I don't know that I've ever felt the need to put up a blog post merely to call attention to someone else's blog post, but this really deserves an exception. Over at Balkinization, Laurence Tribe has contributed a truly excellent piece on signing statments -- or more precisely, on where the locus of the problem this "administration's" use of them really lies. And from there, why Arlen Specter's proposed legislation regarding signing statements is as useless and transparent as his legislation regarding the NSA spying.
For the lazy, let me just run down a few of the parts that struck me as critical:
What is new and distressing in the current situation isn't primarily the frequency with which President Bush, in the course of signing rather than vetoing congressional enactments, says something about his equivocal intentions, or even his defiant views, in connection with their future enforcement or non-enforcement. Rather, what is new and distressing is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views -- and the suspicion that this President either intends actually to act on them with some regularity, often in a manner that won't be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches -- declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.
Tribe is referring here to a change in the "constitutional order," as those of you who may recall one of our earlier discussions will recognize.
He continues:
If instead the problem isn't a series of particular abuses taking the form of judicially remediable violations of the rights of individuals or groups by presidential disregard of duly enacted shields but is instead a set of abuses not subject to particularized correction at the behest of injured individuals -- either because no individuals are indeed injured in any conventional sense (as where the abuses take the form of pure inaction or inattention rather than naked aggression) or because the real difficulty isn't this or that particular abuse but what Charlie Savage has rightly described as a sea change in presidential practice the whole of which is more alarming than the sum of its parts -- then we have the situation of a chief executive who has assumed a posture of mocking the law rather than taking seriously his duty to enforce it. Especially in the case of a chief executive who is barred by the 22d amendment from seeking re-election, it would seem that the only proper remedy for presidential posturing of that sort, assuming it to be serious enough to demand a remedy, is impeachment and removal from office, not a set of judicial declarations that the president had better shape up and use his veto pen rather than chuckling under his breath while he insincerely signs legislation he has no intention of faithfully enforcing.
Well, you know I can get with that.
But wait, there's more:
As for the remedy seemingly endorsed by the ABA panel, I can only regard it as a prescription that is neither safe nor effective as a cure to a misdiagnosed disease. The idea of legislatively endowing Congress with authority to take the President to court, and of empowering the Article III judiciary with authority to declare the presidential use of signing statements a circumvention of Article I's provision for the exercise and override of veto power or a violation of the separation of powers generally -- as section 5 of Senator Specter's new bill would purport to do -- seems to me a clear non-starter.
The problem with Specter's bill is that it misidentifies the problem. It's undoubtedly constitutional for the president to issue these signing statments, just as it would undoubtedly be constitutional for him to staple his lunch order to any bill of his choosing. Where it becomes a problem is where these statements are simply bald-faced assertions of the magical powers invented for him by John Yoo and David Addington, making no serious attempt at offering any other justification that can be coherently analyzed and understood, and then directing his "unitary executive" to act in accordance with whatever he's scribbled on the Post-It(TM) he sticks on when nobody's looking.
So what should readers who rightly distrusted Specter's NSA spying bill and were then puzzled by his otherwise bold-sounding signing statement bill conclude Specter was actually up to?
[W]hen a lower federal court or the Supreme Court holds that the attempt by Congress to arm itself with the power to vindicate its honor is inconsistent with Article III, represents an exercise in posturing by the legislative branch, and is without effect in subjecting the signing statement practice to judicial oversight, the ironic and even tragic impact will be to give an abusive president one more occasion to strut about, claiming vindication for his practices and for the avoidance of political accountability that underlies them, even though the well-informed will recognize that no such claim is warranted. So the proposed corrective is overwhelmingly likely not to work. The upshot would then be not only a badly conceived and ultimately impotent solution to a badly diagnosed problem but an occasion for unjustified presidential preening.
Starting to make more sense now?
To sum up, the problem isn't signing statements themselves, but that they're being employed as part of a systemic abuse of power. And though Tribe doesn't address abuses like the politicization of the civil rights and voting rights sections of the DoJ, he does highlight the overarching problem:
[A] President who, on signing a bill into law, makes clear in advance some of the circumstances in which he predicts such an obligation to obey the Constitution will trump the literal mandate of the resulting statute is not automatically indicating a scofflaw attitude but might simply be doing everybody a favor by not hiding the ball. The fact that the sea change inaugurated by President Bush goes far beyond such helpful signaling is a symptom not of some systemic problem with signing statements as an institution that cries out for legislative remedy, or even of an institutional difficulty with presidential power to follow the Constitution as the president understands it even without judicial guidance. Rather, it is a symptom of how this particular President is abusing his power and bragging of his intention to go on abusing it.
I keep coming back to Jack Balkin's warning:
What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.
The problem isn't signing statments. And it's not really even the fact that this "administration" abuses them. It's that they abuse every aspect of the law, and are protected by the vestigal "respect for the office" that remains in all of us, left over from a time when an administration might well have been expected to be operating under the same constitutional understandings as the rest of us -- i.e., that the laws and Constitution of the United States ought to be observed and obeyed as a matter of course, not just when a credible threat can be levelled.
But, oh! For a credible threat!