Creative Destruction

January 4, 2007

Again With The Insanity

Filed under: The World's Oldest Profession — Off Colfax @ 4:30 pm

From the New York Daily News (AKA The Paper That Is Not A Liberal Rag):

President Bush has quietly claimed sweeping new powers to open Americans’ mail without a judge’s warrant, the Daily News has learned. The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a “signing statement” that declared his right to open people’s mail under emergency conditions.

That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it.

Could someone please tell me why signing statements, particularly when used in this way, are still legal?

And no. That’s not a rhetorical question. I really want to know. For under a simplistic reading of Article II, Section 3 of the Constitution, this, and many others just like it over the last several years, would be a violation of the Faithful Execution clause and a moral violation of his oath of office.

5 Comments »

  1. I don’t agree with it, but the legal argument goes like this:

    1. The Constitution trumps statutes passed by Congress.

    2. Sometimes when faced with a clearly unconstitutional statute (say a Jim Crow law for Washington D.C. water fountains that got overlooked and never repealed, but has never actually been litigated), the correct course for the President is to not enforce the unconstitutional law, rather than blinding enforcing it, knowing that when challenged in court that the statute will be declared unconstitutional. This saves litigation fees and is an exercise of prosecutorial discretion.

    3. To avoid the chilling effects of an unconstitional statute on the public, the executive’s view that the statute is unconstitional should sometimes be made public to avoid confusion and screw ups by low level people in an executive order or opinion.

    What makes the Bush signing statements exceptional is that:

    1. He is routinely signing legislation he believes to be unconstitutional, rather than vetoing it. A President who believes a law is unconstitional has a moral obligation not to bring it into effect by signing it. The veto decision is when the executive should exercise its discretion with respect to new laws, not a signing statement expressing concerns that already existed at the time of signing. This is very different from a law signed by a previous President, or passed over a veto based upon constitutional concerns, or in a case where a constitutional flaw is not discovered until after the law is signed.

    2. His unitary executive theory as a limit on Congressional power has been repeatedly disavowed by the courts. If he is going to object to constitutionality it should have a damn respectable clear legal basis in court decisions and existing law, not some half-assed theory that courts have rejected. Once courts and the legislature reject a theory, the executive has a duty to faithfully execute the law at that point. The Youngstown case and many of the war on terrorism cases (some of which cite Youngstown), dramatically narrow a President’s power to act contrary to an act of Congress on separation of powers grounds.

    This statement is particularly worrisome because the expectation of privacy in mail is a product of statute, not merely common law, IIRC. Also, some of the concerns raised (e.g. hazardous materials in mail) can already be resolved with existing statutes (e.g. those authorizing searches with a judge’s warrant upon probable cause, and in extingent cases, without a warrant upon probable cause, or wihtout probable cause under foreign intelligence search laws). Claiming constitutional separation of powers, as opposed to resolving a conflict between two statutes when one actually comes up, without comment, is inappropriate.

    What the administration is really fishing for, and doesn’t have any basis for, is a right to search without probable cause or a warrant domestic mail not involving a foreign spy in hopes of discovering a plot in the contents of the letter. This isn’t legal.

    Also, should the President for some immoral reason sign legislation that has an unconstitional provision, the responsible course is to file a declaratory judgment action in a court to have the court declare it unconstitutional, rather than independently making that determination.

    Comment by ohwilleke — January 4, 2007 @ 5:01 pm | Reply

  2. Could someone please tell me why signing statements, particularly when used in this way, are still legal?

    Because no one in the Congress has the guts to stop the treasonous bastard in chief.

    Comment by Glaivester — January 4, 2007 @ 7:31 pm | Reply

  3. (btw, if I was too subtle, I am talking about impeachment here).

    Comment by Glaivester — January 4, 2007 @ 7:36 pm | Reply

  4. Could someone please tell me why signing statements, particularly when used in this way, are still legal?

    Cuz the 1st Amendment defends freedom of speech. As a general proposition, the government does not bar people from speaking, including writing. And as a general proposition, the President is a person. Thus the Constitution defends the President’s right to say what he wants to about a bill, just as it defends your right to do so.

    The issue is not whether Bush can issue such statements, but the legal significance that judges will give to them. Courts have long considered evidence of “legislative intent” when interpreting an ambiguous law. In some jurisidictions, courts recognize that the Executive, in sigining a bill, acts in a legislative capacity. So a court may well consider the President’s statement, as well as reports from Congressional committees, statements in the Congressional Record, etc., in interpreting a law – but again, only to the extent that the language is ambiguous.

    Moreover, many judges – and especially conservative judges such as the late Justice Rehnquist – express scepticism about the merits of relying on unilateral statements for interpreting legislation, the product of a group effort. And years of Republican rule have loaded the federal courts with fairly conservative judges.

    Consequently I don’t get too worked up over Bush’s signing statements. I get more concerned about his judicial nominees.

    Comment by nobody.really — January 12, 2007 @ 6:11 pm | Reply

  5. Cuz the 1st Amendment defends freedom of speech. As a general proposition, the government does not bar people from speaking, including writing. And as a general proposition, the President is a person. Thus the Constitution defends the President’s right to say what he wants to about a bill, just as it defends your right to do so.

    The President of the United States is a legal person distinct from the individual person bearing that office. The Government may not bar people from speaking, but that does not mean that the Government is free to speak, George Bush’s individual rights notwithstanding.

    Comment by Daran — January 12, 2007 @ 10:43 pm | Reply


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