Wednesday, June 28, 2006

More Signing Statement Nonsense

The New York Times today reports on the Senate Judiciary Committee hearing yesterday on presidential signing statments. As I noted yesterday, this is all completely silly:

June 28, 2006
Bush's Use of Authority Riles Senator

WASHINGTON, June 27 — Senators on the Judiciary Committee accused President Bush of an "unprecedented" and "astonishing" power grab on Tuesday for making use of a device that gave him the authority to revise or ignore more than 750 laws enacted since he became president.

By using what are known as signing statements, memorandums issued with legislation as he signs it, the president has reserved the right to not enforce any laws he thinks violate the Constitution or national security, or that impair foreign relations.

A lawyer for the White House said that Mr. Bush was only doing his duty to uphold the Constitution. But Senator Arlen Specter, Republican of Pennsylvania and chairman of the Judiciary Committee, characterized the president's actions as a declaration that he "will do as he pleases," without regard to the laws passed by Congress.

"There's a real issue here as to whether the president may, in effect, cherry-pick the provisions he likes and exclude the ones he doesn't like," Mr. Specter said at a hearing.

"Wouldn't it be better, as a matter of comity," he said, "for the president to have come to the Congress and said, 'I'd like to have this in the bill; I'd like to have these exceptions in the bill,' so that we could have considered that?"

Mr. Specter and others are particularly upset that Mr. Bush reserved the right to interpret the torture ban passed overwhelmingly by Congress, as well as Congressional oversight powers in the renewal of the Patriot Act.

Michelle Boardman, a deputy assistant attorney general, said the statements were "not an abuse of power."

Rather, Ms. Boardman said, the president has the responsibility to make sure the Constitution is upheld. He uses signing statements, she argued, to "save" statutes from being found unconstitutional. And he reserves the right, she said, only to raise questions about a law "that could in some unknown future application" be declared unconstitutional.

I do not have access to the hearing transcript yet, so I'm not sure in what context Senator Specter asked for the President to offer his opinion on legislation during the legislative process, rather than to issue signing statements. But the President and the White House DO this. He often issues 'Statements of Administration Policy' during consideration of a bill, that detail provisions particularly supported or opposed, or detail a veto threat. (Here's a sample.) Is Senator Specter promising to take these more seriously?

In a broader sense however, Congress is trying to deny the Executive a power that it would never consider denying itself: the power to interpret a statute and provide views on how to implement it. This is something that Congress does with every bill it passes - primarily through a committee report, but also through directions and opinions offered during floor debate.

Go to Thomas, and look up any piece of legislation that has been approved by a Committee in the House or the Senate. That legislation will be accompanied by a Committee report, telling the President how Congress intends the legislation to be implemented. The report does not have the force of law, and the President must adhere to the statute - but this is an area where Congress tells the President how the law should be read and executed.

Well, why does Congress get to do that and not the President? A signing statement is nothing more than the President saying 'this is how I read this statute, this is why I think it comports (or conflicts) with other laws and the Constitution, and this is how I intend to implement it.' There's no substantive difference between that and the Congress providing a report that does the same thing - except that the President has the last word, since it is the Executive Branch that implements the laws. And if the implementation of the law is in conflict with other law or the Constitution, then the Executive Branch will be directed by a court to revise that implementation.

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