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Saturday, December 22, 2007

GOP and Democratic candidates on executive power.

How do the Republican and Democratic candidates for president intend to treat executive power if elected? How do they view President Bush's extraordinary use of "signing statements"? The Boston Globe's Charlie Savage — whose investigative reporting on the Bush administration's use of signing statements earned him a Pulitzer last year — gets answers from Republicans John McCain, Ron Paul, and Mitt Romney and from Democrats Joe Biden, Hillary Clinton, Chris Dodd, John Edwards, Barack Obama, and Bill Richardson.

What's at stake? Savage writes:

Bush has bypassed laws and treaties that he said infringed on his wartime powers, expanded his right to keep information secret from Congress and the courts, centralized greater control over the government in the White House, imprisoned US citizens without charges, and used signing statements to challenge more laws than all predecessors combined.

Legal specialists say decisions by the next president — either to keep using the expanded powers Bush and Cheney developed, or to abandon their legal and political precedents — will help determine whether a stronger presidency becomes permanent.

Romney endorses Bush's expansive claims to presidential power — "The Bush administration has kept the American people safe since 9/11," he said; "The administration's strong view on executive power may well have contributed to that fact" — but McCain and Paul disagree. "I don't think the president has the right to disobey any law," McCain said.

Notably, tough guy and Iran hawk Rudy Giuliani did not respond beyond saying that a president "must be free to defend the nation." Mike Huckabee chose the via negativa, and Fred Thompson wouldn't answer, either.

On the Democratic side, Biden, Dodd, and Richardson called for an end to the use of signing statements. Clinton and Obama condemned the way Bush has used them but said that there are some cases when a signing statement should be used to protect "a president's constitutional prerogatives." Edwards criticized Bush's "abuses," Savage said, "but did not categorically rule out invoking the same expansive theories of executive power in other circumstances."

("Survey reveals candidates' views on scope of executive power," Charlie Savage, Boston Globe 12.22.07; my earlier posts on signing statements and executive power: "Against omnipotent rulers," 1.10.06; "Bush never met a law he couldn't sign. And ignore," 4.30.06; "Dick Cheney's omnipotent hand," 5.29.06; "Dick Cheney's imperial presidency," 11.29.06)

Copyright © 2007 by Philocrites | Posted 22 December 2007 at 10:39 AM

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Bill Baar:

December 22, 2007 11:36 AM | Permalink for this comment

Posner and Brady back in July 06 on signing statments.

The signing statement is no more offensive than the memorandum, the
executive order, and the proclamation, and no one seems to want to ban them. Whatever one’s views of presidential power, the president has the right and perhaps even a constitutional obligation to state his opinion about the meaning of a statute and whether it violates the constitution. If it is more convenient to state this opinion in a signing statement than in some other type of document, that is hardly an objection. Indeed, stating his views about legislation at the earliest possible point increases transparency about the executive’s intentions, which enable those who are affected by the statute to adjust their behavior accordingly, and those who disagree with the President to mobilize resources to litigate or obtain a legislative revision.

Part of Bush's problem is he's been far more transparent on a lot stuff then past Prez's.


December 22, 2007 11:39 AM | Permalink for this comment

No, Bill, the problem is that Bush is using signing statements to enable the executive branch to conduct a war beyond any legal oversight by Congress or the Courts. By adding Alito and Roberts to the Supreme Court, he is also leaving us with jurists who share his views of executive power on the Court, too.

Bush could veto bills he thinks step over the line, but instead he simply opts out of enforcing them. That is a problem.


December 22, 2007 02:47 PM | Permalink for this comment

A signing statement is a press release. It has no authority over anyone. It is thus completely different from an executive order. If the president issued an executive order defying a law, that would have real consequences and could lead to real litigation. The beauty of a signing statement is that since it has no consequences it can't be litigated. The president could issue a signing statement stating that the moon is made out of green cheese. The Globe might fume, but there is nothing anyone could do.

I would also note that signing statements generally concern the division of power between the executive and the legislature. This hasn't been much of a practical issue lately because Congress has chosen not to fight with the President. The real issues that have concerned liberals have been more about the president's relations with the court system, especially involving detentions and eavesdropping. These are important issues. But the signing statements themselves are a red herring.

I have to wonder if raising the issue at this time is a back door attack on Hillary Clinton. Since Bill Clinton issued lots of signing statements as president she can't exactly denounce the practice.


December 22, 2007 04:19 PM | Permalink for this comment

My impression is that Bush's use of signing statements is only one of the ways — perhaps a relatively insignificant way — that his administration has very broadly construed his constitutional authority to set up extralegal mechanisms for his war on terror, including the Justice Department memos on torture, the CIA's kidnapping of people in other countries and then sending them to countries where torture is practiced ("extraordinary rendition"), and other practices that don't abide by U.S. law or international treaties and conventions which the U.S. has signed.

So, yes, uuwonk, maybe I'm calling too much attention to the signing statements themselves. But it's the doctrines of executive power they're often used to buttress that I strongly object to.

Bill Baar:

December 22, 2007 07:11 PM | Permalink for this comment

It's subtle hit on HRC for sure for exactly the reason cite: Clinton used them alot. Here's a site where you can go count them.

Trying to figure out who Clinton rendered to Saudi Arabia, Pakistan, etc another interesting exercise.

It's absurd to think Bush is only able to keep the coalition in Iraq, Afgainistan, etc with signing statements.

Which signing statement said Congress is unconstitutionally failing to withdraw troops, and I'm going to go ahead and keep them there?


December 23, 2007 03:42 AM | Permalink for this comment

Bush's lawyers have made some extravagant claims. Many of those claims have been rejected by the Supreme Court in, for example, Hamdan v. Rumsfeld in 2006. However, when the Supreme Court ruled that Bush's military tribunals were illegal, the response of Congress was to pass the Military Commissions Act of 2006 which explicitly gave Bush almost all the power he had claimed.

Lawyers' opinions are ephemeral. The 2006 act is the law of the land. I would argue that the main reason that Bush's power increased is that Congress wanted to increase it and passed several laws to that effect. These laws won't go away if a few White House lawyers are replaced.

I would note that Senators Clinton, Obama, Dodd, and Biden all voted _against_ the 2006 Military Commissions Act. Perhaps an interesting question is whether they would, if elected, order military commissions convened. The law gives the president wide discretion.

Bill Baar:

December 23, 2007 09:29 AM | Permalink for this comment

Thanks UU Wonk.

I'm back with Stone, and Douglas on War Crime trials as fancy Judicial lynchings.

Consider Richard Reid, the shoe bomber; or Moussaoui the surviving 911 conspirator. Both now sitting out the rest of their lives in near total isolation at the supermax prison in Colorado.

They should never have been tried as a criminals. No one who has declared war and committed acts of war on America, can receive a fair trial before a US jury.

As combatants who fought outside the rules of war, they have no rights under the Geneva convention.

They are at the mercy of the United States.

And instead of sending him before a Court and jury, we could have sent thim to Gitmo for the duration of this war.

There they would have faced a Military Tribunal that would determine if they could be released, when no longer threats to the US (A judgement the tribunals don't have a good record with considering those released and then recaptured as combatants).

So life in isolation after a criminal trial for being at war with the American people, or take ones chances that this war will end sooner rather than later in Gitmo.

I suspect twenty years from now, Reid and Moussaoui will be insane in their cells from depreviation of human contact, with Bin Laden long dead, and Gitmo long closed.

The combatants there sent home with the war won, and Peace, Democracy and Liberal Islam flourishing in the Middle East.

Reid and Moussaui still locked down because of Democrats angling for votes portraying Bush as a fascist.

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