Friday, January 13, 2006

Long Live the King

Any society that would give up a little liberty to gain a little security will deserve neither and lose both. - Benjamin Franklin
A while ago I posted a bit on the signing statement that Bush wrote regarding McCains torture amendment, and how he basically exempted himself from having to adhere to the law. Instead of vetoing legislation he doesn't agree with, he just added a little note saying, "oh, and I interpret this bit to mean..." as a way of influencing the application of the law. So far, they haven't had a huge impact in the court, but that is mostly because they haven't yet been challenged.

So, I was wondering just how common this sort of things is -- and was not surprised to find that Bush has used these more often than any other president. In fact, more than any of the other presidents combined. With Alito's urging, Reagan in his second term began to include such interpretive statements in his signing of bills, and issued 71 signing statements. Sr. Bush issuesd 146 in his single term in office, and Clinton 105 in his two terms. Up through the end of Clinton's second term, presidents have issued a total of 322 signing statements.

Bush junior issued 435 signing statements in his first term. He has never vetoed a bill.

Of course, not all of these signing statements include wording that details how he intends to follow (or not follow) the law. Some are just press releases and lots of self-congratulatory hoo-ha. However, (and much more ominously) in at least 110 of them, he has expressed the concept of "unitary executive", which is a much-discredited legal theory holding that the three branches of government hold the ability to interpret the law and that the president must interpret the law as an equal to the court.

Bush uses this to mean that when it comes to the executive branch, law means what the president says it means, not what congress intended it to mean.

All of the statements that I have read so far (they are available online) contain some notation like "the president shall construe" to explain how he and he alone will interpret the law to apply to the president and how some parts of the law will be ignored at his discretion. Some of these "statements" go section by section through the bill to outline how the president intends to avoid following the laws. For example,
"The executive branch shall construe as calling solely for notification the provisions of the Act that purport to require congressional committee approval for the execution of a law. "
Am I missing something? Our system is designed with that famous idea of 'checks and balances', so that the legislative branch makes the laws, the executive enforced them, ad the judiciary interprets them. We certainly did not approve any theory that basically says, "the president is king". Bush certainly seems to think he is.

Signing statements invoking "unitary executive" are really just a cash-under-the-table line-item veto -- not wanting to veto anything and risk being overridden, the president just issues a statement saying, "well, ok, but it doesn't really apply to me in that way." By invoking the nebulous war on 'terra' he is seeking to justify a statement saying that he doesn't have to obey the law. Just because. Whatever he does is legal, simply because he does it.

To sign a bill into law that you knowingly plan to violate is unethical and dishonest. The constitution quite clearly says that the president and executive branch must follow the law. Being the commander-in-chief of the military forces does not absolve you of that responsibility, regardless of situation. If we cannot count on the president to follow the law, where does that leave us? Anyone who argues that we need to allow the president to "do whatever he feels he needs to 'protect' us" deserve nothing but contempt.

So is Bush alone in this overt power-grab? Well, yes. We've already noted that he has used signing statements more often than any other president, and in them he has invoked this concept of "unitary executive" over 110 times. Reagan used it once, Bush Sr used it six times, and Clinton never used it.

Is anyone concerned? Congress was concerned enough in 2003 to pass legislation to rein in the use of signing statements by requiring notification of congress when the president decided to ignore legislation.

Bush signed the bill including the provision, but issued a signing statement asserting his right to ignore the notification requirement.

Figures. A few other sources:
Rethinking Presidential Power
Findlaw: Unitary Executive

Comparative View
Mercury News:
DailyKOS Unitary Executive

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