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?
President*
* 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.