Despotism v. Democracy: Mutually Exclusive?

All,

Although I have known of the existence of signing statements for some time, I have to thank Stephen Colbert, who thanked the Boston Globe, for informing me of their extensive use by this administration. All quotations not otherwise cited (and a good deal of the following stuff) comes from a Globe article, found at http://www.boston.com/news/nation/washington/articles/2006/04/30/bush_challenges_hundreds_of_laws?mode=PF. I highly recommend the article, though it is long.

For those amongst you who love The Daily Show, the following is THE preeminent example of Mr Bush in his role as The Decider!

(For those of you who are not, The Daily Show has started a spoof comment with Mr Bush as a superhero called The Decider. This arose after Bush prematurely returned from his Easter vacation at Camp David to hold a Rose Garden press conference to respond to speculation about Mr Rumsfeld’s removal. Mr Bush said, in a rather excited and tantrum-like voice, “I listen to all the voices, but mine is the final decision… I hear the voices, and I read the front page, and I know the speculation. But I’m the decider, and I decide what is best. And what’s best is for Don Rumsfeld to remain the secretary of defense.” Jon Stewart apparently shared my emotions when he saw this: he was afraid. If that scared us, however, then the following will make you want to go to WalMart and buy lots of guns.)

Most people had never heard of a presidential “signing statement.” This is due in part to their infrequent use historically. Mostly, however, I believe it is due to the assumption of major media companies that the American people are too stupid or uninterested in the arcane intricacies of their government to care read an article about such a thing (thus explaining why the most extensive articles about them are found in the Boston Globe; the paper has published at least 6 articles on the subject in the last 5 months).

However, the idea is extremely simple. The separation of powers entails passing of laws by Congress, interpretation of law/Constitution by courts, and execution of law/Constitution by president. Occasionally they overlap: court decides Congress passed an unconstitutional law, president vetoes a bill, Congress overrides a presidential veto.

Since Mr Bush took office, there has been little overlap of powers; e.g., Mr Bush has not vetoed a single bill sent to him by Congress. (Only Jefferson spent 5 years in office without issuing a veto.) Some might see this as unexceptional; with the exception of a brief anomaly, the Congress and Senate have been controlled by the GOP since Mr Bush took power. It could also be that the president has stealthily and cleverly avoided any showdown which would question or curtail his influence: he has given Congress no opportunity to override him.

One rare way in which this overlap occurs is called a signing statement. The president receives a law passed by Congress. He signs it, usually amid a great deal of pomp and photo ops. Yet when everyone leaves, he has his legal team attach a signing statement to the law. This states that, due to his (et al) interpretation of the Constitution, which is different from that of the Congress, he reserves the right not to execute some part or the entirety of the law.

Just to make sure everybody got that, I’ll repeat it: a signing statement is the president’s recorded dissent against any or all provisions of a law, to the effect that the legislative branch has no power over the executive to require any action from it, or to curtail any action by it. Since the signing statement arises from the president’s (et al) interpretation of the Constitution, it likewise entails the president’s usurpation of the judiciary’s role in the government. In short, a signing statement is the president’s declaration that, with regard to any and all cases involving this particular piece of legislation, the executive answers to no precedent, principle, or power but its own. At this moment, the president becomes an absolute dictator.

One would naturally assume, or at least hope, that such events be extremely uncommon, as they seem to strike at the heart of the Constitution itself. Historically, this is true: according to the Globe article, such statements were uncommon until the second term of Reagan. George H. W. Bush issued 232 in 4 years, Mr Clinton issued 140 in 8 years. Still, prior to the present administration these mostly dealt with “longstanding legal ambiguities and points of conflict.”)

In the last 5 years of office, Mr Bush has written at least 750 signing statements.

To put this in perspective: Mr Bush has enjoyed the rare privilege of being a member of the party that controls the House, the Senate, the Governors, and (ideologically and historically speaking) the Supreme Court for the majority of his time in office. Yet he has still felt the need to exempt himself from the direct or indirect demands of over 750 laws, 1 out of every 10 that came to his desk, written by his own GOP allies.

If all this sounds too alarmist, maybe the legal opinion of a NYU law professor could help:

“David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over ‘'the whole idea that there is a rule of law,’ because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.

‘'Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional,’ Golove said” (Globe article, cited below).

As for some highlights of this litany of legislation oppressive to the president’s Constitutional privilege:

Law passed March 9, 2005: Justice Dept officials must give reports to Congress by certain dates on how the FBI is using the Patriot Act to search homes and secretly seize papers.

Signing Statement: president can order JD to withhold any info from Congress if he decides it could impair national security or executive branch operations.

Dec 30: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

SS: president decides if and when to waive the torture ban.

Dec 30: When requested, scientific information “prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay.”

SS: president decides if and when to withhold any info from Congress if… (see above).

Aug 8 (et al): one of several pieces of legislation which protects government whistleblowers from being fired or otherwise punished if they talk to Congress about possible wrongdoing

SS: president decides if and when employees of federal agencies can talk to Congress.

Aug 5, 2004: The military cannot use info illegally gathered, including such obtained about Americans in direct violation of the Fourth Amendment.

SS: president decides if and when the military can use any piece of intelligence.

Nov 5, 2002: Congress created the Institute of Education Sciences, whose director may conduct and publish research “without the approval of the secretary [of education] or any other office of the department.”

SS: president “has the power to control the actions of all executive branch officials.”

(from http://www.boston.com/news/nation/washington/articles/2006/04/30/examples_of_the_presidents_signing_statements/)

As for the courts, Mr Bush has defied the Supreme Court on at least nine occasions involving their repeated rulings upholding affirmative-action programs (as long as they do not include quotas). Each time he has invoked the Constitution’s guarantee of “equal protection” to all; this allows him to ignore the provisions “that s eek to ensure that minorities are represented among recipients of government jobs, contracts, and grants.”

Even in this brief list, there are examples of laws specifically crafted to curtail the power of the president (Patriot Act, Torture Ban), as well as more standard legislation delineating offices (Dept. of Ed., Pentagon), as well as legislation whose sole purpose was to create a position/office independent of executive oversight (Federal Trade Commission). In each case, Mr Bush’s flatly states that he is outside the bounds of these laws, but no one is exempt from his influence.

The administration’s defenders say that this doesn’t change the laws, and point out those examples wherein the president follows laws while nevertheless objecting to their Constitutional basis. Yet two considerations seem to invalidate this reading. First, since all executive offices are under the direct control of the president, all executive officers are expected to act in accordance with the president’s signing statement, rather than the Congress’ elucidation of their offices. (Cf. the FISA law and court, enacting by Congress in 1978, and the president’s illegal domestic spying.) This fear became manifest just a few days ago. Sen. Russ Feingold (D-WI) grilled FBI director Robert Mueller before the Judiciary Committee recently, asking for assurances that Mueller’s FBI would comply with the Patriot Act and would give regular reports on their compliance. Mueller refused. Although he said he “saw no reason that the bureau couldn’t share that information with Congress,” he nevertheless pointed out that the agency is “bound to obey the administration.” Mr Feingold pressed, asking Mr Mueller how Congress could be know that the FBI wasn’t claiming to follow the law while receiving a “secrete directive from above requiring you to violate laws.” Mr Mueller’s response was worthy of the best (read: worst) diplomat or lawyer: “I can assure you with regard to the FBI that our actions would be taken according to appropriate legal authorities.” Second, in most cases the president cites his favorite get-out-of-jail-free card: national security and intelligence. Every time the president invokes this clause, he precludes any determination as to whether or not he is actually following the law in question: transparency is anathema to information related to national security and intelligence. ''There can't be judicial review if nobody knows about it," said Neil Kinkopf, a Georgia State law professor who was a Justice Department official in the Clinton administration. ''And if they avoid judicial review, they avoid having their constitutional theories rebuked." Or, try Bruce Fein, deputy attorney general for Reagan: the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time. ''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

Irregardless of Congress and the courts, Mr Bush is The Decider!

Postscript: The article (and the specialists it cites) claims that we should not expect anyone to do anything about this practice. The courts are incapable of responding, and the Congress would only make the party look bad should they question or rebuke the president.

Yet again, this seems an embarrassing lack of foresight. By worrying more about the party’s reputation (and thereby their own, particularly in an election year) than executive power and precedent, the Congress is practically begging the Democrats to do the same in the future. People like Sen. John Cornyn (R-TX) would have a heart attack if he spent five minutes imagining a Hillary Clinton administration exercising the same interpretation of the reaches of the executive.

Sen. Arlen Specter (R-PA) again seems the sole sane person in the Senate. According to the Globe, he called the White House’s practice “a very blatant encroachment” on congressional authority: “There is some need for some oversight by Congress to assert its authority here. What’s the point of having a statute if… the president can cherry-pick what he likes and what he doesn’t like? …There may as well soon not be a Congress… And I think that most members don’t understand what’s happening.”

How is it that some kid who can’t get a job save coffee shop attendant, who has had no education regarding American democracy, who moonlights as a student of government, knows more about the law than the people we keep voting-in? Oh, right. Stupid question. Money.

-W.