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Armando has written on the support Alito brings to the imperial presidency through Alito's interpretation of powers implicit in presidential signing statements here and here.  Alito's role in the expanded use of presidential signing statements is was detailed by the WaPo here:
In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out 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."

Alito's role in the expansion of the use of signing statements is significant in the current context of Bush's abuse of executive power:
President Bush has been especially fond of them, 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.

The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."

Bush may be acting without fanfare for a reason. As Alito noted in his memo, the statements "will not be warmly welcomed" on Capitol Hill.

Such stealthy operations to contravene public law is certainly Bush's standard operating procedure.  Here's an excerpt from one such statement, the heinous declaration that Bush will torture and detain when he feels like it:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

With one fell swoop, Bush says piss off to the entire Congress, thus saying the same thing to the entire population of the United States of America.  That's the only conclusion I can reach if you accept the premise that Congress is the voice of the people in government.

This use of presidential signing statements becomes even more disturbing if you consider how many times Bush has used it:

The Bush administration has issued over 500 constitutionally based signing statements since 2001. Constitutionally based signing statements are those in which the president refuses to defend or enforce provisions of law because he determines it to be unconstitutional. How does President Bush stack up to presidents before him?


    * Washington 0

    * Adams 0

    * Jefferson 0

    * Madison 0

    * Monroe 2

    * Adams JQ 0

    * Jackson 1

    * VanBuren 0

    * Harrison 0

    * Tyler 1

    * Polk 0

    * Taylor 0

    * Fillmore 0

    * Pierce 0

    * Buchanan 1

    * Lincoln 1

    * A Johnson 2

    * Grant 1

    * Hayes 0

    * Garfield 0

    * Arthur 1

    * Cleveland 1

    * Harrison 0

    * Cleveland 0

    * McKinley 0

    * TR Roosevelt 0

    * Taft 0

    * Wilson 1

    * Harding 0

    * Coolidge 0

    * Hoover 1

    * FDR 0

    * Truman 3

    * Eisenhower 9

    * Kennedy 1

    * LBJ 11

    * Nixon 6

    * Ford 10

    * Carter 24

    * Reagan 71

    * Bush 146

    * Clinton 105


That figure of over 500 signing statements by Bush is confirmed here in this January 6, 2005 Knight-Ridder report.  

Alito's support of the expansion of executive priviledge is evidenced by his role in developing the concept of the activist use of the signing statement.  

This is a serious challenge to Congressional authority.  What other laws has Bush decided to ignore?  

Update [2006-1-9 13:47:49 by lapin]:martyc35 provides a correction to mediawatch's list presented above. FDR issued one signing statement.

Originally posted to lapin on Mon Jan 09, 2006 at 08:35 AM PST.

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Comment Preferences

  •  Good diary. (4.00)
    Put Bush's signing statement number (with some date, as in "as of dd/mm/yy") at the bottom of the list.

    BushAmerica -- Now killing 24/7/365. *Your tax dollars at work*.

    by Yellow Canary on Mon Jan 09, 2006 at 08:39:18 AM PST

  •  Good Diary... (4.00)
    ...the headline would be more accurate, however, if it read as follows: Bush says FU to everyone, including the American People.
  •  Where does the historical list come from? (none)
    I didn't see it in the WaPo link.

    I'm curious as to whether earlier signing statements tended to quibble with, or celebrate, the legislation in question. Example: a signing statement from LBJ extolling the importance of the civil rights bill.

    •  Whoops (4.00)
      Will edit diary to include this link.
      •  Error in List (4.00)
        Thanks for the link and the diary, but see the article "Contextualizing the Signing Statement" posted by Chris (scroll down a bit from the list--, where a court case concerning one of FDR's statements is described in detail (boxed below). Yet the list says that FDR signed zero statements. I thought that was odd, considering his length in office and the nature of his presidency. Perhaps you could seek a correction from the professor in Portland, who seems to have the most information on this matter:

        First, I am not sure why he writes that the courts have "yet" to give them much weight since that is not the case. While it is true that some "textualists"--those judges who will only consider the language of the bill and nothing else (a view espoused by Justice Antonin Scalia), there are alternatively others who take a big picture approach to determine the intent behind ill-defined legislation (a view possessed by Justice Stephen Breyer). Despite this, there is great evidence to suggest that judges and justices have made use of the president's position or interpretation on a piece of law. For instance, FDR issued a statement with a military appropriations bill that contained a section that sought to punish a few members of the State Department by denying funds to pay their salaries. FDR took the position that this was a bill of attainder and ordered the Justice Department to refuse to defend it if challenged in court, which it was. In the decision United States v. Lovett (1946), the Supreme Court sided with FDR's position, even referring to the signing statement issued by the President.

        Just goes to show how powerful FDR was; he was still getting his way, even after he died. Seriously, though, I have seen a number of comments from kos members questioning the importance of these statements to the courts and implying that those of us who are alarmed about them have created much ado about nothing. Besides the fact that Bush is acting on these statements and continuing to torture, detain without charges, and wiretap without warrants regardless of the courts (hardly NOTHING in my view), here is evidence that any of his 500 such statements in the wrong judicial hands (Alito making the case to Scalia or Roberts, for instance) could severely affect the direction of the Supreme Court. It's a fair bet, not necessarily a done deal, but definitely possible, that these statements will be used to expand and entrench executive power. Bush is ignoring legislation such as the no-torture amendment by adding his own wrong-headed "Memo of Understanding" (the understanding is with himself) and signing off on it. He has arrogantly betrayed his own Republican colleagues (not to mention the entire country and the world) and made a mockery of the Constitution. He (and Alito) must be stopped. Today and all this week are the days to call your senators, whether they are on the Judiciary Committee or not.

        STOP ALITO

        "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

        by martyc35 on Mon Jan 09, 2006 at 10:18:06 AM PST

        [ Parent ]

        •  I'm not sure that's evidence of FDR's power (none)
          as much as it is evidence that FDR was right on how the courts would interpret the law.
          •  Well, (none)
            I was just being silly, since the court decision came a year or so after FDR died. Yes, I think he was right, even though he was no longer around:-).

            "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

            by martyc35 on Mon Jan 09, 2006 at 01:26:43 PM PST

            [ Parent ]

  •  No wonder Bush never has to veto ... (4.00)
    .. he just disclaims, instead.
    •  indeed (4.00)
      500 signing statements, zero vetoes.
      •  Why veto (4.00)
        when the laws don't apply to you anyway
      •  with his dad at # 2 (4.00)
        "It's a useful tool son... Wouldn't be prudent to overdo it though"
        •  Note that... (none)
          ...Clinton, in eight years of office, used the signing statement authority far less than did Bush the First, in only four years of office.

          Note, also, that Bush the Second outstrips them both.  In fact, he's probably used it more than all his predecessors put together.  (I'll have to go back and count, but that sounds about right.)

          •  Yup, I'm right (none)
            The total number of signing statements done by Presidents 1 through 42:  399.

            The total done by Usurper Boy:  Over 500.  So far.

            •  Ooops! (none)
              Make that 400 for 1-42, as FDR issued one signing statement.

              Still, 400 versus over 500 (and it's probably over 600 by now, since the list dates from January of last year):  Yowza.

              •  Actually, this phenomenon has arisen (4.00)
                in the past 25 years.  Reagan institutionalized it through the Justice Department back in 1986.

                To do this, the Justice Department in 1986 added the signing statement to the "Legislative History" section of the "United States Code, Congressional and Administrative News." This was done, according to Attorney-General Ed Meese:
                To make sure that the President's own understanding of what's in a bill is the same...or is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court
                for future construction of what that statute really means.

                ...From the Monroe administration to the Carter administration, the executive branch issued a total of 75 signing statements....

                So, for all of our history, up to and including Jimmy Carter, there were only 75 signing statements.  Then, under Reagan, Bush I, and Clinton, the number exploded to 322.  Then, bush II has further entrenched and institutionalized this unitary executive power with over 500.

                Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

                by bronte17 on Mon Jan 09, 2006 at 12:14:43 PM PST

                [ Parent ]

              •  FDR (none)
                issued at least two signing statements that are discussed in that article on the context for signing statements. I am going to guess that a three-term president who instituted the New Deal, led us through WWII, and had real enemies in Congress issued more than two of these things while president. I think that zero in the list was just a typo.

                "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

                by martyc35 on Mon Jan 09, 2006 at 01:31:45 PM PST

                [ Parent ]

    •  Absolutely on target ... (4.00)
      That this is the clear explanation as to why not veto ... Whether shared with the public (unclassified) or not (classified), the BushCo (Bush Conspiracy) (mal)Administration has claimed that it (Bush) is above any Congressional action as the President can rewrite the law with a flick of his pen and that no one has the right to even know about those changes.  

      Thinking about it, one could legitimately ask why do we waste the $billions /year on the fig leaf of Congress if, at the end of the day, any action can be redefined by the Executive Branch?

      King George?  America hasn't always been kind to King Georges.

      9/11/05, Day 1469, A count worth keeping? Or, Osama Bin Forgotten?

      by besieged by bush on Mon Jan 09, 2006 at 10:28:55 AM PST

      [ Parent ]

  •  The appropriate label. (none)
    The Activist President.

    But unlike the "activist" judges who simply uphold the laws of the land, this President actively seeks to circumvent the laws of the land.

    Unfortunately, this feeds back into the previous, erroneous frames of the right.

    "I'm not an actor, but I play one on TV."

    by zeitshabba on Mon Jan 09, 2006 at 09:10:27 AM PST

  •  How can anyone take this seriously? (none)
    The President's view of a bill from a legal perspective is limited to whether or not he signs it. The Congress authors legislation and engages in public debate. There is a record that can be studied to affirm intent.

    Does the White House want to release documents of all internal debates on the legislation that comes to it from Congress?

    These statements really just represent the opinion of the president. Why should one man's opinion carry weight equal to 435 other elected representatives?

    •  I am not a lawyer (none)
      so please, if one who is reads my interpretation here and its incorrect, correct me.  The signing statements are the executive's declarations that it disagrees with some or all parts of a legislative piece authorized by Congress.  The effect is to muddy the waters in the event of a court case is brought against the executive branch in regards to the legislation; almost acts as a buffer between presidential criminal acts and the courts, but looks to me more like a speed bump than a get out of jail free card.

      If I had some graduate students at my disposal, I would evaluate each and every one of Bush's signing statements for circumvention of congressional intent.  I'd bet you could get a lot of guidance to what are Bush's hidden motivations.

    •  Well... (none)
      I find this statement odd:

      Why should one man's opinion carry weight equal to 435 other elected representatives?

      For one reason, the executive is a co-equal branch of Congress. That's why his weight would be "equal" to Congress'. (In fact, the way things are going, the executive might even be more than equal...)

      For another, the signing statements are used to define the construal of a given piece of legislation.  Remember, since the time of the New Deal, Congress has ceded an incredible amount of authority to the executive generally, and to government agencies in particular.  In fact, the various Departments of the executive have been called the "fourth branch of government" by those of us who study in work in the field known as "administrative law".

      Therefore, lapin is absolutely correct to say that such statements are used to muddy what the executive might see as Congressional intent, or how they will carry out a given piece of legislation.  

      The world is made for those who are not cursed with self-awareness. -- Annie Savoy, from "Bull Durham" Yeah, and George W. Bush is living proof.

      by wmtriallawyer on Mon Jan 09, 2006 at 10:19:03 AM PST

      [ Parent ]

      •  Equality? Not in legislation! (4.00)
        For one reason, the executive is a co-equal branch of Congress. That's why his weight would be "equal" to Congress'.

        The President is NOT equal in defining and writing legislation!

        Is Congress hence equal in directly administering the functions of government as the President?  Can Congress make its own policy decisions equal to the President?

        The same reasoning that says because the President signs the legislation he has equal authority over its interpretation as Congress (i.e. Alito's position), implies similarly that because Congress approves nominees to the cabinet, then Congress has equal authority to order the heads of Departments to implement policy as the President.  That's obviously preposterous.

        Members of Congress have no other primary responsibility except making law.  Why else are they called "legislators" and "lawmakers"?

        Making law is the singular purpose of Congress and by any definition of "original intent" the Constitution appears to privilege the Congress with the most power.

        It was considered obvious for designers of the Constitution that the branch with the authority and power to carry out law by coercion must therefore have the least authority to define law.  Executive is inherently subordinate to Congress and judiciary in this regard.  Tyranny is the obvious result when this doesn't happen.

        •  So the use of the signing statement (4.00)
          to reroute the application of law is directly opposed to the intent of the Framers.
        •  Right (none)
          and Congress, FWIW, has ceded legislative power, for years now, to the Executive.

          Anytime the Congress institutes a new program to be carried out by the executive, they specifically ask the Department of Education, or Transportation, or Defense, or whoever, to fill in the details.  Congress gives the broad strokes.

          So, no offense, but when you say the President is not equal in DEFINING legislation, that just wrong.

          All you have to do is look at this little collection of the executive not defining legislation: it's called the Code of Federal Regulations.  The agencies are given authority to interpret and implement the enabling and authorizing legislation as they see fit, and they come out in the form of Rules and Regulations.

          Oh, and you want someone to blame for Congress cedeing its authority to executive agencies, look to FDR.  He helped defined the modern administrative state through the New Deal.

          The world is made for those who are not cursed with self-awareness. -- Annie Savoy, from "Bull Durham" Yeah, and George W. Bush is living proof.

          by wmtriallawyer on Mon Jan 09, 2006 at 11:12:33 AM PST

          [ Parent ]

          •  Well, broadly, (none)
            but not as they see fit.  The Code of federal Regulations cannot legally creaye administrative law that violates the Constitution, in contrary to the laws thit is implementing, or infringe upon the basic constitutional rights of the people, especially, in the Ad Law context, due process.  Congress is the final determinant of what the statutory intent was on passage.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Mon Jan 09, 2006 at 11:37:33 AM PST

            [ Parent ]

            •  Not quite (none)
              If I challenge a regulation in court, I must show that either Congress clearly spoke on a given issue.  If they didn't, I must show that the interpretation of the ambiguous legislation given by an agency is impermissible.

              Either way, deference is given to the agency's interpretation, and it's a high standard to overcome.  

              But it's hardly correct to say that Congress is the last word on statutory intent.  

              At passage, yes.  But the statute can and will be interpreted by agencies and the courts at some point.

              And the agency's interpretation is given deference.

              The world is made for those who are not cursed with self-awareness. -- Annie Savoy, from "Bull Durham" Yeah, and George W. Bush is living proof.

              by wmtriallawyer on Mon Jan 09, 2006 at 11:53:56 AM PST

              [ Parent ]

              •  That's bullshit (none)
                But it's hardly correct to say that Congress is the last word on statutory intent.

                Uh, Congress is the only body that passes statutes, and thus the legislative history is the last word on statutory intent. Statutes and regulations are different dogs, and if the two are in conflict, the former supercedes.

                The agencies may be given "deference", but if the agency issues rules that go against the clear intent of statute, courts can and will invalidate it. I remember one recently where the EPA rules were invalidated on the basis that they weakened rather than strengthened environmental rules, in conflict with some relevant law passed by Congress.

                Nobody has the last word, but only Congress can write the law.

                And as for this "co-equal" president business in regards to lawmaking, tell me how "co-equal" the president is when his veto is overruled by a 2/3 majority in each House? The president gets to say yes or no, but congress still can get its way when it comes to the text and intent of statute.

                That makes the president' "signing statement" of little legal effect and no court should pay any deference to such things, particularly when they conflict with the clear intent of Congress.

                •  And who interprets that intent? (none)
                  Congress? No.

                  That's my point.  That intent can and will be interpreted by the judicial branch, as well as the executive, particularly when Congress is ambiguous in their intent .

                  Moreover, as you stated, the intent has to be clear .  It's not always so "clear".  As laid out by the Supreme Court in Chevron vs. Natural Resources Defense Council:

                  The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton v. Ruiz, 415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provison for a reasonable interpretation made by the administrator of an agency.

                  Moreover, legislative power was further chipped away in INS v. Chada when Congress attempted to retain a "legistative veto" of agency actions through a bill that granted INS broad authority that could be overruled by an act of the House or Senate. That got knocked down as well, with the Court stating "Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked."  So saying that "statutes and regulations are different dogs, and if the two are in conflict, the former supercedes" was not the case in Chada .

                  I'm just trying to point out that we can't sit here and deny that the executive has broad authority to interpret and implement statute, regardless of who has the final word on intent.  The exec has gained more and more power to do so with the advent of Congress cedeing authority to agencies over the past 50 years.

                  The world is made for those who are not cursed with self-awareness. -- Annie Savoy, from "Bull Durham" Yeah, and George W. Bush is living proof.

                  by wmtriallawyer on Mon Jan 09, 2006 at 02:21:49 PM PST

                  [ Parent ]

                •  "of little legal effect" (none)
                  Sorry, but I am going to interrupt the debating society here, just to remind you all that legal effect is not the problem, unless the SCOTUS ultimately confirms that Bush has plenary powers and can continue to flout the Constitution. That outcome is why we are discussing Alito. In the meantime...

                  No, the real world effect is the important thing. On Bush's go- ahead, two people were killed during "extaordinary renditions" by water-boarding, beating until their lungs collapsed, and being hung up on hooks with arms behind their backs and up over their heads until they died by suffocaton. This was done by the CIA; one Army captain was first charged with their deaths, but the other day they decided not to discipline him. Three years from now, if the SCOTUS says these men died illegally, just what effect will that have? Will it bring them back? Make their families feel better? Get them a fair trial?

                  Right now, at Gitmo, a number of prisoners who are being held without charges for reasons unknown are on hunger strikes. Bush's cute answer is to have them force fed by shoving tubes down their throats. This is painful. This is inhumane. When the courts finally agree on that, will these people still be alive? Will they just sit up and say, oh well, gimme a banana and let's call the whole thing off?

                  Thousands and thousands of people, human beings, Americans, British, and Iraqi, have died and suffered without the benefit of ANY legal opinions because of Bush's twisted notions of his presidential powers. Are we going to continue to debate the legal questions or friggin' DO something to stop him?  

                  Nothing personal, folks, I guess I'm just missing Hunter.

                  "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

                  by martyc35 on Mon Jan 09, 2006 at 03:35:32 PM PST

                  [ Parent ]

    •  Please read this article (none)
      at Media Watch: "Contextualizing the Signing Statement," posted by Chris on Monday, January 2, 2006. It explains why we should take this seriously:

      Also see my post upthread on the same matter.


      "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

      by martyc35 on Mon Jan 09, 2006 at 10:40:45 AM PST

      [ Parent ]

    •  You (none)
      can't be serious. Can you?

      "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

      by martyc35 on Mon Jan 09, 2006 at 09:43:55 PM PST

      [ Parent ]

  •  Their was another person that came (none)
    to power without ever breaking a law, but Goodwin says I can't say the name.
  •  Bush (none)
    is giving Free Umbrellas to Congress?

    In all seriousness, though.  Is this something that, ultimately, the rest of us have no say in?  I mean, he's legally able to sign these, however isn't there some sort of inquery into WHY Bush exceeds the number of signings, virtually, than every other president combined?

    Bullshit, Jesus, those are obviously my footprints.

    by als10 on Mon Jan 09, 2006 at 09:42:58 AM PST

  •  excellent and thanks (none)
    this needed to be done this way and you did a nice job.  

    I don't think one can dismiss this Alito/King thing as tinfoil. I really don't.  This is quite ominous.

    Treason's Greetings from Karl Rove and Scooter Libby: Merry Fitzmas and Happy New Smear

    by seesdifferent on Mon Jan 09, 2006 at 09:52:46 AM PST

  •  How did the Germans feel? (4.00)
    {Godwin alert}
    Yes, yes, involke Gowin all you want, but the signs are on the wall here.
    {/Godwin alert}

    Before Hitler actually had fully dictatorial control over Germany how did most Germans feel about him?  Did they see him as a strong public figure who would help him over his economic woes?  Did some of them try to change the situation, seeing what was coming, but were unable to do anything?

    People blame Chamberlain for talking appeasement before Hitler really got rolling in his wars, and with some justification, but ultimately the rest of the world did gang up to attack Germany, and win.  Nonetheless, I wonder if Germany had it's own group of Chamberlains.  People who just didn't see it coming and talked about just letting Hitler have what he wanted for now.  I wonder if there were a lot of folks in favor of Hitler going around saying anyone who spoke out against him was a traitor.  

    We can learn from history, especially when things went bad.  Maybe we should look at all the strategies that failed there so we don't do that again.

  •  I can do that. (4.00)
    On this 9th day of January 2006, I hereby state:

    George H.W. Bush is a moron among morons with the soul only a cold-hearted mother could embrace and everything he has said or done and everything he will say or do in the future should be recognized as contrary to basic human decency and, consequently, be immediately and entirely ignored.



    "Conservatives hate Pooh because he reminds children to 'think, think, think.'"

    by dicta on Mon Jan 09, 2006 at 10:39:02 AM PST

  •  FDR (4.00)
    lead us through a massive global war across 2 oceans with millions of lives lost. And not a single signing statement needed to succeed!

    Apparently Pearl Harbor didn't change everything.

    •  I'm sorry, I just updated the diary (none)
      with a correction provided by martyc35.  FDR's statement stopped the payment of salaries to some State Department officials that he disagreed with.  Not fair, but not exactly exempting himself from habeas corpus or torture either.
      •  OK then, only 499 more (none)
        and the threat to the U.S. from the axis powers will equal the GWOT.
      •  I think you read that backwards... (none) I read the linked article, the bill sent to FDR included the clause stopping the salaries of specific officials, and FDR's signing statement was that this constitued an bill of attainder, and was therefore unconsitutional and should not be enforced. The SCOTUS eventually supported FDR's interpretation.

        You have reached the point where you must choose
        Between what you lost and what you stand to lose - Michael Penn

        by GreenCA on Mon Jan 09, 2006 at 11:13:25 AM PST

        [ Parent ]

      •  If I read martyc35 correctly (none)
        that's exactly backwards. The bill stopped the salaries of certain State Department officials that Congress didn't like. FDR said in his signing statement that it was a bill of attainder, ie, a bill directed against specific individuals and hence unconstitutional, and that the Justice Department would therefore not defend the bill in court.

        So -- it wasn't FDR who was being unfair.

        Folly is fractal: the closer you look at it, the more of it there is. - TNH

        by Canadian Reader on Mon Jan 09, 2006 at 11:21:59 AM PST

        [ Parent ]

      •  Bills of Attainder are unconstitutional. (none)
        How many times are you guys going to make me reread the same article? Just kidding. From a legal definitions web-page (they all say about the same thing):

        Definition: A legislative act that singles out an individual or group for punishment without a trial.

        The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed."

        So, the interpretation that FDR put on that legislation was that it unconstitutionally singled out certain members of his staff for nonpayment of salaries, and that this was unconstitutional and should not be defended by DOJ or upheld in the courts. This language, a holdover from English law, was put in the Constitution to maintain the system of checks and balances. It was meant to keep Congress from usurping the functions of the judiciary by accusing, convicting, and meting out punishment to individuals without giving them due process.

        I wonder which of Bush's 500 statements has found its way around that provision? We don't know. And that is a big part of the danger.

        "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

        by martyc35 on Mon Jan 09, 2006 at 12:12:38 PM PST

        [ Parent ]

      •  There was that "small matter" (none)
        of interning Japanese-born US citizens....

        I can't give FDR a complete pass...

        •  I Thought Spunhard (none)
          was being a tad sarcastic about FDR.

          It's a shame that this country has to learn the hard lessons over and over again. The mood right after Pearl Harbor was just the same as the mood right after 9/11. And equally bad consequences ensued. Blaming an ethnic or religious group for acts of terror that they didn't commit and forgetting the due process protections of our Constitution almost always turn out badly. So does spying on one's own citizens.

          STOP ALITO


          "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

          by martyc35 on Mon Jan 09, 2006 at 01:51:55 PM PST

          [ Parent ]

        •  As I recall, that was an Executive Order... (none)
          ..but the Supreme Court upheld it, in what was probably among the worst five Supreme Court decisions in history (no bonus points for guessing the other four, but one of them was in late 2000).
    •  Uh, no. FDR used signing statements (none)
      There is an error in that list. See the article at Media Watch called "Contextualizing the Signing Statement" by Chris.
      It is unclear right now how many statements FDR used. At least two of FDR's statements are discussed in that article. I have asked lapin to seek a correction from Professor Cooper at Portland State U. Maybe that will help. Thanks for noticing that this was pretty unlikely, considering FDR's tenure and the nature of his presidency:-).

      I read the rest of Chris's article (I recommend it, linked above), and here is one example of the context for Alito's disturbing Reagan-era statement about the importance of signing statements:

      In signing the "Immigration Reform and Control Act, 1986," the Reagan administration took advantage of a section of the bill offered by Congressman Barney Frank that protected minorities from discriminate firings by "bigoted" employers. The section as Frank intended it placed the burden of proof on the employer to provide documentation showing just cause for the firing. After the bill emerged from conference, the "Frank Amendment" was still in place, but the meaning was stripped after the Senate would not budge on the burden of proof. When Reagan issued the signing statement, he instructed executive branch agencies charged with executing the law to place the burden of proof upon those who were fired, in direct contradiction to the intent of its author, Barney Frank. Of course this new interpretation aided the business community in the United States.

      This example of turning legislation approved by Congress on its head, to the exact opposite of its intent, is precisely what Bush is doing with his statements. We know he just did it on the no-torture amendment, after lying and saying he was accepting it, posing with the duped John McCain, and then spiriting the unsigned bill off to Crawford where he and Harriet drafted the Memorandum of Understanding that undid the whole thing. Last week, missed by many in the media, he stabbed Carl Levin in the back by reversing the three statements of intent Levin put into the Guantanamo habeas corpus language to be sure it would be applied only in the future, and never retroactively. Bush and Gonzales wasted no time (it took them three whole days) in enacting it retroactively, leaving Carl Levin screeching, "Foul!" and pulling out the little hair he has left. It's bad, folks, and it is serious. And the worst of it started with Reagan and Meese and Alito.

      STOP ALITO  

      "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

      by martyc35 on Mon Jan 09, 2006 at 11:43:20 AM PST

      [ Parent ]

  •  This guy is really scary (none)
    I use to think this guy was just a good natured dope who was put in power by some guys who were going to run things while GW was out on his bicycle or something. He is still a dope but a very scary one indeed.

    I use to think that if we impeached him that it would leave President Chenney and that was not a good thing either. Or next in line. And after DC's trip to the hospital today for fluid retention, I was figuring we would be hearing of his resigning because of health reasons and being replaced by McCain to get him next in line for 2008.

    Over here on DailyKos we know what is really happening but I do not think the world knows. This is not one of those stories that gets out there. This and all the other scary things that are happening will never be heard by my neighbors unless I tell them. It is almost like a frightening amount of crap that this dope has been secretly doing unfolding in front of our eyes and it is not getting enough coverage.  It is scary for sure.

    Believing is the Magic That Makes Dreams Come True..... ****** IMPEACH ******

    by BarnBabe on Mon Jan 09, 2006 at 11:02:11 AM PST

  •  Clinton (none)
    On the other hand, check out the 105 statements issued by Clinton. Granted, that's spread over two terms, but still. When the Congress passes what the executive thinks is a blatantly unconstitutional law, the executive always tries to exercise some "prosecutorial discretion".

    Case in point: the antiabortion provision of the Communications Decency Act, which President Clinton (correctly) refused to enforce.

    President Clinton and the Justice Department say they don't "intend" to prosecute people who put abortion information on the Net. And that's good enough, according to a federal judge in Brooklyn who threw out a challenge to a law that prohibits making such information available to minors.

    The little-known provision, part of the Communications Decency Act, took effect when the CDA was signed in February 1996. Nine abortion rights groups and individuals filed a lawsuit to block the provision. Soon after, the Justice Department specifically said it wouldn't prosecute online producers of abortion material.

    This looks a lot like the executive picking and choosing the laws it wants to enforce. And yet, judges have endorsed this practice:

    Justice Charles Sifton issued his decision on March 12, saying that the government's promise not to prosecute was grounds to dismiss the case. He said the government is good for its word because, for example, it has never prosecuted a statute passed in 1897 that made it illegal to cross state lines with information about products "intended to induce abortion."

    The important point here is that the executive's interpretation remains subject to judicial review. It's a speedbump, not a roadblock.

    •  I think the volume of such statements (none)
      is important.  I agree, these are a speedbump to judicial review, not a roadblock.  But with so many speedbumps, what is already a torturously long lived  process could take on an even longer life span.
      •  true, dat (none)
        That's also why it's so important to fight the confirmation of Supreme Court nominees who think that speedbumps are roadblocks.
      •  Retaining vs Removing Rights (4.00)
        Not just volume, but intent is important - in this particular Clinton case and in the FDR case described above, the Presidents' signing statements had the effect of retaining the rights of the citizens affected.  In the Bush case cited in the diary, the President's statement removes rights from the citizens affected.

        I would like to see an enumeration of all of the signing statements by each the President showing how many statements retain vs. remove citizens' rights.

        Beware the everyday brutality of the averted gaze.

        by mataliandy on Mon Jan 09, 2006 at 12:17:23 PM PST

        [ Parent ]

    •  there is a difference (none)
      The discretion to prosecute or decline prosecution in specific instances or in general legal situations is a power reserved to the prosecutors, state and federal.  That's why you don't see blue laws, adultery, fornication and other stuff prosecuted on any regular basis.  there too busy with real crimes like murder, rape and robbery, at the state level, and with white collar crime ect at the Fed level.  This is the legitimate use of discretion in policy choices.
               This differs significantly, even basically, from ignoring the intent of congress, especially in matters like the Torture issue, that have been clearly expressed.  this is not, at root, a decision whether or not to prosecute torture, but whether to, secretly or otherwise, use torture as a defined and specific tool in carrying out the execution of the laws.  
                 To say, as Bush did, that he's signing the law, but will ignore it if he wants is not an excercise of discretion, but a direct, illegal challenge to Congress, and the seperation of powers.  It's clearly a slap in the face, and very probably intended to see if Congress and the people will stand for it, so he and the cabal can take the next step on the path from the Rubicon to Rome.

      Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

      by StrayCat on Mon Jan 09, 2006 at 11:51:59 AM PST

      [ Parent ]

      •  separation of powers (none)
        Note that the objectionable part of the CDA remains on the books because the judge trusted that the President would never enforce it. That looks like discretion to me. And the intent of Congress was fairly clear: outlaw abortion information on the Internet.

        If the President honestly believes Congress is behaving unconstitutionally, he should fight them, as Bush is doing. That's why executive powers are separated from the legislature to begin with. As long as both branches abide by the tiebreaking vote of the judiciary, the system works. And there's nothing in the administration's record (unfortunately), to suggest that Bush is insincere in his belief that the President's wartime powers are unfettered.  

  •  Contradiction (none)
    And yet the right huff and puff about the need for a literal interpretation of the Constitution (which, of course, they don't do in practice), but have no problems with the President interpreting laws sent to him by Congress in any way he damn well pleases with signing comments.
  •  He's got to go (none)
    when will the Congress wake up to the obvious?
  •  I posted several references yesterday (none)
    in Armando's diary.  Here and here.

    If anyone is interested in this rise of the "imperial presidency," beginning under Reagan, Christopher Kelley's paper on this use of unitary executive theory is highly informative and chilling when you read through the examples of use by bush II.

    ...the unitary executive argues that the president has aggressively pushed the boundaries of constitutional power in order to protect the prerogatives of the Office and to control the executive branch agencies. It has developed over the course of three presidencies --Reagan, Bush I, and Clinton. It has only been in the Bush II administration that the unitary executive has fully developed.

    President Bush, since the first day of his presidency, has been very aggressive in his defense of presidential power, much to the dismay of his critics and opponents, who have underestimated his administration since the Supreme Court decision in "Bush v. Gore."

    Through the use of presidential signing statements, executive orders, and memoranda, the Bush administration has often governed unilaterally when faced with political and/or constitutional obstacles...

    ...the danger in this is that unilateral actions taken by a president that go unchecked establish a precedent for the benefit of future presidents. And when a precedent is established, the courts are reluctant to find the action unconstitutional if it has gone unanswered by the Congress.

    Thus for the current Congress, while it may be seen as a plus to have a co-partisan in the White House who aggressively asserts constitutional power, the problem occurs in the future when their political fortunes turn and a Democrat comes to occupy the White House. Then any chance to check the presidency is difficult since a pattern has been established.

    Alito is a strong proponent of unilateral presidential actions and the unitary executive theory.

    "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."

    Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

    by bronte17 on Mon Jan 09, 2006 at 12:02:38 PM PST

    •  bronte17: Thanks (none)
      for the Christopher Kelley reference. I have his paper bookmarked now. And you helped me make the connection to the essays by Chris at Media Watch, who turns out to be Chris Kelley. No wonder his scholarship is so good!
      Glad to put that together!

      "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

      by martyc35 on Tue Jan 10, 2006 at 09:23:31 AM PST

      [ Parent ]

  •  I would call it... (none)
    the arrogance of ignorance.  The toy soldier president, tho he knows he was not elected even once, is going to disgrace our democracy and our nation by attempting to run roughshod over its most sacred elements of governance.  

    What a dickhead.

    If the lies don't reach... you must impeach.

    by tomathawl on Mon Jan 09, 2006 at 12:15:34 PM PST

  •  I go back to John Dean's statement (none)
    on Larry King, two weeks ago, when asked about Bush's circumventing the FISA court (which is just another extension of the same policy of "pick and choose" which laws to execute.)

    "Why does he need the Patriot Act if he can investigate anyone he wants to already?"

    So when it comes up for a vote again, don't you wish Congress would ask Bush to choose?  Patriot Act or Impeachment.  

  •  Hostile Takeover (none)
     That is what this is.

    Bush and his neocroonies are setting up for a hostile takeover of our country.

    I have e-mailed this story to several blogs and liberal shows.

    I want this story to make the main stream news and stay there.

    I am used to the outraged, but really this is a step too far!
    It has nothing to do with fighting the War on Terror.
    It is subverting the will of the people.

    This is a hostile take over of the democratic process.

    inspire change...don't back down

    by missliberties on Mon Jan 09, 2006 at 02:01:25 PM PST

  •  Yes!...I totally am stoked now!............... (none)
    Glad you posted this lapin..!

    It's beginning to get some notice from all corners now. Armando eluded to it precisely in his posts in the past few days. Also
    BarbMD diaried on it yesterday as well as these two diaries here and here.

    As far as I'm concerned there isn't enough outrage over this.

    And the argument that it's been used before has to be taken with a grain of salt. It's being used now by a President who has probably never read an entire legal document completelt through. In fact he probably has never gotten past the bills title. He just has his legal team tell him how to counteract anything passed by congress since he is king and has all the authority over the citizens, military, courts and legistative sectors.

    Some have sated that other "signing statements" just might have been for emphases in support or similar notations. That was probably true in it's beginning. Then Reagan began using it as an edge against the bills he was signing into law.

    One thing that tends to get lost everywhere is that George W Bush is so enept at understanding anything legalese...actually at anything he does that just the fact he does this pisses me off. Too many people talk about this asshole as if he has a clue. He's a fairly stupid person. Let's just face the facts here.

    And when he does anything I have to question his motives. Because he just isn't very aware of anything except being the best NEO-CON puppet ever put in front of the population.

    Great post!!!  Keep congress...

    I highly recommend!

    "It could probably be shown by facts and figures that there is no distinctly American criminal class except Congress. " by Mark Twain

    by JellyPuddin on Mon Jan 09, 2006 at 02:03:35 PM PST

  •  I know this is an outrage (none)
    I posted on this last week here there is a link to the signing statement if anyone is interested. Great post glad to see this issue is finally getting some interest.

    To sin by silence when they should protest makes cowards of men~~ Abraham Lincoln

    by Tanya on Mon Jan 09, 2006 at 02:31:19 PM PST

  •  I'm alarmed by their increase.... (none)
    although they did drop under Clinton, his number, all the numbers should have been 0.

    "Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful." Seneca

    by Ralfast on Mon Jan 09, 2006 at 02:33:10 PM PST

  •  Great Diary (none)
    It would be useful to examine the signing statements themselves and determine if those made by others are different in regard to intent when compared to the current self appointed Dictator.

    FDR signing statement referenced above was to the effect that the government was not get involved if that section of the law was challenged.

    That instruction to his administration officals is not the same as Bush ordering government officals to perform illegal acts or to ingore the laws and constitution of the U.S.

    Anybody way to gather together the signing statements and make them public?

    •  I found the text of the signing statement (none)
      included in the diary on the Whitehouse's own website (didn't include a link for, um, obvious reasons) and I read a few others there.  Many of them cited a SCOTUS decision like so:

      Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.

      Anyone familiar with this decision?  It was used as justification on the five or so signing statements I reviewed on the Whitehouse's site.  

  •  Someone just poured lemon juice... (none)
    in my thousand paper cuts.
  •  Even though it'd be a big job (none)
    if someone went through these 500 signing statement we could now figure what else the future dictator is doing that hasn't shown up on the radar yet.

    We have the key now to pointing us to other BushCo takeover plans. You can be sure if them've given them an out with these statements that they have a plan to use them as justification if and when they get exposed.

    -4.25, -6.87: Someday, after the forest fire of the Right has died we'll say "Whew, I'm happy that's over."

    by CanYouBeAngryAndStillDream on Mon Jan 09, 2006 at 05:53:18 PM PST

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