Friday, May 05, 2006

Now Calm Down 

I must apologize to all of you dear readers for listening to me vent about the recent attention to the signing statement, but I simply must remark one more time.

Not long ago I sent an Op/Ed piece to the "New York Times" evaluating the use of the Bush signing statements, and what it means both constitutionally and politically. I received a form letter response in return telling me of all the fascinating columns they receive every day, most too enormous to go through, and thus don't get your expectations up. And I didn't, for good reason.

Today, however, the "Times" has discovered the presidential signing statement that appeared last week in the "Globe." And just as I mused so long ago, that one day these things would be noticed, and what would be written about them probably would be wrong or out of context. I think I was right.

In today's "New York Times", the editorial reads "Veto? Who Needs a Veto?" I don't take offense that I was not mentioned. Quite simply, those of us who have done yeomen's work on this issue are completely left out. This would include my colleague Phil Cooper, who conceptualized the signing state perfectly as a presidential "power tool," an article that is still required reading for my introductory courses.

Also not mentioned in the "Times" editorial, nor mentioned anywhere for that matter is Professor Chris May, whose work on the signing statement from Monroe through Carter, and without his dataset I would still be in libraries all over the country trying to track down those 19th century signing statements. His book, Presidential Defiance of "Unconstitutional" Laws is a must read for anyone who wishes to understand that the Reagan administration did not stumble upon anything new when they began to systematically use the signing statement. I wonder if he is even aware of all the attention give to the signing statement?

But to the "Times" editorial. Typical of how these things proceed, the focus placed on Bush gives the illusion that he is the first, which we all know is not the case. This same kind editorializing bothered me during the Clinton administration by people who really should have known better.

First, and really just needling at this point. At the end of the piece, they write that "...process was good enough for 42 other presidents." Well, yes, since Bush is number 43, you may say that there have been 42 other presidents, but that is wrong. Because Grover Cleveland won twice in two non-contiguous terms, there have only been 42 men who have occupied the presidency. But I know, that is being the kid in the front of class who always likes to show off.

But in the larger point, in that last paragraph, the editorialist want us to believe that no other chief executive has taken the route that Bush has, and again, that is simply not so. There is nothing that Bush is doing that we have not seen in other presidencies. What makes Bush stand out is the sheer numbers. So from Reagan-Clinton, all of them took the stand that if they believed a provision of law to be unconstitutional, they simply refused to enforce it. Why is no one pointing to Clinton's Office of Legal Counsel which wrote two detailed opinions making the case that the signing statement was completely legitimate to refuse to enforce any thing the president believed to be unconstitutional. In fact, the second opinion said that he has "enhanced responsibility" to refuse execution. That is pretty bold language!

Any why not look at his father's administration. Not only did Father Bush aggressively defend the prerogatives of the office, but he also used the signing statements in an unusual manner, one of which actually established a precedent. In the first, he used the signing statement to create an alternative legislative history in order to win compromises made with the Congress, one of which involved the Civil Rights Act of 1991--can't get much more high profile than that. And the second, he used the signing statement "to make law backwards." That is, he reinterpreted congressional intent on policy made decades before he came to power (see chapter five of my dissertation), and in a way the defied how his predecessors behaved (whether public funds could be spent on abortion counseling).

Another claim made in the Times piece is the suggestion that Edwin Meese began the signing statement, with the help of the evil genius, Samuel Alito. In fact, that is wrong. Had the OLC during Ford and Carter not faced existing during the "imperiled presidency" of post-Watergate, we may have never seen the signing statement being used in the manner that it is currently being used. In fact, you may wish to give credit to a different "true believer" in the Justice Department--to Justice Scalia, who led the OLC during the Ford administration. And remember that it was Carter, who refused to defend the legislative veto, that initially provided the spark of interest for the Reagan Justice Department when the Supreme Court issued its opinion in INS v Chadha and used the presidents signing statement as an example of why it was unconstitutional.

Another problem with this editorial is the suggestion that no other president has issued a signing statement to "make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts. I disagree. There has yet to be a president that could match the brazenness with which the Reagan administration used the signing statement, which in fact sparked the initial interest in the device back in the late 1980s and early 1990s. Reagan used the signing statement of the 1986 Immigration bill to define a provision of the law in a way that clearly countered the intent of at least the author of the bill, Barney Frank (see the language discussion section 274B). Nor has this presidency made a public proclamation, causing a constitutional show down with the Congress, that to tell the administration how to interpret and enforce the law.

Another part of the editorial tells us that President Bush has been using the signing statement to excess, all while "the Republican majority in Congress simply looked the other way."
If that is so, then why has it taken 6 years into the presidency for the "New York Times" to editorialize about it? There clearly has been a public record of this use (if nothing more than my paper links from my website). I may agree that there has been some Republican complicity in this, but only when the signing statement became high profile, such as in 2002 with the signing of "Sarbanes-Oxley" or in January with the Alito hearings. But in the larger sense, I am sure most members of Congress, including Republicans, were as dumbstruck as the "Times" when they learned of the numbers in the "Globe" article. So it is a bit disingenuous to pin this on the Republicans. By nature, Congress simply cannot devote full time attention to the goings on inside the executive branch. If they devoted their time just to that, they would really never get anything done.

OK, that is my beef. I may have some sour grapes for not only having my name removed from the editorial, but also for bringing this to the attention of the "Times" months ago without any response, but in the larger sense, I am upset because the signing statement is being distorted and pulled from context. And I am a stickler for context.

There you have it. My last post on the "Globe" article, I swear. I have way too many exams to grade anyway!


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