Most of the current talk about the administration's signing statements has focused on the balance of competing powers in the government. Was Sam Alito right way back in the Reagan days, when saying that these statements amounted to a way to restore some balance? You see, the judicial branch had all those words from the legislative branch to look at, when it came to reviewing a law. By adding an interpretive statement, the administration might influence the judiciary. So far, in actual cases of review, little weight has been given to the statements.
So what should we make of this new wrinkle? Well, first let's put it in some context. Every quarter century or so a new wrinkle appears.
The big change during the last bout was Congress's taking from the Presidency the power to impound legislated funds. Since at least Jefferson's time, presidents had practiced a tradition — unfortunately not specified in the Constitution — of "impounding" money designated by Congress, ie., simply not spending it. Nixon used this power to cut back on the landslide of spending by an out-of-control Democratic Congress. But his illegal maneuvers vis-à-vis the Watergate break-ins gave Congress the Mandate of Heaven it needed to pull one of the most amazing coups in constitutional history: the Congressional Budget and Impoundment Control Act of 1974. This act did two things, actually. It provided a new accounting scheme that hides (to this day) the true nature of government spending, and it took away from the presidency the ability to check the worst of Congress's spending practices.
Were Congress to simply repeal the 1974 act, the president could constitutionally check Congress in a line-item veto fashion.
Much like the president is now doing with signing statements. Instead of vetoing the whole bill, he "interprets" the parts he deems unconstitutional (or that he simply doesn't like) as he sees fit, and directs the executive branch's bureaucracy to obey his directives, not Congress's.
Give President Bush high marks in the Chutzpah Department.
The trouble is, unlike a proposed line-item veto, and unlike the now defunct practice of impoundment, these signing statements are not restoring or shoring up the foundational balance of the Constitution. They are not decreasing the size and scope of government. They seem to be doing the opposite. Increased surveillance, imprisonment without due process — these powers come at great expense. For all our hopes that only suspicious "furriners" will be singled out, the history of government suggests that this hope is naive in the extreme.
If you support the idea of a limited republic, then the president's claims to unchecked authority will at least give you qualms. If you are Vice President of the United States, however, you will defend it: "I believe in a strong, robust executive authority, and I think that the world we live in demands it," Vice President Cheney was recently quoted. "[T]he actions that we've taken are totally appropriate and consistent with the constitutional authority of the president."
This strikes me as preciously close to nonsense. If you don't like the idea of limited and enumerated powers, as specified in the Constitution, maybe you should have the decency to support an amendment to the Constitution, repealing the plain words you don't like.
But we know why this won't fly. No politician I know of who despises actual constitutional principles dares speak directly against them. Politicians instead twist the words' meanings. This is not just a problem with the current administration. Talk to any Democratic politician for five minutes. You'll see the real attitude towards the Constitution: praise it outright while undermining it in every action.
The Framers of our Constitution established competing branches of government so that each branch could provide a check on the power of the other branches. They understood that the more unchecked government power is, the more checked the freedom of individual American citizens will be.
The bottom line for Americans is not the precise distribution of powers in the government, but the effective checking of the powers themselves, so that we can live free of outrageous threat or undue burdens.
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