I recently read the article by Philip Cooper from Presidential Studies Quarterly that was mentioned in the Washington Post last week. As I have noted in previous posts, presidential signing statements have been used by the Bush administration to reinterpret legislation passed by Congress. Such statements are also favored by Supreme Court nominee Samuel Alito, who considers the executive’s statement of its understanding of the meaning of a statute as important as the legislative history–a remarkable claim, as I noted previously. In combination with some of Alito’s other views related to the “unitary executive” thesis, support of signing statements constitutes a theory of executive-legislative relations that is postively Latin American.
In light of the looming vote in the Senate on Alito, Cooper’s research on signing statements could not be more timely or important. From the conclusion to the article:
Presidential signing statements … can and have been used as line-item vetoes of legislation presented to the president for signature or veto but without the use of the formal veto or the opportunity for legislative override processes.
It is this unilateral aspect of signing statements that I find so troubling. Their use amounts to an informal amendment to the constitution, absent any controls. A real line-item veto, or various amendatory veto provisions found in some Latin American constitutions and those of several US states, always give the legislature an opportunity to respond and override. These formal provisions often sharply restrict the legislature’s realistic options for response, and it is that increment to executive lawmaking authority that I dislike, on principle (and based on my own research on comparative presidentialism). But at least the provisions found in some constitutions are explicit and provide a mechanism for legislative response. An interpretation of the US constitution that allows for signing statements to function as de facto line-item veotes is troubling precisely because it is stands on ambiguous constitutional logic and because the use of these statements is unregulated by congress.
In the body of the article, Cooper notes that the current administration has used signing statements far more expansively than past administrations, both quantitatively and qualitatively. Signing statements by Bush have been much more numerous, but as Cooper notes, the numbers can be misleading. What it more important is the scope of authority being asserted by the president. On the matter of the nature of Bush’s statements, Cooper notes:
they are not alone assertions of executive authority, but also often dramatic declaratory judgments holding acts of Congress unconstitutional and purporting to interpret not only Article II presidential powers but those of the legislature under Article I. [emphasis mine]
On the argument that this administration is so fond of for justifying the alleged indispensibility of its actions–we are at war:
the administration has not constrained its assertions as the years have passed since 9/11, but has, on the contrary, expanded them both internationally and domestically, even in the face of judicial rulings that make clear that the existence of the war on terror does not justify any action the president considers expedient to advance the conflict and in light of the fact that the Supreme Court has already rejected the line-item veto.
Cooper notes that the statements have been “heavily laced with ideology,” specifically the “untary executive” thesis, and that they have even included assertions that the executive will interpret as advisory provisions of statutes that are clearly intended, from their language, to be mandatory. Examples here include some provisions of the Help America Vote act and requirements for the provision of information to the Comptroller General (the independent agency established by Congress decades ago as a watchdog over the executive–this all makes me wonder if Federalist Society members like Alito think the very existence of the Comptroller General is unconstitutional).
The full citation to this important academic article is:
Philip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements. “Presidential Studies Quarterly, Volume 35, Issue 3, September 2005.
THE NEXT WEEK WILL DECIDE IF DEMOCRACY WILL SURVIVE
Bush is now completely and certifiably out of control. But to remove the last restraint on the creation of a new American dictatorship they must install one more lock down vote on the Supreme Court, in the person of Sam Alito.
Despite Alito’s extreme right wing voting record and lifelong ideological agenda, nobody expects him to show up at his hearing sporting a tail and horns wearing a red suit. Instead he will lie and evade like some Wal-Mart smiley face, just as he did when in his confirmation for the Court of Appeals he promised to recuse himself from cases involving his own investments. Then he fought to do precisely otherwise. He will make absolutely any misrepresentation of his views and his agenda to try to sneak past public accountability yet again, while his record shouts otherwise. And only your voices speaking out now can turn the tide against this judicial coup.
http://www.usalone.com/alito.php
We are planning a two-stage action. First with the action page above we will build a consensus that ANY replacement for Sandra Day O’Connor must be no worse than a true moderate and centrist. Then after the conclusion of the hearings we will speak out AGAIN on specific question of the final vote in the Senate. Please submit every possible action page you can get your hands on, and keep speaking out until we prevail, just as we did on ANWR and the torture prohibition.
But remember that Alito was the author of the tactic of Bush trying to spin acts of Congress with so-called “signing statements” in hopes that some future Supreme Court (including now guess who) would give them weight over the will of the people. And Bush did just that with the anti-torture bill, declaring that he really didn’t consider himself bound at all. Every day from now on must be STOP Alito day, otherwise our democracy is doomed.
http://www.usalone.com/alito.php
Even if you have submitted something else recently, please go to the page above and take a moment to submit it. There are lots of good references in the arguments section below the form if you would like some additional support or ideas for your personal comments, or just cast your vote with one click and go. We have nearly 100,000 participants in our system and we are counting on at least 25,000 of you to speak out now. This battle must be won, there must be a filibuster, or all else will be ultimately lost.
NEW UPDATED DESKTOP ACTION PROGRAM AVAILABLE NOW
To help us get as close as possible to 100% submission yield on this question we have made many improvements on the Desktop Action program since its initial release last week. With this program you can speak out directly from your desktop with just one click! Based on your input we have set the program to always be minimized unless you expressly click on its icon, we have now made the interface draggable, and incorporated all of your other suggestions. Though it worked well for most people from day one, we have corrected all minor issues with contact setup and system reboots, and all these small fixes have been confirmed corrected. Even if you already have the program, please download the latest update (1.05) from the main index page at
http://www.usalone.com
RUN FOR OFFICE YOURSELF OR FIND US SOMEONE WHO IS
We received many inquiries from candidates who want to win, and we are setting everybody up with their easy-to-use forms for creating action forms on your own campaign web site. The most important thing you can do is launch your own STOP Alito initiative to show your constituents how much you are out there fighting for them now, and not just talking about what you WOULD do if elected. Build your track record and prominence identified as someone out there fighting to protect the rights of the people. Contact us at once and we will set you up. There is no charge for any of our services ever.
Please take action NOW, so we can win all victories that are supposed to be ours, and forward this message to everyone else you know.
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REAL NEWS FOR PEOPLE WHO THINK:
http://www.signs-of-the-times.org
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Seed planted by Thomas Jefferson V — 12 January 2006 @ 19:53