Oh, pardon me, I didn’t mean to reveal yet again my corrupt use of executive prerogative

So, can a US President pardon a convict who had generously given to the President’s party, and after a direct lobbying campaign on behalf of the convict himself? Yes, he can.

But can a US President revoke a pardon after it becomes too embarrassing even for him? That is less clear.

It is well past time to take the pardon power out of the hands of one person–and especially out of the hands of a lame duck.

Candidates on executive power

I had not seen this till tipped off by a comment today at a LGM thread, and most of these candidates are long forgotten. Still, it is important for the record: Candidates on executive power: a full spectrum—They assess use of signing statements (Boston Globe, 22 December, 2007). It includes links to the answers provided by each candidate. Here I will focus on answers to the question about signing statements.

Clinton, unsurprisingly, takes the Bush Lite position:

she might attach a so-called signing statement to a bill reserving a right to bypass “provisions that contradict the Constitution.”

Bill Richardson gets it right, making the point I have made at F&V in the past.

if a president thinks that parts of a bill are unconstitutional, then “he should veto it,” not issue a signing statement.

McCain also is forthright (though I do not necessarily believe him, especially given that he would face divided government):

As President, I won’t have signing statements. I will either sign or veto any legislation that comes across my desk.

Obama’s position is less than reassuring:

“No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush administration has gone much further than that.”

I don’t see where in the Constitution the President is given the right to issue statements dissenting with provisions of bills he or she has signed into law. It is take it or leave it. All of it. In fact, off the top of my head, I am aware of two Constitutionally given rights–obligations, actually–to issue statements of any kind in an official constitutional capacity: (1) an annual message on the state of the union, and (2) an explanation for a veto. Richardson is right that if the President thinks a law infringes on his or her “constitutional prerogatives” that’s precisely the occasion for a veto. In fact, the founders never appear to have countenanced a veto (let along a “I sign, but dissent”) based on policy objections; protecting constitutional prerogatives was the basic intent of the veto.

Of course, I say this as someone who would abolish the veto altogether, other than to allow the president to delay implementation pending abstract review of constitutionality by a panel of independent judges. That is more or less what Madison originally proposed, and is the model found nowadays in several European constitutions.

By the way, Giuliani and Huckabee declined to answer the question on signing statements, and Romney thinks that the way Bush has used them is just dandy.

__________

Related planting: The 2008 candidates on political reform.

A veto override

For the first time in the Bush presidency, Congress has overridden a presidential veto. Of course, the incumbent president has vetoed very few bills (4, if I recall correctly).

In my discussion of his first veto–back when his own party still had congressional majorities–I noted that there are two basic types of veto. There are vetoes that follow the apparent intentions of Madison and Hamilton as being a defensive tool by the executive against acts of congress that impose burdens on the national treasury for particularistic advantage. And then there are those vetoes that allow the president to defend an ideological minority whose preferences were defeated in the bill congress passed.

Each veto issued by Bush before the one just overridden would be of the second type: The ideologue protection veto: The stem-cell research bill, the Iraq war “timeline” bill, and the S-CHIP bill.

The one now overridden, on the other hand, was clearly of the first type: the anti-particularism veto.

So, of course, congress overrides the latter. After all, as the Houston Chronicle notes in the headline of its article on the override–“Water projects in Texas authorized by veto override“–no matter how principled a conservative ideologue may be, he or she still lives somewhere and that location has canals and floodways and aqueducts that would benefit from a little federal assistance.

If the logroll is big enough, it can survive the veto. And water projects know no real ideological boundaries.

Next up the farm bill. Lots of pork, threatened veto, but will the pro-ag members of the House of Representatives be able to spread enough largesse around the country’s districts to get the needed two thirds vote?

Chips and vetoes

As expected, Thursday the House of Representatives voted again, by a large majority, in favor the State Children’s Health Insurance Program. The vote was 273-156. That’s more that three-fifths of the House membership, and the vote included 44 members of the minority party.

In most democracies, such a vote, combined with the 69 votes the bill previously received in the Senate, would be sufficient to approve this bill and make it law. But not in the USA. Thursday’s vote was to attempt an override of President Bush’s earlier veto of the bill. And that, of course, requires two thirds of each house to succeed.

Americans take the veto for granted, and given how hard it is to amend the constitution, there is little chance it could be changed. But it might at least be a good lesson on democracy if we debated this question: Should we allow presidents a veto, subject to override only by a super-majority?

Few Americans would ever think to ask this question. That’s a shame. The ultimate answer might come down either way, but the important thing is to think about the consequences of institutions, and political settlements made over 200 years ago, and whether we might do better. Just over a month ago, it was Constitution Day, which marked the day, in 1787, of the final meeting of the Constitutional Convention in Philadelphia. There were some low-key celebrations of the event, but most of them were more about patting ourselves on the back that we have such a great Constitution. Few were about how we might make it better. We do have a great constitution. Yet we might make it better, more democratic. And the veto provision would be one good place to start.

We should not fear reform, or shrink from even “radical” ideas for improvement in our democracy. Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1810, and in words that are literally carved in stone in the Jefferson Memorial, said:

I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Even more, Jefferson warned against what he referred to as “sanctimonious reverence” for the Constitution and its founders.

So, now that we have a veto of a bill to expand children’s health care, supported by wide bipartisan majorities in both houses, we should ask ourselves: Does the veto provision of the constitution still “go hand in hand with the progress of the human mind”?

Before answering that, we might want to go back and think about what the founders themselves felt about the veto. Why do we even have it?

The primary justification for the veto given in the Federalist Papers is to protect the executive from encroachments on its authority. For instance, Madison in Federalist 51, in a passage immediately after offering his defense of bicameralism:

As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

Hamilton elaborates the institutional argument for the veto in Federalist 73:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments…; the insufficiency of mere parchment deliniation of the boundaries of each…; and the necessity of furnishing each with constitutional arms for its defense… From these clear and indubitable principles results the propriety of the negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without one or the other the former would be absolutely unable to defend himself against the depredations of the latter.

Independent institutions, in Madison’s and Hamilton’s logic, will have an incentive to cooperate with one another, and to respect each other’s domains, only to the extent that they also have overlapping powers. That is, separation of powers also requires sharing of powers. Through such sharing of powers between separate institutions, two (or more) branches are induced to transact with one another, i.e., to exchange and cooperate to accomplish their respective functions.

That is to say that the founders’ justification for the presidential veto is an entirely institutional one. The reader of the Federalist papers or other works of the founders of the US Constitution would be hard pressed to find a political justification, by which I mean one that speaks to the electoral and policy-making consequences of the veto.

I am aware of no normative justification for the veto that says it should be used to defend the interests of an ideological minority against the democratic expression of a majority. Nonetheless, defend an ideological minority is just what Bush has done with this veto. In his veto message, he said:

This bill would shift SCHIP away from its original purpose and turn it into a program that would cover children from some families of four earning almost $83,000 a year. In addition, under this bill, government coverage would displace private health insurance for many children. […]

Because the Congress has chosen to send me a bill that moves our health care system in the wrong direction, I must veto it.

Maybe Bush has a point. Maybe this is a bad decision by Congress. If so, score one for Hamilton: The President has used his discretion to save us from moving policy in the “wrong direction.”

But, of course, all these issues were debated in Congress. And the President’s position was defeated. It obtained only around 40% of the votes.

Hamilton and Madison, in making the institutional logic for why the veto is in our constitution, did not contemplate the possibility that the President would simply represent another minority faction, and use his veto to enforce the will of that minority against the majority. (Madison did not even want a strong veto; he proposed a president elected by Congress and with no ability to block what a majority wanted. He also did not want a Senate as we know it. His so-called Virginia Plan was quite a radical, majority-rule document!)

Do we still want a veto? Maybe, maybe not. But we ought to at least be willing to ask the question! We should be willing to have a debate about how democratic our constitution’s lawmaking process is, and let the chips fall where they may.

____
Some of this planting draws on a similar critique of Bush’s first veto, of the stem-cell bill, in July, 2006. There, I contrast Bush’s veto message on that bill with one issued by Madison himself, when he was President. The difference are striking!

Bush signing statement reassures one Congress, circumvents another

President Bush signed into law the controversial US-India Peaceful Atomic Energy Cooperation Act, passed by the lame-duck US Congress. Then he issued a signing statement in which he says that a provision of the law that India’s Congress Party-led government objected to will be treated as “advisory.” According to the Hindustan Times, Section 103

says the US should try to work with other Nuclear Suppliers Group (NSG) members to deny India enrichment, reprocessing and heavy-water technology. It has several provisions which New Delhi is not particularly happy about.

Bush’s statement says:

My approval of the act does not constitute my adoption of the statements of policy [of Section 103] as US foreign policy.

Of course, as I have noted before, the US President has no authority to set aside parts of a law that may have been (and this case almost certainly were) crucial to its being passed in the first place.

Signing statements, again

I recommend Professor Steven Taylor’s review of the recent Congressional Research Service report on signing statements by US Presidents.

One thing Steven reports that the study reveals is that, while signing statements have been around a long time, the current president uses them in a manner that is qualitatively different from his predecessors. It is not signing statements, per se, that are troubling. It is the frequency with which they are invoked to challenge the very bill being signed.

For example, compare the four most recent presidents: GW Bush has used statements to claim constitutional objections in 86% of his 128 signing statements. The current president’s father, GHW Bush, made constitutional objections in 68% (of 214), Clinton in only 27% (of 391), and Reagan in 26% (of 276). A remarkable fact about these presidencies is that the current incumbent is the only one of these four who has had unified government (and not only majorities of his own party, but largely compliant ones) throughout most of his tenure, and has used this tool rather than the veto.

What is the big deal about a president claiming a bill is unconstitutional? The big deal is that if the president really believes that provision of a bill are unconstitutional, he has a right–no, a duty–to veto the bill. In our system, that means the entire bill. He has no constitutional right to sign the bill and then claim that parts of it are not binding on the executive branch, for any reason.

Under some (for instance, many Latin American) constitutions, presidents have this authority. Not in ours.

For previous dicusssions here about signing staments, please click on “Vetoes & Signing Statements,” above.

The veto–why?

The right of the president to veto bills passed by majorities of the legislative branch is enshrined in the constitutions of most presidential systems. Not all such constitutions, however, require a super-majority to override, as is the case in the USA.

With the sudden rediscovery by President Bush of the veto pen that his predecessor must have hidden deep within the Oval Office desk drawer, it is worth asking why the veto? Why should one man or woman have the right to block a bill passed by a majority of the people’s elected representatives, and in the US case, also a majority of senators?

The primary justification for the veto given in the Federalist Papers is to protect the executive from encroachments on its authority. For instance, Madison in Federalist 51, in a passage immediately after offering his defense of bicameralism:

As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

Hamilton elaborates the institutional argument for the veto in Federalist 73:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments…; the insufficiency of mere parchment deliniation of the boundaries of each…; and the necessity of furnishing each with constitutional arms for its defense… From these clear and indubitable principles results the propriety of the negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without one or the other the former would be absolutely unable to defend himself against the depredations of the latter.

Independent institutions, in Madison’s and Hamilton’s logic, will have an incentive to cooperate with one another, and to respect each other’s domains, only to the extent that they also have overlapping powers. That is, separation of powers also requires sharing of powers. Through such sharing of powers between separate institutions, two (or more) branches are induced to transact with one another, i.e., to exchange and cooperate to accomplish their respective functions.

That is to say that the founders’ justification for the presidential veto is an entirely institutional one. The reader of the Federalist papers or other works of the founders of the US Constitution would be hard pressed to find a political justification, by which I mean one that speaks to the electoral and policy-making consequences of the veto.

I am aware of no normative justification for the veto that says it should be used to defend the interests of an ideological minority against the democratic expression of a majority. Nonetheless, that is what Bush has done with his veto of the stem-cell research bill. This bill was passed by about 55% of the House and 63% of the Senate, including in both cases substantial minorities of the party holding the majority of seats and the presidency itself. That is, it was a broadly approved piece of national policy, opposed by a minority. The presidential veto, in this case, allowed the president to enforce the will of an ideological minority that could not prevail in either chamber of the legislature. Such an outcome could not happen in a parliamentary democracy, or in a presidential democracy in which the veto is only a delaying measure (i.e. where it can be overridden by a majority).

In its political consequences, the veto thus empowers one branch over the other inasmuch as the legislative majority is prevented from being sovereign over policy. The executive branch is made into an addtional quasi-legislative branch consisting of one “legislator.” From a democratic (or for that matter, republican) perspective, turning the president into an additional legislative chamber can be tolerated if the legislature is so structured as to fail to represent popular majorities, but the presidency is so elected as to be representative of such majorities.

For instance, a legislature that is highly malapportioned and/or elected without significant national parties to structure national policy debate may pass legislation that is a logroll of favors for special regional and group interests. In such a context, a presidency elected by a majority (or close to it) of the national electorate can prevent the legislature from passing such bills. (Whether the result is just bigger logrolls to overcome the veto or legislation that is more national in scope is a separate question; it is likely to be more “national” to the extent that a nationally accountable president’s preferences must be taken into account.*)

Clearly, the US congress has elements of the logrolling minority-protecting type I just sketched. The Senate is highly malapportioned (an idea, by the way, that Madison fought against until it became clear that the small states would rather break up the US confederation than accede to the democratic two-chamber legislature he was proposing). The House, although not especially malapportioned, is much more localized in its election process than those of most other “advanced” democracies, and our parties are far less programmatic and cohesive than those of most other democracies.

If Bush had vetoed any of the many pork-laden or budget-busting bills that this congress has sent his way since he became president, he could have been said to have been defending “national” priorities against special-interest logrolls. This is the normative political justification for the veto that most coincides with the institutional one that the founders recognized: The president is responsible for the overall execution of national policy and is empowered to defend his prerogatives against legislative encroachments–such as raiding the national treasury for particularistic purposes.

In fact, it was just for such a purpose that Madison, when he was President, issued a veto in March, 1817:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses…”

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers…

I am not aware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the national prosperity.

Needless to say, the bill on which Bush issued his first veto is neither a claim on the treasury for local interest nor an overreach of the legislature’s constitutional prerogatives. In fact, the key passage of his short veto message is:

H.R. 810 would overturn my Administration’s balanced policy on embryonic stem cell research. If this bill were to become law, American taxpayers for the first time in our history would be compelled to fund the deliberate destruction of human embryos. Crossing this line would be a grave mistake and would needlessly encourage a conflict between science and ethics that can only do damage to both and harm our Nation as a whole.

[…]

I hold to the principle that we can harness the promise of technology without becoming slaves to technology and ensure that science serves the cause of humanity. If we are to find the right ways to advance ethical medical research, we must also be willing when necessary to reject the wrong ways. For that reason, I must veto this bill.

In other words, the president appeals to ethical and scientific issues that were debated in Congress, and in which his opinions on the matter were defeated. The reference to “my Administration’s policy” may sound like a defense of institutional prerogatives, but inasmuch as it refers to an executive order, it is trumped by legislation. Or it would be so trumped if the president were not empowered to protect his executive order from an attempt by a two-house majority of the elected Representatives and Senators to legislate an alternative policy course preferred by majorities of citizens. (The parties’ respective electorates have polarized somewhat on this issue in recent years, thereby increasing the size of the ideological minority that the veto catered to. Nonetheless, it is still a minority view that Bush’s veto has protected.)

By this veto, Bush has protected an ideological minority against the greater majority–a majority that happens to be bipartisan in nature.

This episode is a good argument for abolishing the veto, or at least lowering the override threshold to a majority of each house (as is the case in some other presidential systems and a few US states).** The risk in doing so would be, of course, that it would make congressional logrolls easier to pass. The “fix” for that problem is changing legislative incentives, via electoral reform, but that is a topic that I have covered extensively in other plantings at F&V. The bottom line is that there is no way to endow the presidency with a veto to block pork and “raids on the treasury” without also allowing it to protect ideological minorities. And this president has shown throughout his presidency that he is unwilling to employ the anti-logroll veto, but he showed this week his willingness to employ the ideologue-protection veto.


* The veto would be even more likely to be “nationalizing” were the president directly elected, rather than by an electoral college. While I think the electoral college is a piece of the larger puzzle of presidential incentives in the USA, it is not clear to me how relevant it is to the specific case of this veto.

** UPDATE: On reflection, I do not think I could go so far as to advocate that a president whose authority originates and survives separately from that of the legislature, and who is the head of government, should have no veto. However, I do think we should consider the possibility that a vote by a majority of all members–that is, more than a majority of those present and voting, but far less than our current two thirds–might be sufficient for an override. Such a provision would allow the President to force a reconsideration of a matter that he and his constituency really care about, and would also prevent legislators from ducking accountability and allowing something to pass with majorities of a quorum when many are perhaps conveniently absent. But it would prevent the President from blocking the passage of a measure that actually had the support of majorities of the people’s Representatives and Senators.

Quotes from Hamilton and Madison are from the respective Writings volumes published by The Library of America–treasured items in my own library.

Elsewhere, it is nice of El Criador to have picked up on the discussion for his Argentine audience (en español).

Signing statements, continued

I recently read the article by Philip Cooper from Presidential Studies Quarterly that was mentioned in the Washington Post last week. As I have noted in previous posts, presidential signing statements have been used by the Bush administration to reinterpret legislation passed by Congress. Such statements are also favored by Supreme Court nominee Samuel Alito, who considers the executive’s statement of its understanding of the meaning of a statute as important as the legislative history–a remarkable claim, as I noted previously. In combination with some of Alito’s other views related to the “unitary executive” thesis, support of signing statements constitutes a theory of executive-legislative relations that is postively Latin American.

In light of the looming vote in the Senate on Alito, Cooper’s research on signing statements could not be more timely or important. From the conclusion to the article:

Presidential signing statements … can and have been used as line-item vetoes of legislation presented to the president for signature or veto but without the use of the formal veto or the opportunity for legislative override processes.

It is this unilateral aspect of signing statements that I find so troubling. Their use amounts to an informal amendment to the constitution, absent any controls. A real line-item veto, or various amendatory veto provisions found in some Latin American constitutions and those of several US states, always give the legislature an opportunity to respond and override. These formal provisions often sharply restrict the legislature’s realistic options for response, and it is that increment to executive lawmaking authority that I dislike, on principle (and based on my own research on comparative presidentialism). But at least the provisions found in some constitutions are explicit and provide a mechanism for legislative response. An interpretation of the US constitution that allows for signing statements to function as de facto line-item veotes is troubling precisely because it is stands on ambiguous constitutional logic and because the use of these statements is unregulated by congress.

In the body of the article, Cooper notes that the current administration has used signing statements far more expansively than past administrations, both quantitatively and qualitatively. Signing statements by Bush have been much more numerous, but as Cooper notes, the numbers can be misleading. What it more important is the scope of authority being asserted by the president. On the matter of the nature of Bush’s statements, Cooper notes:

they are not alone assertions of executive authority, but also often dramatic declaratory judgments holding acts of Congress unconstitutional and purporting to interpret not only Article II presidential powers but those of the legislature under Article I. [emphasis mine]

On the argument that this administration is so fond of for justifying the alleged indispensibility of its actions–we are at war:

the administration has not constrained its assertions as the years have passed since 9/11, but has, on the contrary, expanded them both internationally and domestically, even in the face of judicial rulings that make clear that the existence of the war on terror does not justify any action the president considers expedient to advance the conflict and in light of the fact that the Supreme Court has already rejected the line-item veto.

Cooper notes that the statements have been “heavily laced with ideology,” specifically the “untary executive” thesis, and that they have even included assertions that the executive will interpret as advisory provisions of statutes that are clearly intended, from their language, to be mandatory. Examples here include some provisions of the Help America Vote act and requirements for the provision of information to the Comptroller General (the independent agency established by Congress decades ago as a watchdog over the executive–this all makes me wonder if Federalist Society members like Alito think the very existence of the Comptroller General is unconstitutional).

The full citation to this important academic article is:

Philip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements. “Presidential Studies Quarterly, Volume 35, Issue 3, September 2005.

Alito and the “unitary executive”: The Latin Americanization of the US Constitution?

From today’s LA Times:

This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush’s boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito’s confirmation.

As well it should. I noted a few days ago that Alito has been on record since 1986 as favoring signing statements as a means by which the President could seek to have the courts accept the President’s understanding of a law in future litigation over that law. Courts have tended not to take such statements into account, but if a fan of signing statements were on the Supreme Court, he might seek to raise their prominence.

So, if 1986 seems too long ago, there is this statement from November, 2000, before the Federalist Society, reflecting on his time in the Reagan administration’s Justice Department:

We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.

The Times then notes that,

In a sense, the “unitary executive” theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.

In combination, the support for signing statements and opposition to independent regulatory agencies constitute a theory of executive power in which the legislature only makes broad pronouncments of policy, which a single man (or, theoretically, woman) then can reshape. In the absence of independent agencies and with sympathetic justices on the highest court, the President could issue decrees to bureaucrats to implement a law in a way consistent with the Presidential signing statement, and expect the courts to back up the executive’s re-interpretation of the legislative mandate.

In other words, in Alito we have a potential Supreme Court justice who believes that the United States would be better if we had a more Latin American style presidency: One that has much more than a veto, but instead has the constitutional right to implement laws as it sees fit.

Among my research specialties are comparative presidential authority and executive-legislative relations. I have long believed, as a product of my research, that Latin American countries need their congresses to assert more authority over the details of policy-making and create more independent agencies to check executive unilateralism in implementation.

In other words, for all my zeal for reform of certain features of US political institutions–see “the core” list on the left sidebar and “The Mission” above–in terms of executive powers I have long seen the US as the model that other “pure”* presidential systems should emulate.

Apparently, Alito believes the best models of presidentialism are to be found farther south. That is disturbing. The United States Senate–hardly my favorite US institution–needs to force the President to nominate option no. 3 for the critical O’Connor seat on the United States Supreme Court.

*I.e., “pure” in the sense of being unitary at the top: President as head of government as well as head of state, as opposed to “semi-” presidential hybrids, in which the head of government is subject to the confidence of the majority of the lower/sole house of the legislature. The latter is a still-better model, in my view.

Alito and presidential signing statements

Just yesterday I posted a note and some questions on Bush’s recent signing statement, in which he reinterprets a ban on torture as not meaning what it says. Now I ran across a Washington Post article from yesterday that notes that Associate Justice nominee Samuel Alito is a fan of signing statements.

In a memo from February 5, 1986, Alito outlined a strategy for

having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such “interpretive signing statements” would be a significant departure from run-of-the-mill bill signing pronouncements, which are “often little more than a press release,” Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president’s take on a law as to “legislative intent.”

“Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” Alito wrote.

The quote from Alito’s memo is remarkable. While it is true that the President’s approval is “just as important as that of the House or Senate” inasmuch as all three institutions must consent to the same text of a bill (ignoring bills passed over a veto), it does not follow from that fact that the “president’s understanding of the bill should be just as important.” Congress consists of two chambers, numerous members, and committees. It debates alternate versions, strikes amendments, and replaces provisions. It thus has a lengthy record of why it approved one version and not others that were considered. However, under our constitution, the President is provided a take it or leave it option. If he does not like the bill, he can veto it, and thus re-start the transactional process, leading–maybe–to a new bill emerging from Congress that he’ll like better. But there is no such thing as sign light–taking this provision, blocking that, and reinterpreting others. Many presidential systems give the president such authority, thereby inserting the president more directly into the lawmaking process. But not ours. (I expand this idea a bit in a comment at Lawyers, Guns, and Money.)

The Post article quotes from an article by Phillip J. Cooper in the September, 2005, Presidential Studies Quarterly (now added to my must-read list), noting that the Bush administration

has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress.

This adds another item to the list of reasons why Alito should be given a very long and skeptical look by the US Senate in exercise of its constitutional power of advice and consent, two of which I have identified here previously:

Presidential signing statement

What is the legal significance of the following?

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. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action.

This passage from a signing statement is Bush’s way of not vetoing the unvetoable–the anti-torture rider to a defense bill–but asserting he’s not checked in these matters by Congress or the courts, anyway. The rider was unvetoable because 89 Senators had agreed to the amendment, sponsored by John McCain. Its vote in the House was around 70%, so it is not out of the question that on an override vote enough Republicans would have changed votes to prevent embarrassing their president with an override of his first veto. But, really, would it not have been far more embarrassing for this president to have gone five years without ever seeing a bill he wanted to veto, until he was presented with one to outlaw torture? Well, no. It seems that when it comes to unilateral executive power assertion, this president does not embarrass particularly easily.

But if this statement is indeed Bush’s way of saying he will do what he pleases anyway, is he not essentially asserting a right to veto a provision he disagrees with? Is he not in effect asserting a right to act as arbiter of what his executive authority is, and that Congress therefore can’t constrain him? Remarkable. On this point, see Balkanization, who reports the whole text of Title X, and who also notes that amendments secured by Lindsey Graham to the same bill, “by precluding substantial avenues of judicial review, are far more beneficial to their detention and interrogation policies than the McCain Amendment is detrimental.”

I do not know what the political science or legal literatures have to say about presidential bill signing messages. Do these have any significance in subsequent court proceedings? In any event, Bush’s statement is clear in its intentions. What was that I was saying about an ongoing constitutional crisis?

I must add that I am quite struck by the assertion about supervising “the unitary executive branch.” Two things about this statement:

(1) The more I watch this administration, the more I come around closer to the mainstream view in political science that I once rowed against: that unitary executives (as opposed to responsible cabinets, where the head of the executive is at best a “first among equals”) are dangerous. I never held the pro-presidential view sometimes attributed to me by people who either read Presidents and Assemblies too quickly, or relied on a less-than-careful review. But I was certainly skeptical of the Linzian critique of concentrated executive powers, notwithstanding my having come to political awareness during a time that included the Watergate era (the lesson of which appeared to be, at the time, that checks and balances, in the end, worked).

(2) Treatement of prisoners (I refuse to use the neologism) captured during military or covert operations is hardly about supervising the executive branch. It is about enforcing, or ignoring, statutes, the Constitution, and international treaties.

h/t No Right Turn