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Tilting at Windmills

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February 5, 2008
By: Kevin Drum

THE POWER OF THE PURSE....Bruce Fein is a conservative legal scholar who long ago turned against George Bush. Here's one of the reasons why:

Jan. 28, 2008, is a date that will live in congressional infamy. Congress surrendered the power of the purse over national security affairs to the White House.

President Bush appended a signing statement to the National Defense Authorization Act of 2008 denying the power of Congress to withhold funds for establishing permanent U.S. military bases in Iraq, or to control its oil resources. The statement tacitly averred that Congress was required to appropriate money to support every presidential national security gambit, for example, launching pre-emptive wars anywhere on the planet or breaking and entering homes to gather foreign intelligence.

....The National Defense Authorization Act's restrictions on President Bush in Iraq were no novelty. Congress has repeatedly legislated to constrain the president's projection of the military abroad or has otherwise overridden his national security policies.

....Yet Congress acquiesced....

Bush has appended so many signing statement to so many bills that this one got only a smidgen of extra attention at the time. All part of Bush fatigue, I guess. But it really deserves more. The appropriations power is fundamental to congressional authority, and this was an unusually direct affront to that authority even for the current crew in the White House. If Congress doesn't have the power of the purse, what does it have?

Kevin Drum 12:29 PM Permalink | Trackbacks | Comments (46)

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Oh, there's been one or two "complaints" from Congressional Democrats, but that will be it.

Reason 979 to not vote Democrat.

Vote Green. Vote Libertarian if you can't stomach voting Green. Vote Socialist or Social Democrat if you have a party like that on your ballot.

Posted by: SocraticGadfly on February 5, 2008 at 12:33 PM | PERMALINK

Anybody out there know why this bizarre doctrine of binding, authoritative signing statements has not been tested by the courts? I can see the political point of just ignoring them legislatively (ie, not impeaching over them), but there has to be some way to get this in front of the USSC to review them!

Posted by: Xenos on February 5, 2008 at 12:35 PM | PERMALINK

I'm baffled by Fein's reasoning. First, I don't see how Congress can be held responsible for the president's signing statement. They passed a law with black-letter language and the president signed the bill. How can Congress stop him from attaching a signing statement at that point? Does Fein expect that Congress should put a line in every bill that says it supersedes any signing statement by the president? Why should they have to? I've never heard any convincing argument that signing statements carry the weight of law, and to the best of my knowledge, this has never been tested in court. These signing statements are a blight on the legislative process, for sure, but presumably if a president ever justified violating a provision of a law based on a signing statement, he'd be slapped down in court, since there is no provision in the constitution for such statements.

Posted by: kishin on February 5, 2008 at 12:41 PM | PERMALINK

....The National Defense Authorization Act's restrictions on President Bush in Iraq were no novelty. Congress has repeatedly legislated to constrain the president's projection of the military abroad or has otherwise overridden his national security policies.

OK. This sounds like, in fact, the Democrats have made several votes to reign in the Imperial Presidency.

....Yet Congress acquiesced....

I don't follow. They passed the bill. Bush signed the bill they passed, but added in his bullshit language. How is this "acquiescing" and not a mad power grab by Bush? What other recourse does a non-veto proof Congress have?

Reason 979 to not vote Democrat.

Vote Green. Vote Libertarian if you can't stomach voting Green. Vote Socialist or Social Democrat if you have a party like that on your ballot.

Yeah, that'll show Bush and the GOP (whose wars and signing statements these are)! Brilliant strategy. Don't try and change the Democrats, passive-aggressively ignore them until they mend their ways! Christ we're doomed.

Posted by: Jay B. on February 5, 2008 at 12:42 PM | PERMALINK

I think the idea is once the shrub leaves no one will pay any attention to his stupid signing statements, which have no legal force, particularly if they contradict the language of the bills they are attached to. A signing statement contradicting the constitution itself is nothing more than evidence of what an absurd prick Bush is.

It's similar to people not bothering to argue with the crazy uncle. Eventually the family get-together is over and you can go back to ignoring his existence.

Posted by: jimBOB on February 5, 2008 at 12:43 PM | PERMALINK

Anybody out there know why this bizarre doctrine of binding, authoritative signing statements has not been tested by the courts?

Because it doesn't matter what Bush says--what matters is how he acts. Most of the signing statements haven't been acted upon by the adminstration in a way that leads to a lawsuit. Courts only decide concrete cases between individuals--they don't issue statements of general principles.

Similarly, I think Congress ignoring signing statements is, for the msot part, the correct reaction--they are meaningless. Who cares what nonsense that idiot babbles?

Posted by: rea on February 5, 2008 at 12:44 PM | PERMALINK

One year cannot be over soon enough. The gall of this moron.

Posted by: Boorring on February 5, 2008 at 12:44 PM | PERMALINK

At least the Democrats in Congress made speeches protesting Bush's move. As Froomkin noted, nobody in the press even covered this except Charlie Savage of the Boston Globe (and Froomkin himself on line). Apparently, the New York Times and the rest of our media (with the honorable exception of the Globe) don't even consider this newsworthy.

It's worth remembering the remedy that the founders intended for this kind of power grab by the executive: impeachment. I don't think passing a resolution condemning the signing statement would accomplish anything more than tje speeches did.

Posted by: crust on February 5, 2008 at 12:50 PM | PERMALINK

Here's Froomkin on this and the non-coverage:

Looking for a news story about all this in your morning paper? You won't find one in The Washington Post, the New York Times, the Los Angeles Times or the Wall Street Journal.

Instead, you must turn to the Boston Globe and Charlie Savage, who won a Pulitzer Prize last year for being the first -- and for a long time, only -- reporter to write about Bush's unprecedented use of signing statements.

As Pelosi said:

"I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. . . . His job, under the Constitution, is to faithfully execute the law - every part of it - and I expect him to do just that.'"

And as Jim Webb said:

"[T]he President of the United States -- who has been in charge of the conduct of this war and whose administration has been in charge of executing these contracts, supervising them, making sure that they meet the requirements of fairness in the law -- is now saying that he believes that a legislative body can enact a law that he can choose to ignore because he says it would interfere with his responsibility to supervise a war as Commander-and-Chief."

"I am at a total loss here. I am amazed to see this kind of language employed with respect to this legislation."

I really don't understand why impeachment is a dirty word considering what is going on.

Posted by: Crust on February 5, 2008 at 12:55 PM | PERMALINK

I too am wondering what Fein suggests, particularly regarding a statement that purports to require Congress to appropriate certain funds. It's one thing to ignore something Congress affirmatively demands -- but engineering congressional appropriation when no action is forthcoming? Is he going to forge it? Pretend it happened anyway? Most likely, I guess, he will try to take money appropriated for some other purpose. When THAT happens and Congress caves, then he will have more than a rhetorical point.

Posted by: Barbara on February 5, 2008 at 1:03 PM | PERMALINK

If Congress doesn't have the power of the purse, what does it have?

Subpoena power.

It's being kept very, very dry.
.

Posted by: Grand Moff Texan on February 5, 2008 at 1:05 PM | PERMALINK

Let's be specific here: It's every single Republican and a crucial section of the Democrats that give in to this shit, and the only recourse congress really has with this Whitehouse is contempt of congress citations and impeachment.

Posted by: Boronx on February 5, 2008 at 1:09 PM | PERMALINK

The problem with legislation specifying that no money will be authorized for permanent bases is obvious: There is no way to test this provision at any point in time; unless Bush declares that the bases are to continue in perpetuity, there is no actionable offense, because his defenders could just say that they will be turned over to the Iraqis some day in the indefinite future. Even to sign an agreement with the Iraqi government allowing for a U.S. presence would be iffy at worst, since we would always have the option of leaving if we chose. In addition, Bush's authority expires at noon, January 20, 2009 so his signing statement is entirely moot regarding any time after that glorious moment.

If the Congress were to pass a bill stating that no money can be spent in continuing an American presence beyond a certain date, that would present a clear test and potentially would create an impeachable offense.

Posted by: Bob G on February 5, 2008 at 1:12 PM | PERMALINK

I believe this was the issue in the Navy sonar case out of California today which ruled against the constitutionality of the signing statements.

See (or rather listen): http://www.npr.org/templates/story/story.php?storyId=18689650

Posted by: Walter Olin on February 5, 2008 at 1:13 PM | PERMALINK

Charlie Savage has been all over this abomination and aside from Dan Froomkin and Glen Greenwald, few others. (Savage's book, Takeover, is a must read.

….no one will pay any attention to his stupid signing statements, which have no legal force,….jimBOB at 12:43 PM

signing statement should be meaningless

...But the Supreme Court cites them and the Bush-Cheney administration acts on them. This is not the first time Bush has given himself the right to violate bans on permanent military bases, and he has continued to violate those bans.....
The Government Accountability Office found last year that in a small sample of these signing statements the Bush-Cheney administration had already followed through on violating 30 percent of the laws it claimed the right to violate. The corporate media now spins this as glass-half-full news (more than half the time he doesn't mean it! hurray!).
Last January the House Judiciary Committee held hearings on the matter, laying bare the violation of constitutional separation of powers. A Justice Department official testified that the president could violate any law he liked until the Supreme Court told him to stop….

The Congressional remedy is impeachment. Where is it?

Posted by: Mike on February 5, 2008 at 1:16 PM | PERMALINK

No one thought the ethos of the Nixon White House would return, but return it did and it was even more authoritarian than before. We will be visiting all this again- the signing statements, the unilateral project wars, the torture, the secrecy, and the surveillance. It is, and has been, a constitutional crisis where the Congress does not have the will or the power to resist a determined executive. No one has been willing to spill political blood and because of this cowardice and lack of idealism the precedent of authoritarian leadership is promised to future generations.

But it is part of a broader decay of the democratic order, for Americans this extends all the way to antiquated parliamentary bodies and the electoral system itself.

Posted by: bellumregio on February 5, 2008 at 1:16 PM | PERMALINK

The first hearing of Conyers' judiciary committee in early 2008 was on signing statements. Despite a lot of promises, though, the hearing seems to have fizzled out with no action taken or recommendations made.

It seems that, as suggested above, the Cemocratic consensus in Congress is that the signing statements themselves are not a basis for legal action (or impeachment) -- until they are acted upon by the Executive in defiance of Congress.

Later in 2008, Conyers and Byrd requested a GAO study of signing statements. The GAO looked at a sample of 19 "provisions that Bush had objected to in signing statements". Of these 19, 13 were executed and 6 were not. Of the 13, 10 were executed as provided by Congress and three were not. Many members of Congress believed that these 3 presented evidence of malfeasance, though the GAO study said explicitly that it could not confirm that the failure to execute correctly was directly attributable to the signing statements. So there was no smoking gun.

As previously mentioned here, the activist Republican use of signing statements was the brainchild of Samuel Alito (not Addington -- he is just writing them). Alito, when he worked at the DOJ during the Reagan years, conceived of this plan for the Executive to shape lagislation stealthily. At the time, he warned that Congress might not like this, implying that it might fight back -- so he recommended the limited use of signing statements in an intitial "pilot project". This happened during Reagan and Bush I, and again under Bush II. By now, since Congress has not reacted, it seems to have a strong precedent.

Democrats in Congress seem to still be waiting for an egregious prsidential act based on a signing statement before acting. In so doing, they have allowed these statements to become an accepted practice -- something the Supreme Court will probably say if a case actually goes there. The frog has not realized that the water was getting hot slowly, and now it's boiling. A spectacular failure of Democrats in Congress to act when it mattered.

Posted by: JS on February 5, 2008 at 1:19 PM | PERMALINK

The real effect of that provision in the bill was to enable the next President to reject any agreement Bush and Maliki sign on bases as having been illegal. (Since Bush has already said he doesnt' plan to submit it as a treaty.) Bush's signing statement is just a "nyah nyah" but doesn't have any real effect. Fein's suggestion of "congressional acquiescence" is silly.

Posted by: Glenn on February 5, 2008 at 1:19 PM | PERMALINK

The first hearing of Conyers' judiciary committee in early 2008... Later in 2008...

Correction: 2007, not 2008, in both references.

Posted by: JS on February 5, 2008 at 1:21 PM | PERMALINK

So what would happen if Congress did deny funds? How would that play out-does anyone have any idea?

Posted by: Susan on February 5, 2008 at 1:27 PM | PERMALINK

Odd... I find no mention of 'signing statements' in the US Constitution. It sure sounds to me like 'Legislating from the Bench' (or desk in this case).

Now... where's the howling mob of conservatives?

Posted by: Buford on February 5, 2008 at 1:27 PM | PERMALINK

Grand Moff Texan:

If Congress doesn't have the power of the purse, what does it have?

Subpoena power.

It's being kept very, very dry.

Not really. Congress has been issuing subpoenas. It's just that, in many cases, the administration has ignored them. "Subpoena" literally means "under pain" and they are not supposed to be optional. True, one can sometimes assert privilege (e.g. take the Fifth or assert executive privilege) but it is not (supposed) to be an option to just not show up as with e.g. Harriet Miers. What is the ultimate remedy that Congress has to prevent the executive from thumbing their noses and get them to comply with subpoenas? Impeachment. (Or the credible threat of impeachment.)

Posted by: crust on February 5, 2008 at 1:28 PM | PERMALINK

"If the Congress were to pass a bill stating that no money can be spent in continuing an American presence beyond a certain date, that would present a clear test and potentially would create an impeachable offense."

I agree with BobG on this one. There isn't a concrete situation to act upon yet. There must be a reasonable pretense to bringing suit against the President on this. At the moment he says there are no permanent bases...whattaya gonna do?

It doesn't change the fact that these signing statements are bullshit and should be treated as such.

Posted by: drosz on February 5, 2008 at 1:35 PM | PERMALINK

Impeachment is fine with me. Has been for many years. Too bad Congress doesn't feel the same way.

Posted by: DanM on February 5, 2008 at 1:37 PM | PERMALINK

"I can see the political point of just ignoring them legislatively (ie, not impeaching over them), but there has to be some way to get this in front of the USSC to review them!"

I believe that the Supreme Court has in the past deferred on such direct legislative/executive clashes saying that congress has the power to remove the president from office if he is violating the law. Sadly this means that there needs to be a majority in the house and a 2/3 majority in the senate to prevent the executive from doing whatever it wants.

Posted by: jefff on February 5, 2008 at 1:41 PM | PERMALINK

It should be noted that while the NYT news division failed to cover this (unfortunately unsurprising given their horrid, obsequious coverage of the Bush White House), the separate editorial board did weigh in with an editorial blasting this latest outrage.

Posted by: Marlowe on February 5, 2008 at 1:41 PM | PERMALINK

Help me out here.

Just because the President attaches a signing statement to a bill, does that mean that Congress is tacitly agreeing with his interpretation?

It seems like the President can attach any statement he wants to a bill that clarifies HIS interpretation but ultimately the Supreme Court will decide who is right if push comes to shove.

Am I wrong on this?

Posted by: David68 on February 5, 2008 at 1:41 PM | PERMALINK

The legality of signing statements will be explored quite actively when there is a Democrat in the White House and a republican congress. Guaranteed!

Posted by: mat1492 on February 5, 2008 at 1:44 PM | PERMALINK

The signing statements seem to taunt the Democrats. Must be infuriating. But why don't they at least act infuriated, or even think up a reasonable response? They seem so passive about Bush.

Posted by: Bob M on February 5, 2008 at 1:45 PM | PERMALINK

Exactly what could Congress "do" about it? Impeach him and remove him from office? Har de har har. The Founders unintentionally made the President into a dictator in every situation where the opposition party doesn't hold landslide control of Congress, because of their cretinous assumption that political parties would never come into existence at all. The Bush Administration (probably at Addington's urging) has finally discovered the full range of power given to the President by that mistake two centuries ago, and we will never get rid of it again -- until the nation collapses completely and a new Constitution is written (if it ever is).

Posted by: Bruce Moomaw on February 5, 2008 at 1:46 PM | PERMALINK

Well when Obma or Hilliary get into office the first thing to do is to push one of these Bush (SS)signing statments to the point where repugs will challenge in the supreme court when the court strikes it down, Bush then will have to be arrested and thrown into jail.

Posted by: john john on February 5, 2008 at 1:48 PM | PERMALINK

Jay B: What we REALLY need to do is change the BODY of the Constitution to provide a parliamentary government.

Less radical: Federal financing of Congressional elections, including partial financing for third-party candidates.

And, yes, the longer I am out in true liberalland, or left-liberalland, the less I expect Democrats to really do anything.

Posted by: SocraticGadfly on February 5, 2008 at 2:17 PM | PERMALINK

A new constitutional order will come. It happened in Britain for quite similar reasons. Once the taboo against change is lifted the discourse on such matters will grow exponentially. Those who benefit from the status quo will resist and they will loose in the end.

Posted by: bellumregio on February 5, 2008 at 2:24 PM | PERMALINK
Yeah, that'll show Bush and the GOP (whose wars and signing statements these are)! Brilliant strategy. Don't try and change the Democrats, passive-aggressively ignore them until they mend their ways!Posted by: Jay B. on February 5, 2008 at 12:42 PM

I see Jay B. is yet another beaten wife Democrat. Keep voting Democratic, they'll change their ways!

Sorry, but how about sending a message to the DCL and the rest of the party by NOT voting Democratic and switching our votes to a third party?

If the Democrats are going to do nothing to oppose the Republicans, the what they hell good are they?

Posted by: Dr. Morpheus on February 5, 2008 at 3:00 PM | PERMALINK

They used to ruminate, how could this have happened in the land of Goethe and Beethoven.

Now we know.

Posted by: Luther on February 5, 2008 at 3:12 PM | PERMALINK

"Sorry, but how about sending a message to the DCL and the rest of the party by NOT voting Democratic and switching our votes to a third party?"

The problem with this is that no third party will get enough votes to prevent the Republicans from keeping/regaining power. The results of that hurt a lot worse than the trouble with changing Democrats' behavior.

Now, challenging Democratic office-holders (Congressmen & Senators, in particular) IS a way to influence them. Getting passed by by the voters is a quicker way to get results than pissing away your vote. If the "third party will make Democrats more amenable to our ideas" thing worked, then the party would have by now adopted the entirety of Ralph Nader's platform, wouldn't they? After all, Nader's effect was to saddle us with this maladroit mendacity of a madministration, so any thinking Democrat would surely 'pick up on that' and run with it, right? Well, did they?

Did they?

Did they?

I thought not.


Ed

Posted by: Ed Drone on February 5, 2008 at 3:33 PM | PERMALINK

Luther,

They used to ruminate, how could this have happened in the land of Goethe and Beethoven.

Cows? How did cows get in here? You should stick to your Diet of Worms.

Posted by: Tripp on February 5, 2008 at 3:38 PM | PERMALINK

Congress surrendered when it took impeachment off the table. Then again, Bush might simply refuse to be impeached, claiming it would interfere with his powers as Commander in Chief.

Posted by: jeri on February 5, 2008 at 3:48 PM | PERMALINK

I hope Hillary Clinton or Barak Obama carry on the tradition of the fuel-injected, million horsepowered unitary executive guarded by sharks with lasers on their heads. Undoing the damage Bush has done to the U.S. will go much faster if they govern pretty much as dictators. Except, of course, the damage Bush has done to the balance of powers among the three branches of government.

Posted by: cowalker on February 5, 2008 at 4:23 PM | PERMALINK

So, question...

How did congress 'acquiesce'?

Signing statements are extra-legal maneuvers that are really just saying 'I don't intend to follow this law' or somesuch.

At this point, what legal action can be taken?

Posted by: Crissa on February 5, 2008 at 4:45 PM | PERMALINK

I see Jay B. is yet another beaten wife Democrat. Keep voting Democratic, they'll change their ways!

Slowly, but surely, they are. I don't know how you can dispute this. In 2003 everyone from Gephardt to Kerry to Hillary went along with this war. Except for Dean who we helped install at the DNC. In 2007, no one but Hillary is really left, Lieberman's whoring with McCain, while Jim Webb and others have been voted in. Pressure on Dodd helped him fight against Telecom immunity and has turned attention to the overall FISA issue. If Donna Edwards and Mark Pera win today, you watch how many Bush Dogs start voting a little smarter. It's not as fast as I'd like it -- but even Fein is saying that there have been many votes to try and reign in King George. Reid and Pelosi need to be more responsive, and there's a lot of fights still to be had.

Sorry, but how about sending a message to the DCL and the rest of the party by NOT voting Democratic and switching our votes to a third party?

See, we tried your way already. You guys thought Gore wasn't pure enough -- and your candidate couldn't even see a difference between Tweeledum and Tweedledee, remember? Gore went on to win the Nobel Prize while sparking a global conversation on the environment. Bush has ruined everything. See a difference yet?

To reiterate: On one hand, many democrats are fighting entrenched interests within the party while also trying to reward good behavior while ALSO fighting the GOP -- and there have been gains.

On the other, people pine for a 3rd party, some are organizing, and Nader does shit about Bush while threatening to run again.

We all know what the rules are. 3rd parties are a mug's game on a national level. This isn't realistically changing. So what do you do? Bitch about the rules or get them from within? The DLC succeeded in the latter. It's our turn to return the favor.

Wanting to change the Constitution, well, tell me when you get the pony.

Posted by: Jay B. on February 5, 2008 at 5:03 PM | PERMALINK

I agree with jeri - Bush/Cheney already have a signing statement prepared, which will state that impeachment prevents the Preznit from performing his Constitutionally-mandated duty to create a dictatorsh ... I mean, "protect the country from terrists with nukular bomb-thingies". They'll cite Article 12 as evidence, and the Scalito Court, true to its "unitary executive" mandate, will refuse to hear any arguments. Hell, they'll probably pull an Atwood on Congress.

The only mitigating factor in all this is the weight limits.

Posted by: SFAW on February 5, 2008 at 5:34 PM | PERMALINK

congress has exactly as much power as it chooses to exercise under the constitution. which these days means shit.

way to go dem congressional majority!

nobody, no matter what political stripe, likes a wuss.

Posted by: mencken on February 5, 2008 at 5:44 PM | PERMALINK

I have always understood that "signing statements" were simply written memoranda by the President to the Congress to inform the latter what the President thought was meant by some piece of legislation. "The President understands that under the provisions of (fill in the blank), the Executive is authorized/instructed to do the following:...".
Now where in the hell did that become a new form of veto for the executive? And why weren't there protests from the very beginning?
The Constitution clearly states that the President is to enforce the laws of the land and legislation passed by the Congress becomes the law of the land. Yet there is no cause for impeachment?
Idiots. Democrats and Republicans, both!

Posted by: Doug on February 5, 2008 at 6:22 PM | PERMALINK

this spawn of satan ain't leaving anytime soon. the appointed resident[or should we call him the reichskancellor?] will be inventing some national emergency and invoking martial law, cancelling all elections.

the u.s military won't interfere. hell, they will be as welcoming of the usurpation as were the junkers after the night of the long knives. the
u s military is swimming in a river of cash and doing what it loves to do, its job - killing people and demolishing property.

general petraeus[or is that sejanus?] will be more than delighted to command this latest caligula's praetorian guard.

i am thinking that within the next few months, many of you might want to consider getting your affairs in order and emigrating to brazil, argentina. portuguese or spanish, that is the question. you will not be liking what is going to be happening here in gringolandia/nazilandia.

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