No Laws for You

You've got to be impressed by the audacity of George W. Bush's claims of executive power. In the latest adventure in signing statements, the congress appropriated some money for defense with the proviso that none of the money be used to finance the construction of permanent military bases in Iraq. Bush signed the appropriation into law but with the proviso that he won't abide by the restrictions. After all obeying the law he just signed "could inhibit the president's ability to carry out his constitutional obligations to take care that the laws be faithfully executed."

And, of course, it's true. If we live in the sort of utterly lawless society that Bush appears to be envisioning, it's very easy to take care that the nonexistent laws be faithfully executed. In a country with the rule of law, by contrast, the president has a lot of hard work that might distract from having people tortured.

Comments

Presidential signing statements are not the invention of George W. Bush. Were you banging the table about it before he was President?

Posted by Bill | January 31, 2008 7:13 AM

Before he was president they weren't used on this scale, or -- as in this case -- to outright negate a law without the formality of a veto. This is as outrageous and unconstitutional as it gets.

That said, it's important that we separate our objections to signing statements from our hatred of this awful lame duck President. In the debates, someone should really press all the presidential candidates to clarify their stance on the use of signing statements. This is one of the most substantive areas where they can contribute to rebuilding the Constitution.

Posted by Ted | January 31, 2008 7:26 AM

If Congress wants their legislation enforced the should take Bush and his signing statements to the Supreme Court. The problem with that is that the Supreme Court is hands off on things related to foreign affairs and war. Maybe this is a good time to get the Supreme Court to revisit that doctrine?

Posted by Daniel | January 31, 2008 7:45 AM

Many presidents are fondly remembered by at least those of their party, if not a sizable number in the opposition. Gerald Ford and Jimmy Carter come to mind, despite some of the more vocal detractors of the latter. When Bush finally shuffles off this mortal coil how many will weep? Better still, if he met some unfortunate accident or fell victim to a nefarious plot this very afternoon wouldn't many have to restrain themselves from literally dancing in the streets with joyous rapture? I'd have to take the day off work tomorrow just to savor the moment uninterrupted. Of course there'd be the immediate realization a similar fate must befall Cheney or we're all truly fucked.

Posted by steve duncan | January 31, 2008 8:13 AM

Daniel, Given the current roster of justices I would not want the Supreme Court anywhere near this issue.

Posted by BlindJoeDeath | January 31, 2008 8:33 AM

I'm just surprised Bush hasn't tried de-facto line item veto in one of these signing statements. Why not?

Posted by Jake | January 31, 2008 8:47 AM

Whoa. Why not just go straight for 'War is Peace', 'Freedom is Slavery', etc.?

Posted by MattF | January 31, 2008 8:53 AM

If you think people in the GOP hate Bush now, wait till Hillary starts to exercise the prerogatives of the unitary presidency. That may be the only way the collection of legal degenerates constituting the majority on this Supreme Court would strike down some of the powers Bush has put forward.

Posted by Peter Driscoll | January 31, 2008 9:45 AM

I don't understand how putting a signing statement on a bill accomplishes anything. The law is still the law. All he is saying is that he is going to break the law. His statement doesn't change the original law.

Am I missing something here?

Posted by rob | January 31, 2008 9:49 AM

Well, this just shows that MY hasn't yet gone to law school. (Don't worry, he will.)

MY says that "congress appropriated some money for defense with the proviso that none of the money be used to finance the construction of permanent military bases in Iraq." The Globe article (linked by MY) says that the law forbids spending taxpayer money "to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq." These aren't equivalent. The first is nearly meaningless, since "permanent" is being used as a pejorative, not a descriptive, term. The second, while still nearly meaningless, might on some interpretaion (which is the standard the Bush administration uses when deciding to issue these statements) intrude on executive authority. For example, the "to establish" language is obviously far broader than the "construct" language that MY uses. The language is so broad that if the Bush administration wanted to have discussions with the Iraqi government about "permanent stationing" of US forces in Iraq, the statute would be violated. That intrudes into the executive's constitutional authority (including the power granted to negotiate treaties), so the executive won't construe the language to prohibit it. Bush didn't say he wouldn't abide by the restrictions; he said he'd construe the statutes to be consistent with the constitution. What's controversial about this? Nothing, really.

Posted by Thomas | January 31, 2008 10:19 AM

rob, If you just read the constitution, you would think so. After all, a president can do 3 things with a bill: Sign it, not sign it or veto it. What he can't do is modify it. If he does the first it becomes law immediately. If he does the third, it cannot become law except with an override by 2/3 of both chambers. If he does the second, the bill becomes law unless the congress goes out of session prior to the bill becoming law by the passage of time. Pretty straight forward.

John Yoo, Dick Cheney, and others (including the Thomas commenting above apparently) have put forward the idea that because the president doesn't have to execute laws passed in derogation of the unitary executive, the executive can announce what he believes the law to be (thereby amending it as a legislature might) without fear of contradiction. In my view this violates notions of separation of powers, 230 years of executive behavior, traditional rules of statutory interpretation, court rulings and the plain reading of the text, concepts about which there is little serious disagreement among lawyers, scholars, and judges who think about such things. It is clearly outside the original intent of the framers, if, like Scalia and Thomas, that is your particular delusion. The preznint thinks its a great idea.

I don't think anyone really thought that a court might say that the law is just what the president says it, nothing more and nothing less. But thats what the present executive thinks. I can't wait to see what the next one says. This is what delusional thinking abetted by sophists, opus dei wannabees, draft dodgers, porn film devotees and ayn rand followers will give you after sitting in a circle telling each other what swinging dicks they are will get you.

Posted by Peter Driscoll | January 31, 2008 10:45 AM

Peter, do you even know what the phrase "unitary executive" refers to? Start by learning a little bit about what you're commenting on.

Posted by Thomas | January 31, 2008 11:27 AM

As noted, Presidents prior to GWBush have used the powers of the office beyond the wording of the constitution. FDR's 'Lend-Lease' to Britain in the dark days of the Battle of the Atlantic are a frequently cited example.

The most egregious 'monarchical' behavior was probably Andy Jackson's expulsion of native Americans from the southeast (the 'Trail of Tears'). The Supreme Court had found it illegal. "John Marshall has made his decision," he famously said. "Let him enforce it."

Other presidents might have built the same bases in Iraq that the congress wished to stop but simply pretended that they were 'temporary'--wink-wink, nudge-nudge.

What is new about this administration is the utter contempt they have for congress. The cabinet and administration personalities who've simply not appeared for congressional hearings and the refusal to produce paperwork and reports, this seems new. And frightening.

What if Nixon had taken Andy Jackson's tack during Watergate?

The current administration seems to think that would've been just what he should have done.

They are all would-be emperors, 'Little Ceasars'. And their Rome is our country.

How ironic that their 'conservative' movement wants judges who are 'originalists'. What would the real originals--the Founders--think of this signing statement business. Jefferson said, 'the tree of liberty must be watered with the blood of patriots in every generation.'

Posted by JohnMcC | January 31, 2008 11:50 AM

Thomas, or since we are on a first name basis, Clarence, I have a pretty good idea of what Woo, Bork and Addington think it means but I would love to have your description of it for my scrapbook.

Posted by Peter Driscoll | January 31, 2008 4:00 PM

Who is "Woo"?

Rather than debate, I'll educate. Here's a nice bit from Cass Sunstein on the topic:

Not long ago, a wild-eyed man came up to me in a large city, pushing a piece of paper into my hand and saying, in an alarmingly loud voice, "DO YOU KNOW WHERE THE IDEA OF THE UNITARY EXECUTIVE COMES FROM?" I couldn't help but laugh, because I do know (more or less), and the answer isn't quite what he said (which was Hitler, or it might have been Stalin). Because the idea of the unitary executive is so much in the news, and because it is creating a lot of confusion, it might be useful to set out some of the basics here.

Those who believe in a unitary executive need not think that the president can defy the will of Congress, or torture people, or make war on his own. The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law. Thus, for example, those who believe in a unitary executive tend to be drawn to the following sorts of positions:

1) as a matter of constitutional law, the president can fire all U.S. Attorneys at will;
2) as a matter of constitutional law, the president can fire the heads of executive agencies at will;
3) as a matter of constitutional law, the president has considerable control over policymaking by executive agencies (e.g., the EPA, the Department of Commerce, the Department of Labor), at least insofar as those agencies are acting within the limits set by Congress;
4) as a matter of constitutional law, the so-called independent regulatory commissions, such as the National Labor Relations Board and the Federal Trade Commission, are troublesome insofar as their heads are not at-will employees of the president;
5) any "independent counsel" statute is constitutionally troublesome insofar as the independent counsel is not an at-will employee of the president;
6) executive privilege can probably be extended, by the president, to all those who exercise discretion and are involved in law implementation within the executive branch.

In American constitutional law, the idea of a unitary executive is nothing new. It goes all the way back to the founding. The Constitution does not create a "plural" executive; Article II, section 1 vests executive power in one person, the president of the United States. The decision to create a unitary rather than plural executive was debated and decided. So in a way, everyone agrees that ours is a unitary executive. (Franklin Delano Roosevelt insisted on that point, and was especially dismayed when the Supreme Court ruled otherwise in its decision holding that the heads of the FTC are not the president's at-will employees.)

But there are real disputes, historical and otherwise, about what unitariness specifically involves. The general disagreement is between those who believe that ours is a "strongly unitary" executive, in the sense signalled by the six propositions listed above, and those who believe that the executive is only "weakly unitary," in the sense that Congress retains power (for example) to create independent agencies and independent prosecutors.

Gerhard Casper, for example, has vigorously argued that the Constitution gives Congress broad authority to structure the executive branch, by insulating law implementation from complete presidential control. Others, including Steve Calabresi, have vigorously disagreed, contending that the document and its history clearly forbid Congress from intruding on the president's authority to run the executive branch. (I am simplifying some complexities in their positions here.)

There are two dimensions to the debate over the nature of the unitary executive. The first is historical. What was the original understanding? The second is about interpretation across a span of many years. When the national government is so much larger than it originally was, is the claim for a strongly unitary executive more powerful, or less so, supposing that we seek to maintain fidelity to the document's original goals? Abner Greene has argued that the growth of the national government has made the argument for a strongly unitary executive branch less powerful; Larry Lessig and I have argued that the argument has become more powerful.

Under President Reagan, the executive branch argued, with real vigor, on behalf of a strongly unitary executive. The Supreme Court has resisted those arguments. But many issues are open, and in approaching the open questions recent presidents have tended to continue to argue that the executive is strongly unitary.

The most important point is that the claim for the unitary executive is not a general claim about the President's power to act on his own or to contradict the will of Congress. You can believe in a strongly unitary executive branch while also believing that the President cannot make war, or torture people, or engage in foreign surveillance without congressional authorization. You can also believe that the president can do a lot on his own, or a lot in violation of Congress' will, while also accepting the view that Congress can create independent agencies and independent prosecutors. In short, the debate over the unitary executive is an important but narrow one, and it is a small, distinct subpart of the general debate over presidential power.
___________

As you can see, the concept has nothing to do with what MY is posting about.

Posted by Thomas | January 31, 2008 4:04 PM

Bush: Iraq pullout would make US look weak, embolden Iran
article
http://rawstory.com/news/afp/Bush_Don_t_show_Iran_US_is_paper_ti_01312008.html

comments
http://www.haloscan.com/comments/rawstory/36229_afpfeeda/

Posted by FreedomOfInformationAct | January 31, 2008 9:28 PM

And yet, the 'unitary executive' model seems to live with the 'fourthbranch' approach to the OVP -- aka Schroedinger's Dick, whereby examining the activities of the Vice President under the auspices of one branch leads him to claim he's acting under another branch.

Curious.

Posted by pseudonymous in nc | February 1, 2008 1:10 AM

The more important aspects of the signing statement is that Bush will ignore:

"CQ reports on the provisions Bush plans to disregard:

One such provision sets up a commission to probe contracting fraud in Iraq and Afghanistan. Another expands protections for whistleblowers who work for government contractors. A third requires that U.S. intelligence agencies promptly respond to congressional requests for documents. And a fourth bars funding for permanent bases in Iraq and for any action that exercises U.S. control over Iraq’s oil money."

Note that latter - to Bush, THAT was the important thing, not the bases. The bases he just needs to keep troops there so he can keep control of the oil.

The rest of the stuff he intends to ignore is to keep himself and his cronies out of jail.

Not to mention that nothing Thomas was babbling about has anything to do with this "unitary executive" crap and everything to do with Bush basically providing immunity from criminal prosecution to a bunch of his cronies and himself while trying to steal Iraq blind by refusing to execute portions of the laws passed by Congress.

The reality is that whatever the historical notion of "unitary executive" actually means, Bush means it as a "get out of jail free" card.

Posted by Richard Steven Hack | February 1, 2008 1:27 AM

Well, that's just a confused excuse for using inaccurate terms to describe things, and, in your case, for failing to understand anything at all.

Posted by Thomas | February 1, 2008 9:36 AM