Power Crap

Once again, our reactionary friends over at Power Line have broken the drivel scale with a flaccid indictment of Andrew Sullivan’s critique of Bush’s policy on “singing statements,” which in Sullivan’s words “spell out his own attitude to bills he signs.” President Bush isn’t the first commander in Chief to use signing statements. Sullivan explains a bit of the history.

Previous Presidents have sporadically issued signing statements, but seldom and mainly as boilerplate or spin. Until the 1980s, there had been just over a dozen in two centuries. The President's basic legislative weapon, after all, is the veto power given him by the founders. He can use the power as leverage to affect legislation or kill it. But he cannot legislate himself or interpret the law counter to Congress's intent. Signing statements were therefore relatively rare instances of presidential nuance or push-back. In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105.

While Clinton used signing statements to challenge 105 provisions (no small number), Bush has used them to challenge over 500 in just five years in office. But that’s not the worst part, according to Sullivan.

[M]ore important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive. Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That's how our democracy works, right?

Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.

He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Translation: If the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

Sullivan’s entire piece is worth reading. And there’s a kicker. Who do you think is responsible for ushering in the modern era of signing statements? Just guess.

Enter the right-wing presidential apologists at Power Line. These guys consistently blow my mind with their unabashed bias and half-baked analysis. I wouldn’t even read their blog except that I understand it to be fairly popular among members the right. I figure that if they’re influencing public debate, I should check in to see what they're saying every now and then.

Here's Power Line Paul’s assessment of presidential authority vis-à-vis signing statements.

So the issue is this -- what does the president do when Congress passes a law that he thinks may unconstitutionally infringe on his inherent powers as commander-in-chief? I'm no expert in this area, but it seems to me that the president has four options: (1) veto the law, (2) sign it but don't obey it, (3) sign it and obey it even when that means ceding his inherent authority to protect the country, and (4) sign it but state that he will construe the law in way that's consistent with his constitutional authority.

The second and third options don't seem very good, so that leaves the first and fourth -- a veto or a signing statement. If the law cannot plausibly be construed as constitutional, the president should exercise the veto option. Otherwise, the use of a signing statement seems to make sense.

But what if the legislation is veto proof? In that instance, the president ultimately has only three options, and the case for the signing statement is strong. The president would be acting far less democratically if he refused fully to enforce the law without signaling his intentions. And the president would be violating his oath to uphold the Constitution, to the detriment of the nation's security, if he failed to take measures to protect the country in deference to an act of Congress he thinks is unconstitutional.

So methodical and yet so wrong. By Paul’s logic, Congressional power to override a presidential veto (see Article I, Section VII of the U.S. Constitution) is essentially nullified. In an ideal world of Power Line politics, even a bill that passed unanimously in both houses of Congress could be rejected by the president. Hardly seems democratic does it? And as if stripping Congress of its enumerated power to override the president wasn’t enough, Paul implies that the president can ignore legislation which “he thinks is unconstitutional.” Apparently he wants to give the president the power of judicial review as well, a power which heretofore has rested with the Supreme Court.

My real issue with the Power Line argument about placing all federal power in the hands of the executive is that it is so clearly based on politics rather than principle. The radical right would destroy our system of government to support the will of our current president, but they don’t seem to see that an all powerful executive would be their greatest fear if a liberal president came to office. The whole point of a constitutional system is that it ensures (ok, encourages) fair governance despite changes in the political climate. Preserving the system is more valuable than pandering to the demands of any specific administration, period.

--MM