Presidential Signing Statements Revisited -- 4/30/06

The Boston Globe has an excellent article (Charlie Savage, Bush Challenges Hundreds of Laws, 4/30/06) that speaks to a recurring theme we have noted in this blog over the last four months: the Bush administration’s efforts to shore up what they see as the weakened power of the presidency. (See KTR p. 341 and the What’s at Stake in Chapter 8.) The Globe article says that President Bush used signing statements to claim the power to disregard more than 750 laws in the five years since he took office, compared to the 232 statutes his father challenged in 4 years and the 140 signing statements Bill Clinton issued in his eight years in office.

Savage quotes Bruce Fein, a former deputy attorney general during the Reagan administration, on the effects Bush’s efforts are likely to have on the checks and balances in American government: “’This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy,’ Fein said. ‘There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power.’”

After you read the article, it might be worth reconsidering some questions we asked back in January, during the Alito hearings:

What should the limits be on the president’s power? The founders debated this issue, but came down on the side of a limited executive (KTR pp. 111-114); the Bush administration seems focused on expansion (KTR 319-320, 368; 340-341). What are the costs of expanded executive power? What are the advantages?

Divided Government -- 3/9/06

When a president has the public on his side, he can often get Congress to do what he wants, even when the majority party is other than his own. When his popularity begins to tank, it can even be difficult to get his own party to follow his agenda. That’s where President Bush finds himself now. With his approval ratings in some polls at the level of Nixon’s before he resigned, he has limited political clout with either party. Members of Congress who face reelection in less than nine months are reluctant to hitch their fates to his dimming star. (Carl Hulse, A Rebellion in the GOP on Security, A Signature Issue, NYT, 3/9/06.) 

That’s not news, of course, but it is one of the enduring stories of the last few months, as I have noted in this blog. The latest evidence is the outright resistance of Congress to the Dubai ports deal. Ironically, the actual issue here may be a red herring – the ports deal has been endorsed even by stalwart critics of the president. But with public opinion running heavily against it, it has become radioactive for Congress. Despite veto threats from the president, the House is acting to halt the takeover, and the Senate may not be far behind. (Andrea Stone, House Panel Votes to Kill Ports Deal, USA Today, 3/9/06.) 

The worsening relationship between the president and the legislature can be seen in President Bush’s remarks yesterday, blaming Congress for underfunding the post-Katrina rebuilding effort on the gulf coast. (Michael A. Fletcher and Spencer S. Hsu, Bush: Congress ‘Shortchanged’ New Orleans, WaPo, 3/9/06.)

For the president, of course, none of this is good news. For the rest of us, it may be a different story. The founders devised our system to check and balance itself, so that no one branch could become too powerful. With a president who believed in strengthening the executive branch, and Congress disinclined to cross him, we haven’t seen too much checking and balancing in the years since 9/11. What are the advantages and disadvantages for a democracy of a president and Congress finding themselves at loggerheads?

Gonzales vs. Oregon -- 1/18/06

On p. 200 of KTR we discuss the right to die issue and point out that the Supreme Court had agreed to hear a federal challenge to an Oregon law allowing doctors to prescribe (but not to administer) medication to assist terminally ill patients (diagnosed with less than six months to live) to end their lives. 

The Court's decision in Gonzales vs. Oregon was announced Tuesday morning; by a 6-3 vote the justices upheld the Oregon law, ruling that the Controlled Substances Act under which then-Attorney General John Ashcroft challenged Oregon's law didn't empower the federal government to strike down the state law. Dissenting were Chief Justice Roberts and Justices Scalia and Thomas. 

Although we discuss this case in the Civil Liberties chapter under the heading "The Right to Die," it is important to note that the Court didn't decide the case on civil liberties grounds. Rather, it issued a narrow ruling, focused on the federalism issue of whether the congressional statue designed to control drug trafficking and abuse by depriving doctors of their licenses if they used them for illegitimate purposes empowered a member of the executive branch to use that statute to override the state assisted suicide law. It held that the power of physicians to write prescriptions intended to allow a terminally ill patient to end his or her own life was a legitimate medical purpose under the law. The dissenters said it was not.

Out of all the coverage this morning, the New York Times does the best job explaining that this is truly a narrow ruling, not an endorsement of the right to die, which the Court had also refused to endorse in an earlier case. (Timothy Egan and Adam Liptak, Fraught Issue, but Narrow Ruling in Oregon Assisted Suicide Case, 1/18/06.) They quote the Governor Theodore R. Kulongoski of Oregon, who said that the impact of the case will be to allow states to try out policies that their citizens want without forcing them to fit a standardized national mold. He said, "The U.S. Supreme Court recognized the delicate balance between our federal system and the right of the states to be the crucibles for new ideas and new ways to meet the changing needs of their citizens." We discuss this role of the states as "laboratories of democracy" throughout the KTR text, but primarily on pp 126, 139, 596-97, and 695-96.

Other papers are not so circumspect. The Washington Post's headline declares "Justices Uphold Oregon Assisted-Suicide Law: In a Blow to Administration, Ruling Paves Way for Other States to Follow Suit" (1/18/06), but as the LA Times article makes clear, that's not necessarily the case. (Jordan Rau, Is California Next in Line? 1/18/06.)

Things to think about:

Why would the Court sidestep the right to die issue in favor of ruling on a much more narrow legal issue?

Why would Roberts, Scalia and Thomas, arguably the three most conservative justices on the Court, at least until Alito is confirmed, dissent in this case? Conservatives  would be more likely to take the "pro-life" position here, but why would they also sign on to an endorsement of executive power over the states?

The 6-3 ruling gives the majority a good margin here. How would the result be likely to differ if Alito had already replaced Justice O'Connor, who voted with the majority? What does that say about the future ideological balance on the Court?

Alito, Day 2 -- 1/11/06

Keeping up with the Republic is tricky over the holidays, when we all have so many things going on in our lives. Without recapping the whole last month of news, there are some ongoing stories that readers of KTR will find helpful to illustrate points in the book, and that the framework of the book in turn can help illuminate. Three main catch-up stories seem the most important this week:

• the U.S. Senate confirmation hearings of Judge Samuel Alito to replace Justice Sandra Day O'Connor on the Supreme Court;
• the recent plea agreement of lobbyist Jack Abramoff, with the consequent withdrawal of Congressman Tom Delay from his position as House Majority Leader, and the race to replace him;
• the ongoing debate over the National Security Agency's wiretapping of phones without a warrant.

So I don't overload you with things to think about today, I'll start with Alito this morning and cover the other two over the next few days.

Alito's confirmation hearings kicked off on Monday, with a statement from the nominee and continue this week with questioning from the senators on the Senate Judiciary Committee. As we explain in Chapter 10, Supreme Court justices are nominated by the president with the advice and consent of the Senate, which means the Senate holds hearings on the nomination in committee and then votes as a whole. The hearings can be tedious, as each Senator takes the opportunity to make a little speech, sometime seeming more interested in his or her own views than those of the nominees. While fireworks had been expected in these hearings, none have been apparent so far. (Dana Milbank, "A Day of Qs and As, and a Few Zs," WaPo, 1/11/06)

Many considerations go into a president's nomination of a justice, but perhaps the most important these days is ideology, which in the case of the Court means how the nominee is likely to read the Constitution: literally (a judicial philosophy we call strict constructionism) or flexibly (called interpretivism.) (KTR, p. 437.) In Alito, Bush chose a strict constructionist and the questions the senators are posing to Alito are focused on just how strict a constructionist he would be, especially with respect to abortion. Would he recognize the precedent set in Roe v. Wade that allows a woman to have an abortion in the first three months of pregnancy based on a judicially created right to privacy, or will he say no such privacy right exists in the Constitution and vote to overturn Roe? The Court is divided between constructionists and interpretivists right now, with Sandra Day O'Connor often providing the swing vote, so how Alito would vote makes a difference. Alito, although he is on record as pro-life and has voted in the past to restrict a woman's right to an abortion somewhat (he has, for instance, said a woman ought to notify her husband if she chooses to have an abortion) predictably he is not saying how he would vote, but is rather skating around the issue. (Richard W. Stevenson and Neil A. Lewis, "Alito, at Hearing, Pledges an Open Mind on Abortion," NYT, 1/11/06)

Another issue that has arisen in the Alito confirmation is the question of executive power. Statements from early in Alito's career when he worked in the Reagan White House indicate that he would favor a stronger role for the president, and he in fact favors the idea that a president should issue a "signing statement" when he signs a piece of congressional legislation so that when courts go to interpret the law, they rely not only on what Congress intended but also on the president's understanding of what he was signing. This doctrine, practiced by the Bush administration, which has already made several efforts to expand the power of the executive branch, would strengthen the president's role in the legislative process considerably. Bush issued a signing statement just recently, when he signed an anti-torture bill sponsored by, among others, Senator John McCain. The bill forbade the United States government to engage in torture to acquire information from detainees, essentially on the grounds that, if we fail to protect human rights we are little better than the people who seek to harm us. Bush, who has long insisted that the president needs to be able to wage the war on terror with a free hand, signed the bill and issued a statement that says that he intends to follow the law when he can. The implication, of course, is that sometimes he may not be able to, and depending on how you view the force of the signing statement, it may or may not change the meaning of the law that Congress passed. Alito has supported the expansion of presidential power in the past (which may be one of the main reasons Bush nominated him), but on Monday before the Senate Judiciary Committee, he insisted that the president is subject to constitutional limitations. (Josh White, "Kennedy Makes a Weapon of McCain's Torture Law," WaPo, 1/11/06.) The founders, who wanted a limited executive (and in fact who wanted a limited government period) would have been happy to hear that.

These two issues, strict constructionism/right to privacy/abortion rights and the expansion of executive power, are probably the ones to watch as the hearings proceed, although at least one analyst claims that the Democrats' inability to settle on one overarching criticism of Alito weakens their ability to make a coherent case against him. (Ron Brownstein, "Democrats Cast Wide Net Seeking Alito Flaw," LATimes, 1/11/06.)

Some things to think about:

• How much should the Senate's views count in the appointment of a justice? If a minority is strongly opposed, should it be allowed to filibuster the president's choice? (KTR, p. 306-308; 431.)
• What are the political implications of a justice's commitment to a philosophy of strict constructionism or interpretivism? How does it affect who gets what (who wins and who loses) in American politics? (KTR, pp. 437-438.)
• What should the limits be on the president’s power? The founders debated this issue, but came down on the side of a limited executive (KTR pp. 111-114); the Bush administration seems focused on expansion (KTR 319-320, 368; 340-341.) What are the costs of expanded executive power? What are the advantages?