Laurence Tribe on Signing Statements

[kpete]

kpete: this is way over my head - need help with translation

Sunday, August 06, 2006
Larry Tribe on the ABA Signing Statements Report

What is new and distressing in the current situation isn't primarily the frequency with which President Bush, in the course of signing rather than vetoing congressional enactments, says something about his equivocal intentions, or even his defiant views, in connection with their future enforcement or non-enforcement. Rather, what is new and distressing is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views -- and the suspicion that this President either intends actually to act on them with some regularity, often in a manner that won't be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches -- declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.

http://balkin.blogspot.com/2006/08/larry-tribe-on-aba-signing-statements.html

[snappyturtle]

1. I'm no lawyer.....

but what I understand from this is that Mr. Tribe is fearful of * USING his signing statements and that use could become precedent for the future. AND, Mr. Tribe fears that * will use his signing statements "quietly"....it's the secret thing again, and he will actually be cutting Congress out of the balance of powers written into the Constitution. I, too, think this is scary in light of the fact the PRESIDENT, already self-proclaimed as the decider, will be the ONLY decider in what laws the Congress passes will be enforced or NOT!

[Nikki Stone 1]

2. Not over your head--just abstruse writing

What I get from it:

The problem with the signing statements is not the statements themselves or that the president is writing them or that his views of the laws in question is hostile.

The problem IS that his views are "constitutionally reckless" (in other words, it's not just a problematic personal opinion but an opinion that flouts the Constitution), and that these reckless signing statements may actually be acted on by this president, possibly in secret, without the public knowing. These statements also seem to show contempt for the whole US system of checks and balances, contempt for other branches of government. Finally, instead of just being opinions, Bush's signing statements may end up becoming guides for future actions, creating precedent, another way of making something legal or acceptable.

I'm sure I missed something, but that's what I get: it's not the statements themselves but what Bush is doing with them and intends to do with them.

[kpete]

4. Thanks,

"creating precedent"

Doesn't that mean they had better be watching their backs?

[Nikki Stone 1]

7. I think the precedent idea is related to the function of signing statemts

In other words, signing statements have traditionally been just opinions and not guidelines for presidential action. That is, nobody takes them as law; they are just opinions. Congress makes law, the president either yays or nays it, though he is welcome to his opinion. The problem is that this president actually sees his statements as having the same force as the law he is signing, at least as far as guiding his own behavior is concerned.

So for example, let's say there's a bill passed by Congress prohibiting certain types of domestic spying. The president can veto it (and have a fight on his hands, or at very least, create a ruckus in the press); or the president can pass it for political reasons (or whatever) but put a signing statement that says why he disagrees with the bill. The law still has to be followed by everyone, including the president himself, but he gets to go on the record with his negative opinion about it.

However Bush will sign the bill (no override, no PR ruckus) but make the signing statement into a big disclaimer: "I reserve the right to ignore the contents of this bill when national security is at stake (I'll ignore it when I want to)." Suddenly, the signing statement has the potential for becoming the law above the law. And because national security involves secrecy, we will never know if the president acted on his signing statement or not. Bush basically is saying that the law he just signed applies to him only when he wants it to and that he doesn't have to tell the American people when that is. It completely bypasses the US government, the checks and balances. The executive branch is making law, and specifically laws that apply to its own behavior. This is a no-no in our system of government.

Bush has pushed the signing statement into a new function: a new way to make law. And if future presidents follow suit, the power of these signing statements will be extended. Eventually, we will have a dictatorial presidency. The public (through elected officials) have no recourse when it comes to signing statements. If I don't want my phone tapped without a warrant, and Congress has passed a bill saying my phone can't be tapped without a warrant, but the President signs the bill and adds a signing statement that he can tap my phone without a warrant for reasons of "national security" (ie, in secret), my phone can and probably will be tapped, I probably won't know about it, and I have no one to complain to, no one to vote out of office.

I could have missed some things here, but this is what I get.

[kpete]

8. Thanks again

my only argument would be with your statement:

Eventually, we will have a dictatorial presidency.

most days, since 2000 - I believe we are already there

[Nikki Stone 1]

11. I kno.w. I thought about the current situation when I wrote it

and thought that the presence of Bush's signing statements themselves WITHOUT OPPOSITION indicated that we already do have this dictator (decider?) presidency. It's not there in total yet; alot depends on the next administration. But something has to be done about these signing statements.

[MrCoffee]

3. A million thanks for posting this!

[Cogito ergo doleo]

5. Coming from Tribe, this is very damning, and he seems to be

quite concerned about the whole issue of Bush's particular (and peculiar) take on signing statements. Tribe probably would have been nominated to the Supremes by Poppy. He's the defining word in Natural Law, hero of Clarence Thomas and the older- or should I say, quaint- RW nut jobs.

[kpete]

6. Cogito ergo doleo

Oh my.....
I think therefore I am depressed?
Welcome!

[Skidmore]

9. So why doesn't Mr. Tribe say this in plain English to the people

most of whom do not speak legalese. Joe and Mary and Bob and Jeff and Sarah and a lot of others need to hear that their nation is in serious jeopardy and that * hates us for our freedoms.

[Nikki Stone 1]

12. I think it's an occupational hazard

Once you get used to speaking legalese 24/7, it becomes a nasty habit, especially when discussing legal issues. Try to talk to anyone with a PhD about their own field! Even if you were having a pleasant discussion about the Dodgers or the latest Estee Lauder ex-foliant, you are suddenly plunged into jargon land, complete with byzantine syntax, as soon as the PhD type starts on his or her own area of expertise.

[Igel]

10. I've said it before. One purpose signing statements is

to express quibbles with Congress. * is more explicit than any president to date. He doesn't intend to be bound by a Congressional requirement, he says it. Others may have felt they weren't bound, and didn't say it.

Whether the executive branch *complies* is a different matter. Estoppal.

On the other hand, there's a lot said about precedent. The problem here is that the Congressional Record is used by SCOTUS and other courts to show what Congress intended a law to mean. But all kinds of crap gets into the Congressional record. It's been pointed out that a recent SCOTUS decision relied crucially on the plaintiffs arguing that one interpretation was inserted into the record after the vote. That left SCOTUS--specifically Stevens--to rely on a different interpretation placed in the Record, under the assumption that it was spoken during the debate (this last clause added on edit). The plaintiff was wrong: both were inserted at the same point in the process--IIRC, after debate had closed and the vote scheduled, but before the vote occurred. Since the Record can be spun to play whatever tune a legislator wants it to be, it's a thin reed to build precedent on.

Unlike the Record, the signing statements show what the last player in the legislative process thought at the time of signing. If he says he signs it because it means X, arguably that rules out some possible interpretations, and allows the interpretation that had it meant something different it wouldn't have been signed.

Tribe hates this idea. I can see why. But how SCOTUS takes it is up for grabs; I think Scalia's already cited one signing statement, though.

[Nikki Stone 1]

13. Great post.

Thanks. I'll be saving this one.