The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Sunday, July 30, 2006
The Continuing internal assault on Presidential Perogative
The Editors of National Review Online take great exception to the notion that a President does not have the right to issue "signing statements", something that Presidents have done since the beginning of the Republic.
Meanwhile, members of Congress such as the highly unreliable "Republican" Arlen Specter, funded by special interests such as the ABA, attempt to wrest powers intended by the Constituiton to be within the sole responsibility of the Executive Branch and instead attempt to "assign" those powers to the judiciary and Congress. In a time of war this is not only unwise; it can be the difference between the US acting quickly on time-sensitive information for the good of the war effort and safety of American citizens and cities vs. and debating about alternatives in charged political environments for weeks or months in the courts or Congress. Yet suddenly the rights of a President to do this are being called into question. As the editors conclude:
Serious commentators know that constitutional signing statements have a history almost as long as the republic. It is true that everyone knows that President Bush has issued more signing statements than all previous presidents combined. As it happens, however, everyone is wrong. As of June, the president had issued 132 signing statements, of which 110 broached a constitutional issue. Bush’s father issued more during his four years in office. The critics use a trick to generate a fake statistic. When one of Bush’s signing statements raises constitutional questions about two provisions in a law, they count it twice. They count his predecessors’ signing statements once each.
Many of Bush’s signing statements, like those of his predecessors, have sought to vindicate aspects of the Constitution in which the president has a distinctive interest. The Constitution stipulates that presidents shall “from time to time” recommend legislation they judge “necessary and expedient.” When a bill purports to order the president to recommend legislation, Bush says he does not recognize the constitutionality of the order. He has raised that objection in about half of his signing statements regarding constitutional issues.
Now consider the solution that the ABA and Specter offer for this non-problem. Ordering courts (including state courts) to ignore signing statements is at least as much a violation of the separation of powers as signing statements themselves could ever be. And to ask the courts to judge the legality of signing statements in the absence of a case requiring them to do so is to ask them to issue advisory opinions — which, as every high-school student used to know, is foreign to our Constitution. The ABA even recognizes this point. It allows that the Supreme Court might hold its pet legislation unconstitutional. So we have now moved full circle. The imaginary problem is that the president doesn’t veto every bill that contains a provision he considers unconstitutional, and the solution is for the president to sign a bill that is probably unconstitutional.
President Lincoln speculated that there might be occasions when it was necessary to violate the Constitution in order to save it. He had in mind a crisis rather larger than any the ABA has identified.
Meanwhile, members of Congress such as the highly unreliable "Republican" Arlen Specter, funded by special interests such as the ABA, attempt to wrest powers intended by the Constituiton to be within the sole responsibility of the Executive Branch and instead attempt to "assign" those powers to the judiciary and Congress. In a time of war this is not only unwise; it can be the difference between the US acting quickly on time-sensitive information for the good of the war effort and safety of American citizens and cities vs. and debating about alternatives in charged political environments for weeks or months in the courts or Congress. Yet suddenly the rights of a President to do this are being called into question. As the editors conclude:
Serious commentators know that constitutional signing statements have a history almost as long as the republic. It is true that everyone knows that President Bush has issued more signing statements than all previous presidents combined. As it happens, however, everyone is wrong. As of June, the president had issued 132 signing statements, of which 110 broached a constitutional issue. Bush’s father issued more during his four years in office. The critics use a trick to generate a fake statistic. When one of Bush’s signing statements raises constitutional questions about two provisions in a law, they count it twice. They count his predecessors’ signing statements once each.
Many of Bush’s signing statements, like those of his predecessors, have sought to vindicate aspects of the Constitution in which the president has a distinctive interest. The Constitution stipulates that presidents shall “from time to time” recommend legislation they judge “necessary and expedient.” When a bill purports to order the president to recommend legislation, Bush says he does not recognize the constitutionality of the order. He has raised that objection in about half of his signing statements regarding constitutional issues.
Now consider the solution that the ABA and Specter offer for this non-problem. Ordering courts (including state courts) to ignore signing statements is at least as much a violation of the separation of powers as signing statements themselves could ever be. And to ask the courts to judge the legality of signing statements in the absence of a case requiring them to do so is to ask them to issue advisory opinions — which, as every high-school student used to know, is foreign to our Constitution. The ABA even recognizes this point. It allows that the Supreme Court might hold its pet legislation unconstitutional. So we have now moved full circle. The imaginary problem is that the president doesn’t veto every bill that contains a provision he considers unconstitutional, and the solution is for the president to sign a bill that is probably unconstitutional.
President Lincoln speculated that there might be occasions when it was necessary to violate the Constitution in order to save it. He had in mind a crisis rather larger than any the ABA has identified.
