Another Reason to Ban Signing Statements

by publius

I agree with everything Hilzoy says about the latest disgusting revelations from OLC. I just want to quickly note that the NYT article illustrates all too clearly just how pernicious Bush's signing statement accompanying the McCain "anti-torture" Amendment was. The NYT says:

At the administration’s request, Mr. Bradbury assessed whether [McCain's] proposed legislation would outlaw any C.I.A. methods, a legal question that had never before been answered by the Justice Department. . . . In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.

That, in turn, explains this signing statement from Bush:

The executive branch shall construe Title X in Division A of the Act [i.e., the McCain Amendment], 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

They all knew exactly what they were doing -- especially Bush, the great Christian idealist.

Comments

[Ugh]

I've been thinking for some time now that there needs to be a few constitutional amendments after the horrors of the Bush II administration, including repealing the president's pardon power, requiring a president to obey the law, restricting the president's use of the armed forces, making clear that congress is the pre-eminent branch of the federal gov't, etc. etc. etc.

[LizardBreath]

requiring a president to obey the law, restricting the president's use of the armed forces,

You know, these two are right there in the constitution already.

[Ugh]

You know, these two are right there in the constitution already.

Yeah, I should have written "further restricting" and gone into more detail on what I meant by the first.

[Jesurgislac]

Strategically speaking (if this were a country with free and fair elections) the best thing for the Republican Party as a party to do would be to force Bush and Cheney to resign, along with anyone else associated with them: swallow Nancy Pelosi as President of the United States until November 2008: and run as a "Look, we cleaned up our act and set our house in order as soon as we reasonably could".

In the US, though, it seems like the best strategy for the Republican party is first of all to pretend nothing's wrong (control the mainstream media in the US, use right-wing blogs to publicise the party line in the informal media, ignore or decry as "not serious" or "traitorous" any critics outside those groups); ensure the DoJ and the US Attorneys are not going to take independent action: and to calmly and quietly rig the election so that, whoever the US public vote for, the Republicans get in again. And repeat.

It seems to have worked for them so far, and I've seen nothing that suggests it won't go on working for them from 2008 onwards.

[washerdreyer]

You know, these two are right there in the constitution already.

I'm certain that according to Scalia's originalist theory as stated in A Matter of Interpretation re-passing the text of either the entire constitution or any individual portion, and doing no more, can drastically change it's meaning. The most obvious example is with what he thinks the 8th Amendment means, but it applies far more widely.

[MobiusKlein]

Amendment:
The United States shall be in a state of War only upon an explicit declaration, where the title of bill shall contain the words. Declaration of War, and the contents shall explicitly list all enemy nations.

This declaration of war shall have a limited duration, not to exceed two years. For the state of war to continue, the Congress must authorize a new declaration of war.

...

[Thomas Nephew]

Impeachment resolutions like Takoma Park, Maryland's (.PDF) list as grounds for impeachment:

*fraudulent case for the Iraq war
*torture
*indefinite detentions
*warrantless surveillance
*signing statements

There could easily be more: criminal negligence re Katrina; AttorneyGate; abuse of the pardon power. Impeachment is the remedy ordained and established by us in the Constitution. It's time we used it.

[Brett Bellmore]

"I'm certain that according to Scalia's originalist theory as stated in A Matter of Interpretation re-passing the text of either the entire constitution or any individual portion, and doing no more, can drastically change it's meaning."

Well, yes: If you're interpreting documents according to what the words meant at the time they were written, (Which is the usual thing to do, 'originalism' isn't some exotic mode of interpretation.) then if you write them from scratch all over again at a later time, you reset the meanings of the words to the new time period.

To reenact the Constitution with it's meaning unaltered you'd have to restate it in current language.

There's no need to ban signing statements, we merely need to establish that they don't mean squat, the law stands as written no matter what notes a President scribbles in the margins.

[Katherine]

Scalia's theory does imply this, but to me this just shows why Scalia's theory is *wrong*. The words "equal" & "protection" or "declare" & "war" or "executive" & "power" haven't changed meaning between then and now--I'm sure the dictionary definitions are quite similar. And yet if you pass all the same words, with all the same definitions, & you get a completely different result? What kind of textualism is that?

Brett is correct that the signing statement is without legal effect--it's the OLC memo "interpreting" the law so the president needn't follow it that's the problem. But the signing statement is basically a signal from the President to the OLC to write that opinion.

[Brett Bellmore]

"The words "equal" & "protection" or "declare" & "war" or "executive" & "power" haven't changed meaning between then and now"

And to the extent that's true, Scalia's version of originalism doesn't imply that you'd get a completely different result. A lot of words haven't changed their meanings appreciably since then, and so much of the Constitution means the same thing no matter what reasonable meanings you're attributing to the words.

Let's face it, a lot of 'living constitutionalism' is as wacked out if you're consulting a modern dictionary, as it would be going by a 200 year old one. Much of the time, the words just don't mean that, and that's the end of it.

Which, come to think of it, could be said of many of Bush's signing statements...

[Katherine]

I've had this argument in the comments here approximately 500x before so I think I'll not subject people to it again, and say: for an explanation of why Scalia is wrong, & original expected application is not the same as original meaning: 1) read Bradwell v. State; 2) read about what people said after the civil war about the 14th amendment requiring the end of miscegenation laws.

[Ugh]

Hmm.. thinking out loud, was it pre-ordained that in order for a punishment to be barred by the 8th amendment, it had to be both a cruel and unusual one? The 8th amendment can be read to bar punishments that are either cruel or unusual, or both.

How does fit in with "original meaning," or "textualism" or "original intent"?

[Brett Bellmore]

Well, thinking out loud, the 8th amendment wasn't intended to change then current practice, it was intended, so I understand, to keep judges from getting inventive.

So if a punishment was "cruel", but in routine use, the 8th amendment wouldn't suddenly bar it.

And if a punishment was novel, but not the least bit cruel, what reason was there to bar it? To stop the horror of novel forms of leniency?

So, yes, it was indeed the intersection of "cruel" and "unusual" that was intended. At least, so I understand it, I could easily be persuaded otherwise by contemporary commentary on the subject.

[Katherine]

I think it makes most sense to read it as meaning something like "cruel and excessive" rather than "cruel and uncommon."

I don't think that if every state at once had implemented a policy of sentencing criminals to torture or drawing & quartering in 1820 (remember, the Bill of Rights didn't apply to the states at that time), the founders would have suddenly considered torture or drawing & quartering not to violate the 8th amendment.

[Katherine]

(You could get out of my hypo by arguing that cruel punishments are banned AND uncommon punishments are banned--so torture would still be banned as cruel even if it's not uncommon. But it doesn't make much sense to me to forbid something just because it's uncommon, if there's nothing cruel or inhumane about it.)

[cleek]

But it doesn't make much sense to me to forbid something just because it's uncommon, if there's nothing cruel or inhumane about it.

and we see a lot of very unusual (and sometimes silly) punishments from judges, for small crimes.

[MobiusKlein]

Doesn't "unusual" in this context mean departing from the usual punishment?
If 99 criminals get 1 year for littering, and the 100th one gets 10 years for the same quantity, does that count as "unusual"?

[someotherdude]

They all knew exactly what they were doing -- especially Bush, the great Christian idealist.

Of course, Christian self-rightiousness made the Inquisition a great success?

[Adam]

Maybe it's intentionally hyperbolic, but your subject line strikes me as nonsensical: What does it mean to "ban" signing statements? Are you saying that the President can be barred from stating his opinion of what a statute's proper interpretation is? How bizarre.

[Adam]

Incidentally, the Jack Goldsmith book so popular among Bush's critics last month noted that he agreed that, even after disagreeing with Yoo's analysis, the previously-approved interrogration techniques remained perfectly legal.

[Eric Martin]

the Jack Goldsmith book so popular among Bush's critics last month

Was it really so popular? And even for those that found elements noteworthy, should that require a holistic endorsement?

[Steve]

What's noteworthy was that even someone as conservative as Jack Goldsmith had profound disagreements with some of the goings-on within the Bush Administration.

One can note that fact without adhering to Goldsmith's conservative views oneself, I'd hope.

[Equal Opportunity Cynic]

The United States shall be in a state of War only upon an explicit declaration, where the title of bill shall contain the words. Declaration of War, and the contents shall explicitly list all enemy nations.

Or in the words of Libertarian candidate George Phillies: "You can't address a declaration of war 'To whom it may concern'."

[tsam]

Ugh wrote, "I've been thinking for some time now that there needs to be a few constitutional amendments after the horrors of the Bush II administration, including repealing the president's pardon power, requiring a president to obey the law, restricting the president's use of the armed forces, making clear that congress is the pre-eminent branch of the federal gov't, etc. etc. etc."

This effectively is passing "a law against crime", redundant on the surface. The balance of power needs Congressional fortitude. Given that 2/3 is unreachable with most Republicans unwilling to put a Democrat in the White House, Russ Feingold's idea to censure the President looks good to me.

[rea]

I don't think that if every state at once had implemented a policy of sentencing criminals to torture or drawing & quartering in 1820 (remember, the Bill of Rights didn't apply to the states at that time), the founders would have suddenly considered torture or drawing & quartering not to violate the 8th amendment.

Drawing & quartering is a crucial example which shows the Founders had in mind an evolving standard: losers in the Jacobite Rebellion, within the lives of many of te Founders, were drawn & quartered, and the punishment was abandoned as too horrible thereafter, although it remained on the books. Note the personal interest of the Founders in the issue of whether drawing & quartering remained a licit punishment for rebellion against the crown . . .

[KCinDC]

Tsam, I don't think Ugh's suggestion of repealing the president's pardon power is "passing 'a law against crime'". The pardon power is a huge loophole, and I'm surprised it hasn't caused bigger problems before. I guess the one thing saving us earlier was that people used to believe in things like honor and shame, but eventually we started getting people in power who had moved beyond those quaint ideas.

[Ugh]

KC - Tsam might have been referring to my "requiring president to obey the law" proposal.

[KCinDC]

Ugh, I realized tsam was referring to that, but it wasn't clear that the response applied only to that point, since the rest of your suggestions were quoted as well.

[crack]

I agree with Brett Bellmore. I'm fine signing statements, they should even be encouraged. They just shouldn't have any weight as far as the meaning of the law. Having a President specify how he intends to implement a law is probably a good thing. But, courts shouldn't give it anymore weight than a legal brief when interpreting the law.

[KCinDC]

Have any courts actually given weight to a signing statement when interpreting a law, or is that just a theoretical argument that Alito and others have made in the past?

[trilobite]

The United States shall be in a state of War only upon an explicit declaration, where the title of bill shall contain the words. Declaration of War, and the contents shall explicitly list all enemy nations.

This declaration of war shall have a limited duration, not to exceed two years. For the state of war to continue, the Congress must authorize a new declaration of war.

Needs a little more:

The President may deploy military forces of the United States outside the territory of the United States only according to the terms of a Declaration of War, by treaty with the internationally-recognzied government of the country in which said forces are deployed, or in immediate response to a casus belli upon the United States or a country with which the United States has a treaty of mutual defense, which casus belli shall not be in response to a casus belli by said country, and which immediate response shall last no longer than 60 days. Congress may allocate funds and the President may use funds for the deployment or supply of military forces of the United States in another country only under the circumstances provided for in this Amendment. A taxpayer of the United States has standing to bring an action based on any violation of this Amendment against any public official in his official and in his personal capacity.

[Nell]

Have any courts actually given weight to a signing statement when interpreting a law, or is that just a theoretical argument that Alito and others have made in the past?

I don't know. But in at least six cases that Charlie Savage was able to document, executive branch agencies relied on Bush's signing statements rather than the law to which it referred.

One or more of those ought to end up in court. The problem with that is that Roberts and Alito will probably still be sitting on the Supreme Court when that happens.

Maybe that saintly Clarence Thomas will be raptured between January 21, 2009 and then.

[Ugh]

But in at least six cases that Charlie Savage was able to document, executive branch agencies relied on Bush's signing statements rather than the law to which it referred.

This is what I was going to guess in response to KCinDC's question - the signing statements would likely be ignored by courts, but executive branch officials can find them extremely useful.

[CharleyCarp]

KC, I've argued a signing statement. I don't remember if the judge cited it in his decision; I won, though.

[Ugh]

KC, I've argued a signing statement. I don't remember if the judge cited it in his decision; I won, though.

ZOMG CharleyCarpz joinzed the VRWC!!!1!1!one!! ;-)

[Gary Farber]

"Maybe that saintly Clarence Thomas will be raptured between January 21, 2009 and then."

Thomas, although baptized, was raised as a Catholic, attended an Episcopalian church (his grandmother was Seventh-day Adventist, and he also attended their church as a child, FWIW) for a while, and returned to the Catholic Church in 1996 (see here). They don't tend to talk about being raptured, to my observance.

[Nell]

I wasn't referring to anything Clarence Thomas believes or talks about.

[Nell]

In case W's dim-bulb dictatorship makes anyone look back at his father with respect, remember the Thomas appointment. A giant finger to the concept of respect for the judiciary and judicial temperament. Very much of a tone-setter for the current administration.