Say Anything Blog

This article from the Boston Globe suggests that Justice Alito places more emphasis on the signing statement than does Rob. Fascinating topic to me in an arcane sort of way.

Oops...that would be Justice Scalia although Alito certainly enjoys them as well.

Nothing wrong with this opinion, I am just wondering if a Democrat was doing it, would there be screams and howls about big government?

Mike, I think you misunderstand Scalia’s opinion on the Hamdan ruling.  He is saying that the majority opinion referenced the legislative history of the Detainee Act but not the President’s signing statement of the same.  What point he was making with that I’m not sure (nor is it really germane to the issue at hand), but what is clear is that the President’s signing statement holds no more weight than Congress’ legislative historys.

The Court can consider them or dismiss them as irrelevant.  This is nothing new in judicial practice as our Justices often cite writings outside the written law in their rulings (The Federalist papers, for instance).

The point here is that while the President’s signing statements may be informative to the Justices, those same justices are not bound by what the President has written.  What the President is offering in his signing statement is an opinion, not binding law. 

Thus he is not legislating, which is the accusation being made by Epstein.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

I am just wondering if a Democrat was doing it, would there be screams and howls about big government?

Democrat Presidents have done this in the past.  Believe it or not, signing statements did not originate with the Bush administration.

I can’t speak for all conservatives, but I certainly didn’t object to any of the signing statements issued by Clinton.

My point in all this is that the President isn’t legislating (a privilege specifically denied his office by the Constitution) but is rather simply using his statements to offer opinions on given legislation.

The Courts can consider these statements and either concur with them or disagree with them.  They’re not binding, even if cited by the Courts.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

Call me a purist, but if the President doubts the Constitutionality of provisions of a bill or their impact on government, he has his veto pen and the bully pulpit.  I’d like to see them used more often.

I agree that the President should veto more often (particularly some of these spending bills), but this isn’t as simple as a law being constitutional or unconstitutional.  In my Patriot Act example, the President simply points out that trying to apply the legislation to his office would be unconstitutional.  That does mean the law is unconstitutional as it applies to everyone who is not the POTUS.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

In that case, I’d again suggest a veto, especially as most of those who voted for the Patriot Act didn’t bother to read it.  And yes, this would cause problems in DC, but these are IMO the problems we need to get through.  The Constitution should mean something here.

Robert, I think you’re missing the point.  You should go back and actually read some of the President’s signing statements.  The President isn’t saying he has a problem with any of the legislation he signs (that part of Epstein’s op/ed was very misleading) but is rather pointing out that the given legislation is limited by the Constitutional authority of his own office.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

This is why the president really needs line item veto to purge the legislature of the unwanted riders and probable unconstitutional provisions.

The problem is that the line item veto is unconstitutional as it actually allows the President to legislate from his office by modifying the laws that appear before him.

The line item veto alternative recently suggested by the President (where the President can delay legislation for 10 days in order for his requested changes to be made) isn’t going to be very effective.

If we really want to give the President a constitutional version of the line item veto we should repeal the 1970-Something Budget Act and give the Pres. his ability to impound funds appropriated by Congress.

The Constitution states that Congress can appropriate funds for spending, but it does not state that those funds have to be spent.  If the President feels that some specific spending provided for in a bill (like, say,$200 million or so for a bridge to nowhere in Alaska) he can simply order the Treasury not to fund the appropriation.

This power isn’t specifically allowed for in the Constitution (which is why it can be taken away by Congress with legislation), but it is a perfectly legal loophole that was used by nearly every President from Thomas Jefferson on down to Richard Nixon (who had it taken away from him by what was arguably the most liberal Congress in the history of this nation).

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

An alternative would be for each house of congress to adopt a rule stipulating some sort of relevance between amendments and the underlying subject legislation.

Come to think of it, a combination of both changes would, together, be nearly as effective as the line item veto.

Rob, I still disagree.  If one must write that the “legislation is limited by the constitutional authority of his own office,” you’re simultaneously admitting that the legislation is either unconstitutional, or at least is vague in its implications.

In either case, it’s poorly thought out and written, and should be vetoed for that reason alone--whether the President believes a court will uphold it and/or define it correctly or not.  W is also responsible to uphold the Constitution, and leaving cryptic notes on signed legislation doesn’t qualify in my book.

Robert, I still think you’d benefit by going back and actually reading some of these signing statements, but you are certainly entitled to your opinion.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

Rob, I’ve looked at what he’s done (e.g. McCain-Feingold-Lenin campaign finance deform), and he’s clearly signing bills into law that he knows are not constitutional.

Given that not all of us can afford a lawyer to object, that means that W, far from upholding the Constitution, is limiting its application to those who can afford lawyers for a test case and have sympathetic hearings in court.

I’m generally sympathetic to W, as you well know, but this is really obnoxious.

Point taken on McCain-Feingold, though I still don’t see where that amounts to a criticism of signing statements as per Epstein.  That’s more of a criticism of Bush for signing dumb laws.

I don’t have a problem with President Bush issuing signing statements that voice his opinion as to how laws apply to the powers of his office.  I do have a problem with Bush signing dumb laws.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

Agreed that the bigger problem is that he’s signing dumb bills into law.  That said, I think that from time to time (Mc-Cain-Lenin, Patriot Act, etc..) he’s using his notes as a way to dodge his responsibility to veto those bills.

You could be right, Robert.  But even then it isn’t a threat to the checks and balances of our government but rather just a politician doing some CYA.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

In my Patriot Act example, the President simply points out that trying to apply the legislation to his office would be unconstitutional.

I presume you mean that in the opinion of the President such action would be unconstitutional.

Mike, I believe what the President was referring to in the legislation was the requirement that the various branches of government share information about terror threats.  The President’s point is that the executive branch cannot be compelled to provide information in instances where the Constitution allows the Chief Executive to keep that information confidential.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

There is nothing in the Constitution about “signing statements.”

This is what the relevant constitutional language from Art. I, sec. 7 states:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.