THERE ARE NO LEGALLY BINDING UNCONSTITUTIONAL LAWS:

Sign Here: Presidential signing statements are more than just executive branch lunacy. (Dahlia Lithwick, Jan. 30, 2006, Slate)

Unless you spent New Year's weekend trolling the White House Web site or catching up on your latest U.S. Code Congressional and Administrative News as you waited for the ball to drop, you probably missed the little "P.S." the president tacked onto the McCain anti-torture bill. The postscript was a statement clearly announcing that the president will only follow the new law "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch ... and consistent with the constitutional limitations on the judicial power." In other words, it is for the president—not Congress or the courts—to determine when the provisions of this bill interfere with his war-making powers, and when they do, he will freely ignore the law. [...]

Dismissing these statements because they carry so little legal force is as dangerous as writing off any of Bush's other extreme legal claims to boundless authority. Because while these cases slowly wend their way through the court system, there are real-life consequences to Bush's policies—and especially his torture policies—on the ground.

First, consider the substance of Bush's statements. Of the 505 constitutional objections he has raised over the years, Cooper found the most frequent to be the 82 instances in which Bush disputed the bill's constitutionality because Article II of the Constitution does not permit any interference with his "power to supervise the unitary executive." That's not an objection to some act of Congress. That's an objection to Congressional authority itself. Similarly, Cooper counted 77 claims that as president, Bush has "exclusive power over foreign affairs" and 48 claims of "authority to determine and impose national security classification and withhold information." Bush consistently uses these statements to prune back congressional authority and even—as he does in the McCain statement—to limit judicial review. He uses them to assert and reassert that his is the last word on a law's constitutional application to the executive. As he has done throughout the war on terror, Bush arrogates phenomenal new constitutional power for himself and, as Cooper notes, "these powers were often asserted without supporting authorities, or even serious efforts at explanation."

And if you believe that all this executive self-aggrandizement is meaningless until and unless a court has given it force, you are missing the whole point of a signing statement: These statements are directed at federal agencies and their lawyers. One of their main historical purposes was to afford agencies a glance at how the president wants a statute to be enforced. As Jack Balkin observed almost immediately after the McCain bill, signing statements represent the president's signal to his subordinates about how he plans to enforce a law. And when a president deliberately advises his subordinates that they may someday be asked to join him in breaking a law, he muddies the legal waters, as well as the chain of command.

It would take an amendment to the Constitution for a president to sign away the powers it currently gives him. How far do you think an amendment giving Congress and the Court power to interfere in the conduct of war would get?

Posted by Orrin Judd at January 30, 2006 5:15 PM