NCAAbbs

Ann Woolner, legal affairs editorialist, Bloomberg News.

Quite an interesting read, IMHO. I read her commentary on Bloomberg News to pass the time at work, and she us very agreeable:

http://www.bloomberg.com/apps/news?pid=2...rEiAMaete4

Quote:Who Needs Congress or Courts With Bush?: Ann Woolner (Correct)

(Corrects name of Miami University in fifth paragraph.)

July 28 (Bloomberg) -- Congress passes a law that says the U.S. won't torture people. The president says OK, we won't -- unless we really need to, thus adopting an exception Congress had specifically and vociferously rejected.

Congress passes the Sarbanes-Oxley law to reform business practices. In signing it, the president issues a statement to cut back on protection for corporate whistle-blowers.

Congress passes a law telling the administration to inform it on specific matters. The president issues statements saying he won't disclose anything he doesn't think he should.

So Congress tells him to notify it when he decides to ignore a law. He repeats that he will disclose only what he thinks he should, claiming, as he always does, constitutional authority to resist.

As of July 11, President George W. Bush had said no (or, not unless I want to) to 807 provisions enacted by Congress that he signed into law, according to Christopher Kelley, a political science professor at Miami University of Ohio.

That number compares to some 600 provisions challenged by all of Bush's predecessors combined, says Kelley. He has been studying presidential signing statements for a decade, and his work is backed up by other scholars.

Now comes a bipartisan American Bar Association task force, which concluded this week that presidential signing statements such as Bush's are ``contrary to the rule of law and our constitutional separation of powers.''

Equal Branches

The Congress writes the laws. The president executes them. The courts decide whether they violate the Constitution. When a president claims he can rewrite a law before executing it, he is acting as all three branches.

``The original intent of the founders is that we have a system in which power would check power,'' said task force member Mickey Edwards, a former Republican House member and founding chairman of the American Conservative Union.

``If a president believes that a statute or piece of a statute is unconstitutional, it is his obligation to veto it,'' Edwards said at a news conference.

Congress then would have the chance to either sustain or overturn his veto.

Bush isn't the first president to object to a bill while signing it. That was James Monroe in 1821, according to Kelley.

Since then, presidents of both parties have done it. Jimmy Carter bucked Congress when he pardoned Vietnam draft evaders, for example.

Under the Radar

On that one, Congress sued Carter in a case thrown out of court. But for the most part, no one paid much attention to signing statements, as it has never been clear what force, if any, they carry.

``Prior to this, presidents were operating under the radar,'' says Kelley.

Bush took the practice into a whole new universe.

When he signed the anti-torture act on Dec. 30, for example, he went on at length listing provisions he says would be unconstitutional for him to obey. Same thing on appropriations bills.

``The sheer number of Bush statements does suggest some unwarranted exuberance,'' says Douglas Kmiec, a Pepperdine University law professor.

Kmiec headed the Justice Department's Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush, helping to shape signing statements.

He defends the current president's practices, for the most part. They are, in the main, justifiable legally and hardly a cause to ring the constitutional crisis alarm, he says.

Provocative Practice

The problem, Kmiec says, is the statements often are ``too cryptic to be understood'' and therefore ``more likely to be provocative'' than effective.

See if you can figure out when Bush will withhold information Congress wants based on this excerpt, which shows up in multiple signing statements:

He will inform Congress ``in a manner consistent with the president's constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the executive, or the performance of the executive's constitutional duties.''

It is true, of course, that Congress sometimes passes laws that are unconstitutional. Presidents before Bush weighed whether they should execute laws so faithfully that they violate the Constitution, which trumps anything Congress enacts.

Disputing New Laws

Walter Dellinger, as head of the Office of Legal Counsel, advised President Bill Clinton to dispute new laws only when they were likely to be declared unconstitutional if the Supreme Court were given a chance.

And yet, some of Bush's signing statements repeat positions that the high court had already rejected, as in the area of affirmative action.

Pennsylvania Republican Arlen Specter, chairman of the Senate Judiciary Committee, has proposed a bill that would send these sorts of disputes to the courts if at least one chamber of Congress votes to do so.

But that bill faces political and legal hurdles. If it becomes law, it probably wouldn't survive a court challenge, says Kmiec.

Ah, but there are other ways for Congress to push back. Lawmakers can hold hearings to expose wrongdoing. They can delay presidential appointments, and they can tighten purse strings.

First, they would have to find the courage to buck the president. Congress would have to finally, after all these years, show that it is, indeed, a power separate from the White House.

(Ann Woolner is a columnist for Bloomberg News. The opinions expressed are her own.)

To contact the writer of this column:
Ann Woolner in Atlanta at awoolner@bloomberg.net.

Context, Sax, context. One of Bush43's stated objectives for his admistration when he was elected to his first term was to re-assert powers to the Executive branch that many in his camp, and quite a few legal scholars, felt had been allowed to erode since the LBJ presidency. If you recall, there have been quite a few clashes between the Executive branch and the other two branches of government over what information, documents, etc. the Executive branch is obligated to provide and to what detail. This is just another expression of this realignment that many people, not just partisan groups on the right or left, felt had been long in coming.

In a representative Republic, the pendulum of power/influence is constantly swinging not only from the left to the right, but from branch to branch of the federal government and, as an aside, from state's rights to federal jurisdiction. These signing statements that have panties starting to wad up all over the country leading up to the mid-term elections are a complicated, procedural measure to act on that pendulum. It's tough to say that some things are more detailed and scholastic for the general public to understand, but that is the case sometimes...and I believe it is the case with these "position" statements. In short, if you follow the arc of politics in the latter half of the 20th century and pay close attention to what is contained in these statements, and what is not, you'll recognize that they are not meant to avoid checks and balances but, rather, to force those checks and balances to be implemented as they are intended.

As a simple example, say congress passes a law that has a provision the Executive branch deems might be unconstitutional to enforce. Rather than veto the bill, the Executive signs the law with a "heads up" that this particular provision(s) will not be enforced, will be enforced according to what may be a different interpretation, or that the Executive needs clarification from congress on the intent behind the provision(s). Ultimately, when the provision is not enforced, is enforced according to the Legislative or Executive interpretation, or is construed as granting powers to the Executive that may not have been intended, the case goes to the Judicial branch. A signing statement, in this case, is simply a forewarning to the Legislative branch to expect the Judicial branch to possibly get involved at some point to established the accepted interpretation of the provision(s).

Signing statements undermine the entire legislative process. A bill is put forward, it is debated in both the House and Senate. The two houses run the bill through a committee to reconcile the differences in the bill and whatever amendments are attached to it. This process takes months, sometimes years, and much effort and debate go into crafting a bill that can be agreed on and passed.

The President then sticks some fine print on the back and signs it. What is there is buried in fine print and often couched in deliberately obscure language. No one vets the signing statement, there is no oversight, no legislative input. It cannot be vetoed or overridden. Frankly, like so much under this administration, it is Executive Power run wild.

For instance when the signing statement went on the Torture bill, the signing statement prevented any investigation of alleged torture unless the military command in charge of it approved the investigation. In other words, if someone was caught doing something over the line, all they have to do is deny permission to investigate and the JAG office has to shut up and go away. Somehow I don't think that was the intent of that law.

If the Congress passes a law that is unconstitutional, it is review by the Judicial Branch that overturns it, not the whim of the sitting President. You remember that stuff from Civics class? Separation of powers and all that stupid stuff those dumb guys that wrote the Constitution stuck in there? That's why it's there.

UAB Band Dad Wrote:Signing statements undermine the entire legislative process. A bill is put forward, it is debated in both the House and Senate. The two houses run the bill through a committee to reconcile the differences in the bill and whatever amendments are attached to it. This process takes months, sometimes years, and much effort and debate go into crafting a bill that can be agreed on and passed.

The President then sticks some fine print on the back and signs it. What is there is buried in fine print and often couched in deliberately obscure language. No one vets the signing statement, there is no oversight, no legislative input. It cannot be vetoed or overridden. Frankly, like so much under this administration, it is Executive Power run wild.

For instance when the signing statement went on the Torture bill, the signing statement prevented any investigation of alleged torture unless the military command in charge of it approved the investigation. In other words, if someone was caught doing something over the line, all they have to do is deny permission to investigate and the JAG office has to shut up and go away. Somehow I don't think that was the intent of that law.

If the Congress passes a law that is unconstitutional, it is review by the Judicial Branch that overturns it, not the whim of the sitting President. You remember that stuff from Civics class? Separation of powers and all that stupid stuff those dumb guys that wrote the Constitution stuck in there? That's why it's there.

Sure I remember civics class. That's why I remember it's is the Executive's duty and prerogative to enforce the laws enacted by congress. Sometimes the laws leave no room for interpretation, but sometimes they do. Signing statements fit right into the checks and balances process. Yes the Legislature spends its energies debating a bill and amendments before sending it up for a signature, but the signing statement is a tool (in addition to the veto) that the Executive can use to exert feedback on the execution and/or interpretation of that law. Congress can respond to a signing statement by clarifying the bill further (either explicitly asserting their interpretation of how the bill should be enforced, or providing more context for the purpose behind the bill...this is no different than a veto override), or they can let the Executive's intention stand with the effect that the bill will be enforced according to the Exec's interpretation and then appealed to the Judicial branch if deemed appropriate (either immediately by Congress or later by other parties). Signing statements are no more bulletproof, imperialistic, or "sneaky" than a veto. They just allow the majority of the bill to be enacted as is, with noted exceptions, or explicitly state the Executive's intention for enforcing the law.

blazr Wrote:Signing statements are no more bulletproof, imperialistic, or "sneaky" than a veto. They just allow the majority of the bill to be enacted as is, with noted exceptions, or explicitly state the Executive's intention for enforcing the law.

Gee, and here I thought it was the job of the Congress to write the laws, and that of the rest of us to live by them, and if we are in law enforcement to enforce them. When I reread the Constitution I don't see anything about how the President gets to say "this law is fine except for this part, that won't count". If the Executive finds a law objectionable, the Constitution says the President can veto the bill and send it back to the Congress to be rewritten.

The big difference I see is that the process of a bill being passed, signed or vetoed is all part of the Legislative process. A signing statement that alters the intent of legislation without any recourse, veto, or any form of legislative review or oversight simply is not part of the Constitutional process of enacting law.

Quote:Gee, and here I thought it was the job of the Congress to write the laws, and that of the rest of us to live by them, and if we are in law enforcement to enforce them.

Except for the checks and balances we're discussing. It seems you are suggesting that once a law passes congress the only mechanism for checking its enforcement is the Judicial branch. That's fine but you have to realize that this line of thinking has only taken precedence over the last 3 or 4 decades and the pendulum of power may, in fact, be swinging back the other direction to allow the Executive branch more of a role. As I said on my blog yesterday, these things tend to move in cycles.

Quote:The big difference I see is that the process of a bill being passed, signed or vetoed is all part of the Legislative process. A signing statement that alters the intent of legislation without any recourse, veto, or any form of legislative review or oversight simply is not part of the Constitutional process of enacting law.

This is the crux of the debate and where I think people are misinterpreting the meaning of signing statements. The Executive branch enforces laws. Sometimes, most times in fact, that enforcement requires interpretation and, in some cases, complete restraint (e.g., laws against sodomy). Signing statements may not be prescribed, per se, in the constitution, but they are implied by entrusting the powers of enforcement to the Executive branch (in other words, whether the President writes a signing statement or not, at some point someone in the Executive branch interprets how to enforce the law at the federal level).

Finally, your assertion that congress has no recourse against signing statements is, I think, the biggest misunderstanding out there (and an extreme point of view being propagated by the MSM in order to sell the story). As I mentioned, most every law has holes, or gray areas, by definition. The Executive branch has to fill in the missing pieces or, in some cases, highlight exceptions that congress may have overlooked or that the Executive wants to be "on the record" about (and, yes, in the process the Executive can state its opinion of what the missing pieces should be). Congress can then refine the law by further legislation, or pass the matter over to the Judicial branch as I mentioned before.

My overall point is that none of this takes place outside of the checks and balances of the system. The problem is that the last 3 or 4 decades have seen a steady erosion of the relative powers of the Executive branch (natural reactions to a variety of factors that were all part of the normal cycles of power balancing...in this case the factors included FDR's extreme use of the veto in the first half of the century, the chaos resulting from JFK's assassination, the mishandling of Vietnam, the scandals of the Nixon administration, and the incompetence of the Carter administration just to name a few. The reactions shifted power mostly from the Executive to the Judicial branch, but some power was shifted to the Legislature as well). The actions of 43's administration are reasonable when viewed in that context. Besides, the administration made clear their intention before being elected to the first term.

In the example you raised of the Torture bill, if the Executive branch's assertion that the military command in charge approving the investigation be a prerequisite for said investigation going forward does, indeed, violate congress' original intent, then one direct recourse would be for congress to pass a bill explicitly eliminating this as a prerequisite. An indirect recourse would be to launch an investigation and, when the Executive branch refuses to comply, toss the whole matter over to the Judicial arena (which is what eventually happened in the Gitmo matter). This may not be modus operandi for the recent history of the federal system, but that doesn't mean it's outside of the constraints established by the constitution.

BTW, for what it's worth, I'm a fiscal conservative and a social liberal...not an apologist for GWB's administration by any stretch. I just think this particular issue needs to be seen for what it is: a complicated procedural issue and not a "power grab" worthy of outrage.[/i]

BTW, Band Dad, I hope you don't mind but I duplicated our thread on my blog...I think this is a really fascinating topic. If you object, please let me know.

No sweat. I too would consider myself a social liberal and fiscal/military conservative. I just think that the Bush administration has gone far too far in trying to reestablish the preogatives of the Executive. There has been something of a perfect storm that has allowed this to happen. A combination of the Republicans holding both houses of Congress plus the White House, a pliant Attorney General who is willing to defend the extreme theories put forth by White House legal advisors, particularly John Yoo, and a willingness on the part of the American public to accept almost anything in the wake of 9/11 has led to what IMHO is an abdication of traditional American values and rights.

The executive powers being allowed by a rubber stamp congress that seems to have either completely forgotten their role in oversight or to have allowed partisan political considerations to far outweigh their duty to the country as a whole has led us in what I feel is a very dangerous direction. Constitutional Rights and legal precedents have been ignored in a rush to "protect the country", in part because the Bush administration has fostered a climate of fear and exploited that fear to allow them to do things that clear eyed reason would have prevented.