Signing Statements

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Signing statements have no force of law. Period. End of story.

Most people whining about signing statements are just blowing smoke. This could not be a bigger non-issue.

There's only one marginally valid complaint in Bush's use of signing statements; they say he should veto a bill rather than signing a bill he partially disagrees with. This sounds good, but is impractical, for more than one reason, and further, is not a Constitutional mandate.

The implication (and sometimes explication) is that Bush signing a law requires that he agree to follow it as written. This is flatly false. The President's primary obligation is to the Constitution, and his signing a bill does not shift the weight of his obligations to a law that conflicts with the Constitution. When President John Adams signed the Alien Act into law (for partisan political reasons), he believed it was unconstitutional, and refused to enforce it, because his Constitutional duty was a higher one.

Also, if the President is obligated to follow a law he signs to the letter, is his successor similarly obligated, even if he disagrees with the Constitutional interpretation? Of course not. And if the successor cannot be so obligated, than neither can the signer be, as the Constitution does not so discriminate.

As to practicality, take the torture law that Bush recently signed. It was a good law, but Bush thought -- for very sound legal reasons -- that if applied in every single case, that it would encroach on the President's Constitutional authority. So he says, "OK, I agree with this law, but be it known that I think it may overstep its bounds in some cases, and in those cases, you bet I am going to do what my job requires, and put the Constitution first," as I would think everyone would hope the President would do, since that's, you know, his job.

You may think he should have vetoed the law, but again, the Constitution does not demand this, and vetoing this bill would cost the federal government a lot of time and money to rework it (not to mention, as with Adams and the Alien Act, carry a heavy political cost), and in the meantime we don't have a law the President thinks we need, so why bother, since it is not necessary?

Further, it's not like the President can get an opinion from the Court on his legal analysis. Congress says they have the right to limit the President's authority in a particular matter; the President disagrees; and no one can know what is right unless the matter is adjudicated by the Supreme Court, since the Court cannot be consulted in an advisory capacity. It is, certainly, and without question, not the responsibility of the President to simply follow what the Congress says, if he thinks they are encroaching on his Constitutional authority. No President has ever held that view, and, hopefully, no President ever will, as that would be a complete surrender of the Executive branch to the Legislature.

This is much ado about nothing. Bush is doing his obligation: protecting the Presidency from Congressional encroachment. And in most cases so far, the Court has found Bush's view of the Constitution to be the correct one; in some others, the Court has ruled against him. That's how it works, that's how it's always worked, and that's how it will continue to work.

The only real difference between Bush and past Presidents is that he is more willing to say up front what he is doing, which I find to be a positive development: most Presidents would not say they would be willing to exercise their Presidential prerogative to ignore Congress and torture people if necessary, they would just do it, and defend it later if it came up. Bush is not trying to sneak around, he says up front: I think this is my right, that you can't take away, and I'm letting you know that in advance. That's a good thing.

(Note that I am not defending the President's view on torture; I am skeptical of the legal case his administration has made, and more importantly, I think it's an unwise policy: far better to keep it illegal, and then violate the law if you really think it is necessary, and let the public judge your actions later. This is not about his particular view, but his right as President to have the view, and to exercise it in this manner.)

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

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This page contains a single entry by pudge published on July 24, 2006 9:28 PM.

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