King George and the Signing Decrees

Signing statements seem to me like obnoxious wishful thinking at best, since they only have influence if government agencies prioritize the president's statement over the requirements of the law passed in Congress. If and when that happens, I'm sure we will see it go to court.

Both houses of Congress are considering bills right now that would prohibit the courts from using signing statements in the interpretation of these laws, so Congress is doing something about it.

What else are they going to do? Again, unless the relevant agencies actually ignore the laws specifically because of the signing statements, the statements don't have anything other than a cosmetic effect.

George "Pandora" Bush

Mccain says we'll be there 100 years. Bush is just helping him get a head start.

A total disgrace. We are building an consitutionally illegal empire that will bankrupt us all, and likely get thousands of out best and bravest killed. And killed for nothing.

Despicable.

The violation of the Constitution is bad, but the subtext is that Bush is trying to establish permanent bases in Iraq and control their oil, proving that a lot of conspiracy "nuts" were correct after all.

Derek, I hate to disagree with you but I don't think that is the subtext here. I don't think there even is a subtext. I think Bush simply wants to make clear that he doesn't think Congress has the right to tell the President specifically how to spend the money it is allocating to agencies in the government controlled by the executive branch (the Pentagon, for example). Someone in the comments before this one mentioned separation of powers, and it's clear that this is exactly what Bush thinks he is defending.

There isn't really enough time left in the Bush Administration for him to take much advantage of these statements. It will the be the next president who will benefit (if you see it that way) from Bush staking out the territory the executive branch can operate in.

As for the Constitution, it certainly isn't unconstitutional for him to make these statements. As I said before, it remains to be seen if a court would agree that Congress overstepped its bounds as Bush thinks it did. Until these statements are brought before a court, their power remains undetermined (although I should add that clearly there is a psychological component to these statements in terms of the impression of Bush that they leave with people. Decidedly negative, if blogs like this are at all typical).

Sorry Mark. If the president thinks a bill is unconstitutional he should veto the bill. This is what every other president has done. If he signs the bill, it is law and he is required to obey that law and enforce that law. There is no line-item veto in the United States. His signing statements are not legally binding. If an unconstitutional bill is passed, the Supreme Court's duty is to strike it down. The Supreme Court is the final word on the meaning of Constitution.

I believe very little of what I read in the newspapers, especially when the quotes are short. And I believe even less what The Boston Globe writes about Bush.

That's a big black mark in my book against my guy Obama.

(On the other hand, I feel sure Sen. Clinton would use 10 times more of them than Dubya ever did ...)

A great irony here is that within the legal profession virtually every opponent of Presidential signing statements takes it for granted that the courts should construe a statute in accordance with its "legislative history."

This makes no sense whatsoever. Enactment of a law requires the approval of both houses of Congress AND the President. "Legislative history" consists of committee reports from one or both houses of Congress that may help the courts determine the intent of the members of the committee who first approved the legislation. Why the intent of a small subgroup of one of the houses of Congress deserves more weight than the intent of the President (reflected in his signing statement) is unclear, to put it mildly.

Courts considering the constitutionality of legislation actually should ignore BOTH presidential signing statements and congressional committee reports. Since the text of the legislation itself is the only thing that has received the approval of both houses of Congress and the President, that's the only thing the courts properly may consider. Of course, that's the textualist position advanced by Justice Scalia, usually dismissed as some kind of "extremist" by the hypocritical lefties who freak out about Presidential signing statements.

Here's the actual statement, David:

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

This signing statement does not in any way conflict with the United States Constitution. It merely suggests that the President's interpretation of the Constitution differs from that of the Congress. Specifically, Congress believes the President's authority as Commander-in-Chief is narrower than the President believes it is.

This issue has been the subject of an ongoing tug-of-war between the two branches for decades, and there has been no consistent partisan or ideological divide. For example, every President since the 1970s has regarded the "War Powers Resolution" as unconstitutional, but congresses controlled by both parties have regarded it as good law. The Supreme Court typically defers to the political branches on these issues, though it occasionally intervenes -- ruling, for instance, that President Truman's use of his Commander-in-Chief authority to impose a pro-labor union settlement of the steel strike during the Korean War was unconstitutional. But generally, the scope of Presidential c-in-c authority is a separation of powers question that has not been definitively resolved and almost certainly never will be.

On this particular matter, the Supreme Court could conceivably weigh in, but only IF Bush actually uses some of the appropriated funds to establish a permanent military base in Iraq AND IF a proper party (with standing) then brings a lawsuit to prevent such use. Highly unlikely to happen.

Again, I don't agree with Bush at all on Iraq. But just because his position is wrong doesn't make it unconstitutional.

If his positin is "wrong" Simon, whatever makes you think the "President" understands the Constitution?

By "wrong" I mean that I strongly disagree with the idea of building military bases in Iraq. But to what extent Congressional restrictions on the use of appropriated funds impinge on a President's Commander-in-Chief authority is not a settled point of constitutional law. Bush's Iraq policy indicates (to me) that he's a dope. But his use of signing statements doesn't trample on the Constitution.

Did Bush have the authority to invade Iraq in the first place, absent a Congressional Declaration of War? Now that, unlike the silly signing statement fracas, is a serious constitutional question.

So the argument here is that the president can respond to any bill " I dont interpret the Constitution that way" (or any part of any bill). What then stops him from ignoring anything he wants to ignore? I guess Congress can then take it to the Supreme Court but this essentially means that on any sort of time sensitive bill the President is essentially a monarch. Well, hyperbole aside he cant create new laws but he can ignore Congress and he can make new policy so hes close to being a king (maybe a duke).

Educate me here since there seems to be some legal expertise present. Suppose Congress passes a bill requiring all bridges pass inspection by the Army corps of engineers to make sure they are "terrorist resistant". The President signs it but says he finds 9/10 of the bill not in agreement with how he interprets the Constitution instead of vetoing it. What happens next?

Steve

Suppose Congress passes a bill requiring all bridges pass inspection by the Army corps of engineers to make sure they are "terrorist resistant". The President signs it but says he finds 9/10 of the bill not in agreement with how he interprets the Constitution instead of vetoing it. What happens next?

A fair question, Steve. But to complete your hypothetical, suppose the Constitution also expressly made the President Supreme Engineer of Bridges. Bridgworks still require appropriations by Congress, which is free to determine whether bridges may be built. But now you have the Constitution reserving to the President decisions over how the bridges are built. Could the Congress attach construction requirements to its bridge appropriations? Yes. Could the President ignore those requirements if he sincerely believed they were unconstitutional? Yes.

The position of either branch can be taken to extremes and will inevitably be characterized as unconstitutional by the other branch. If a President ignores all requirements set forth in appropriations bills, Congress is left with no power except to abolish bridge-building (or the military) altogether, which is obviously impractical. But conversely, if the Congress can attach whatever strings it wants to any appropriations, it can use the power of the purse to subvert the authority expressly given to the President by the Constitution.

The Constitution permits this sort of tension between the enumerated powers of the different branches. It assumes those tensions will be resolved either through political compromise or through the electoral process. There are few clear lines drawn, and it is an area in which the Supreme Court rarely tries to intervene.

This back-and-forth between the Executive and Legislative branches over the scope of appropriations and commander-in-chief authority has been going on since the beginning of the Republic. Those who see some obvious violation of the Constitution in the use of presidential signing statements have been spending too much time with the Nutroots and not enough with the history books and constitutional law treatises.

You think whether or not we fund permanent military bases is a trivial 'how to wage the war' matter?

I didn't say it was either trivial or a "how to wage the war" matter -- I don't even agree with it!

My point is there is an open, legitimate Constitutional question as to what extent Congress may use its appropriation power to determine the kinds of projects the Commander in Chief may pursue with funds appropriated for military action in Iraq.

This debate has been going on for 200 years, and it isn't going away, regardless of which party controls the White House or the Congress. The left wing bloggers and (few) mainstream reporters who see some sort of bright line, unambiguous constitutional violation in the Executive Branch's position do not have a clue what they are talking about.

That's a good link, I seem to recall reading it before. That explains almost perfectly my point. The reason we're limited to funding the army for two years is the same reason that England was (by tradition) limited to one: Having a massive force laying around is dangerous.

As we've actually decided to have such a force almost-permanently, the question is, does this even vaguely apply anymore?

Yes, it does. Just because we're always going to fund an army doesn't mean we're always going to fund wars in specific places. The imperialism is less tempered, but it is still tempered a little.

Meanwhile, people actually defending these signing statements demonstrate the follow of handing so much military power to the president. The president is not our commander in chief, he is the military's CnC. He is not in charge of national defense, it is congress that is in charge of the 'common defense', it is Congress that creates the military, it is Congress that declares war.

However, because Congress has fobbed this duty off on the president, we've got people making 'serious' unconstitutional arguments about how 'Congress can't restrict the military'.

Look, people, Congress could sit in a joint session and pass alterations to the UCMJ directing individual soldiers to dig latrines and peal potatoes and then fetch its slippers. This would be a very stupid way to run a military, but it is completely constitutional. It owns the military, the military exists at its whim, it sets Every. Single. rule the military operates under.

The CnC might be able to direct them otherwise, but that is simply because the president is not subject to normal law...he'd have to be impeached to be removed. And the soldiers that do otherwise are in violation of military law and subject to court martial.

Congress can certainly forbid them from building a damn military base. In fact, it has forbid them from operating military bases before, or do 'base closing' not mean anything to people?

I forgot to add: Congress's mandate starts and stops with the CnC. His mandate starts and stops with the joint chiefs. From there, it's all military. That's why we have the best military academies and officer training schools, because we understand the value of the best professional training of our soldiers.

I'm sorry to keep finding nits, David, but I can't leave your not-quite accurate statements go, as trivial as they might be to the larger discussion.

http://usmilitary.about.com/od/joiningthemilitary/a/oathofenlist.htm
The oath is to defend the Constitution, and to obey the orders of superiors up to and including the president. There is no mention of Congress, nor can one construe any connection to or oath to obey Congress.

http://www.au.af.mil/au/awc/awcgate/ucmj.htm
The Uniform Code of Military Justice was indeed authored by Congress, but like any Congressional bill, it became law upon the signature of the president (Truman, 1950). I shall write the following assuming you already know it, but may need to see it at this point because you are getting close to contradicting it: Congress writes the laws, the Executive enables, implements and enforces laws, and the Supreme Court adjudicates arguments under the law. The metaphor is not Congress over the president, but Congress, Executive and Judiciary standing side-by-side with complex, two-way interdependencies. Congress can impeach a president, but it cannot override a president, not in the sense connoted in your last post.

David, you are conflating the mechanics of legislation with the entities that perform them. I'm sorry if that seems like a brush-off to you, but I can't seem to make that point clear, so I'll just move on. Be well.