Sometimes you just have to wonder. A few days ago the American Bar Association (ABA) released
the report of a task force convened to consider the use of presidential signing statements in relation to the separation of powers doctrine. The blue-ribbon panel comprised 10 of the top legal minds on constitutional law in the country, including conservatives and liberals, and Republicans and Democrats. According to ABA President Michael Greco,
the panel's aim was to "...examine the changing role of presidential signing statements, in which U.S. presidents articulate their views of provisions in newly enacted laws, attaching statements to the new legislation before forwarding it to the Federal Register. The task force will also consider whether such statements conflict with express statutory language or congressional intent". The findings and recommendations of the panel were unanimous. A lengthy report, it concludes:
(X-posted here and here)
"...the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress"
Translated into non-legalistic parlance, the statement means the president shouldn't sign a bill into law and then attach a post-it saying, in effect, "fuck you, I'll do what I want". In order to curb that sort of unconstitutional power grab:
"...the American Bar Association urges Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review, to the extent constitutionally permissible, in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and urges Congress and the President to support a judicial resolution of the President's claim or interpretation."
In other words, having signed a bill into law, and attaching a note saying, "fuck you, I'll do what I want", there needs to be a check in the system to ensure the President can't also add, "P.S. there's not a damn thing you can do about it".
The report is careful to say that it considers the issue of presidential signing statements broadly, and should not be construed as focusing exclusively on the actions of the current president. Lawyers! The fact of the matter is that the report is most definitely about the cynical, constitution-busting shenanigans of the Bush administration, and remedies to prevent the next dictator from adopting the same tactics. As the panel notes, "To be sure, it was the number and nature of the current President's signing statements which generated the formation of the Task Force and compelled our recommendations". Summed across all administrations prior to Bush, presidents have used signing statements to question aspects of laws they signed fewer than 600 times. During his 5.5 year tenure, Bush has used this mechanism on more than 800 occasions, all before ever exercising his constitutional responsibility to veto legislation that he considers in violation of constitution.
Most alarming, the specific nature of these signing statements is qualitatively different - and demonstrably more damaging to our system of government - than in any era of history prior to Bush. Whereas earlier presidents have used signing statements to urge congress to consider aspects of bills that might be ambiguous, or to identify potential conflicts between executive and legislative authority, in only a small handful of cases have prior presidents (both Democrat and Republican) issued signing statements suggesting that circumstances could arise in which certain provisions of a bill might be unenforceable. In stark contrast, in hundreds of instances, Bush's signing statements express the intent to simply disregard the clear intent of congress, effectively saying "fuck you, I'll do what I want". Moreover, this administration has been uniquely aggressive in amending signing statements to bills that have the effect of blocking congressional access to the information it would need to determine if the administration's actions are legal. The exact same wording appears over and over again, indicating that congressional provisions calling for regular reports from the executive branch on matters like national security and domestic surveillance, ""would be construed in a manner consistent with the President's constitutional authority to withhold information, the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive or the performance of the Executive's constitutional duties." In other words, "fuck you, I'll do what I want, and there's not a damn thing you can do about it".
So you have to wonder. After an initial flurry of reporting, the ABA report has slipped below the radar, into the turgid backwash of mainstream media chatter. The President of the United States is knowingly, repeatedly and frequently usurping executive authority from other branches of government, tipping the delicate balance of powers that has served the republic well since it's inception. By any reasonable assessment the President has violated his central, primary responsibility to uphold the constitution. If we sit idly by knowing all this, you have to wonder, who's the bag of assholes here; the ABA, the Bush administration, or the American people? (And please, don't say Arlen Spector's on top of it!)