What is the legal significance of the following?
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.
This passage from a signing statement is Bush’s way of not vetoing the unvetoable–the anti-torture rider to a defense bill–but asserting he’s not checked in these matters by Congress or the courts, anyway. The rider was unvetoable because 89 Senators had agreed to the amendment, sponsored by John McCain. Its vote in the House was around 70%, so it is not out of the question that on an override vote enough Republicans would have changed votes to prevent embarrassing their president with an override of his first veto. But, really, would it not have been far more embarrassing for this president to have gone five years without ever seeing a bill he wanted to veto, until he was presented with one to outlaw torture? Well, no. It seems that when it comes to unilateral executive power assertion, this president does not embarrass particularly easily.
But if this statement is indeed Bush’s way of saying he will do what he pleases anyway, is he not essentially asserting a right to veto a provision he disagrees with? Is he not in effect asserting a right to act as arbiter of what his executive authority is, and that Congress therefore can’t constrain him? Remarkable. On this point, see Balkanization, who reports the whole text of Title X, and who also notes that amendments secured by Lindsey Graham to the same bill, “by precluding substantial avenues of judicial review, are far more beneficial to their detention and interrogation policies than the McCain Amendment is detrimental.”
I do not know what the political science or legal literatures have to say about presidential bill signing messages. Do these have any significance in subsequent court proceedings? In any event, Bush’s statement is clear in its intentions. What was that I was saying about an ongoing constitutional crisis?
I must add that I am quite struck by the assertion about supervising “the unitary executive branch.” Two things about this statement:
(1) The more I watch this administration, the more I come around closer to the mainstream view in political science that I once rowed against: that unitary executives (as opposed to responsible cabinets, where the head of the executive is at best a “first among equals”) are dangerous. I never held the pro-presidential view sometimes attributed to me by people who either read Presidents and Assemblies too quickly, or relied on a less-than-careful review. But I was certainly skeptical of the Linzian critique of concentrated executive powers, notwithstanding my having come to political awareness during a time that included the Watergate era (the lesson of which appeared to be, at the time, that checks and balances, in the end, worked).
(2) Treatement of prisoners (I refuse to use the neologism) captured during military or covert operations is hardly about supervising the executive branch. It is about enforcing, or ignoring, statutes, the Constitution, and international treaties.
h/t No Right Turn