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The February 1986 memo where Samuel Alito suggested that the President adopt the practice of issuing "interpretative signing statements" became more than just a bizarre proposal when the Bush Administration's penchant for disregarding duly enacted federal law became brazen -- through Bush's illegal program of warrantless domestic surveillance.

In the memo, Alito proposed:

a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

Um, well that is just plain wrong. Not even John Yoo argues that. It is beyond argument, and not even the nuttiest wingnut questions that:

[t]he Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice.

. . . Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.  

Alito's misunderstanding of the Constitution is especially worrisome with Bush as President:

President Bush has been especially fond of [signing statements], issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.

And to shift topics for just a moment, it is of particular interest that President Bush did NOT describe any reservations regarding the Patriot Act, and deficiencies in the amendments to FISA contained therein. On the contrary, Bush was fulsome in his praise of the Patriot Act:

During the Oct. 26, 2001 ceremony signing the bill into law, President Bush said the new legislation would "give intelligence [like the NSA?] and law enforcement officials important new tools to fight a present danger."

. . . "We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written," Mr. Bush said.

. . . Defending the expanded surveillance authority, the president pointed out that some of the Sept. 11 hijackers used computers and books at a Florida public library - moves that could have provided necessary clues if their communication was detected.

To follow Alito's thinking on this, one could say that the Patriot Act was actually the President's bill, not an act of the Congress. And indeed, BEFORE the disclosure of Bush's illegal actions, one could never have imagined that Bush found the Patriot Act too restricting or, preposterously, an unconstitutional restriction on the President's power. But so it now is argued by some.

More below the fold.

However, in a very prescient article written in the Fall of 2003, SUNY Political Science Professor Nancy Kassop described a War President run amok and a Congress supine to his desires:

How, then, can a government, built on the foundation of limited powers, meet the challenge of a ruthless opponent for whom there are no limits to the extent of horror it will inflict? Can a system, conceived in eighteenth century values, survive the twenty-first century version of warfare?

Early results are not encouraging. On a variety of fronts, the Bush administration has relied on the president's commander-in-chief authority and broad powers granted to the chief executive, upon his request, by Congress to centralize decision making in the executive branch to an unprecedented degree. As the most direct consequence of this approach, the checking and balancing functions of other institutions have been marginalized (Lardner 2001, A22; Bettelheim 2002; Sanger 2002, 4.1). In the anti-terrorism cases that have started to work their way through the federal courts, government briefs are replete with assertions of a greatly reduced role for the judiciary during times of war (Lane 2002a, A01; Liptak et al. 2002, A01). The administration has also succeeded in gaining hasty passage of exceedingly permissive resolutions from Congress that leave critical decision making to the president's discretion, without clear guidelines, in the Authorization for Use of Military Force (September 18, 2001) and the Authorization for Use of Military Force Against Iraq (October 16, 2002), and it rushed the controversial, 342-page USA PATRIOT Act (October 26, 2001) through Congress without any public hearings or meaningful debate. It has crafted and imposed policies that put a premium on secrecy, and has left little doubt that it operates under the assumption that no tactic by the U.S. in the war against terrorism, including torture and preemptive military action, is too excessive (Hersh 2002, 66; Priest and Gellman 2002, A01; Risen and Johnston 2002, 36).

Of special note is Professor Kassop's review of the drafting of the September 14, 2001 AUMF, which authorized military action against Al Qaida and the Taliban:

Within one day of the terrorist attacks of September 1lth, 2001, the White House sent a request to Congress for a resolution authorizing the use of force in response to the attacks and against those who "planned, authorized, committed or aided the terrorist attacks ... or harbored such organizations or persons ..." (P.L. 107-40). The original version proposed by the White House was modified considerably in closed-door sessions between White House aides and the congressional leadership before finally coming to both houses for a vote.

The administration's draft bill contained language that authorized the president "to deter and pre-empt any future acts of terrorism or aggression against the United States." Although "preemption" would rear its head more successfully a year later in the National Security Strategy, it did not survive here, for a number of reasons. First, for Congress to authorize the president to take preemptive action would run contrary to the understanding of the Framers as well as the United Nations Charter that the president possessed authority to act defensively, but not offensively. Secondly, one congressional aide who participated in the executive-legislative negotiation sessions noted that "had this authority become law, it would have authorized the President to use force ... against (at least arguably) anyone who might be considering future acts of terrorism, as well as against any nation that was planning 'aggression' against the United States ... the President might never again have had to seek congressional authorization for the use of force to combat terrorism" (Abramowitz 2002, 73). The final version replaced "deter and preempt" with "deter and prevent," which is more consistent with a defensive, rather than an offensive, stance. Also, the "deter and prevent" language appears not in the body of the bill, as authorizing language, but as the last of four "Whereas" clauses, which are used not to authorize but as precatory or hortatory language. (2)

The next wording issue addressed the fact that the proposed version named no country, person, or group against whom it was authorizing the president to act. Although no limiting language was eventually adopted, the understanding among the negotiators was that the president's authority extended only to those responsible for the September 11th attacks and to any country harboring such people. Senator Biden emphasized in the brief Senate debate that "the authority granted is focused on those responsible for the attacks of September 11" (147 Cong. Rec. $9423).

Other issues concerned inclusion of a reference to specific statutory authorization under the War Powers Resolution, prior certification to Congress before any use of force by the U.S. that there was "specific and credible evidence" that the targeted country, organization, or person was responsible for the September 11 attacks, and reporting requirements beyond those in the War Powers Resolution. Of these three, only specific reference to the War Powers Resolution was added, while the certification and reporting requirements issues were never resolved. Addition of the section stating that this resolution constituted specific statutory authorization under the War Powers Resolution was an inclusion with substantive significance, tying the president to the subsequent reporting requirements of that act: omission of that reference by the White House in its original version was conspicuous in its absence, as it runs contrary to presidential precedent in recent uses of military force, despite the low esteem in which all presidents have held the War Powers Resolution. It is striking--and prescient--that the Bush White House excluded this reference in its first version, as a harbinger of its disregard for Congress's role in warmaking. Interestingly, certification and reporting requirements, along with a War Powers Resolution reference, were included, a year later, in the Authorization to Use Military Force Against Iraq.

Finally, one provision in the White House proposal was especially noteworthy for its unabashed usurpation of Congress's appropriations power: this was a request for appropriations from Congress in the amount that the president deemed necessary and a demand that these funds be freely available to him until they were expended (Abramowitz 2002, 81, n.9). In essence, the president demanded exclusive control over the amount and total discretion over how to spend these funds. On this issue, Congress rebelled. No funding was provided in the final version of the authorizing legislation, although appropriations were passed separately, designating $20 billion for immediate use for recovery from the attacks and for retaliation, while $20 million more would be available later and under Congress's control (P.L. 107-38). This same desire for complete autonomy over funding emerged again in April 2003 when the president requested supplemental appropriations to pay for the March 2003 war against Iraq. Congress actually agreed to provide him with more money than he requested, but refused to agree to the total discretion asked for by the administration, and also attached onto the bill additional provisions that President Bush had opposed. House Appropriations Chairman Bill Young stated clearly that "We did what the president asked . . . at the same time, we preserved some of the constitutional responsibility of the Congress to be involved in the appropriation, and to have some knowledge of how the appropriation was going to be used" (Firestone 2003, B1).

P.L. 107-40 was negotiated by the leadership on September 12, and passed the Senate, 98-0, on the morning of September 14, with debate occurring after the vote. House consideration later that day included debate and adoption by a vote of 420-1. The president's signing statement notes "the continuing threat to the United States and its citizens from terrorist activities," and reiterates, as have all post-1973 presidents in routine fashion, his understanding of the sufficiency of his constitutional power under Article II, even without an authorizing resolution from Congress, and his office's belief in the unconstitutionality of the War Powers Resolution (Statement on Signing the Authorization for Use of Military Force 2001).

The AUNF is now argued as the superseding Congressional action which authorizes Bush's illegal domestic surveillance program. OF course this too is preposterous.

But the most preposterous argument is that a President who bludgeoned a spineless Congress to do whatever he wanted can now argue that that very Congress did not give him what he needed therefore he had to break the law.

Only a particularly nutty Wingnut, or perhaps, a ScAlito (perhaps the same thing?), or more properly a Thomasalito on this issue, considering the opinions of Thomas and Scalia in Hamdi, could even consider such a preposterous argument.

Originally posted to Daily Kos on Mon Jan 02, 2006 at 02:10 AM PST.

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