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The Collective
Friday, October 6, 2006
By Dr. Steven Taylor

I have not written much about “signing statements” (a quick search of my archives only turns up this post, and it only references the issue in the context of a larger discussion). I will confess that my initial response when the topic first emerged was that the notion that the president was indicating his understanding of the law for the purposes of posterity (and future court battles) was legitimate. Indeed, the basic practice of such statements, symbolic and otherwise, goes back over a century.

However, it has been clear for some time that, in the guise of being a “war president” that President Bush has clearly been using these signing statements in an attempt to make himself an interpreter of the constitutionality of laws and to thereby expand executive power as he sees fit. I am going to say something that I am very, very reluctant to say, but there is no other way to put it: when a President of the United States seeks to ignore Congress’ will and to usurp powers that belong to the federal courts, because he simply thinks it is the right thing to do, there is no other word for that than authoritarian.

To be clear: I am labeling this type of action as an authoritarian action because it is a raw assertion of power.

The BoGlo has an interesting piece on a recent Congressional Research Service report that is critical of this President’s usage of signing statements.

The story (Bush signings called effort to expand power) notes a recent example:

Despite such criticism, the administration has continued to issue signing statements for new laws. Last week, for example, Bush signed the 2007 military budget bill, but then issued a statement challenging 16 of its provisions.

The bill bars the Pentagon from using any intelligence that was collected illegally, including information about Americans that was gathered in violation of the Fourth Amendment’s protections against unreasonable government surveillance.

In Bush’s signing statement, he suggested that he alone could decide whether the Pentagon could use such information. His signing statement instructed the military to view the law in light of “the president’s constitutional authority as commander in chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.”

Bush also challenged three sections that require the Pentagon to notify Congress before diverting funds to new purposes, including top-secret activities or programs. Congress had already decided against funding. Bush said he was not bound to obey such statutes if he decided, as commander in chief, that withholding such information from Congress was necessary to protect security secrets. [emphasis mine]

While it is possible that rare circumstances might arise, especially in the pursuance of an international war that a President might have to make such radical moves. However, we are not engaged in an international national (as in between nations) war-I am not saying that we are not engaged in serious military activities, or even that we are not “at war” in some sense of the word with radical Islamic terrorist, but we are not in a war of survival with another state-the last time that was true was WWII.

The notion that the President can ignore federal law, because he deems it necessary is an abrogation of the constitutional order-and cloaking it in the magic word “for national security” shouldn’t be enough to make all of us, as citizens, say “ok, have it at, Mr. President.”

The Congress makes the laws, not the president. The courts have the power to interpret the laws in a formal sense, not the president. Further, the power of the purse constitutionally belongs to the congress, not the president. And the power to raise, maintain and regulate the armed forces constitutionally belongs to the congress, not the president.

Where are all the so-called “strict constructionists” in the Republican Party these days?

The AP has an further story (Bush says he can edit security reports) on this topic:

President Bush, again defying Congress, says he has the power to edit the Homeland Security Department’s reports about whether it obeys privacy rules while handling background checks, ID cards and watchlists.

In the law Bush signed Wednesday, Congress stated no one but the privacy officer could alter, delay or prohibit the mandatory annual report on Homeland Security department activities that affect privacy, including complaints.

But Bush, in a signing statement attached to the agency’s 2007 spending bill, said he will interpret that section “in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch.”

It is as if the notion is: you go ahead and pass your little laws, Congress, but I, the President, will decide whether or not to actually use them. I don’t recall that part of the Constitution.

On the topic of signing statements themselves, the piece notes:

The Senate held hearings on the issue in June. At the time, 110 statements challenged about 750 statutes passed by Congress, according to numbers combined from the White House and the Senate committee. They include documents revising or disregarding parts of legislation to ban torture of detainees and to renew the Patriot Act.

Need I remind the conservatives in the audience that one of the foundational principles of basic conservatism is distrust of human nature, and therefore distrust of government in the hand’s of fallible man? The idea that too much power in the hands of a small number of individuals, or a single individual is what promotes tyranny?

I will further say this: if the Democrats do obtain control of one or both houses of Congress in the elections and next year turns into hearing-o-rama on the Bush administration’s practices, then the administration will have no one to blame but itself.

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14 Comments

  1. You have now totally made my day. :)

    Comment by Jan — Friday, October 6, 2006 @ 7:57 am

  2. Your comments strike a chord with me because I have long felt that many of the so-called conservatives in the Bush administration aren’t really conservative in the classical sense. Though I wouldn’t describe myself as conservative, I can respect the definition you give of conservativism, which is much different from Bushism.

    Comment by Steve Cooper — Friday, October 6, 2006 @ 8:21 am

  3. Around The Sphere Oct. 7, 2006

    Our occasional linkfest. This is being posted today due to problems posting from here in New Mexico. It’s shorter due to our problems here. Some q…

    Trackback by The Moderate Voice — Friday, October 6, 2006 @ 8:56 am

  4. I’m sure someone here is more knowledgeable than me about these signing statements, but is there any precedent to challenge the consitutionality of these statements in the courts? If not, there should be.

    Comment by KevinH — Friday, October 6, 2006 @ 10:46 am

  5. Kevin,

    Not to my knowledge, but I am not an expert on that area. I do know that the usage of these statements have reached a new level in this administration, so in some ways it is new thing.

    Comment by Dr. Steven Taylor — Friday, October 6, 2006 @ 11:07 am

  6. Hail King Andrew I, King Richard and King George.

    Comment by Stanford Matthews — Friday, October 6, 2006 @ 11:25 am

  7. Steven, welcome on board. This, what I called “The Latin Americanization of the US Constitution,” was my main reason for unconditional opposition to Alito back in January.

    Better late than never, I suppose.

    Of course, Supreme Court nominees are “forever,” while authoritarian executives and the supine legislatures that surernder to them are, we can hope, transient phenomena.

    Comment by MSS — Friday, October 6, 2006 @ 1:03 pm

  8. Oh, and I elaborated on the Republican legal thinking that you allude to, as well. (See in particular, points #2 & 5.)

    But it took me till February to get around to that, and it was Poliblogger who prompted me to do so :-)

    Comment by MSS — Friday, October 6, 2006 @ 1:12 pm

  9. With a president who presumes that he is above the law, and an administration that defies the rule of international law, the US has become a rogue state. Until the US finally complies not only with its own constitution but also with the rule of International law, sadly the citizens of the United States will be experiencing animosity from around the world.
    If the US wants to counter terrorism, and end the cycle of US paranoia and fear end the US contribution to global inserurity. If the US wants to counter widespread international anti Americanism (Anti-USism) the US should promote common security – peace, environment, human rights and social justice within a framework of international law – not contribute to global insecurity. The US administration has squandered the international good will that followed the attack on the towers.

    After the Attack on the twin tours, many were asking “why do they hate us”. Rather than really answering this question, and promoting “common security”; the US administration proceeded to give additional reasons for anti-USism around the world. Some of the many reasons could be (i) maintaining the over 750 military bases around the world; (ii) the circulation and berthing of nuclear powered and nuclear arms capable vessels in other states; (iii) the hypocritical attitude towards the development of nuclear arms; increasing its arsenal and condoning Israeli possession of nuclear arms. (iv) the misconstruing of art 51—self defense – in the Charter of the United, the Nations to justify the invasion of Afghanistan; (v) the adoption of a policy of pre-emptive agressive attack; (vi) the violation of the Convention Against Torture; (vii) the institution of ballistic Missile defense and the use of space for military purposes, in violation of the Outer Space Treaty etc.(from the 52 plus two jokers ways the US contributes to global insecurity).

    Comment by Joan Russow — Friday, October 6, 2006 @ 1:34 pm

  10. Power can only be utilized if allowed!
    http://connollyschronicles.blogspot.com/

    Comment by Joe Connolly — Friday, October 6, 2006 @ 2:57 pm

  11. The simple question to ask is how would Republicans act if the name Clinton (Bill or Hillary) was substituted for Bush in your post. Not only would there be howls of outrage, there would be talk of impeachment.

    And before Republicans complain that the Democrats wouldn’t be objecting if it was Clinton (Bill or Hillary) I would remind them that Clinton (Bill) didn’t use these statements in the same amount, or for the purpose of undermining or contradicting the will of Congress.

    Comment by SoloD — Saturday, October 7, 2006 @ 5:55 am

  12. Society as a whole is changing on what is right and where are the limits. On the issue of surveillance, have we as a society have gone off the mark?

    Have We Gone Surveillance Crazy?
    http://americaninventorspot.com/being_watched

    Comment by Michelle — Sunday, October 8, 2006 @ 9:19 am

  13. [...] Last week I commented on some stories concerning President Bush and his use of signing statements and noted a link to a Congressional Research Service report that I noted that I would read and return to. [...]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » More on Signing Statements — Thursday, October 12, 2006 @ 1:38 pm

  14. SoloD, you ask an excellent question: “how would Republicans act if the name Clinton (Bill or Hillary) was substituted for Bush.”

    I addressed this back in February, and concluded that Republicans have little to fear in this regard. And they know it. (This is the same post that I linked above.)

    Comment by MSS — Thursday, October 12, 2006 @ 4:40 pm

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