The Wisest Word Yet on Signing Statements

Finally, some official sense in the debate over President Bush's use of "signing statements" to undercut the force and scope of Congressional legislation. Walter Dellinger, head of the Justice Department's Office of Legal Counsel during most of the first Clinton term, has chimed in again, this time on the op-ed page of the New York Times this, with a reasonable view of the matter.

As he did in 1993 when he defended the use of signing statements, Delliinger says that signing statements are legitimate and necessary uses of presidential authority. But, he says, the whole debate over their widespread use by the Bush Administration misses the larger point-- "which is not the president's right to act on his constitutional views, but that some of this president's constitutional views are fundamentally wrong." Dellinger's op-ed is a big deal because his old memo has been used by many conservative commentators, and bloggers, as "proof" that "liberal" lawyers are hypocritically attacking President Bush over a practice that they embraced when it was performed by President Clinton. Dellinger's piece clarifies a lot and in this debate, legally and politically, that's truly a welcome thing.

By Andrew Cohen |  July 31, 2006; 9:00 AM ET
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Dellinger in his Op-Ed states: "A president [as stated in my memo] should presume laws are valid and accord great deference to Congress's view that its acts are consistent with the Constitution. A president should also recognize that, while the Supreme Court is not the sole arbiter of constitutionality, it plays a special role in resolving such questions." This demonstrates to me that judicial review is not the equivalent of judicial supremacy. Keep in mind that a Supreme Court decision on the constitutionality of a law may be based upon a 5-4 vote. So should one swing vote necessarily result in judicial supremacy as black letter law? What was it Jefferson, Jackson, or was it Lincoln, said about the power of the Court to enforce its decision against the executive? Yes, the Court does play a special role, but it is not infallible. I am not suggesting that a president, especially George W, is infallible. But I have problems with an abolutist position of superiority of any branch over the others. Of course, in such situations "We the People" have to speak, to be heard. We can vote out the rascals in the executive and legislative, but not in the judicial branch.

Posted by: Shag from Brookline | July 31, 2006 04:11 PM

Shag misses the point with his argument about Judicial review/supremacy. No, we cannot vote out the "rascals" in the judicial branch, but Congress can impeach and pass constitutional ammendments and thus check the power of the courts.
My question is how to check the imperial presidency? With the Republican lock on all three branches, barring a revolt in his own party, the president rules with no check on his powers.
The signing statement on the anti-torture bill is reprehensible. It puts the average soldier in an impossible position. Let's say he is ordered to use questionable techniques that may be considered torture, if he goes along he may be tried as a criminal torturer and if he refuses he may be prosecuted for refusing to obey a lawful order. You saw what happened at Abu Graib. Only low ranking GI's were convicted. Everyone else was promoted. It's disgusting. There is no honor in this administration.

Posted by: capeman | August 1, 2006 12:36 AM

Capeman seems to attribute Superman's powers to Congress. Yes, Congress has the power to impeach Supreme Court Justices, but look at the history over the past couple of centuries to test how this has worked. Nor can Congress, on its own, adopt amendments to the Constitution. As to all three branches being under the control of one party, there is nothing in the Constitution to prevent this. So doesn't it boil down to "We the People" taking action? By voting? Otherwise? Who rules supreme? Who should rule supreme? A swing voting Justice of the Court? No branch should abdicate to the others. "We the People" have to demand this.

Posted by: Shag from Brookline | August 1, 2006 07:23 AM

No "Superman" claims here. Yes, no justice has been impeached, but that might have more to do with the process to keep outright crooks from the bench (Fortas being an exception). And, yes, the states have to approve any ammendment. But this is the way it has been since the beginnings of the country. The U.S. Supreme court is the final arbiter in how to interpret statutes and the Constitution. Someone has to have the final word, otherwise chaos would reign.
This is the reason to be very careful in examining the candidates for the court, and why the tendency in recent year for the nominees to avoid answering questions is so troubling.
The Court has been wrong, it isn't infallible (see Dred Scott v. Sanford, Plessy v Ferguson, and Bush v. Gore). But the history of all controversial decisions is that they must be enforced by the appropriate entities. Should they not, they can be held in contempt and, except for the President, jailed. In the President's case, this would make him eligible for impeachment.
"We the people" set up a representative republic that made the Supreme Court the final arbiter, even in, yes, 5-4 decisions.

Posted by: capeman | August 1, 2006 08:57 AM

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