The (GOP) positioning of the Signing Statements issue... be warned!

[salin]

Earlier this week I heard an odd short bit on the issue of W's signing statements. It was referred to as a partisan issue - ala tax cuts, with a clear cut 'democratic' position and 'republican' position. After I spit out my coffe... I spent some time reading and thinking. This is a constitutional issue.

The initial refutation, is the only one that appears to hold any water. It goes along the lines of this: The president, and the executive branch he leads, is not ACTING on the statements, rather these are just positions being offered so that if in the future the provision is tested in court, the executive branch opinion will be considered along with congressional intent. Indeed, if the statements do not impact upon the federal government carrying out laws as written by Congress then there is no real foul here, and no real crisis. That said, the big question needs to be asked: Do the signing statements have an impact upon how the executive branch carries out laws passed by Congress and signed by the President.

The following are the arguments that have been made in recent days. Pay attention, as you are likely to hear them more frequently. They are easily countered. If you have heard other arguments used to dismiss the 'issue' altogether - please add them to this thread - so that collectively we can counter those as well.

New Positioning #1: Claim: "the charges are overblown... while there may have been 800+ provisions to which signing statements apply... only 100+ distinct pieces of legislation are effected by signing statements."

The intent of the argument is to dismiss the entire issue by stating that "the media" or "the democrats" or now "the ABA" have overstated the issue and therefor there is no issue.

Response: The potential nullification of more than 800 provisions of laws passed by Congress (and signed into law by the President) is serious regardless of whether 100 or 800 distinct pieces of legislation are involved. If the signing statements indicate that the executive branch has nullified, and is acting upon its nullification of Constitutionally passed laws - then the executive branch is operating outside of the Constitution. The issue (and primary question) remains the same. In short, this is a typical right-wing straw man type argument via distract and dismiss. Sadly this approach has sometimes been very effective.

New Positioning #2: Claim: "This, like other political news, is simply about partisanship and is nothing more than 'politics as usual' ".

The intent of this argument is to cast out any independent thought, and to recast the issue as simply a dem say repub say (ala he says she says) argument - and thus allegiance should be to party, rather than to stand on the issue (or even understanding the issue.) This argument, like the above argument, is simply meant to distract and dismiss.

Response: The issue is about the Constitutional process for bills becoming laws, and the means for presidents to nullify laws (via veto) - which allows congress, when the will of the people is strong enough, to override that veto. This is not an issue with a republican and a democratic side. This is an issue (depending again on whether or not the executive branch is acting upon the signing statements) about the constitution. Does the president have to follow it or not?

When GOP congressional leaders, like Bill Frist, take up the side of the president - they are by action suggesting that parts of the Constitution no longer guide our system of government. And they are doing so WITHOUT following the guidelines set forth by the Constitution to change the constitution. There is a Constitutional Amendment process that requires a high degree of agreement across the country in order to change the Constitution.

In short, there is NO argument here - except whether or not the Constitution still guides our government. If and when this particular argument is made (that this is just more of the same old political games and partisanship) it is important to point out what is being implied: that following the Constitution is now a republican (no longer have to follow it) vs democratic (have to follow it) thing.

Seriously, the only question/response that has any legitimacy, is the one that was first raised when the issue came to light by Savage in the Boston Globe. This is the question that Sen. Spector should be pursuing: "How are the signing statements acting, functionally, in the administration's execution of laws passed by Congress (and signed by the President)?"

If the signing statements do not affect how the laws are carried out by the federal government, and instead simply function like a minority opinion in a Supreme Court case (that is they exist for advice and consultation in the future interpretation of laws in court cases), then really there is no serious Constitutional issue. There might be an issue as to whether or not this is appropriate, or as to whether or not they would actually used by the Courts to give equal weight with Congressional intent, but this does not make for a potential constitutional crisis.

If, however, these statements layout how the executive branch of government is carrying out laws - in defiance of congressionally passed (and presidentially signed) laws/wording, then the President and federal government are acting outside of the Constitution. In this case their actions will have nullified a major part of the provisions of the balance of powers granted by the Constitution.

A more snide person might then ask, if a President legislates by Executive Order, and willfully nullifies laws passed by Congress, then what role is congress playing? Oversight? Can one have oversight if the resultant laws are negated by executive signing statements? Budgetary/Purse Strings? If the current Congress hands over in full (or excess) any budget item requested, is it acting in any way beyond symbolic? Is it really functioning at all? Is Bill Frist, in his support of the administration's wanton use of Signing Statements, really acting in a way to nullify the role of Congress to the govt? An even more snide person might suggest that this is quite an interesting position to take as leader of the Senate who is not running for reelection in order to make a run for the White House. Opportunism? Or just really bad politics?

Back to the point at hand. The spin around countering the issue of signing statements is starting to mount. Personally, I can't think of a better time for this issue to fully enter the public's conscience, than just before a major congressional election.

So - amid the spin a new question for republican congressmen and senators arises: The Constitution - are you for it or against it?

[The Deacon]

1. You Missed

"Democratic Presidents used signing statements, too."

[salin]

2. That is easily countered with the fact Ws signing statements = more than

ALL signing statements of all U.S. presidents (even democrats) combined throughout history. That argument is a nonstarter. The content of others are clarifications - while the content of Ws are state the belief that the executive branch does not have to implement sections of the law based on the executive's sole interpretation of the Constitution.