We had this discussion in a GD thread a few months ago, and I don’t remember what the determination was. Maybe one of our legal experts can weigh in. From the wiki article Signing Statements:
Also from that article:
Bush certainly made Presidential Signing Statements a news item, and most of us had never heard of them before. But it’s clear that they have become a standard tactic by presidents of both parties in modern times. I think we’re stuck with them whether we like them or not.
Well, ignoring the BS of this Administration about signing instruments and the monolithic Executive or whatever the hell they called it, in point of fact there is some valid reasoning behind the Bush claim, albeit (as has been common with this Administration) a precedent stretched into a brand new shape.
Yes, it is the privilege and prerogative of the Supreme Court to pronounce with finality on the constitutionality of any law. However, they are far from the only people capable of evaluating that and making judgements regarding it. Every court in the U.S., from the West Tumbleweed Plains Police Court to the top state courts and the U.S. Circuit Courts, may be called on to render that decision.
But further, the other two branches may be called on to do so as well. The late Sen. Sam Ervin of Watergate fame used to make a point of having his committee review bills intended to create new statutes to assure they were within Constitutional bounds based on the law of the land at the time. And the President can , and past Presidents sometimes have, refused to carry out laws they deem to be contrary to the Constitution. This is their right and privilege in carrying out their oath of office.
In fact, it may be not only the right but the responsibility of a citizen to disobey a law he considers unconstitutional. If, for example, I were a restaurateur in the South in the Sixties, with an experienced and skilled black waitress on my staff, and the state legislature made it illegal to employ a black person to serve foods to white people, it would be my obligation to keep her in my employ under the Fourteenth Amendment and the Civil Rights Acts passed pursuant to it, and ignore the unconstitutional state statute.
Further, “signing memoranda” are a legitimate part of the legislative history of a law, just as the contents of a hearing on the law are – used by the court to construe how a law is intended to be applied by the three bodies: Senate House and President, which together enact that law. They don’t constrain the court but are legitimate information to take into account.
This is not saying that Mr. Bush is justified in how he’s dealing with the law, or that his mode of rewriting a law by those memoranda is anything but execrable. But it does furnish some valid light on what he and Gonzales may think they’re doing.
The numbers also show how signing statements have increased, beginning under Reagan, who used them 71 times. The elder Bush produced 146 signing statements. Clinton used 105.
One way to stop signing statements is for Congress to cease all funding of the executive branch. That won’t be happening until at least January, depending on election results.
That would work for me. Either sign a bill, or veto it. No in between. No more signing statements. As it stands now, with signing statements, the “law” of the president can conceivably have no relation to the bill approved by Congress. “I decide what parts to obey and ignore, I am the law” is what a signing statement really means.
It won’t happen in January, either, even if the Dems win both houses (which they won’t). In a war between the president and Congress like that, Congress would lose. You want to shut down the FBI and the Justice Dept? That will go over real big with Americans.
Polycarp: It’s Unitary Exective, but I like Monolithic, too. 
Good post, btw. I don’t think I could disagree with any of it.
I would add an amendment prohibiting the adding of extraneous effects to any bill. That is, if the bill were to deal with prohibiting the killing of English sparrows, nothing that deals with any other subject could be added to that bill. Certainly the bill itself could be amended following debate.
Just to be technical:
Worcester v. Georgia didn’t say that forcing Cherokees from their land was illegal. It said that the state of Georgia didn’t have any jurisdiction over the Cherokee…that only the federal government did.
Jackson didn’t actually say that. Technically what he said was “The decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” which is less of an open defiance of the court, and more just commentary on the effects of the decision.
Don’t worry. The Jedi Knights will save us.
You can laugh all you like, but let’s envision the following: Election Day 2008 is November 4 (I think). Let’s say that a major terrorist event, comparable to 9/11 is either committed or very narrowly foiled in the week prior to Election Day. Would you find it laughable for the government to suspend elections “during this security crisis?”
BTW, I’m not saying that this will happen. (On the other hand, the narrowly foiled bit - maybe…) I’m just saying that it is not just tinfoil hat time here. This is a plausible situation. Not a likelihood, but plausible.
Al Qaida’s wet dream has got to be keeping Bush in power for as long as humanly possible: he’s the best recruiting tool they’ve ever had. If he or his people are sufficiently savvy to figure out that this would probably upset the election cycle significantly, no event would require manufacturing.
Just to add another article, I read this Slate article on signing statements back in January. The article makes the point that, while there is little to no value in signing statements as legal authority, signing statements of the sort that Bush has made do have potential negative effects. Generally, the statements are taken as instructions to the rest of the Executive Branch as to how the signed law is to be enforced. Without legal authority behind him, the chief executive is telling his subordinates what he expects. Essentially, he’s putting them on notice that in the future they may be asked to join with him in violating the law. And that’s a pretty shitty thing to do.
The article states that Bush had made 108 signing statements as of the end of 2004 (Wiki says over 500, citing the Slate article, but the Slate article counts 108 statements which include 500 constitutional challenges, which is splitting hairs, but it’s a distinction). At that pace, he’ll have made over 200 by the end of his presidency, eclipsing his dad’s high score (it is notable that until Reagan took office, only 75 signing statements had been made in the history of the presidency). When you’re basically publicly asking people to take the fall with you when the heat comes, that’s a pretty damn large number.
What bothers me about “presidential nullification” is the apparent lack of legal justification for it. Certainly the concept is not in the Constitution; indeed, given the Constitutional requirement that the president “faithfully execute the laws”, any president who announces through a signing statement that he is is not going to enforce a particular law, and then does not enforce such law, is in violation of his oath and should be impeached, tried, and removed from office.
This seems to be one of those “rights” that have accrued to a branch of government because someone started doing it and its use was never challenged by the other branches (think of the Supreme Court’s power to declare a law unconstitutional: that’s not in the Constitution; they simply claimed that right for themselves and everyone else said okey-dokey).
Would to Og that someone would challenge presidential nullification. Not only is it unconstitutional, it flies in the face of common sense. I wish I could pick and choose which laws I have to obey!! If a president really thinks part or all of a bill is unconstitutional he should veto the damned thing.
Wow.
When Gavin Newsome was defying California law because he said his own interpretation of the state constitution was that it required recognition of same-sex marriage… I don’t remember too many of the names that appear in this thread decrying his actions.
When Bush announces that he will potentially defy laws based on HIS interpretation of the Constitution, that’s an impeachable offense, though.
It it possible – just maybe – that your analysis of the Bush action is being driven by how much you don’t like his particular interpretation of the Constitution?
No, sir, it is not. I regard presidential nullification as obviously wrong, no matter who promulgates it. It is the fox putting himself in charge of the henhouse.
Not likely. Regardless of my personal sympathies for the actors, the differences loom large. I believe there is a substantial ethical difference between chafing at restraints on one’s personal freedom and chafing at restraints on executive power. The former is a consequence of being alive, while the latter is a temporary and heavily circumscribed mandate from the electorate.
Captain Stubbing allowed gay marriage on The Love Boat? I had no idea.
Care to voice your opinion on the President’s violating FISA or another law, or are you just here for a drive by pot shot?
That was Gavin McLeod. Gavin Newsom was (and still is) the mayor of San Francisco who married gay people after California law made it illegal.
Unlike officials in California, where the state constitution requires them to follow the law, even if they believe it unconstitutional, until a court has spoken, the President has an independent duty to construe the Constitution as he sees fit, absent a federal court ruling to the contrary.
I don’t agree with a number of Bush’s interpretations, myself… I am, after all, a textualist, and I believe we reach the right answer by fairly reading the text of the law. When Bush departs from that formula, I believe he’s in error.
You caught me. I do indeed feel better about when a chief executive uses implied powers “to expand citizens’ rights” rather than when they’re used “to leave the door open in case we want to torture someone.”
Yet somehow I don’t feel dirty about that.