Constitutional License
Aziz Huq
January 24, 2006
Aziz Huq is associate counsel at the Brennan Center for Justice at NYU School of Law. He is co-writing a book titled Unchecked and Unbalanced with Fritz Schwarz on national security and the separation of powers, to be published by the New Press.
Who writes the law of the United States?
For more than 200 years, the answer was clear. The first sentence of the Constitution’s first article tells us that “All legislative Powers herein granted” go to Congress. As the framers carefully explained, this means only the “Senate and House of Representatives”—not the president in the act of signing a bill into law.
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Second, presidents have stated when signing a bill that they will interpret the law so as to preserve their own constitutional prerogatives. While these objections have become more frequent and alarming in recent years, they are, at least, within a recognizable constitutional tradition.
The third bite at the apple, interestingly, was devised by Judge Alito in 1986 while he worked in the Department of Justice developing “Litigation Strategy.” This break with tradition suggested that a president’s signing statement be used not only to address a limited class of constitutional issues, but also mundane and frequently arising questions about what a law in fact meant. This argument required a radical leap in constitutional interpretation, which Alito delivered. Given that the president plays “just as important” a role in legislating as Congress, the Reagan Justice Department argued, federal courts ought to defer to these presidential interpretations. Exactly how this “just-as-important” role could be squared with the first words of the Constitution’s Article 1 went unexplained.
Such thrice-bitten apples leave Congress scant authority. As Judge Alito explained in 1986, interpretative signing statements “increase the power of the Executive to shape the law,” but only at Congress’s expense. This is because any law contains ambiguities, often on key issues. The president already controls how federal departments and agencies make decisions on these ambiguous points: The Justice Department can issue guiding memos that lay down a unified executive branch line. Now, though, the president can also resist Congress’s interpretation publicly, and has an extra tool for pressing the federal courts to ignore Congress in his favor.
This may seem small beans, but in 2006, with executive power seeking its zenith, Alito’s innovation could further stifle our system of checks and balances. More specifically, we can see how great the incursion is on Congress’s powers by examining the recently enacted Detainee Treatment Act of 2005. The latter contained an anti-abuse provision sponsored by Sen. John McCain. It also included a measure introduced by Sen. Lindsey Graham purporting to end judicial review over Guantánamo detentions. Through Senate negotiations, this jurisdiction-stripping provision was limited to only cases filed in the future. Hence, detainees who have been waiting for more than three years for a fair hearing in the courts would still be able to pursue their cases.
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http://www.tompaine.com/articles/20060124/constitutional_license.php
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