Bush's illegal signing statements and the American Bar Association proposals

One of the more interesting (and effective) weapons in bush's quasi-legal arsenal in his war on the other branches has been the aggressive signing statement (pioneered by now-Justice Samuel Alito). The biggest danger isn't that the president will convince the courts to accept his retroactive reinterpretation of the law, though with Alito on the court, that's more likely than it should be. Instead, the main problem is that executive agencies (i.e. the parts of the government that actually do things) will follow them. That's especially likely when we have quasi-judicial agencies like the Justice Department's Office of Legal Counsel interpreting the law to suit the president telling those agencies to follow the signing statements as law. At that point, we have the President rewriting the law, his stooges interpreting it, and his stooges' stooges carrying it out. Meanwhile, Congress and the courts are kept in the dark about the actual content of the law, despite their ostensible duty to write and interpret it.

The American Bar Association has a few creative proposals for remedying this. They're on the verge of concluding that Congress should pass a law so that legislators can sue Bush if they think his signing statements misinterpret their law, which is great, at least in theory. It gets all three branches in on the issue, and makes it so the president can't force the courts to discard it. It gives the courts the final say.

There are three problems, though.

1. Arlen Specter is the chair of the Judiciary Committee (where this would be worked out before being submitted for a floor vote). We can look forward to some inspiring theatrics from him where it really looks like he cares about the issue and will force Bush to uphold the law, but then once he has the upper hand, he'll "compromise" for no reason and rewrite the legislation to make it worse than the status quo.
2. Nobody knows exactly how Bush's signing statements are being interpreted and used, since they're always extremely broad and vague and Bush is usually smart enough to classify his quasi-legal activity. If the executive does a good job of obfuscating, it'll be hard for Congress to know that they're being hoodwinked and even harder to prove it before a court.
   
3. All of this assumes that Congress even wants to be a real live branch of government. There's some depressingly good evidence that they don't. It takes guts to go head-to-head with the president, especially when it might actually change something.
   

The ABA has three other resolutions relating to signing statements:

The first three ask the president not to use signing statements as a kind of shortcut veto. If the president thinks a bill or part of a bill is unconstitutional, one of these resolution declares, he should feel free to say so—but he should do that before he signs it, not after. The other resolution suggests Congress craft legislation to make signing statements more transparent and more accessible. Currently, signing statements are not sent directly to Congress, and they are often ambiguous in their intent. But a law could require the president to write a report explaining exactly how and why he plans not to enforce a law, if he plans not to enforce it, for every signing statement he issues.

Sounds excellent, especially the last one. In theory, it'll solve the second problem--executive obfuscation--I noted above. Hopefully all these resolutions pass and that they have some influence. Maybe the momentum from debating this could overcome the third issue--Congressional apathy--as well. But We'll be stuck with Arlen Specter no matter what, it seems.

Also, the ABA president has a pretty good speech criticizing Bush and the Specter bill on wiretapping. Crooks and Liars has the video.

Tags: bush, executive, yoo, courts, legal, specter, disenchantedidealist, Dave