Friday, May 05, 2006
The Road to Hell is paved with good intentions....and signing statements
Michael Kinsley has some good things to say in today’s Op-Ed, Constitutional Cafeteria. Media Blog on National Review Online is mainly positive in its review of his column and I share its overall concurrence with Mr. Kinsley’s point that the Press is invoking a double-standard.
“Michael Kinsley catches the press in another double standard: Journalists object to Bush's "signing statements" in which he formally declares his constitutional interpretation of a bill as it becomes law; yet they insist on following their interpretation of the First Amendment when it comes to protecting sources, even though the courts have consistently ruled that they are wrong:”
Unfortunately, that’s not the only point Mr. Kinsley is making:
“.."signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law's legislative history -- that is, Congress's side of the story -- in any future dispute. Bush often signs a law and at the same time says that parts of it are unconstitutional. Sneaky!”
Fair enough; many conservatives have blasted the President on this very issue. However, our problem is not in his identifying a law as “unconstitutional” but in his signing of same anyway – most notably (and disturbingly) when he signed McCain-Feingold. Mr. Kinsley implies this has happened more than once although I am unaware of any other instance. The president has intimated he can ignore provisions of laws that would contravene his Presidential authority (particularly as Commander-in-Chief) but that’s not the same as saying (parts of) a law are inherently unconstitutional.
Then this gratuitous slam at President Reagan:
“What was dangerous about the Reagan administration's signing statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos in which no fundamental issue can ever be resolved.”
Of course, this is sheer hyperbole as President Reagan claimed no such thing. What did occur back then was that now-Justice Alito, while working with the Office of Legal Counsel in DOJ, drafted a memo outlining the use of a “…Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law.” Alito 1986 Memo
Presidents have long issued signing statements but normally not as some formalized strategy toward future interpretation of the law. But by the mid-eighties, it was clear that many courts were using the nebulous “legislative intent” standard in interpreting statutes. To do so, they would go back to the legislative history, including some of the pre-passage debate. Realizing this, legislators could gear statements just for such an eventuality. Presidential signing statements, then, were just a counteract measure to get, on record, what a president thought he was signing. In other words, it was simply a protective reaction to the courts use of non-statutory language to interpret a statute.
“Michael Kinsley catches the press in another double standard: Journalists object to Bush's "signing statements" in which he formally declares his constitutional interpretation of a bill as it becomes law; yet they insist on following their interpretation of the First Amendment when it comes to protecting sources, even though the courts have consistently ruled that they are wrong:”
Unfortunately, that’s not the only point Mr. Kinsley is making:
“.."signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law's legislative history -- that is, Congress's side of the story -- in any future dispute. Bush often signs a law and at the same time says that parts of it are unconstitutional. Sneaky!”
Fair enough; many conservatives have blasted the President on this very issue. However, our problem is not in his identifying a law as “unconstitutional” but in his signing of same anyway – most notably (and disturbingly) when he signed McCain-Feingold. Mr. Kinsley implies this has happened more than once although I am unaware of any other instance. The president has intimated he can ignore provisions of laws that would contravene his Presidential authority (particularly as Commander-in-Chief) but that’s not the same as saying (parts of) a law are inherently unconstitutional.
Then this gratuitous slam at President Reagan:
“What was dangerous about the Reagan administration's signing statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos in which no fundamental issue can ever be resolved.”
Of course, this is sheer hyperbole as President Reagan claimed no such thing. What did occur back then was that now-Justice Alito, while working with the Office of Legal Counsel in DOJ, drafted a memo outlining the use of a “…Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law.” Alito 1986 Memo
Presidents have long issued signing statements but normally not as some formalized strategy toward future interpretation of the law. But by the mid-eighties, it was clear that many courts were using the nebulous “legislative intent” standard in interpreting statutes. To do so, they would go back to the legislative history, including some of the pre-passage debate. Realizing this, legislators could gear statements just for such an eventuality. Presidential signing statements, then, were just a counteract measure to get, on record, what a president thought he was signing. In other words, it was simply a protective reaction to the courts use of non-statutory language to interpret a statute.
Tuesday, June 19, 2007
Emails, Signing Statements - the Rule of Law is Dead!!
Crablaw seems pretty upset over the revelation that many in the White House had – and used – email accounts with the RNC. He links to a website that in turn repeats large swaths of a Rep. Waxman (D-CA) release that finds this matter of the utmost seriousness and evidence of massive indifference to the law.
…and maybe it is. But anything out of Henry Waxman’s office deserves more than a little skepticism and a great deal of adjustment for partisan spin. Him criticizing the president is the ultimate political “dog bites man” story.
My reaction to this is much the same as I had upon learning that Al Gore made fundraising calls out of his White House office – I didn’t care. It struck me as ludicrous to expect the Vice President to leave his office just to make a few phone calls.
In this instance, learning that many political appointees split their emailing between official .gov and RNC accounts just doesn’t register any alarm. Am I to believe that had the alternative been true – that all their emailing had gone through their .gov account – that Henry Waxman would not now be expressing grave concerns over their misuse of a government account and possible violations of the Hatch Act? This all stems from the investigation into the legal firing of certain attorneys and, like that, will probably end up as another expensive (for the taxpayers) Democratic dead end.
Anyway, while we’re focusing on grave constitutional threats, we might as well throw some additional meat to the constitutional guard dogs out there:
'Signing Statements' Study Finds Administration Has Ignored Laws
“President Bush has asserted that he is not necessarily bound by the bills he signs into law, and yesterday a congressional study found multiple examples in which the administration has not complied with the requirements of the new statutes.” (an earlier take on what President Bush has actually asserted)
Reading a bit more we learn that “multiple” means “six” – out of the 19 laws studied.
“The instances of noncompliance were not as dramatic as some of the signing statements that have caused the most stir, such as Bush's suggestion that he was not bound by a ban on torture in U.S. military detention facilities. But congressional aides said they were significant.”
Post writer Jonathan Weisman doesn’t name those congressional aides nor does he identify their legal background nor does he identify their political affiliation,…so I’m going to assume they are Democrats whose legal education begins and ends with Linda Greenhouse. One violation involved not rotating an immigration checkpoint near Tucson enough, others involved not turning in certain reports either in a timely matter (late 17 days) or at all.
But this alarms those who are alarmed at signing statements including Bruce Fein who, since earlier criticizing the President on signing statements, has become everybody’s favorite conservative lawyer:
“But the GAO report suggests that the dispute over signing statements is not an academic one, Fein said, adding that Congress could use the report to take collective legal action against the White House.”
…which is an academic response. Look, if Congress feels that certain governmental parties aren’t complying with its laws and mandates, it can demand compliance. (I guarantee you that you could have canvassed both houses of Congress and been hard-pressed to find one member that would have even known about these violations.) After all, with control of the purse strings comes respect.
…and maybe it is. But anything out of Henry Waxman’s office deserves more than a little skepticism and a great deal of adjustment for partisan spin. Him criticizing the president is the ultimate political “dog bites man” story.
My reaction to this is much the same as I had upon learning that Al Gore made fundraising calls out of his White House office – I didn’t care. It struck me as ludicrous to expect the Vice President to leave his office just to make a few phone calls.
In this instance, learning that many political appointees split their emailing between official .gov and RNC accounts just doesn’t register any alarm. Am I to believe that had the alternative been true – that all their emailing had gone through their .gov account – that Henry Waxman would not now be expressing grave concerns over their misuse of a government account and possible violations of the Hatch Act? This all stems from the investigation into the legal firing of certain attorneys and, like that, will probably end up as another expensive (for the taxpayers) Democratic dead end.
Anyway, while we’re focusing on grave constitutional threats, we might as well throw some additional meat to the constitutional guard dogs out there:
'Signing Statements' Study Finds Administration Has Ignored Laws
“President Bush has asserted that he is not necessarily bound by the bills he signs into law, and yesterday a congressional study found multiple examples in which the administration has not complied with the requirements of the new statutes.” (an earlier take on what President Bush has actually asserted)
Reading a bit more we learn that “multiple” means “six” – out of the 19 laws studied.
“The instances of noncompliance were not as dramatic as some of the signing statements that have caused the most stir, such as Bush's suggestion that he was not bound by a ban on torture in U.S. military detention facilities. But congressional aides said they were significant.”
Post writer Jonathan Weisman doesn’t name those congressional aides nor does he identify their legal background nor does he identify their political affiliation,…so I’m going to assume they are Democrats whose legal education begins and ends with Linda Greenhouse. One violation involved not rotating an immigration checkpoint near Tucson enough, others involved not turning in certain reports either in a timely matter (late 17 days) or at all.
But this alarms those who are alarmed at signing statements including Bruce Fein who, since earlier criticizing the President on signing statements, has become everybody’s favorite conservative lawyer:
“But the GAO report suggests that the dispute over signing statements is not an academic one, Fein said, adding that Congress could use the report to take collective legal action against the White House.”
…which is an academic response. Look, if Congress feels that certain governmental parties aren’t complying with its laws and mandates, it can demand compliance. (I guarantee you that you could have canvassed both houses of Congress and been hard-pressed to find one member that would have even known about these violations.) After all, with control of the purse strings comes respect.
Some "Truth to Power"
Following up on my earlier comments on the shocking story that some federal agencies aren’t complying with certain aspects of certain laws, take note how it’s playing among some bloggers.
ThinkProgress, a fairly widely read (and I think it is safe to say) left-of center blog, converts the sample size of 6 of 19 out of 160 provisions that the President had objected into:
Following Bush Signing Statements, Federal Agencies Ignore 30 Percent Of Laws Passed Last Year
Whistle & Fish piggybacks ThinkProgress with this:
“the latest Government Accountability Office report that, by following executive signing statements, federal agencies have ignored a third of laws passed last year, this administration has declared it is above the law.”
Yep – now we’re up to a third of laws passed being ignored by federal agencies.
Yank in London clearly thinks the President is micromanaging the federal agencies as he notes, quite civilly:
“At least you have to give Captain Codpiece credit. First he says he is going to break the law and then he breaks the law.”
And finally, this is all apparently too much for Mike over at Ways to End the World:
“His argument — and I do mean his entire argument, the whole thing, this is all there is — is that he is the president, and clearly the president shouldn’t have to follow laws if he doesn’t want to. But we know that this is wrong, this is not what the constitution says, it isn’t even what common sense says. He has nothing. And he is a criminal. And we are reminded every day. Yet we do nothing.
“If a tree falls in the forest and everybody pretends not to hear it, is American society doomed to exist as an effective monarchy?”
Monarchy!?!...alright, at least he didn’t use ‘fascist’…
ThinkProgress, a fairly widely read (and I think it is safe to say) left-of center blog, converts the sample size of 6 of 19 out of 160 provisions that the President had objected into:
Following Bush Signing Statements, Federal Agencies Ignore 30 Percent Of Laws Passed Last Year
Whistle & Fish piggybacks ThinkProgress with this:
“the latest Government Accountability Office report that, by following executive signing statements, federal agencies have ignored a third of laws passed last year, this administration has declared it is above the law.”
Yep – now we’re up to a third of laws passed being ignored by federal agencies.
Yank in London clearly thinks the President is micromanaging the federal agencies as he notes, quite civilly:
“At least you have to give Captain Codpiece credit. First he says he is going to break the law and then he breaks the law.”
And finally, this is all apparently too much for Mike over at Ways to End the World:
“His argument — and I do mean his entire argument, the whole thing, this is all there is — is that he is the president, and clearly the president shouldn’t have to follow laws if he doesn’t want to. But we know that this is wrong, this is not what the constitution says, it isn’t even what common sense says. He has nothing. And he is a criminal. And we are reminded every day. Yet we do nothing.
“If a tree falls in the forest and everybody pretends not to hear it, is American society doomed to exist as an effective monarchy?”
Monarchy!?!...alright, at least he didn’t use ‘fascist’…
