Well, here’s a big surprise. CNN reports that an American Bar Association task force says it’s unconstitutional for President Bush to use legislative “signing statements” to carve out exemptions from the law. I confess that I had not heard about this particular category of White House illegality, so I did a little checking around.
Presidents have always issued statements (although nowhere near as many as Bush). They’re just comments with no force of law, right? So what’s the big deal?
Well, the big deal is that Justice Scalia actually cited to one of Bush’s statements in a recent dissent. The case was Hamdan v. Rumsfeld, in which the Supreme Court was called on to determine whether federal courts could hear a terrorism detainee’s case. See, when Bush signed the Detainee Treatment Act, he had added a legislative statement saying that federal courts would have no jurisdiction in such cases – in other words, there would be no remedy in court if someone was wrongly detained.
The Supreme Court disagreed, finding that it had jurisdiction, and also finding that the military tribunal violated American and international law. So far so good. But in his dissent, Scalia – joined by two other justices – chided the majority for failing to consider Bush’s statement that the courts have no jurisdiction.
Wait a minute… Did I read right? Scalia is saying that the amount of power the President has depends in part on how much power the President says he has, regardless of the law? Uh, can you say Kim-Jong-il?
That any Supreme Court justice – much less three of them – would allow the Executive Branch to decide the extent of its power leaves me with a decidedly creepy feeling.
The ABA report, by the way, was put together by a list of highly regarded legal bigwigs including judges. It’s not official until (or unless) the
By the way, for an exhaustive website on Bush’s signing statements, complete with links, click here.