Finally A Signing Statement

Finally the President issued a signing statement, the first in relation to a bill passed by the new, Democratically-controlled Congress. The signing statement is largely rhetorical with no substantive challenges, a rarity for this President. It is rhetorical because the president spends time criticizing Congress for not getting him important bills yet--the same challenge he issued yesterday during his brief press conference.

There have been some who have suggested that the reason that the President has not issued a signing statement challenging provisions of the bill is because the Democrats are in control and watchful of what he is doing. The larger theoretical literature on unilateral action suggests that the president is not likely to rankle the ire of Congress when it is collectively united behind a particular position. Thus previous presidents have been mindful of just how far they could push the signing statement, always approaching that threshold without stepping over it. The fact that this President could issue so many in the last several years of his presidency is because the Republican-controlled Congress didn't mind the challenges, which is largely true.

But the reason why President Bush has not issued a signing statement challenging the constitutionality of provisions of the bill he has just signed is because he has not been given any substantive bill yet. Nearly all the bills the President has received are renaming post offices or court houses (one court house in Missouri has been renamed in honor of Rush Limbaugh). Generally speaking, most of the significant signing statements for this president or any president coming between August and October, as the appropriations bills begin to reach the president's desk. So be on the look out--the challenges are coming!

Misplaced Energy

From time to time I pay attention to discussions about the unitary executive and the presidential signing statement. What I find, more often than not, is the misguided sense of what the unitary executive is and where it came from, and how to best counter it. More often than not, the unitary executive is connected to the imperial presidency (wrong), that it only applies to Republican administrations (wrong), and that the only way to check it is to impeach the president (wrong).

Case in point is this gathering place for liberals talking about what sorts of questions should be asked to the candidates running for the presidency in 2008. All of them talking to one another about bringing down the unitary executive. Yet what happens when everyone believes all the things about the unitary executive that I discussed above--all the wrong ideals concerning what it is about? What happens is you perpetuate the myth, all the while allowing the centralization of power to move forward unchecked and unfettered. And allowing the real culprit--Congress--to escape attention.

First off--if you ask the candidates, in whatever forum, if their administrations will behave like the current on. "We have a right to know if a President Romney or Guiliani...would continue to assert Executive Privilege over questionably legal and national security matters. Whether signing statements will become the norm. What will happen to all of the laws that Bush issued a signing statement for. The Executive Orders that were signed allowing the Vice President to declassify information, or for the President to declassify information at will and without using the historically proper channels. To continue conducting itself in secrecy...We also have a right to know whether a President Edwards, Obama, Clinton (or Richardson or Biden or anyone else) would repeal these Orders and other interpretations of the law. Would President Clinton defer to the judiciary or the legislature in matters that prior Presidents have? Would President Obama issue a signing statement for a law that would be passed by a republican controlled Congress if he didn't agree with it? Would President Edwards have the US abide by the International Criminal Court?"

I will tell you their answer. They will reject all of the claims about using signing statements, executive orders, or declassification of information and promise a White House that respects the Constitution. Remember back in 2000 all of the stump speeches made by Governor Bush? "I will put my hand on the Bible [and] swear to not only uphold the laws of our land [and] I will swear to uphold the honor and dignity of the office which I have been elected, so help me God."

But as I have said before--the key tenets of the unitary executive have become institutionalized inside the executive branch, and the president is a cog within that institution, not above it. Once he or she is elected, they will take hold of the levers of that institution and will behave much the same way as their predecessors. Oh, probably not as brash as the Bush presidency, but still in a way that advances executive prerogatives.

As for impeachment--I am not sure what it will gain. First off, it is doubtful that the process would play out before Bush's time in office expires. Secondly, the American public (despite whether ardent liberals believe they represent the silent majority) has no appetite for impeachment. They didn't in 1998-1999, and they don't know. If the Democrats really want to demonstrate to the American people that they do not know how to govern while in control of Congress, then they should go ahead with impeachment. Instead, they are doing what they should be doing--dragging members of the executive branch before them and pushing legislation that challenges executive branch actions.

But this is what happens when you get groups of like-minded individuals who come together in forums or other online groups to discuss political action. You tend to skew towards the more extreme and outspoken members of the group, something Cass Sunstein called "enclaved deliberation."

Fighting the Good Fight

Political Scientists Louis Fisher and David Gray Adler have penned a short article for this week's issue of Legal Times (sub. req.) challenging the commonly held belief that the Courts are given the final word on the meaning of the Constitution. This follows an article that appeared in the journal PS: Political Science & Politics, the more readable journal published by the American Political Science Association. The article, by Winfield Rose, looks at how Marbury deliberately misquoted the Constitution in order to establish an independent power of the courts to interpret the power of the Constitution. As Rose concluded, Marshall established the Court as a co-equal branch in the interpretation of the Constitution and not the final arbiter.

In the current piece by Fisher & Adler, the two begin by arguing that at the time Marbury was written, Marshall didn't dare think that the Court should have final say regarding constitutional interpretation: "This was not a comfortable time for judges. U.S. District Court Judge John Pickering was impeached a week after Marbury, Justice Samuel Chase would be impeached the following year, and Marshall knew he too was within congressional sights." Marshall, they argue, "fully understood that he was part of a political system that required conversation and shared construction among the branches of government, not a system that exalted judicial supremacy." They also quote a number of Supreme Court Justices who held the view that the Court was never meant to be primus inter pares.

Both provide numerous examples of instances where the Court was overruled by the other constitutional powers in our political system--Congress, the states, and the American citizen. For instance, despite the fact that the Supreme Court, in 1983, declared that the legislative veto was unconstitutional, the Congress and the president continue, via informal agreements known as comity to enforce the legislative veto, and presidents continue to object via signing statements.

Those of us who believe that the Court is one among many need to continue to push this case to our colleagues and to the American public. We should start by revising the way our students are taught about the way the Constitution works. The reason that most American believe judicial review gives the Courts the final say is because that is what our textbooks say. It is our obligation to change that.