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Tilting at Windmills

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July 16, 2006
By: Kevin Drum

PRESIDENTIAL SIGNING STATEMENTS....Twenty years ago, as a lawyer in the Reagan administration, Samuel Alito pioneered the use of presidential signing statements as a way of expanding executive power at the expense of Congress. Since then, though, these statements have been largely ignored by the Supreme Court.

Today Samuel Alito is on the Supreme Court, and the Boston Globe's Charlie Savage points out that the dissent in the Hamdan case includes the following from Antonin Scalia:

"Of course in its discussion of legislative history the court wholly ignores the president's signing statement, which explicitly set forth his understanding that the [Detainee Treatment Act] ousted jurisdiction over pending cases," Scalia wrote.

In a footnote, Scalia also included the text of Bush's signing statement on the law. In the statement, Bush instructed government lawyers to file briefs arguing that the new law stripped courts of the power to hear "existing" detainee lawsuits, although the text of the law did not say it was meant to apply retroactively.

Alito and Clarence Thomas joined the dissent, and Chief Justice John Roberts probably would have as well if he hadn't recused himself from the case. The pioneer of the presidential signing statement is apparently busy lobbying his colleagues to give these statements the same weight they traditionally give to legislative history.

Of course, the whole point of legislative history is that it happens before a bill is passed, and is thus part of the compromise and debate that fashions the bill in the first place. Presidential signing statements, by contrast, are unilateral statements that are not debated or even seen by anyone before they pop out of the Oval Office like Athena from the forehead of Zeus.

So how does this play out? Currently, legislation is written as a compromise not just between legislators, but between legislators and the president. It's Congress that debates the bill, but the president influences its wording partly by appeals to fellow party members and partly by threats of a veto. That negotiation is all part of the bill's legislative history.

But if the Supreme Court decides that post-debate signing statements should also be routinely considered as part of a bill's legislative history, then surely Congress will start to insist on negotiating these statements before legislation is sent to the president for his signature. I'll bet John McCain wishes he had done that on the torture bill that George Bush so casually gutted after months of arduous negotiation.

Kevin Drum 12:31 AM Permalink | Trackbacks | Comments (78)

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Comments

The next logical step, of course, would be for Congress to negotiate with the Supreme Court in advance to guarantee mutually acceptable judicial interpretations.

Posted by: Ross Best on July 15, 2006 at 11:47 PM | PERMALINK

Wow! I can't wait to see what great use a Democratic President will be able to make out of signing statements. Hell, we won't need to worry about electing members to Congress; just make sure that our guy wins the White House every four years! Isn't a quasi-democracy great?!?

Posted by: mrjauk on July 15, 2006 at 11:53 PM | PERMALINK

Alito and Clarence Thomas joined the dissent, and Chief Justice John Roberts probably would have as well if he hadn't recused himself from the case.

Good job by Scalia, Thomas, and Alito, the originalists on the Supreme Court. Conservatives like myself believe in the original intent of the Constitution. The Constitution entrusts President George W Bush, the head of the Unitary Executive, with the duty to enforce the laws faithfully. Therefore, it is up to Bush to determine what laws mean, and not Congress, because this is necessary in order to enforce the laws faithfully. Originalists on the Supreme Court should therefore support the view that the Presidential Signing Statement is the primary method to determine what laws mean and how they should apply to specific cases. Any other method would lead to liberal judicial activism.

Posted by: Al on July 15, 2006 at 11:55 PM | PERMALINK

The next logical step, of course, would be for Congress to negotiate with the Supreme Court in advance to guarantee mutually acceptable judicial interpretations.

It is not that uncommon for a state attorney general to petition a state supreme court for an advisory opinion, particularly with regards to the validity of proposed amendments to their state constitution. I wonder if there is a similar mechanism by which the U.S. Supreme Court can issue advisory opinions?

Posted by: RichardP on July 15, 2006 at 11:58 PM | PERMALINK

Hah. It turns out that wikipedia answers my question with regards to advisory opinions. The U.S. Supreme Court has ruled that U.S. Constitution prohibits federal courts from issuing advisory opinions (including the supreme court itself).

Posted by: RichardP on July 16, 2006 at 12:07 AM | PERMALINK

The Constitution entrusts President George W Bush, the head of the Unitary Executive, with the duty to enforce the laws faithfully.

Wow, Al. I had no idea the Constitution even mentioned George Bush. Should have paid more attention in history class. Also I'll have to check out that Unitary Executive clause -- exactly what I'd expect from people who just overthrew a monarchy. I mean really, all that Thomas Paine stuff was just for show; they were just jealous of George III.

Posted by: wahoofive on July 16, 2006 at 12:13 AM | PERMALINK

The Constitution entrusts President George W Bush, the head of the Unitary Executive, with the duty to enforce the laws faithfully.

Since when did "enforce" come to mean "interpret"? Are conservatives now divining the original intent of language now too?

Posted by: Otto Man on July 16, 2006 at 12:18 AM | PERMALINK

The debate between Congress and the President is supposed to be reflected in the text of the legislation. The legislative history merely reflects the thinking of the individuals who voted on it. It's not limited to the majority. The minority is free to get its views into the legislative history also. The President is as necessary a part of the legislative process as Congress. There is no reason to exclude the President's views from that record.

You seem to be confusing the function of legislative history with the function of the legislation itself.

Posted by: FXKLM on July 16, 2006 at 12:22 AM | PERMALINK

The Constitution entrusts President George W Bush, the head of the Unitary Executive, with the duty to enforce the laws faithfully.

For an originalist, Al, you demonstrate an incredible degree of ignorance about the Constitution's actual words.

Could you show the rest of us where this so-called "Unitary Executive" is mentioned? Or where his enumerated powers include the concept of a signing statement?

The men who wrote the Constitution had just overthrown the rule of a Unitary Executive. Do you honestly believe they meant to replace him with another?

Posted by: Marc on July 16, 2006 at 12:23 AM | PERMALINK

"....Twenty years ago, as a lawyer in the Reagan administration, Samuel Alito pioneered the use of presidential signing statements as a way of expanding executive power at the expense of Congress."

If only there had been some hearings where Democratic senators could raise questions like this before Alito was confirmed. oops, I mean if only Democaratic senators had raised this question at those hearings...

Posted by: URK on July 16, 2006 at 12:33 AM | PERMALINK

What's next, Dems? You losers want Nancy Pelosi to introduce legistlation baning signing statements??

Posted by: Frequency Kenneth on July 16, 2006 at 12:34 AM | PERMALINK

Look guys, I know it's hard to tell sarcasm sometimes, but are you really so dense you can't see this was a parody of Al --- and a pretty good one, IMHO.

Posted by: Maynard Handley on July 16, 2006 at 12:35 AM | PERMALINK

Therefore, it is up to Bush to determine what laws mean, and not Congress, because this is necessary in order to enforce the laws faithfully.

Wrong on both counts. It's up to the Supreme Court and the lower courts to determine what laws mean.

Art. III, Sec. 2: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"

Seriously, Al, if you want to live in a dictatorship, I hear North Korea is just lovely this time of year. I'm sure you'll love their Dear Leader as much as you love this one.

Posted by: Otto Man on July 16, 2006 at 12:35 AM | PERMALINK

Well, Al always seems ludicrous to me. Hard to tell what's a fake and what's not.

Posted by: Otto Man on July 16, 2006 at 12:37 AM | PERMALINK

Frequency

What the fuck is baning signing statements?

Its Rock Time!
back under it.

Posted by: Pierre Asciutto on July 16, 2006 at 12:41 AM | PERMALINK

Marc: Article II vests all of the executive power in the President. It's the first sentence. Unitary executive means that all the executive power is vested in a single individual, not that all government power is vested in a single individual.

The Framers intended to check the power of the President by vesting the Legislative and Judicial powers in separate bodies. They did not intend for other members of the Executive branch to act as a check on the President's powers. They were intended to be subordinate to the President. This point was made especially forcefully by James Madison in the 1789 debate over the presidential removal power. I think it's difficult to argue that a position held by Madison is plainly contrary to the intent of "the men who wrote the Constitution."

Posted by: FXKLM on July 16, 2006 at 12:41 AM | PERMALINK

McCain knows what's going on. So do all Republicans. The thing is, they just don't seem to care. Doesn't seem like Dems are making as big a fuss over this as they could--though they have decried signing statements on numerous occasions.

Posted by: gq on July 16, 2006 at 12:44 AM | PERMALINK

Well, one solution would be to abandon legislative history altoghether and to enforce the plain meaning of the statute as set forth within its four corners.

The only people who would be adversely impacted by this are lawyers, who have turned wading through legislative history into a cottage industry, and judges, who use legislative history as a pretext to override the plain meaning of the statute.

Most state legislatures enact legislation without all this legislative history; the system of enforcing state legislation without it works perfectly well.

So, what do you want: higher legel fees, less certain laws, and presidential signing statements. Or lower legal fees, more certain laws, and no signing statements?

Posted by: Thinker on July 16, 2006 at 12:45 AM | PERMALINK

I have a few questions, Al:

(1) By what method or methods do you infallible conservatives discern the "original intent" of the Constitution's framers?
(2) Do you think an American citizen has the right to a fair trial? If you do, why? The Constitution doesn't explicitly say you that you do and I thought conservatives only believe in rights that are explicitly enumerated?

Posted by: Stephen Kriz on July 16, 2006 at 12:47 AM | PERMALINK

FXKLM,

Clearly there has to be limits to the weight put on signing statements. In particular, the torture amendment was veto proof and the presidents opinion was irrelevant. He could sign it saying "I hereby gladly sign this piece of toilet paper and the non-binding advisory opinion of congress written on it." The legislative intent of 2/3 of congress would not be any different.

Signing statements can't be stronger than a veto.


Posted by: B on July 16, 2006 at 12:49 AM | PERMALINK

I think it's difficult to argue that a position held by Madison is plainly contrary to the intent of "the men who wrote the Constitution."

Excellent
I read this blog because of posts like this.

But, you don't believe these guys care one shit about anything Madison said do you?

I mean to them,
Madison is some cutie their son is hoping to sweettalk into the back seat of the Lincoln.

Posted by: Pierre Asciutto on July 16, 2006 at 12:51 AM | PERMALINK

Marc: Article II vests all of the executive power in the President. It's the first sentence. Unitary executive means that all the executive power is vested in a single individual, not that all government power is vested in a single individual.

Oh, that I understand. It's the part where "executive power" somehow means "and legislative and judicial power too" is what I don't understand. The Constitution calls on the president to enforce the laws, not make them or interpret them.

Posted by: Marc on July 16, 2006 at 12:51 AM | PERMALINK

I have a few questions, Al:

If you're expecting an answer, well...good luck with that.

Al is a parody troll. He hits and runs. One post per thread. By taking the bait, you make a fool of yourself. Stop giving him the attention he doesn't deserve.

Posted by: Reprobate on July 16, 2006 at 1:28 AM | PERMALINK

Kevin apparently misses the point of Scalia's citation to the signing statement. He is mocking the majority's use of legislative history.

It is Scalia's position that any use of legslative history to interpret a statute is illegitimate. If a statute is ambiguous, the common law has developed methods for judges to go about interpreting them, which is the core function of the judical branch, to interpret and apply the law to specific cases. If the legislature disagrees with the court's interpretation of the statute, it can impose its own by passing another law that the court is then bound to follow. The check and balance between these two branches.

By using legislative history, it give the court the ability to comb the Congressional Record to look for evidence to support the majority's decision. Knowing that the court uses legislative history, the members then go about "creating" this history for the court to use, which is what the flap involving Gramam and the other Senator and the Gitmo decision was about. Scalia's point is that if you as a judge believe it ok to use legislative history as evidence that explains the understanding of legislature as to the meaning of the statute, then why would it be illegitimate to use the signing statement of the President as evidence of the executive's understanding of the statute. After all, the President is properly more deeply involved in the drafting of legslation than most members of Congress. Why should the understanding of a co-equal branch of government, and often a co-author of the legislation, as to the meaning of the statute be dismissed out of hand?

Scalia's position is consistent. Under the Constitution, the words that Congress uses to write the law should be the only thing that the courts use to determine the meaning of the law. Likewise, under the Constitution, the President can either sign or veto a law. The reasons why he choses to sign the law should be equally irrelevant.

Posted by: Chicounsel on July 16, 2006 at 1:38 AM | PERMALINK

So if Scalia uses mockery and sarcasm, are lower courts and future supreme courts bound by the text of his opinions, or can they consider emoticons and contemporary trends in humor?

Posted by: B on July 16, 2006 at 1:51 AM | PERMALINK

Under the Constitution, Congress is responsible for drafting a law, not the president. Where the law is ambiguous, the legislative history may be relevant when construing its intent. The opinions of the executive are simply beside the point. The only choice offered the president is the veto.

In practice, of course, this president simply ignores the law, and the facts, whenever it suits him.

Posted by: bad Jim on July 16, 2006 at 1:56 AM | PERMALINK

I almost want Hillary to become President just to see GOP heads spinning when she does this.

Posted by: Mike S on July 16, 2006 at 1:58 AM | PERMALINK

Why should the understanding of a co-equal branch of government, and often a co-author of the legislation, as to the meaning of the statute be dismissed out of hand?

Maybe because the executive branch was not a party to the legislation in question. They threatened to veto it and only gave in to the amendment after they figured out they were going to lose by a veto proof margin. They clearly opposed the legislation and it clearly wasn't going to affectg it's passage. Maybe Scalia thinks through his arguments better when they are not mock arguments.

Scalia's position is consistent.

and yet somehow a state recounting it's votes in a way determined by its legislature is a federal issue.

Posted by: B on July 16, 2006 at 2:03 AM | PERMALINK

B:

Well, considering that he is writing in dissent means that no court is bound to follow his opinion. No matter how correct he is.

Posted by: Chicounsel on July 16, 2006 at 2:05 AM | PERMALINK

He only uses mock arguments in his dissents? Is there a manual for this?

Posted by: B on July 16, 2006 at 2:07 AM | PERMALINK

I'll give odds of 100-1 that our boy Al had never heard of the Unitary Executive theory before 2006.

Posted by: Linkmeister on July 16, 2006 at 2:10 AM | PERMALINK

If Congress wants more leverage in negotiations over presidential signing statements perhaps the President should be offered generous signing bonuses.

Posted by: Ross Best on July 16, 2006 at 2:54 AM | PERMALINK

THE DEBATE IS OVER!!!!

KILL THE LOSERS!!!!

Posted by: FREEDOM DALEK on July 16, 2006 at 3:15 AM | PERMALINK

Sure Al is a parody troll. But, he is OUR parody troll! Don't worry Al, you keep posting your ridiculous (an occasionally funny) comments and we'll keep playing right along. You're part of the WM family.

Posted by: ecoboz on July 16, 2006 at 3:19 AM | PERMALINK

Oh no, the Daleks know of our existence. Where's the Doctor when you really need him? (Big fan of the show, don't you know)

Posted by: Chicounsel on July 16, 2006 at 3:28 AM | PERMALINK

Well, now we have proof that Scalia's originalism is a sham:

"Of course in its discussion of legislative history the court wholly ignores the president's signing statement, which explicitly set forth his understanding that the [Detainee Treatment Act] ousted jurisdiction over pending cases," Scalia wrote.


"...In the statement, Bush instructed government lawyers to file briefs arguing that the new law stripped courts of the power to hear "existing" detainee lawsuits, although the text of the law did not say it was meant to apply retroactively.


Bush can say whatever the hell he wants in his signing statements, doesn't mean the courts have to pay it one iota of respect. The President's unilateral control over legislation is through his veto...period! If he doesn't veto it, at best his administration can argue its constitutionality before the 3rd branch of government.

To use a favorite right wing simplification: "What part of Legislative Branch" don't you understand"

Posted by: Dazir on July 16, 2006 at 3:32 AM | PERMALINK

BTW, Daleks don't kill. They "EXTERMINATE!!"

On the other hand, Cybermen "Delete!!" LOL

Posted by: Chicounsel on July 16, 2006 at 3:32 AM | PERMALINK

Bet you McCain could give a shit. He knows the score.

Posted by: matt on July 16, 2006 at 5:09 AM | PERMALINK


otto man: Since when did "enforce" come to mean "interpret"? Are conservatives now divining the original intent of language now too?


"The legislature's job is to write law. It's the executive branch's job to interpret law." - George W. Bush, Austin, Texas, Nov. 22, 2000

Posted by: thisspaceavailable on July 16, 2006 at 6:52 AM | PERMALINK

... they pop out of the Oval Office like Athena from the forehead of Zeus.

Whoo, classical! Nice one, Kevin.

Posted by: Thlayli on July 16, 2006 at 7:44 AM | PERMALINK

So if Scalia uses mockery and sarcasm, are lower courts and future supreme courts bound by the text of his opinions, or can they consider emoticons and contemporary trends in humor?

Actually, you have raised another point, which is the verbal diarrhea which is a trademark of modern judicial decisions.

How often has Linda Greenhouse, on Washington Week, referred in breathless terms to the "hundred page decision"?

As if people have time to wade through all this stuff.

Look at Marbury v. Madison. It is about 15,000 words long. Contemporary judicial opinions are magnitudes longer. Is this necessary?

Once again, we are talking a massive cottage industry for the lawyers who are paid to wade through all this and a massive fudge factor for judges who are seeking rationalization for their agendas - the longer and vaguer the opinion the easier it is to play around with it.

Does requiring people to obey the law mean requiring them to have a swarm of lawyers about them providing arcane instructions for every act they take? Does rule of law mean mindless devotion to opaque language from a priesthood of judges with hidden agendas?

Posted by: thinker on July 16, 2006 at 7:52 AM | PERMALINK

I mentioned this in a post on Scalia and Alito's dissents when the judgment came out. Interestingly, Scalia appeals to the signing statement, but then says the only thing that should count is the text of the bill itself. Seems he can't quite decide exactly what kind of originalist/textualist he is, depending on the matter at hand.

Posted by: Steven Poole on July 16, 2006 at 8:14 AM | PERMALINK

It seems to me that Congress has a simple solution towards "dealing" with signing statments. Simply craft into the Legislation languange that forbids the consideration of any signing statements. Much like when I sign a End User License Agreement, I expect that Congress can insert "By signing the legislation herein, the opinions expressed by the President will in no way reflect its legal or judicial interpretation."

Something to that effect--Power to the People!

Posted by: kevin. on July 16, 2006 at 9:03 AM | PERMALINK

otto man: Since when did "enforce" come to mean "interpret"? Are conservatives now divining the original intent of language now too?

"The legislature's job is to write law. It's the executive branch's job to interpret law." - George W. Bush, Austin, Texas, Nov. 22, 2000

Well, I guess he is The Decider.

Posted by: Otto Man on July 16, 2006 at 9:18 AM | PERMALINK

Those claiming to be strict constructionists that also support this use of signing statements shoud go back and read the Constitution. There is no mention of signing statements in the Constitution. The Constitution does provide where the legislative power exclusively resides - the Congress:

Section 1: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Consitution does specify in Article I what the Presidents role is and its quite straight forward:

Section 7: All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Section 1: Section 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
The Constitutions division of power is clear with a division between legislative, executive and judicial. These use of signing statements tries to create quasi legislative powers for the President not only not granted by the Constituion, but that it expressly provides against. Posted by: Catch22 on July 16, 2006 at 9:22 AM | PERMALINK

FXKLM: The Framers intended to check the power of the President by vesting the Legislative and Judicial powers in separate bodies. They did not intend for other members of the Executive branch to act as a check on the President's powers. They were intended to be subordinate to the President.

This is all true, but it doesn't prove your point. The legislature makes laws to tell the executive and all his subordinates what to do. The executive then executes, i.e., does what the legislature tells him to do. Then the judicial interprets and judges. Nowhere in that is any suggestion that the executive gets to decide what the law is.

Posted by: anandine on July 16, 2006 at 9:34 AM | PERMALINK
I have a few questions, Al:

(1) By what method or methods do you infallible conservatives discern the "original intent" of the Constitution's framers?

Surely you jest? I thought everyone knew what the proper (and infallible) tool for learning the "original intent" of non-Xtian liberals like Jefferson, Madison, etc: Ouija Board.

Posted by: Praedor Atrebates on July 16, 2006 at 9:47 AM | PERMALINK

Kevin writes: "I'll bet John McCain wishes he had done that on the torture bill that George Bush so casually gutted after months of arduous negotiation."

WRONG! McCain didn't care about stopping torture. If he had, he would have made some noise after Bush disregarded his bill. It was strictly a PR move.

Posted by: mackdaddy on July 16, 2006 at 10:06 AM | PERMALINK

Federalist No 77: the executive's role is "faithfully executing the laws [] of the United States" (emphasis added). This is not often cited by "unitary executive" guys, for obvious reasons.

Posted by: Steven Poole on July 16, 2006 at 10:09 AM | PERMALINK

Surely you jest? I thought everyone knew what the proper (and infallible) tool for learning the "original intent" of non-Xtian liberals like Jefferson, Madison, etc: Ouija Board.

Leaving aside the point that ascribing to the 40 separate framers a single "intent" is a fiction, consider that - within a very few years following the Convention, two identifiable Framers - Madison and Hamilton - were asserting diametrically opposing interpretations of the Constitution and were at direct loggerheads with one another over this.

Those who nevertheless assert that - somehow - the Constitution has been imbued with the Framers' religious beliefs should consider that many - if not most - of the Framers were Freemasons.

The problem with original intent is that the historical record on any subject is ambiguous, incomplete, subject to change with the discovery of new materials, and subject to interpretation. Historians are trained as a part of their discipline to interpret and reinterpret events. They are in the business of coming up with new thesis of interpreting the past. Asking any competent historian to generate three or four different interpretations of the Constitutional Convention should be child's play.

Posted by: Thinker on July 16, 2006 at 10:14 AM | PERMALINK

As the Middle East spins into uncontrollable chaos and a regional, if not a world war seems likely, I think Kevin should focus like a laser on the utter and complete lack of leadership and diplomatic initiative on the part of the Bush Administration. Any other American Administration in the past 100 years, Democrat or Republican, would be working round the clock, shuttling diplomats back and forth to Jerusalem and Beirut to negotiate a quick and peaceful end to this fiasco. Instead, Bush utters his usual idiotic "can't negotiate with terrorists" platitudes and goes mountain biking. Earth to Bush: Every group in the world who doesn't agree with you is NOT a terrorist. Moronic. By the way, where is our Secretary of State in all this? She is also an incompentent who should be ashamed to cash her paycheck. The world is at it's most dangerous point since 1962 and she is nowhere to be seen. What is she doing? - Shopping for shoes in NYC while the Middle East erupts in flames???

What a lazy, incompetent and worthless man George Walker Bush is and anyone who continues to support this absolutely pathetic piece of shit should have their head examined! I'm sorry to be vulgar, but to be talking about anything BUT the Middle East at this point in history is self-indulgent verbal masturbation.

Posted by: Stephen Kriz on July 16, 2006 at 10:43 AM | PERMALINK

A man is just a man and some men have a much bigger problem with bias, attitude, and emotional attachments to political and religious beliefs than others. They dont suddenly change for the better upon being placed in a position of high responsibility.

Just watching them and reading about their lives, it appears to me that Scalia, Thomas, and Alito have big chips on their shoulders. They are attached to conservative ideology to an unhealthy degree. They shouldnt be where they are.

Scalia is supposed to be smart and talented, but he does not show it in his opinions/dissents. I cant follow his logic. If you want an example, take a look at what he wrote in justifying SCOTUS injecting itself in the 2000 presidential election, then what he wrote in the opinion itself. Thats embarrassing stuff.

This is strictly my opinion. I absolutely do not expect them to do their jobs and interpret the law. And all that original intent stuff is laughable. Its just ideology, not law.

Posted by: little ole jim from red country on July 16, 2006 at 10:50 AM | PERMALINK

If you want to know why the Dems can't win elections, just take a look at the unhinged 10:43 post by Stephen Kriz.

This guy seems aware that there are serious problems in the world, but he wants the Dems to focus on how horrible Bush is. Almost hidden in his post is Kriz' view that the USA should be engaged in round-the-clock diplomacy. But you have to wade through several sentences of sneering hatred before you see what solution Kriz has to offer.

Until the Dems get past their hatred of Bush, the voters won't take them seriously.

Posted by: Frequency Kenneth on July 16, 2006 at 10:51 AM | PERMALINK

"...complete lack of leadership and diplomatic initiative on the part of the Bush Administration."

Bush is doing nothing because the Israelis are following the 'Bush Doctrine'... (well, after all, they wrote it).

When something bad happens, run around like a bull in a china shop, smashing everything in sight. That way people 'respect' you... just like some gangsta.

>" regional, if not a world war seems likely"

If events continue on this track, it is obvious the next world war will be the entire planet versus the United States & Israel.

Posted by: Buford on July 16, 2006 at 11:01 AM | PERMALINK

Someone needs to remind Scalia that he doesn't like legislative history, and has written a book and numerous articles about the defects of using legislative history.

Posted by: matt on July 16, 2006 at 11:08 AM | PERMALINK

the next world war will be the entire planet versus the United States & Israel.

What about Poland?
------------

Scalia is a genius and can support his conservative ideas by simply twisting the words of legislation, the constitution, and the federalist papers in his favor. He need only use legislative history or signing statements in hilarious mock arguments (see Chicounsel above). It's even more hilarious that Alito thinks they're real arguments and signs on.

Posted by: toast on July 16, 2006 at 11:24 AM | PERMALINK

Until the Dems get past their hatred of Bush, the voters won't take them seriously.

Yeah, that must be why the Democrats have a 2-to-1 advantage in the latest congressional polls. If they got rid of the Bush hatred, it would probably be unanimous.

Posted by: Otto Man on July 16, 2006 at 11:49 AM | PERMALINK

The signing statements are extra-legal on their face. I can't believe that Congress needs to specifically make a law telling the "chief" executive he must execute the laws as written, not how his gut tells him. Unfreakingbelievable. When is the man going to be impeached? There are scores of reasons. Maybe the best are the whole-cloth frauds that signing statements represent. Another good reason is torturing people. Look at the Middle East. What an executive. The world is in deep trouble now.

Posted by: Sparko on July 16, 2006 at 11:56 AM | PERMALINK

Why, haven't you heard?

The law is whatever George W. Bush says it is. He's the decider.

Posted by: The Fool on July 16, 2006 at 11:58 AM | PERMALINK

Another problem with legislative history is that it permits the sort of song-and-dance routine that Biden and other Democrats who voted for the Iraq War resolution are now using to disown it.

They say they did not "intend" for Bush actually to invade Iraq they way he did ( or some such thing ).

Well, damn it, that is not what the resolution says. If they "intended" for Bush to do something other than what he did, they should have insisted on clear language spelling out what Bush may or may not have done.

This use of "legislative history" allows the Bidens of this world to play this sort of game.

See also, the war powers resolution and the debate over how much power Congress "intended" thereby to give Bush.

Posted by: Thinker on July 16, 2006 at 12:11 PM | PERMALINK

Rule by fiat and whim.

Why could he not say in his signing statement that he thinks the law means exactly the opposite of what is written in the bill? Or that it applies only to smelt pre-schools on Mars?

Posted by: cld on July 16, 2006 at 12:47 PM | PERMALINK

It's hard to imagine any circumstance in which a signing statement is not an attempt to thwart the intent of the law.

Posted by: cld on July 16, 2006 at 1:33 PM | PERMALINK

That was one of the great fake Al posts above there.

Posted by: Justin Slotman on July 16, 2006 at 2:17 PM | PERMALINK

Freuency Kenneth, you dumb fuck. You obviously have piss-poor reading skills. My post above IS about the serious problems in the world and the complete moron we have in charge is totally ill-equipped to deal with them. Ditto for Condi, Rumsfeld, Cheney, et al. Conservatives are so focused on their narrow, greedy self-serving world that they can't even see the massive and very evident causes of these problems (like Israel's mistreatment of the Palestinians).

My post has nothing to do with "hatred" of Bush - and everything to do with his incompetence. Get a friggin' clue you goddamn moron...

Posted by: Stephen Kriz on July 16, 2006 at 2:30 PM | PERMALINK

I must have missed the part of the constitution where the executive branch was also the legislative branch. Scalia and Alito should be impeached and removed from the court for this.

Posted by: s5 on July 16, 2006 at 3:29 PM | PERMALINK
It is not that uncommon for a state attorney general to petition a state supreme court for an advisory opinion, particularly with regards to the validity of proposed amendments to their state constitution. I wonder if there is a similar mechanism by which the U.S. Supreme Court can issue advisory opinions?

The US Supreme Court does not issue advisory opinions because there is no genuine controversy between parties with conflicting interest to advocate for the opposing sides of the issue.

State Supreme Courts often do, but states generally have a lot sloppier separation of powers than the US federal system.

Posted by: cmdicely on July 16, 2006 at 4:54 PM | PERMALINK
Look at Marbury v. Madison. It is about 15,000 words long. Contemporary judicial opinions are magnitudes longer. Is this necessary?

Certainly; first, modern appellate (including Supreme Court) decisions written more verbosely in part with an eye toward being looked at by future courts. Looking at 18th Century US cases (and worse, older cases from, say, the House of Lords), the clarity of the exposition of the facts and legal rules in most major modern decisions is quite useful (there are, of course, notable exceptions on both sides.)

Secondly, the bodies of applicable law are larger, both in terms of statute and case law; this provides a larger arsenal for both parties to bring to bear, and a bigger mess for courts to decide. Disposing of the relevant issues, therefore, often takes more ink.


Posted by: cmdicely on July 16, 2006 at 5:01 PM | PERMALINK

Chicounsel said:
Under the Constitution, the words that Congress uses to write the law should be the only thing that the courts use to determine the meaning of the law. Likewise, under the Constitution, the President can either sign or veto a law. The reasons why he choses to sign the law should be equally irrelevant.

If the president choses not to enforce a law, could that be an impeachable offense? What, if anything, does the Constitution say about selective enforcement? I think I wish it would have had about a paragraph on the matter.

Posted by: slanted tom on July 16, 2006 at 7:10 PM | PERMALINK

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Posted by: sam on July 16, 2006 at 10:19 PM | PERMALINK

Can a later president change the signing statement or amend it?

Posted by: hocus potus on July 17, 2006 at 12:38 AM | PERMALINK
Any other American Administration in the past 100 years, Democrat or Republican, would be working round the clock, shuttling diplomats back and forth to Jerusalem and Beirut to negotiate a quick and peaceful end to this fiasco.

Yes they would. And the result of all that endless shuttling and quick endings? Here we are back in precisely the same situation all over again.

Perhaps diplomatic shuttling and a quick end is not in the US's best interests? Could it be that the destruction of Hezbullah, and the public humiliation and weakening of Syria and Iran would serve the country better? Maybe calling off the dogs is not the wisest thing to do? Perhaps the best thing for all concerned would be for those who provoked this onslaught to suffer the full consequences of their actions. Is it possible that the belief that the international community would rush in when things got too hot has actually emboldened those who would strike at Israel.

A complete and thorough ass-whipping can work wonders on a trouble maker. Just ask Germany and Japan.

Posted by: Conrad on July 17, 2006 at 2:49 AM | PERMALINK

...destruction of Hezbullah, and the public humiliation and weakening of Syria and Iran would serve the country better?...

A complete and thorough ass-whipping can work wonders on a trouble maker. Just ask Germany and Japan.

Posted by: Conrad on July 17, 2006 at 2:49 AM | PERMALINK

War against terrorism isn't a war for survival. The hystrionics and cowardice from the right have gone on long enough. These neocons are a sad reflection of the bravery and objectivity shown in the past to preserve the strengths of this country. Enough! Take your hysteria elsewhere.

So. Conrad, please lay out exactly what you want to do? Area bombing? Firestorms? Nuclear weapons?

How many innocent victims are OK in your war against terrorism? Destroying Hezbullah. Humiliation to make you feel big? You've already decided who "provoked this onslaught". No room for doubt there.

Arsehole. You don't even start to think about justice. You don't even have a clue. You, like Bush, are judge, jury and executioner.

Come on! You want to play hard ball. Lay it out. What would you do? Details.

Posted by: notthere on July 17, 2006 at 3:55 AM | PERMALINK

Kevin said: Twenty years ago, as a lawyer in the Reagan administration, Samuel Alito pioneered the use of presidential signing statements as a way of expanding executive power at the expense of Congress.

That is simply a misrepresentation. Alito did NOT seek to expand executive power at the expense of Congress. To the contrary, if you read the memo that Alito actually wrote, Alito was careful to tell the President, "We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

Posted by: Anono on July 17, 2006 at 9:23 AM | PERMALINK

uh, Kevin, Scalia was being sarcastic.

throughout his career (both on the Court and as a law prof) Scalia has consistently opposed courts giving any weight whatsoever to legislative history. in this opinion he was asserting that presidential signing statements should be given as much weight as legislative history, i.e....none.

Posted by: Nathan on July 17, 2006 at 10:53 AM | PERMALINK

"If the president choses not to enforce a law, could that be an impeachable offense?"

an impeachable offense is whatever Congress says it is.

Posted by: Nathan on July 17, 2006 at 5:10 PM | PERMALINK

"We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

Maybe Congress should just take care that legislation is written unambiguously. Then a signing statement would either be redundant (nothing more than a declaration that the President would follow the law), or it would be an impeachable offense...

Posted by: markm on July 17, 2006 at 6:01 PM | PERMALINK

This is all much ado about nothing. Signing statements are just that: statements. They carry the legal weight of a White House Christmas card. The beginning and the end of the President's lawmaking power is his signature or lack thereof.

yours/
peter.

Posted by: peter jackson on July 18, 2006 at 9:15 PM | PERMALINK

"Of course, the whole point of legislative history is that it happens before a bill is passed, and is thus part of the compromise and debate that fashions the bill in the first place."

Actually, since congressmen can go back into the congressional record and alter their statements (including just adding entirely new statements)in the legislative history on a bill well after it passes, this isn't true. And it makes reliance on legislative history just as ridiculous as the signing statements.

I don't understand why people are so worked up about these statements. They're meaningless, and really don't change how things have worked. There is always wiggle room in a statute in terms of how to enforce it, and there's always wiggle room in how vigorously to enforce even the most clearly written statute. Presidential administrations are always making decisions about which statutes to forget, which ones that have fallen into disuse to dust off and use again, etc. Individuals are constantly suing the executive branch to comply/enforce certain laws. This isn't a new thing. Bush can actually be viewed as doing Congress and the press a favor - he takes the time to tell you that he is going to ignore a certain law to the extent he can or that he is only going to enforce it in a certain way. The signing statements can be seen as Bush telling Congress, if you want me to do this in a certain way, you're going to have to be clearer and not give me any wiggle room. Other presidents just went ahead and took advantage of the wiggle room, and it would take the public, the press or a congressional investigation to figure out he was enforcing it in a particular way. Bush gives you the heads up.

Posted by: cheeky on July 19, 2006 at 3:07 AM | PERMALINK




 

 

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