NYT: Bush's signing statements and Alito's Role in them

[ProSense]

January 14, 2006
The Legal Context
Presidential Signing Statements, and Alito's Role in Them, Are Questioned
By ADAM LIPTAK

WASHINGTON, Jan. 13 - Presidents since at least Andrew Jackson have issued statements as they signed legislation into law, but Samuel A. Alito Jr., President Bush's Supreme Court nominee, helped to introduce an innovation in that practice when he was a lawyer in the Reagan administration.

The new twist, as Edwin Meese III, then the attorney general, explained in a Feb. 25, 1986, speech, was to urge courts to look to the president's signing statement for evidence of "what that statute really means." Earlier presidential signing statements were, by contrast, bland proclamations, instructions to subordinates about how to execute a new law or a statement of disagreement with a part of a law.

This week, during his confirmation hearings, Mr. Alito was repeatedly questioned by members of the Senate Judiciary Committee about his role in pushing the new theory and his views on the legal force of such signing statements. Several law professors who testified before the committee on Friday also raised the issue and were questioned about it.

Three weeks before Mr. Meese's speech, Mr. Alito, then a deputy assistant attorney general, submitted a memorandum to a Justice Department working group about what he called a novel proposal. Partly analytic and partly strategic, the memorandum considered how to accomplish Mr. Meese's goal of expanding presidential power in this area.

Mr. Alito wrote that "our primary objective is to ensure that presidential signing statements assume their rightful place in the interpretation of legislation." This would, he wrote, "increase the power of the executive to shape the law."

Mr. Alito predicted that "Congress is likely to resent the fact that the president will get in the last word on questions of interpretation."


http://www.nytimes.com/2006/01/14/politics/politicsspecial1/14statements.html

The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration
By JOHN W. DEAN
----
Friday, Jan. 13, 2006


Snip...

Impact Of Presidential Signing Statements

The immediate impact of signing statements, of course, is felt within the Executive Branch: As I noted, Bush's statements will likely have a direct influence on how that branch's agencies and departments interpret and enforce the law.

It is remarkable that Bush believes he can ignore a law, and protect himself, through a signing statement. Despite the McCain Amendment's clear anti-torture stance, the military may feel free to use torture anyway, based on the President's attempt to use a signing statement to wholly undercut the bill.

This kind of expansive use of a signing statement presents not only Presentment Clause problems, but also clashes with the Constitutional implication that a veto is the President's only and exclusive avenue to prevent a bill's becoming law. The powers of foot-dragging and resistance-by-signing-statement, are not mentioned in the Constitution alongside the veto, after all. Congress wanted to impeach Nixon for impounding money he thought should not be spent. Telling Congress its laws do not apply makes Nixon's impounding look like cooperation with Congress, by comparison.

Snip...

In short, Bush's signing statements, which are now going over the top, are going to cause a Congressional reaction. It is inevitable. If Republican lose control of either the House or Senate - and perhaps even if they don't, if the subject is torture or an egregious violation of civil liberties -- then the Bush/Cheney administration will wish it had not issued all those signing statements.

http://writ.news.findlaw.com/dean/20060113.html

[toymachines]

1. "Congress is likely to resent the fact "

"Congress is likely to resent the fact that the president will get in the last word on questions of interpretation." I think the people might resent that also. I sure as hell do!

[rodeodance]

4. parrots don't care. they just repeat.

[tularetom]

2. Ok Senators you've been neutered

and this asswipe is the one who enabled * to cut your cojones off. Now are ya gonna do anything about it or are you just gonna sit there and prove that it worked?

[rodeodance]

3. this was brought up several times in the hearing--by the Dems

only as far as I heard.

[rodeodance]

5. nominated.

[Vinca]

6. The one thing that stands out in all of this is

that no one ever . . . EVER . . . thought we'd have a president who turned out to be certifiably insane.

[ProSense]

7. Leahy questions Alito about signing statements

Transcript
U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Part I of III

CQ Transcriptions
Wednesday, January 11, 2006; 12:46 PM

JANUARY 11, 2005


snip...

LEAHY: (inaudible) All right.

Under the theory of unitary executive that you've espoused, what weight and relevance should the Supreme Court give to a presidential signing statement?

I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate -- after he signed it into law -- he didn't veto it -- he had the right and, of course, the ability to veto it. He didn't veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn't want it to.

Under a unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. What kind of weight do you think should be given to signing statements?

ALITO: I don't see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions.

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.

The scope of executive power gets into the question of inherent executive power.


snip....

LEAHY: Yes.

Mr. Chairman, as I had understood, we'll be going back to another round. So if I misunderstood, you'll be sure to correct me.

But as I understood Judge Alito, he saw no connection between his unified executive theory and the use of presidential signing statements. In fact, the Wall Street Journal reports the president has cited the unitary executive 103 times in presidential signing statements. So I'd like to put that article, some articles from the Post and the Globe relevant.

In fact, the Defense bill, McCain torture amendment he specifically employed and I'd like to make that part of the record.

SPECTER: Without objection, those documents will be made a part of the record.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006011101148.html

[pinkpops]

8. Dear Arlen Spectre:

How can you move to confirm this guy before you hold hearings on the wiretaps?

[Coastie for Truth]

9. About as Relevant/Irrelevant, Probative/Misleading, Binding/Nonbinding

as C-SPAN, the Congressional Record, and , , see also .

I am emphasizing USCCAN - because USCCAN picks up most "signing statements"

Signing Statements are self serving statements - about as silly as the speeches given at the Alito Hearings, and about as Relevant/Irrelevant, Probative/Misleading, Binding/Nonbinding. No more and no less.

Not binding on the Courts.

[enough]

10. kick