an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The controversy over President Bush’s signing statements seems to overlook what might seem a puzzling point. In times of polarized politics, one might expect that a president of one party would think legislation passed by a Congress controlled by the other party contained numerous unconstitutional provisions. Reasonable questions might arise as to presidential obligations to enforce legislation the executive branch believes unconstitutional. Given Congressional tendencies during periods of divided government to package constitutionally controversial measures with measures all agree necessary and proper, I have a good deal of sympathy with the position that the presidents should sign such measures without committing the executive branch to enforcing every iota. Presumably, however, the strong Republican majority in Congress has no desire to embarrass President Bush with such poison pills. The interesting question, which I have not seen debated much, is why during a time of partisan polarization a very conservative Republican Congress would pass almost 800 provisions that a very conservative Republican president thought unconstitutional.
Separation of powers theory may explain some of this. Madison told us more than 200 years ago that persons would identify with their office rather than party. Hence, we should not be surprised that Republican legislatures have a difference conception of executive power than the Republican president. A good many of the controversial provisions may trench on executive power, though the Bush administrative consistently refuses to explain which ones and why. Still, this Congress is not exactly aggressively asserting legislative authority (any one remember declarations of war). My suggestion is that a more partisan game is afoot.
President Bush’s practice of stating that he will not enforce certain provisions of bills he signs enables Republicans in Congress to stand for everything good in the world without taking any responsibility for increasing the good in the world. Republicans declare themselves against torture, against corruption in the military, against censoring scientific data, for diversity, etc. The President then does not enforce the relevant provisions in the bill under question. Everyone wins (well, not people being tortured, etc., but they were not likely Republican voters anyway). This is quite similar to the Republican practice of voting for mild campaign finance reform, then nominating and confirming federal judges and FEC commissions known to think such laws unconstitutional.
A Republican Congress committed to preventing torture, limiting military corruption, and makeingsure public policy is based on honest scientific data would not be content with symbolic statements in bills the president claims he will not enforce. Congress would engage in actual oversight. Committees would subpeona government officials and publicize their activities. Officials that declined to attend would be held in contempt. That Republicans in Congress are utterly uninterested in such endeavors suggest that they are more interested in appearing to be against torture than actually limiting torture. The sad truth is they may represent the American people on this one. Posted
by Mark Graber [link]
The signing statement practice merely adds an additional point in the legislative process at which the annoying requirement that our representatives live with the consequences of their vote can be undone.
In the days of divided government, this was a Congressional game, with disagreeable parts of legislation -- once voted for publicly -- later removed in conference. The Senate could blame the House, and the House, the Senate. And all was well.
But as with everything under this "administration," even the Congress's political gamesmanship has been brought under the White House roof.
I wonder whether those 800 negated or suspended provisions selected for presidential signing statements were favorite clauses of minority party Democrats more often than of Republicans; i.e., whether, in addition to being unitary, the president also hs being partisan.
Naturally, if Republican authored provisions are being targeted in signing statements, there will be some riled Republicans when they find their hard work sidelined.
Yet another way to view the president's statements is that he and his statement writers actually think congress is usurping wide swaths of Article II turf; at least that is the impression a first read of the compendium of signing statements seems to produce in this reader.