July 17, 2006

Richard Epstein on Signing Statements

If you don't know, Epstein is one of the most highly respected law professors of the last few decades. As his approach tends to run toward (I mean race toward at the speed of light) an economic libertarianism that would never pass muster with the general populace of the United States (yes FoxNews, there are a lot of conservative law professors), it's no great shock that he'd be wary of excessive government power. But the guy is insanely brilliant, and it's well worth reading what he has to say about the Bush administration's use and abuse of signing statements.

Since he took office, Bush has used this device to object to more than 500 provisions in more than 100 pieces of legislation--nearly as many as the 575 signing statements issued by all of his predecessors combined. In these statements, the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law.

These statements might be helpful in understanding complex legislation, even if their use were prompted by opportunistic motives. But it is one thing to refer to a signing statement to get some sense of what a law is about, and quite another to treat the statement as though it defines the president's responsibility under law, serving as an explicit order to everyone working in the executive branch ...

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

My general view (and one I think a lot of the Founders would back me up on) is this - if a president doesn't like a law (and/or doesn't want to be bound by it) he should veto it (something the current oh-so-manly-brush-clearin'-iron-pumpin' president has never had the courage to do). He shouldn't sign a law and then have the audacity to redefine what it says. That's an insult to the country and its political processes.

Posted by armand at July 17, 2006 11:14 AM | TrackBack | Posted to Law and the Courts | Liberty | Politics | The Ever Shrinking Constitution


Sure, but the branch of government (according to the founders, or at least my reading of them) that supposed to adjudicate between other disputing branches would be Congress in this case (Congress referees between Executive/Court fights, the Court referees between Congress/Executive fights, and the Prez referees between Congress/Court fights).

Congress has been out to lunch for about five or six years now (perhaps longer), and thus the carefully-crafted Constitutional system begins to creek a bit/a log (depending on your point of view).

Posted by: baltar at July 17, 2006 11:47 AM | PERMALINK

Oh, I certainly agree that Congress bears a lot of responsibility here - but that doesn't let the president off the hook for this behavior. Or it shouldn't.

Posted by: Armand at July 17, 2006 12:46 PM | PERMALINK

No, shouldn't. But that's why (at least in my opinion) the Constitution has three (co-equal) branches: 'cause everyone should expect that any given branch will try to run away with all the power it can (human nature; Morganthau). Thus, the system only works when the other branches try to prevent the one from running amok. That hasn't happened here, and it's a sever constitutional failure, not just a political one.

Posted by: baltar at July 17, 2006 12:50 PM | PERMALINK
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