Bush to Congress: Drop Dead

What do the McCain torture ban amendment, the NSA domestic spying scandal, recess appointments, and Judge Samuel Alito have in common? Yes, yes, I know, lots. But I’m thinking of something specific. . . and specifically outrageous.

When GWB signed the Defense Appropriations bill that included the “torture ban” into law just before the New Year, he also issued a “signing statement.” Now, don’t feel too ashamed if you’ve never heard of such a thing as a signing statement before, I hadn’t, either. But, what a signing statement does, as explained by Charlie Savage in the Boston Globe, is lay out a presidential interpretation of the law he is signing. In this case, the signing statement included the following:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Or, as explained in the Globe:

This means Bush believes he can waive the restrictions, the White House and legal specialists said. . . . A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security.

David Golove, an NYU law professor puts it even more bluntly:

The signing statement is saying "I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me." They don't want to come out and say it directly because it doesn't sound very nice, but it's unmistakable to anyone who has been following what's going on.

Yes, I think it is. Taken in context with Alberto Gonzalez’s previous proclamations on the wiggle room available under the Geneva Convention, the flouting of the courts’ authority in cases like Padilla, the refusal to get warrants for all kinds of domestic spying (the NSA case is just the most obvious), the recess appointment of John Bolton as Ambassador to the UN, and more recently of 20 others to important agencies like the National Labor Relations Board and the Federal Election Commission (outrageous not just because they were recess appointments, but because they were illegitimate recess appointments), the old flap about Cheney’s energy task force (remember that?). . . oh, god, the list goes on and on. . . taken in context with all of these unilateral decisions on the part of the administration, the signing statement issued with the torture ban makes it clear that this White House has decided that its authority trumps any decisions by other branches of government.

(There is actually even more to the Defense Appropriations signing statement. Bush claims the right to ignore several provisions that require reporting to Congress and dictate how the allocated funds can be spent.)

“But what about Sam Alito,” you ask. Well, a quick look at the history of the presidential signing statement tells us that although they date back to Andrew Jackson, they are quite rare until the second term of the Reagan administration. It was then that an energetic young lawyer working under Attorney General Edwin Meese saw a great opportunity to grab back the presidential authority that had ebbed towards Congress in the previous decade. . . and maybe a lot more. In fact, Mark Schmitt and Sanford Levinson state plainly that one Sam Alito conjured up the modern interpretation of the signing statement out of whole cloth.

Most judges (Justice Scalia is an outspoken exception) believe that the intent of Congress in passing a bill, as expressed in committee reports, floor statements by supporters, colloquies, etc., can be an important tool in interpreting the law. Why not let the President spin the law his own way?, Alito asked.

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

What is wrong with this? Well, Congress is a deliberative body. It is also—in theory—a representative one. When Congress crafts a law (and I know this might seem a bit Pollyanna-ish given the current Republican reign and the K Street controversy), it has open hearings, it debates, it negotiates; when the President supercedes the parts of the law he doesn’t like with a signing statement, he is ruling by decree. (He is also directing his justice department to ignore the intent of Congress, also appalling, but a bit more complex.)

This administration’s contempt for Congress, for the rule of law, really, is something many have witnessed and remarked upon over the last five years, but it is something that is now made so very flesh in the person of Samuel Alito.

As confirmation hearings for Judge Alito begin, one would hope that many actual members of the legislative branch would take note of this nominee’s detailed disregard for their authority. And, one would hope that Senators would take the opportunity not only to politely ask the judge whether he “stands by” his previous assertions of executive supremacy (he will, no doubt, obfuscate about all of his paper trail), but to take the opportunity to assert, themselves, that no such supremacy rightfully, legally, exists.

For, one certainly cannot expect the Bush administration, feeling the weight of mounting public dis-ease with their authoritarian stance, to suddenly see the light and reverse five years of scheming. Indeed, I fear, it is up to our elected representatives in Congress to constantly and stridently reassert their primacy in the drafting of law—to go back time and again, if necessary, to assure that their will (and the people’s will, theoretically) is respected. If GWB had said to John McCain in the recent negotiations that yes, he’ll agree in public to sign-on to the torture ban, but he reserves the right—in writing—to ignore it, one can only wonder if the Senator would have told the President “no deal.” As political scientist Andy Rudalevige notes, “You can’t have an imperial presidency without an invisible congress.”

I know it is a scary proposition to place the public’s proxy in the hands of this Congress, but it is a scarier proposition to cede it to any White House.