Third Party & Independents Archives

Senator Specter Fights For Constitution

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, especially that of Democrats.

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.

Posted by Joel S. Hirschhorn at July 6, 2007 8:00 PM
Comments
Comment #225122

Monarchies do it all the time.

Posted by: Ken at July 6, 2007 11:17 PM
Comment #225126

I see Bush’s signing statements as a symptom of the general ineptitude of his administration more than anything else. Why does he issue them at all?

They actually have no legal force whatsoever. They are NOT anything like a line item veto because they don’t effect any financial appropriations that aren’t placed in the discretionary control of the executive branch anyway, and judges are in no way required to treat signing statements as law in their rulings. Further, no subsequent President is required to pay any attention to them at all.

All they really do is state how the president interprets whatever the executive branch’s role is anything passed by Congress. And that’s just something ALL Presidents do anyway, usually without being so stupid as to tell us what game they’re up to.

Look at immigration and border enforcement for a perfect example. Did Bush (or Clinton, or Reagan, or Carter) actually come out and issue a signing statement telling us that they have no intention whatsoever of actually enforcing immigration laws passed by Congress or defending our borders?

Posted by: Loyal Opposition at July 6, 2007 11:59 PM
Comment #225134

Joel, it is very prescient of you to stipulate that this will be a test especially for Democrats, since, they are virtually assured of keeping the majority of both Houses in 2008 and the odds on favorite for winning the White House. Will they choose now to hamstring their Democratic President in 2009 by seriously curtailing the abuse of power with ‘signing statements’?

That is an excellent and astute question. We shall see if they will vote for the nation’s and people’s best interests, or their own political power interests.

Posted by: David R. Remer at July 7, 2007 12:47 AM
Comment #225141

Joel,

I suppose it’s a beginning, but right now I’m just downright pessimistic. What I believe WOULD make the greatest difference is a true public outcry. I appreciated David Remer’s words recently regarding “rebellion”.

Having noticed that Pakistan’s Musharraf just suffered another assassination attempt rather reminds me of the press at the time Musharraf took control. The words “bloodless coup” were used a lot.

I can’t help but think a “bloodless coup” is the only thing that might wake up our elected officials at this point. While I certainly don’t advocate violence, it’s time for a wake up call.

The Republicans claimed that 1994 was a wake up call and the Democrats claimed that 2006 was a wake up call. Somehow we must let ALL of our elected officials know what a wake up call really is.

Posted by: KansasDem at July 7, 2007 2:10 AM
Comment #225150

I was never into comic books as a kid. But Joel you make me think of what I have heard of what was old comic book advertisements for X-Ray Glasses.

I see, I see even before reading your articles (I have noted this now for the third or fourth time in a row) that I know the end of the article will be about the Article V convention.

I do not need a crystal ball or X-Ray Glasses, the end of every article of yours is always about a Article V convention. It is beyond obvious that you are just using these different perspectives to hammer down an Article V convention, you are absolutely see through. Granted many writers here and elsewhere, and journalists may be one issue people, but I do not think to the extent you have shown, they at least are not as blatant. For example I know David Remer is very involved in the outing incumbents movement, but he does not talk about it in every single thing that he says. Because, when you always refer to just one thing you are see through, and people know that you do not care about what your talking about but just want to push your one thing through as hardcore as you can and do not care about anything else. Every writer here, and every journalist anywhere has their issue, but you make your issue so blatant it is beyond obvious.

Posted by: Richard Rhodes at July 7, 2007 3:57 AM
Comment #225157

Joel has only written a few articles here, so complaining that every one is about a Constitutional Convention is ridiculous.

At least he’s advocating action instead of merely finger pointing, which is what most articles here do.

Joel, go ahead and write what you want.

Posted by: Gerrold at July 7, 2007 5:25 AM
Comment #225183

Joel,

Each and every bill that is presented to the President deserves an “up or down” response.

Gee…where have I heard THAT before?

Posted by: Jim T at July 7, 2007 2:42 PM
Comment #225221

Sorry if a few of you don’t like me reminding you of the urgent need for an Article V convention which would be exactly what someone noted our nation needs: A MAJOR WAKEUP CALL!!! Clearly my message about the need for an Article V convention is reaching some open, intelligent minds. Membership at Friends of the Article V Convention has truly skyrocketed from over 100 a month or so ago to about 600 now!!! What I try to do in my articles is present different data, information and analysis that provides a different perspective/justification for an Article V convention. I suspect that many readers here are really status quo supporters and people who still believe that electing different Democraps or Republicrooks will somehow make the nation better. My hope rests with an Article V convention and I hope many of you seriously read the incredible amount of information on www.foavc.org, because if you do and have an open mind, you are likely to see the light and become a member.

Posted by: Joel S. Hirschhorn at July 7, 2007 6:29 PM
Comment #225258

Joel, has it ever occurred to you that if your dearly held wish were granted and a Article V convention took place tomorrow, it would be entirely run by what you’ve just called “Democraps” and “Republicrooks”? Who do you think runs the state legislatures in this country?

Seems to me that if you have such loathing for our two major parties, you should thank god every morning that they’re not being given the chance to sit around and rewrite the US Constitution. Honestly, I have no idea why you and this now massive group of individuals (600 people) think this is a magic solution to all of our problems.

Posted by: Loyal Opposition at July 7, 2007 11:07 PM
Comment #225308

LO:

Very good point!!

I still don’t understand what Joel expects this Article V convention to address or fix. Perhaps Joel could tell us? Isn’t there supposed to be some desired outcome?

Posted by: womanmarine at July 8, 2007 1:58 PM
Comment #225310

Dear Loyal Opposition:

Because I have written at length refuting your highly negative predisposition I can only assume that your mind is made up and not open to serious reflection of all the aspects to the nation’s first Article V convention. Am I concerned that in the worst possible scenario that conventional status quo Dems and Repubs might try and control a convention? Yes. But I envision more likely scenarios that preempt that possibility. For one, we have a nation whose population is incredibly fed up with the two-party political system; they would become engaged with a convention. With remarkable public scrutiny and serious oversight plus historic world and national media coverage, I think the first convention would escape the political corruption WE HAVE NOW. And that’s really the big point; if you are genuinely and completely without trust in the current political system, then you would gladly accept the risks for using what the Framers gave us exactly for the current situation of marked distrust of the federal government. I don’t know you personally, but I bet you are a more of a loyal Democrat or Republican than anything else and, as I have said repeatedly, as long as you think you can elect different and better Democrats or Republicans, you have not yet reached the mental state required for support of the first Article V convention. So keep voting and keep deluding yourself that we can elect our way of this crappy government and political system we suffer with - all the while letting the rich power elites amass more wealth and power.

Posted by: Joel S. Hirschhorn at July 8, 2007 2:07 PM
Comment #225358

Joel, I admire your desire for reforms and sympathize 100% with your frustrations over our government leadership. I can go further and agree with you that we can’t just vote our way out of this impasse. Fine.

But I feel the same way about your Article V convention proposal as I do about another “magic bullet” proposal floated around constantly on this site: the idea that we should just vote out all incumbents.

Both of these “solutions” are based on the assumption that the actions of our elected politicians operate within a sphere independent of the divisions of our population. That’s simply not true.

Just look at this website. As far as I know, nobody here is an elected official with a a role in creating government policy, but there are as many very strong and contradictory opinions about every policy question under the sun as there are people. If Jack, David Remer, you, me and everybody else here were in charge of the government instead of those who actually are, we’d have exactly the same stalemates and divisions. It’s the old conundrum of cause and effect. Are we divided because of our leadership or are we divided because—um—WE are divided?

I don’t know what your policy goals are, but you’ve mentioned the rich power elites amassing wealth and power. You might want to throw the dice with an Article V convention and hope to address that issue, but I see it as far more likely—considering that the rich power elite would be the ones running the show—that they’d be far more likely to INCREASE their power than diminish it in a Constitutional Convention.

This blind faith that “public scrutiny and oversight” would make things better instead of worse completely ignores how power and influence actually operates in this society. What the public would hear about this convention would be ENTIRELY based on what politicians and their allies in the media CHOSE to tell them. It would play out exactly how every other political conflict plays out in our society—and the only difference would be that this time the manipulations and deceit would result in a brand new Constitution. That’s not a risk we can afford to take.

Posted by: Loyal Opposition at July 8, 2007 11:49 PM
Comment #225360

LO,

I really don’t believe a Constitutional Convention would result in a brand new Constitution. Each amendment it proposes must be ratified by 3/4s of the states.

The possible advantage I see in going this route is that the States drive the process, not Washington lawmakers. Delegates do not have to be politicians; they can be anybody — it’s up to the states to select them. I’d like see a number of Constitutional scholars involved. However, sure, you are right, the two big political parties would be involved, but at the state and not the federal level. Perhaps that would make a difference. At any rate, I truly do not see this idea as a radical one.

As a panacea for all our problems? Nope, of course not.

Posted by: Gerrold at July 9, 2007 12:13 AM
Comment #225444

I want to emphasize something and anyone who takes the time to peruse www.foavc.org will verify this: It is absolutely false and misleading to assert that an Article V convention would “result in a brand new Constitution.” FOAVC takes a very strong stand on this, and it is the primary reason we do not use the phrase “constitutional convention” because the many status quo power elite groups that have viciously opposed an Article V convention has brainwashed the public that the convention would surely lead to a wholesale rewrite of the constitution. That is sheer propaganda!! As Article V is written it is clear that a convention is solely for the purpose of PROPOSING amendments. A huge challenge we face at FOAVC is to undo the massive level of propaganda the foes of a convention have propagated throughout the society over many decades. The argument by Loyal Opposition that Americans cannot reach any kind of consensus is defeatist, wrongheaded thinking; I strongly believe that there are many possible amendments that an overwhelming majority of Americans would support, including, as just one example, replacing the electoral college with direct votes and also making election day a national holiday, and, yes, also prohibiting the kind of nefarious signing statemens that Bush has been using to nullify laws!!

Posted by: Joel S. Hirschhorn at July 9, 2007 3:32 PM
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