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Hail Caesar! We Who Are Now Subjects Salute You!

Via Rod Dreher, Charlie Savage's latest report on the Bush administration's imperial fetish for signing statements. Apparently, The Decider felt that the strictures of the latest defense authorization act (or whatever term is used to designate those things) impugned the sovereign majesty of his office, and so issued the now de rigeur signing statements expressing his own judgment as to the permissible contours of the law. Law, despite what one may believe - and I pause to note Willmoore Kendall's position that the Constitution creates a system of legislative supremacy, if only the Congress would use it - only becomes law when the executive deems it law. It is the universalization and inversion of Carl Schmidt's theory of sovereignty: no longer is the sovereign he who decides upon the exception, the unusual, chaotic disruption of normal politics; instead, sovereign is he who decides that anything can be an exception - and gets away with it.

Rod writes:

Specifically, Bush has said he won't be bound by provisions in the Defense bill he signed forbidding the expenditure of funds to build permanent bases in Iraq. He also said he won't be bound by Congress's direction that the US is not to control Iraq's oil. Moreover, he has reserved the right not to act on other provisions of the law that would mandate establishing a commission to investigate waste, fraud and abuse in military contracts, as well as another to strengthen whistle-blower protection. Finally, he reserves the right to decide whether or not he's going to enforce a requirement that the president explain in writing when intelligence agencies refuse to provide documents to the two armed services committees in Congress.

So you thought that future Congresses might have the authority to, you know, bring the troops home? Not so! The Decider may negotiate some sort of pact with the Iraqi government, something more than a policy but less than a treaty (otherwise Congress would have to ratify it), creating circumstances under which the troops will be there indefinitely. And you might have thought that oil had nothing to do with American policy in the region. Ha! Instead, The Decider now arrogates to himself the authority to put truth to the talking points of the left and the paleo right. You might have thought, moreover, that waste, fraud and abuse, particularly in a military-industrial establishment rife with corruption - not to mention profitable revolving doors between the bureaucracies, advisory panels, and boardrooms of connected corporations - should be investigated. Perhaps not. Finally, you might have thought that the whole 'checks and balances' thing should apply to the formulation of foreign policy, intelligence agency conduct (particularly given the torture scandals). But, really, how naive! We cannot have, oh, say, the rule of law when we are confronted with the perpetual emergency - why, that might be indicative of a lack of faith, and we are speaking of Those Who Must be Trusted.

I know that it might be said that my comments are uncharitable and offered in a derisive tone. To this, all I can state is that I'd owe charity to a president, but not a quasi-emperor, of whose pretensions I can only speak derisively.

Comments (11)

He lost his veto pen? Like maybe it rolled under the desk in the Oval Office or something? Maybe someone should buy him a new one. I mean, there is recourse if he considers a law sufficiently bad.

In a better world this sort of thing would merit impeachment. Last time I looked the Constitution required all expenditures to be authorized by Congress. By what reason can Bush claim to have the right to use taxpayer dollars to build permanent bases in Iraq if Congress not only failed to authorize it but went out of its way to forbid it?

I know! I know! In a sane universe, he could simply veto the bill, though in the case at hand, I find the provisions to which he objects sensible.

But why veto a bill when you can strike a blow, an incremental blow, for executive privilege, the imperial presidency? That has become an ideological commitment, in the pejorative sense, for some segments of the political establishment, both left and right, the only difference being that the right is more demonstrative while offering the pinch of incense.

I had a vague recollection last night that back in the 80's or 90's there was talk about a federal line-item veto bill. I can't recall if it was supposed to require a constitutional amendment, though one way or another nothing ever came of it. But as a sheerly procedural matter, it would be better to have the President exercise an actual, literal line-item veto than sign omnibus bills and say he won't abide by some of their provisions when he's signing them. And his saying that these provisions are unconstitutional strikes me as highly dubious. Whatever you may think of McCain-Feingold, there was a much better argument for its being unconstitutional than for these spending restrictions, and Bush signed that without promising not to enforce it! Far from it!

A line-item veto, now regarded as unconstitutional (correctly, in my estimation), would be preferable, although I'd nonetheless oppose it as an undesirable augmentation of executive power - this latter being integral with the diminution of self-government and the representational character of the American system. Signing statements are, in effect, if not precisely in intent, a backdoor route to the same destination; the next logical step in the evolution of this baleful custom (which only John McCain has vowed to discontinue, though I'd take that with a pinch of the proverbial salt) would be the use of signing statements on ordinary domestic legislation.

The problem, I think, with a line item veto is how do you define a line? If it is with the executive then the President can use the line veto strategically to essentially rewrite legislation. If it is with Congress then huge amounts of money can be loaded into 'mega lines' that the President would be as reluctant to veto as an entire bill.

What happens if a President thinks a portion of a bill is unconstitutional? Say one out of ten items in a bill is believed to be unconstitutional. I think if the bill was already signed into law, the President needs to bring a case to get the courts to back him up. If the bill has yet to become a law I think the President must veto it. He takes an oath to support and defend the constitution. I don't see how that can be consistent with signing a bill he believes to be unconstitutional.

Signing statements are decidedly a wart on the face of majority rule democracy. I would feel even worse about them if they hadn't been around for a 180 years or so.

Re S.652 Telecommunications Act; "Therefore the Department [DOJ] will continue to decline to enforce that provision of the law as amended by this legislation as applied to abortion-related speech"

"If the President may properly decline to enforce a law, at least when it encroaches upon his powers, then it arguably follows that he may announce to the public that he will not enforce a provision of an enactment he is signing".

The first quote is from Walter Dellinger, the second from Bernard Nussbaum. Both gentlemen were part of the administration of Bill Clinton. Whom, it turns out, had more signing atatements than Bush.

It would appear therefore that caesarism has been raising it's imperial but blotchy face slowly but surely over the years.

However there is a sort of hope for the future. Come November of this year, and despite the clutches of tyranny, the ongoing rape of the Constitution, the always impending theocracy [ which amazingly has held off for seven years,] and other sins to onerous and too numerous to enumerate will come to an end.
For we will have "change", the elixir usually not described but whose promise offers hope to those who value vagueness.

We may even wind up with a Caesarina, in which case it may not be our knees we're on but out bellies. Time will tell.

Declining to enforce a law is not quite the same thing. It is well understood that the Exec. has prosecutorial discreation. The DOJ, for example, may opt to put more resources going after internet porn than internet gambling. It may even decide that it is just too taxed to even try to prosecute certain crimes. That does not, however, legalize the crime against the will of the legislature. If you are an advocate of legalizing pot, for example, hearing that the Governor will stop prosecuting people may be welcome news...that is NOT a substitute for actually pushing a bill through to make pot legal.

What we see above, though, is the President saying he has the right to spend gov't money without authorization from the Congress. To me that seems to be a blatent slap in the face to the Constitution that explicitly states Congress must first pass expenditures. If Congress goes to the trouble of actually saying they DON'T authorize the construction of perm. bases in Iraq, then the President cannot use government funds to build such bases.

This thing may not merit impeachment or even a SC case just yet because Bush has just only stated in writing he may flout the Constitution. In this case he hasn't actually done so yet and since his term is coming to an end he may never actually get around to it. Nonetheless, people should be angry even if they disagree with the law Congress passed.

Ahem, "the formal ideal of exclusive legislative control over the purse cannot be fully realized in practice, and has not been at any time in the history of the American government". "Thus Jefferson in 1807, after the attack on the Chesapeake ordered military purchases not sanctioned by law; Lincoln, at the outset of his administration, had the Treasury advance $two million for military purchases;[ note, before the war even started,jt] etc.

From Congress and the American Tradition, James Burnham.
Elsewhere Burnham mentions the Louisiana Purchase but I think we can skip that.
This may address the specific issue of spending, although I haven't investigated it's other side, impoundment, which might have a history worth mentioning or might not.

As to the enforcement/signing statement difference; why respond to the Dellinger quote but not the Nussbaum quote. Nussbaum is clearly saying that signing statements have validity. Even so the non-enforcement stance of the DOJ could be altered by Presidential direction, or is/was the DOJ an autonomous department. Here we are faced with, what might be called, a distinction with minimal difference.

I attempted only to bring up the point of the historicity of this practice,whose longevity I cite, I am unsure as to how I failed. Further, I am hurt that my attempt to soothe the wounds, to offer the balm of knowledge and precedent to a contentious and possibly misunderstood practice, have been apparently rejected,

You will pardon me while I sulk.

You've given examples where the President spent money without Congressional permission. That's not quite the same, though, as spending money on something Congress specifically refused to authorize.

Boontoon, noted, and I give up.

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