The Biggest Legal Story You've Probably Missed

One of the most under-reported and misunderstood legal stories of our time is the story of the White House's use of "signing statements" to try to undercut the effect of the legislation the President is triggering into law (but which he doesn't necessarily agree with). The strategy and tactic is particularly disturbing because it comes from an Administration that has made expanded executive-branch power (and concomittantly blatant disrespect for the other two branches of government) a cornerstone of its philosophy of governance.

Today, the Senate Judiciary Committee will take a quick and hopefully tough look at the practice of "signing statements" which have been used by presidents for hundreds of years but never with quite the level of determination and frequency achieved by the current folks at the White House. "It's a challenge to the plain language of the Constitution," Committee Chairman Arlen Specter (R-Pa.) told the Associated Press. "I'm interested to hear from the administration just what research they've done to lead them to the conclusion that they can cherry-pick." I am sure the assembled scholars today won't tell Committee members a lot more than they already know. But not enough regular folks know enough about the signing statements to be justifiably outraged by them.

What occurs is that White House lawyers craft a dense, technical statement, a legal brief, really, that is figuratively attached to the President's signature when he signs legislation into law. The statement then goes into the federal record as the executive branch's official legal position on the legislation in question. The idea is to later use the statement to the advantage of the executive branch as "proof" of the legal "history" of the legislation. Perhaps the most famous recent example of signing statement shenanigans occurred earlier this year, when President Bush attached to anti-torture legislation a statement that some scholars believe arguably nullified the impact of the legislation (and left open torture as an option).

So even as the President is signing the legislation into law he is manipulating the effect of the legislation in a way that Congress neither intended nor voted for. How's that for respect for co-equal branch of government? ltimately, the federal courts have the last word on the legal impact of legislation. But the recent, pervasive use of signing statements as offensive political strategy is another dangerous example of a trend that seeks to increase the power of one branch at the expense of the other two. This is a big deal. And a big story. And you should pay attention to it. I will follow up later today or tomorrow with a recap of the hearing.

By Andrew Cohen |  June 27, 2006; 11:00 AM ET
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The Constitution does not specifically reference "judicial review" under Article III or elsewhere. But let's assume that "judicial review" is an appropriate function of SCOTUS. Should that make "judicial review" the equivalent of "judicial supremacy" over the Executive and Legislative branches?

Posted by: Shag from Brookline | June 27, 2006 01:24 PM

Next time, try running spell check.

Posted by: Frank Stephenson | June 27, 2006 05:07 PM

Since when do checks and balances mean supremacy?

First, Bush and Cheney say there is no need to look into these surveillance programs, hence no check. Government by the executive solely, at least here.

The supremacy is: then they say, no checks, now we'll be supreme, and if Congress passes a law, we can override it. There is not nor ever has been a doctrine of executive review. Ever.

Posted by: RL | June 27, 2006 06:38 PM

Well, all this reminds me of the old play "It Can't Happen Here"...Someone like Hitler or Mussolini take over here.

Not to say Bush or Cheney are like that, but they are certainly assuming they can do what they want, yes, outside the law, and doing it, and canceling the laws too.

Unfortunately, all this does go to show, that no matter how much the founding fathers tried to build into our system checks and balances, it does not work properly if the other branches don't vigorously defend and check the others.

And the Congress and courts, as Republican appointees, are rolling over and playing dead in the interest of politics. They fear any real investigation or oversight, because it would enlighten the public, which would really cause Republican election losses.

So, the system is being ruined, the Constitution wrecked.

It will come back on them, like all the revelations and results of the past five years' incompetency and paranoia, irrational decisions and hellbent-despite-the-facts decision-making did, on Bush and Cheney. Time will do it. Only thing is we have to wait.

Posted by: RL | June 27, 2006 06:48 PM

RE: Shag

Shag, "judicial review" IS an appropriate function of SCOTUS. The courts always decide which party is correct when two parties disagree about how a law should be enacted or read. This is the basis of our legal system. Plaintiffs and Defendants present their legal views, and the judge decides which is correct.

"judicial review" IS NOT the equivalent of "judicial supremacy" over the Executive and Legislative branches because if the legislative branch doesn't agree with SCOTUS, they are perfectly free to amend the law through legislative process. There is no supremacy at all. It is simply another check-and-balance. Your reactions are knee-jerk.

Posted by: Pablo | June 27, 2006 07:16 PM

If this President were as guilty of all the dastardly deeds he is accused off, the Dems and Moderate Republicans would have already started impeachment proceedings. The facts are obvious. The haters of Bush are throwing everything they can at the wall, knowing the national media will report it as fact, and just hoping something might stick.

Posted by: TM | June 27, 2006 07:18 PM

The illegal war of aggression on Iraq vilified the Nuremberg Principles, which violated our constitution. The torture jail at Guantanamo violated the Geneva conventions, which also violated our constitution.

Our constitution is, unless the House of Representatives start impeachment proceedings, null and void.

Posted by: Susan | June 27, 2006 07:19 PM

All the arguments cited thus far have been theoretical. Is there an actual example of a 'signing statement' by a President that made a real difference in how legislation was enforced?

Mr. Cohen claims that such statements have been used by U.S. Presidents for 'hundreds of years'. I imagine that, if the practice was as open to flagrant abuse as he suggests, there would be numerous examples of it by now. I'd very much like to see them.

respectfully,
Daniel in Brookline
www.daniel-in-brookline.com

Posted by: Daniel in Brookline | June 27, 2006 07:20 PM

The Democratic Party of 11 states have passed impeachment resolutions. Four of those states have asked their state legislators to file impeachment papers under Jefferson's Rules of the US House of Representative. The did this because they don't see the US House of Representatives acting, and the people at those conventions, felt they needed to act.

California, Vermont and Illinois have legislation pending on the state level. North Carolina passed a resolution asking the state representatives to start impeachment just last Saturday.

Posted by: Susan | June 27, 2006 07:22 PM

Tis a bit off subject...
And yet I hope topical...

While we plain-folk discuss the merits of a three branch system and their historically defined roles. We watch what most of us believe are illegal actions by the executive branch. We can discuss this all we want, "is it legal?" I dont give a bull puck. If it isn't illegal it should be. So NOW is the time to stop discussing previous actions and write the law that says clearly unambigously that tapping my phone without a warrent is in fact illegal...

I dont want my senator wasting time trying to decide if tapping my phone yesterday was illegal or not, Today I want him/her to declare that it is indeed illegal tomorrow.

Granted the Executive branch would need to approve the bill into law. But if the executive branch failed to follow on the will of the people, that would be the dominating story not: was it legal yesterday.

I fell strongly that each of the executive abuses that have undergone scrutiny recently fall into the same categorey. Lets forego the discussion until later : "was it legal" and just make it clear that the american public is not willing to give up personal liberty for a moments safety, under any administration. Make each of these infractions illegal tomorrow... and investigate the history of it later.

I apologize if I seem of subject. But clearly if the executive branch has circumvented its own role in the process of REPRESENTING the people, the remaining two branches were designed to step up and take action. I am not suggesting punitive restrictions, I am not suggesting a revolution. I am suggesting that the will of the people be heard, and I believe that to be "a review of the executive's powers"...

I clearly dont support the ability of my government to eavesdrop on me, or my neighbor. I clearly as the above article might suggest, support torture in the guise of an anti-torture law. The executive branch has for sometime now represented only a minor minor slice of the american people. Argueing about it wont change anything... The only possible way to correct the problem ( in our democracy's given set of rules ) is to legislate. So stop argueeing about the concept of "legal" and just make it illegal.

If the president can't/wont sign it, clearly we have more at stake than a historical discussion.

Posted by: Dejunai | June 27, 2006 07:30 PM

Again let me state that if there were a single thread of evidence to support the claims against this President, there are enough Patriots in the Republican party, including myself, to join with the Dems to get this done. No evidence is there and the leaders in the Democratic party know it. The only thing there, is they can keep saying this stuff, and enough people like some of you will take it as fact and not listen when the true facts are presented

Posted by: TM | June 27, 2006 07:33 PM

I agree with what I think RL is saying: gaming the rules of legislation is very advantageous to the Republicans; gaming the Constitution has untold consequences that affect each one of us. It's a very slippery slope. Bush has learned lots from his close buddy, Vladimir Putin, who has made an art of facism in a "domocratic" government. (Yeah, present-day Russia is a constitutional/presidential republic.)

Posted by: DC9926 | June 27, 2006 07:34 PM

"Signing statement" is to legislation as "line item veto" is to budgets.

The later has (thus far) not withstood judicial review.

Posted by: Stan Garrow | June 27, 2006 07:34 PM

TM, do you work for FOX? Is that why reality is hard for you to accept?

Posted by: DC9926 | June 27, 2006 07:37 PM

No sir DC9926, I am just a hard working middle class American who sees the current political climate in Washington as more distructive to our country than the terrorists. Any attempt to over throw this Presidency is just playing into the hands of our enemies. I get my news from NBC.

Posted by: TM | June 27, 2006 07:49 PM

liberalism is a mental disorder

Posted by: shag yoselfh | June 27, 2006 08:04 PM

Well, I'll agree with you there (the current climate is destructive to the country).

Hey Shag, our country was founded by Liberals. They wore tights and wigs! Some grew hemp! EEEEEEEEEK!

Posted by: | June 27, 2006 08:09 PM

The subject of Bush's signing statements, which he has (if I remember correctly) created more of than all of the other presidents combined, is something that I read recently is being reviewed by the American Bar Association. A nonpartisan committee is reviewing the legality, import and intent of the Signing Statements in relation to American law and the Constitution.

Their concern tells me that the Senate and the rest of us have a right to be extremely wary of these statements, which are really primarily political maneuverings.

The neoconservative wing of the Republican party is out to change the way America is run from the inside out - and I don't think most of the Americans who voted for Bush last time had a clue about the real agenda.

TM: I'm sorry to say there are a lot of un-American and semi-fascist games being played by the party for whom you probably voted. Why have the repercussions of his actions not hit the fan yet? The Republican spin machine behind Karl Rove is all-powerful and very smart. They tell you what you want to hear, pound on the other guy and insinuate or clearly out-right lyingly say that anything wrong is all his fault - they dissimulate beautifully. On the other hand, the Democrats have not spoken loudly or clearly and have had no clear vison for the country, so the opposition is not having much impact on restraining or exposing Bush & Co.

History will judge George W. Bush, Cheney, and their like, but the problem is that in the meanwhile, prisoners are being tortured in Guantanamo and eastern Europe, soldiers and innumerable civilians are dying in Iraq in a trumped up war, and our environmental laws are being eviscerated. Yes, George will get his dues, but the rest of us are the ones who will pay the most.

Our country is going through a tragic period in its history. Bush's signing statements are only the tip of the tail of the elephant to emerge.

Posted by: KMK | June 27, 2006 08:10 PM

As the press did nothing to challenge Bush's illogical decision to try a Constitutional Amendment banning gay marriage, how can you expect any substantial challenge to this latest ignominy? Where is the outrage? Of course on the gay marriage issue, the MSM failed to point out that Amendments are used to protect personal freedoms not to restrict them. We are slouching toward Bedlam.

Posted by: RAVE BYRON | June 27, 2006 08:19 PM

Are you familiar with the concept "fuhrer prinzip"? That is the legal theory behind the "unitary executive" concept of Alito and his fellow Federalist Society members. It comes directly from Hitler's jurist Karl Schmitt, who left Nazi Germany after the war and became a "respected" legal theorist, whose ideas have been adopted by the Federalist Society.
The "signing statements" are an example of the Schmitt "unitary executive" theory.

Posted by: harleysch | June 27, 2006 08:27 PM

Maybe this is a silly question, but do these signing statements have any binding effect on courts? If so, then I don't see any way that it's constitutional - the President simply isn't allowed to legislate. To paraphrase Justice Scalia: Like it or not, all legislative powers shall be vested in a Congress of the United States.

But if these signing statements aren't binding on courts (and I doubt they are), then what's the big deal? They might be persuasive authority, but so are law review articles and academic treatises. Until and unless courts start giving more weight to these signing statements than they're due, this looks a lot more like a temptest in a teacup than a constitutional crisis.

Posted by: Curious | June 27, 2006 08:39 PM

Without addressing the constitutional issues here, I believe Mr. Bush's approach to signing statements can be combined with his stated approach for nominating federal-court judges; Mr. Bush is then hoist on his own petard. That is, Mr. Bush advocates nominating judges who will strictly interpret the law. For example, he appears to value the approach that Justice Scalia purportedly uses.

But Justice Scalia purports to disdain the use of legislative history. He advocates interpreting a law based on a statute's "plain meaning". Therefore, if a law were to be reviwed by, say, the Supreme Court, Mr. Bush's signing statements should simply receive no weight. And Mr. Bush would have no grounds for protest -- either he supports "strict interpretation of the laws" or he does not. Americans should hold his feet to the fire; we should refuse to let him demand strict interpretation unless and until that approach interferes with his unitary-executive reign.

Posted by: KLSS | June 27, 2006 08:39 PM

Too much, unchecked, executive power accumulated by a small group - the administration - spells disaster in long run. Judicial reviews, expert opinions, briefs, footnotes, blogs etc help little.
Why cannot the Congress counteract? See this: http://www.lrb.co.uk/v28/n06/mear01_.html

Posted by: Michael | June 27, 2006 08:57 PM

You don't know what you are talking about

Posted by: Joe | June 27, 2006 10:53 PM

VIII

The annals say: when the monks of Clonmacnoise
Were all at prayers inside the oratory
A ship appeared above them in the air.

The anchor dragged along behind so deep
It hooked itself into the altar rails
And then, as the big hull rocked to a standstill,

A crewman shinned and grappled down the rope
And struggled to release it. But in vain.
'This man can't bear our life here and will drown,'

The abbot said, 'unless we help him.' So
They did, the freed ship sailed, and the man climbed back
Out of the marvellous as he had known it.

From Lightenings
By Seamus Heaney


BUSH?
The ash heap of history?
The United States of America rising again to shine as an example?
Wouldn't it be marvelous?

Posted by: Peter H | June 27, 2006 10:57 PM

If they are tapping Dejuani's phone thats a good thing because he is calling TERRORISTS! Therefore, we have submitted his web address to the Secret Service. Also, no revolution to be had is so nice of you to acknowledge....here we do it all by the ballot box. If you don't win then shut the hell up.

Posted by: dickdee | June 27, 2006 11:09 PM

I suppose I should be more concerned about the semi-fascist shenanigans being played out in this administration's crusade to destroy the United States.

Like, I should be concerned that my privacy is being violated when I call in to John Gotti and my side of the conversation is monitored. Shouldn't the wire tap order specify everyone who would call in ahead of time? And it really shakes me up to see guys who want to kill me being forced to live in a modern air - conditioned facility with culturally - correct meals.

I am really bugged that my contributions to the Taliban Scholarship Fund might be traced back to me.

Yeah, this whole illegal war thing is ticking me off, too. It should have been a legal war from the start... like Kosovo, or Korea.

Adding comments to a bill that he is signing... Ooooofdah! That is the icing on the cake. I can't wait for the Democratic party to push through the impeachment motion. I mean, "signing statements"! How dastardly. I can't wait for the Florida State AG to hammer Rush on that Viagra possession deal, either. GW probably had Cheney supply those pills to Rush. After all, hasn't he established the reputation? Speak softly and carry a big dick?

Posted by: Bob | June 27, 2006 11:50 PM

The Biggest Legal Story You've Probably Missed? No, we didnt miss it, we're just not interested. But I doubt anyone will miss it as I'm sure the WP, NYT, et,al will report it, spin it, and harp on it over and over if they think it will undercut the evil Bush one percentage point.

Posted by: J. Paul Parker | June 28, 2006 02:54 AM

gee and this from the washington post,Better hurry before he puts you all in jail for treason because your finally doing some reporting !I guess you must have missed that this administration as members of the project for a new american century telegraphed their intentions to go to war to control mid east oil years before 911(A WAR CRIME)and that ,and I quote ,barring a national catastropy it will be hard to galvanize the american public behind such a scheme.Oh, and I hope this isn't boring you ,while you acted like goebels propaganda mouthpiece ,perhaps as many as 250 000 iraqi civilians have died over a war based entirely on lies .SHAME !!!

Posted by: robert | June 28, 2006 03:04 AM

6ri76eiei7e7i6e7eiytd

Posted by: dyyteyueyue | June 28, 2006 03:09 AM

Everybody seems to be concerned about terrorists and organised crime, and keeps forgetting about how these laws are also supposed to prevent abuse. What about the policeman involved in a messy divorce? Without the supoena requirement, what's to stop him from wiretapping his ex wife or request her credit report? What about the sherriff who has his own cozy little empire set up, and harasses anybody who comes too close under the guise of "protecting us from terrorists"?

Bush's signing statements reflect a common thread of disrespect that lies at the heart of his governance style. To Bush, respect is a one-way street, as he respects neither the other branches of government or even the citizens of the USA. For Mr. Bush we are his unruly subjects, not his employers.

Posted by: M. Lachance | June 28, 2006 05:37 AM

Congress can indeed pass bills to change a SCOTUS decision (subject to the Executive's veto) regarding statutory law but not SCOTUS decisions concerning the Constitution. So, does the SCOTUS have the final word, and thus supremacy, regarding the meaning and interpretation of the Constitution?

Posted by: Shag from Brookline | June 28, 2006 07:18 AM

So, another round of useless Senate Judiciary hearings to "examine" the legality and basis of Bush's latest antic. What a joke. While Chairman Arlen Specter huffs and puffs and expresses indignation over the administration's power grab of the week, at the end of the day he always caves and finds a way to let them off the hook. Credit Dubya and Co. with another successful assault on the Constitution.

Posted by: ProBono | June 28, 2006 11:13 AM

Whether they're 'Signing Statements' or embedding 'Earmarks', this administration is wreaking havoc on OUR country, OUR budget and the patience of the American Citizen. I've read the post above that states these are lies from the Dems but I think everyone here is smart enough to know that where there's smoke, there's fire. Our President's been caught with his hand going in and coming out of the cookie jar too many times now for anyone to have the patience to listen to more lies from his staff or supporters. We've been lied to and cheated by these guys all the while we're losing our sons and daughters in a war for oil! If all of this is not enough to wake up the still dreaming supporters of this administration and their war, then there's the unlikely possibility that nothing will ever get addressed but I'm an optimist, I believe most people are waking up and that time is limited for those in power who feel they and their friends are above the law. It is my opinion these guys are the Poster Children for the reasons checks and balances were put in place to begin with and we should all remember what our parents told us; you are who you run with so choose your friends carefully. For those of you still sleeping, please note that between Ken Lay and Tom DeLay, it's not hard to see that actions taken by our President ensure he 'lays' his interests in the right area. Sad to say but he'll kick the little guy in the teeth on his way out and provide for his wealthy friends and supporters to ensure they are given the maximum protection for their assets but the upside is, what goes around, comes around....

Posted by: Marla-Michigan | June 28, 2006 11:23 AM

Why hasn't the Post been covering this story? All the advances to the signing-statement story have come from the Boston Globe -- I keep waiting for the Post to move the ball forward, but the only people who ever address the story seriously are the columnists! (The Post's story today is a summary, not original.)

Posted by: Jonquil | June 28, 2006 04:03 PM

I read that prior presidents issuing signing statements were really issuing directives on how the laws should be administered -- administrative instructions.

These statements of Bush are flat out telling everyone that if he disagrees with what Congress has passed, he won't enforce it, or he'll simply do the contrary of what the law says that he is signing.

Signing statements do NOT carry the force of law, and should NOT be regarded as carrying any weight when contrary to what the passed law intends or does.

This isn't how good presidents or real patriots act.

This is a power play by extremists, a really concious and sneaky, rotten attempt at ENCROACHMENT...to see if they can get away with it.

Slip it in, and then, if not challenged, they can then claim precedent -- that there is a precedent, Congress and others didn't act, so it must be legal; this president acted on the basis of the signing statements, so they are legal, etc.

It's called governance, or rather, taking over, assuming more and more power, by taking advantage of the people's apathy.

ASSUMPTION OF POWER BY APATHY ON THE PART OF THE PEOPLE.

Republicans have overrun the minority Demss, and made them ineffectual. Problem is no one except the minority Democrats and liberals seem to react with vigor, so Bush and Cheney go ahead and assume the power.

It's not just the Republicans who won't react and defend the Constitution for political purposes, selling it down the river, to aggrandize power, as I said in a prior post, it's the public in general, as well.

Well, no wonder, American Idol and other similar programs' ratings trump the presidential debates. If Americans keep sitting on their asses, more concerned with football, baseball and what entertains their base senses, like these stupifying TV programs, they will continue to be lulled to sleep.

Well, if that's the case, then they are getting what they deserve.

Only thing is, the rest of us have to suffer.

THEN later, the ass-sitters, the apathetic and the Republicans who are in cahoots for political gain will THEN suffer from it, probably realizing it all too late, and cry oh what have we done?

It'll come back on them and I bet not just in the form of losing elections. The result will be like the loss of our precious liberties.

Right now Bush and Cheney are probably lining up who will sell the Constitution out to their aggrandizement of power.

Vigilance, is so necessary to keep our system of government secure and free, couch potatoes!

P.S. - when is the administration going to reveal the plan that suspends elections so Bush and Cheney can take over permanently, since the national security and safety from terrorists demand it!

That is what their argument will be: we have to stay in power, or we won't have a republic to preserve....HAH...can you see it coming?

Posted by: RL | June 28, 2006 05:17 PM

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