Senator
Specter Fights For Constitution
By Joel S. Hirschhorn
07 July, 2007
Countercurrents.org
On
the Friday before July 4 Republican Senator Arlen Specter showed his
respect for the U.S. Constitution and his anger about President Bush’s
repeated pissing on it by introducing the Presidential Signing Statements
Act of 2007. What happens to this crucial bill will test both congressional
integrity and courage.
Specter had the honesty to
call President Bush's abuse of signing statements an "unconstitutional
attempt to usurp legislative authority." "The president cannot
use a signing statement to rewrite the words of a statute nor can he
use a signing statement to selectively nullify those provisions he does
not like," said Specter.
“Presidential signing
statements can render the legislative process a virtual nullity, making
it completely unpredictable how certain laws will be enforced. This
legislation reinforces the system of checks and balances and separation
of powers set out in our Constitution,” said Specter.
Commenting on the legislative
process, Specter noted: “This is a finely structured constitutional
procedure that goes straight to the heart of our system of check and
balances. Any action by the president that circumvents this finely structured
procedure is an unconstitutional attempt to usurp legislative authority.
If the president is permitted to rewrite the bills that Congress passes
and cherry-pick which provisions he likes and does not like, he subverts
the constitutional process designed by our framers.” Subversion
of our Constitution – pissing on it: that’s what Bush has
gotten away with. Bush-the-ruler has made a mockery of our sacred rule
of law.
This bill would prevent the
president from issuing a signing statement that alters a statute's meaning
by "instructing federal and state courts not to rely on presidential
signing statements in interpreting a statute."
This is Specter’s second
attempt at preventing Bush and any future president from disrespecting
the Constitution. His similar bill in 2006 went nowhere. But he had
some support. Senator Patrick Leahy said: “I have long objected
to this President’s broad use of signing statements to try to
rewrite the laws crafted and passed by the Congress, because I firmly
believe that this practice poses a grave threat to our constitutional
system of checks and balances. … These signing statements are
a diabolical device and the President will continue to use and abuse
them, if Congress lets him.”
From a historical perspective,
Specter noted that “while signing statements have been commonplace
since our country's founding, we must make sure that they are not being
used in an unconstitutional manner; a manner that seeks to rewrite legislation,
and exercise line item vetoes.” An unconstitutional manner is
exactly what Bush is guilty of.
In 2006 the Congressional
Research Service came up with these summary statistics on constitutional
objections in signing statements: Reagan 26 percent, Bush I 68 percent,
Clinton 27 percent, and George W. Bush the winner at 86 percent. But
the way the current president has used signing statements to nullify
laws is unique.
Many people have said that
Bush's use of signing statements allows him and federal agencies to
blatantly ignore provisions of laws and congressional intent. The Government
Accountability Office found in mid-June that in several cases the administration
did not execute laws as Congress intended when Bush attached a signing
statement to them. GAO found that the statements have the effect of
nullifying the law in question in about 30 percent of cases. In July
2006, a bipartisan task force of the American Bar Association described
the use of signing statements to modify the meaning of duly enacted
laws as "contrary to the rule of law and our constitutional system
of separation of powers." And still Congress has not acted to stop
this behavior!
The New York Times in 2006
editorialized about Bush’s use of signing statements: And none
have used it so clearly to make the president the interpreter of a law's
intent, instead of Congress, and the arbiter of constitutionality, instead
of the courts. Indeed, what Bush has done (and gotten away with) is
unprecedented in American history.
Let’s be clear. There
is no constitutional provision, federal statute, or common-law principle
that explicitly permits or prohibits signing statements. But two constitutional
provisions are pertinent. Article I, Section 7 (in the Presentment Clause)
empowers the president to veto a law in its entirety, or to sign it.
And many aspects of Bush’s signing statements amount to line item
vetoes. The Supreme Court has held that line item vetoes are unconstitutional.
In 1988, in Clinton v. New York, the Court said a president must veto
an entire law. And Article II, Section 3 requires that the executive
"take care that the laws be faithfully executed." Thus, the
Bush style of signing statement has no constitutional support.
Interestingly, Supreme Court
Justice Samuel A. Alito, when a staff attorney in the Justice Department's
Office of Legal Counsel, wrote a 1986 memorandum making the case for
"interpretive signing statements" as a tool to "increase
the power of the Executive to shape the law." Alito warned that
"Congress is likely to resent the fact that the President will
get in the last word on questions of interpretation."
Here is another dimension
to Bush’s scummy behavior: ''He agrees to a compromise with members
of Congress, and all of them are there for a public bill-signing ceremony,
but then he takes back those compromises -- and more often than not,
without the Congress or the press or the public knowing what has happened,"
noted Christopher Kelley, a Miami University of Ohio professor who studies
executive power. Phillip Cooper, a leading expert on signing statements,
has called Bush’s signing statements “excessive, unhelpful,
and needlessly confrontational." Legal scholar Lawrence Tribe wrote
that what is objectionable is “the president’s failure to
face the political music by issuing a veto and subjecting that veto
to the possibility of an override in Congress.”
Famed attorney John W. Dean
has added yet another reason to question Bush’s behavior: “The
frequency and the audacity of Bush's use of signing statements are troubling.
Enactments by Congress are presumed to be constitutional - as the Justice
Department has often reiterated. For example, take what is close to
boilerplate language from a government brief (selected at random): ‘It
is well-established that Congressional legislation is entitled to a
strong presumption of constitutionality. See United States v. Morrison
('Every possible presumption is in favor of the validity of a statute,
and this continues until the contrary is shown beyond a rational doubt.').’"
But Bush puts himself above the Constitution, Supreme Court and the
law.
Will Specter’s second
attempt succeed in a Democrat controlled Congress? And if so, will Bush
sign it into law – without using a signing statement to refute
its meaning and intent? Though it should be a no-brainer for every American
that respects our Constitution, I bet that neither Congress nor Bush
will come through and quickly make Specter’s bill law of the land.
If it does not become law,
common sense says it should be considered as a possible constitutional
amendment. In fact, it is a perfect illustration of why more politically
engaged Americans should support the national campaign to obtain the
nation’s first Article V convention for proposing amendments.
When good and necessary laws cannot be obtained through the normal but
untrustworthy legislative process, then lawmaking through constitutional
amendments is absolutely necessary and appropriate. Our Framers knew
what they doing when they created the Article V convention option. Learn
more about it at www.foavc.org.
[Joel S. Hirschhorn
is a founder of Friends of the Article V Convention and the author of
Delusional Democracy, www.delusionaldemocracy.com.]
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