Paul Jacob

With all the whining and carping about the balance of power between this branch of government and that, why is there nary a peep about the most fundamental of constitutional balances, that between the government and the people?

Take a current news story, much blogged. The president recently signed the torture ban. But he did so with his fingers crossed. That is, he added a "signing statement" to the bill, explaining how he interpreted the new law: Quite broadly, in the context of his own expansive theory of presidential power.

Like other such statements, this wasn't a Post-It® note scribble, but a cleverly written legal document designed to influence enforcement as well as future legal interpretation. Here's the statement:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Whew. The trouble with this verbiage is that by pretending that his designation of "Commander in Chief" gives him sole discretion on how to carry out an anti-terrorism strategy (it doesn't), the president bites off more than we want him to chew. There's no "rule of law" here. It's just rule by one man. Or set of men. Sure we can find precedent for this practice, but unrestrained government and coercive power have lots of precedent.

Those of us who support the Constitution have a different purpose: to fight precedents like that with a better notion, limited government.

It turns out that the president has been doing this for some time. Over 500 times. It also turns out that it's not a new idea. One Sam Alito, then an advisor to President Ronald Reagan, urged his president to use the practice. Presidents George H.W. Bush and Bill Clinton also used signing statements. But our current president has been most prolific. And daring.

Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.