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.
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