Monday, January 30, 2006

More On Signing Statements

Dahlia Litwick expands on the legal ramifications of the President's use of "signing statements" here:
Unless you spent New Year's weekend trolling the White House Web site or catching up on your latest U.S. Code Congressional and Administrative News as you waited for the ball to drop, you probably missed the little "P.S." the president tacked onto the McCain anti-torture bill. The postscript was a statement clearly announcing that the president will only follow the new law "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch ... and consistent with the constitutional limitations on the judicial power." In other words, it is for the president—not Congress or the courts—to determine when the provisions of this bill interfere with his war-making powers, and when they do, he will freely ignore the law.
Should we dismiss these statements just because President Bush is so brazen in his claims? So willing to take legal positions that are undefended because they're legally indefensible? Will all this just go away someday, when a court dismisses these statements as excessive and unfounded? No. Because President Bush isn't trying to win this war in the courts. Thus far, he has faced each legal setback as though it never happened; or—more often—he's recast it as a victory. He doesn't care what the courts someday make of his signing statements, just as he didn't care what the courts made of his enemy-combatant claims. He views the courts as irrelevant in his pursuit of this war. These signing statements are dangerous because they repeat and normalize—always using seemingly boilerplate language—claims about the boundless powers of a "unitary executive." By questioning the principle of court review in the McCain statement, Bush again erodes the notion of judicial supremacy—an idea we have lived with since Marbury v. Madison. When he asserts that he—and not the courts—is the final arbiter of his constitutional powers, he is calling for a radical shift in the system of checks and balances.


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