a sticking point with me, especially since Duh-Sider was purported to state that "the Constitution is just a piece of paper".

[enough]

4. Read Professor Lawrence Tribe's essay on this.

http://balkin.blogspot.com/2006/08/larry-tribe-on-aba-signing-statements.html

Contains a long analysis of Bush's actions, the ABA report, and Specter's proposed bill.

snip>

With that preface to explain why I set aside my reluctance to enter the fray against the ABA panel's position, let me say why I'm persuaded that the ABA panel has missed the boat.

Most fundamentally, it seems to me an exercise in shooting at phantoms to focus on presidential signing statements themselves and to highlight the increasingly frequent practice of "using" such statements to "challenge laws" (to quote from Charlie Savage in Saturday's Boston Globe) as though anyone really imagines that the mere fact of a formally worded presidential reservation about a statute, contained in a signing statement rather than in a veto message, would have some operative legal effect in any way analogous to that of an item veto or would even be given weight by a court in later deciding what to make of the law in question. The analogy to the plainly unconstitutional line item veto, of the sort the Supreme Court struck down in Clinton v. New York, thus fails entirely.

What is new and distressing in the current situation isn't primarily the frequency with which President Bush, in the course of signing rather than vetoing congressional enactments, says something about his equivocal intentions, or even his defiant views, in connection with their future enforcement or non-enforcement. Rather, what is new and distressing is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views -- and the suspicion that this President either intends actually to act on them with some regularity, often in a manner that won't be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches -- declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.

snip>

As for the remedy seemingly endorsed by the ABA panel, I can only regard it as a prescription that is neither safe nor effective as a cure to a misdiagnosed disease. The idea of legislatively endowing Congress with authority to take the President to court, and of empowering the Article III judiciary with authority to declare the presidential use of signing statements a circumvention of Article I's provision for the exercise and override of veto power or a violation of the separation of powers generally -- as section 5 of Senator Specter's new bill would purport to do -- seems to me a clear non-starter. Although Bruce Fein has been impressively insightful in many of his criticisms of the current administration's theories of executive power, I think he errs fundamentally in arguing, as does the ABA panel, that Congress as an institution is injured by a President's announcement, while signing a law, that he really has no intention of abiding by it or, in what arguably comes to the same thing once one has decoded a particular President's rhetoric, that he will abide by it only in accord with his idiosyncratic views of his powers vis-a-vis those of the other branches. That is mere insult, not genuine injury -- just as Congress might be insulted but could hardly be deemed "injured," in any sense of which a court could properly take notice, by a president's contemptuous remarks in a State of the Union Address. And when a lower federal court or the Supreme Court holds that the attempt by Congress to arm itself with the power to vindicate its honor is inconsistent with Article III, represents an exercise in posturing by the legislative branch, and is without effect in subjecting the signing statement practice to judicial oversight, the ironic and even tragic impact will be to give an abusive president one more occasion to strut about, claiming vindication for his practices and for the avoidance of political accountability that underlies them, even though the well-informed will recognize that no such claim is warranted. So the proposed corrective is overwhelmingly likely not to work. The upshot would then be not only a badly conceived and ultimately impotent solution to a badly diagnosed problem but an occasion for unjustified presidential preening.

snip>

[yellerpup]

5. K&R!

Thanks for posting.

[BlueJac]

6. Nothing will happen

I've been waiting for almost six years for something to be done about GW. He is surrounded by enablers and do nothing congressman!

[MannyGoldstein]

7. The "Democrats" Will Run Like Terrified Puppies - The Brave Sir Robin Stra

This is an incredibly serious breach of our Constitution, yet the "Democrats" will*, as usual, implement the Brave Sir Robin strategy:

Brave Sir Robin ran away.
Bravely ran away, away!
When danger reared its ugly head,
He bravely turned his tail and fled.
Yes, brave Sir Robin turned about
And gallantly he chickened out.
Bravely taking to his feet
He beat a very brave retreat,
Bravest of the brave, Sir Robin!

(With props to Monty Python)

*With the exception of the few actual Democrats such as Feingold and Conyers

[karynnj]

8. Others, starting with Kerry should be added to the actual Democrat list

Kerry (with Kennedy) led a filibuster effort against Alito. From his speech recommending voting against cloture, the main reasons were Alito's disturbing views on the unitary President, Alito's giving more power to corporations, less to employees and more power to government less to citizens. The signing statements were one of Kerry's stongest arguments against Alito. Stopping Alito - over the issue of unitary president (and signing statements) would have been possible if all the Democrats would have considered the Constitution important. Kerry stuck his neck out, when others (including Feingold who was on the Judiciary committee) didn't - and he is still ridiculed about being in Davos (where he was doing his job as a member of the Finance committee.

From the January 30, 2006 speech, from Thomas:

"During Judge Alito's tenure, the Reagan administration developed new uses for the theory. It was used to support claims of limitless presidential power in the area of foreign affairs--including the actions that became the Iran-contra affair. And, this view of Presidential power has been carried on by the current Bush administration, claiming in Presidential signing statements, that the President can ignore antitorture legislation overwhelmingly passed here in Congress. Not only is the substance of that message incredible, but the idea that the President can somehow alter congressional intent--the meaning of legislation agreed upon by 100 Senators--with a single flick of a pen is absolutely ludicrous. It turns the meaning of legislative intent on its head.

In the hearings, Judge Alito attempted to downplay the significance of this theory by saying it did not address the scope of the power of the executive branch, but rather, addressed the question of who controls the executive branch. Don't be fooled by that explanation. The unitary executive theory has everything to do with the scope of executive power.

In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ``he practical consequence of this theory is dramatic.'' It is just common sense that if the unitary executive theory means that the President can ignore laws that Congress passes, it necessarily expands the scope of Presidential power--and reduces the scope of Congress.

Judge Alito had numerous opportunities in the hearings to define the limits of the unitary executive, but he refused to answer my colleagues' questions. He didn't answer when Senator Leahy asked him whether it would be constitutional for the Congress to prohibit Americans from using torture. He didn't answer when Senator Durbin asked whether he shared Justice Thomas's view that a wartime President has inherent powers--beyond those explicitly given to Congress. He didn't answer when Senator Feingold asked what, if any, limits there are on the President's power. "

Kerry has included signing statements as one of the items on his list of abuses of presidential power by Bush in many speeches as well.

[MannyGoldstein]

9. Yes, Kerry Has Acted Like A Democrat Recently

By and large, my junior senator has become a Democrat since losing the presidential election. I hope that he stays that way.