Congress Watches Its Power Erode
In these days of instant information, I expected to see some transcripts of today's hearings, but maybe that's pushing the envelope just a bit too much. I suppose we'll have to wait until tomorrow. Early on this morning, I heard Arlen Specter make a point about Bush's use of signing statements that I hadn't thought of and haven't seen made anywhere else. I'd wanted to quote him but will have to paraphrase, instead.
After nearly five years in office, George Bush has never issued a veto. And with a signing statement, he doesn't have to. He can sign a bill, express any reservations he has, and let it be known (implicitly but effectively) what parts of the bill he'll enforce and what parts he won't. Let's take the recent torture amendment as an example. Bush made it clear that, although the law he just signed prohibits torture under any circumstance, he'd continue to allow torture whenever he felt it necessary. Had he simply vetoed the bill, Congress could've taken up the matter and voted to override, proclaiming that their word is law. But this way, the President has conveyed his support of the torture ban while expressing his willingness to set it aside. Congress is not going to pass another bill to say, "Oh no, you won't." And even if they did, Bush could just sign that one, as well, all the while issuing a signing statement to the effect of, "Oh yes, I will." Signing statements effectively castrate Congress and leave them impotent. So what's Congress going to do about it?
UPDATE: The Washington Post has a transcript. Here's Specter's actual quote:
In the memorandum you wrote back on February 5th, 1986, about the president's power to put a signing statement on to influence interpretation of the legislation, you wrote this: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress."
Is that really true when you say the president's views are as important as Congress?
The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute.
And we have the authority from the Supreme Court that the president cannot impound funds, can't pick and choose on an appropriation. We have a line-item veto case, where the president cannot strike a provision even when authorized by Congress.
Alito's answer was just one of many times he essentially said, "What I wrote in the past has nothing whatsoever to do with anything I think today."
posted by Doug @ 10:50 PM
2 comments
2 Comments:
My initial reaction to the whole signing statements thing was that Alito was nuts. But after thinking about it a bit more, it makes sense. Courts routinely look at Congressional intent when attempting to construe ambiguous laws -- what did Congress really mean when they said XYZ? Did they mean possible interpretation A or possible interpretation B? If courts are willing to consider that, then why shouldn't they consider what the President understood XYZ to mean when he signed the bill? If the President thought he was signing a bill that enacted interpretation A, but not interpretation B, shouldn't the Court be aware of that.
Of course, this raises the question of what a court should do when faced with an ambiguous statute and the legislative history points you to interpretation A but the signing statement points you to interpretation B.
Of course, this presupposes an ambiguous statute and a court would have to bend over backwards to find any ambiguity in the McCain Amendment.
Since the executive is the enforcement branch of the government, a piece of legislation, whether it has a signing statement or not, will likely be enforced as the President sees fit. So a signing statement at least publicizes the President’s intent. And I have no real problem with a court taking the President’s point of view into account in ruling on any particular legislation--perhaps as something comparable to a friend of the court brief.
As I understand the current conversation surrounding the signing statement, however, the idea seems to be to trump Congressional intent with a new presidential definition that would be unlikely to be revisited by Congress. To borrow the ever-popular sausage analogy, this would be Congress filling a casing with its sausage recipe only to have the President replace the filling before it goes into the frying pan with whatever adjusted recipe he prefers. There’s only so much Congress can do after the wrong sausage has been fried and eaten.
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