Sunday, July 23, 2006


On signing statements: Scalia ends democracy.

by Hekebolos

So, this is it. We've come down to it at last. The end of democracy in America.

It started with the Legislative Branch, of course. The branch that, according to that formerly revered document, the United States Constitution, has:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress' abdication of its responsibility for oversight--in matters of war and peace, primarily, but in other matters as well--is well-documented.


It's time to pull out the Pocket Constitution again--and you know what that means.

If you've followed my work recently, you'll know that I've been putting in a lot of effort to tracking the fallout of the Hamdan decision--see previous diaries on the subject here and here.

My previous efforts focused on the significance of the majority opinion in Hamdan and its far-reaching repercussions for the question of the legitimacy of the "Article II on crack" excuse for unlimited wartime presidential powers.

What's clear, though, is that I had not spent enough time focusing on Scalia's minority dissent--and I thank The Boston Globe for reminding me of this fact.

You see, previously, courts had almost never discussed--and, if I'm not mistaken, the Supreme Court had never discussed--the issue of the validity of Presidential signing statements, because--surprise surprise--they have no Constitutional basis. It's right there in my Pocket Constitution.

Well, Scalia has access to the same Pocket Constitution that I do. But apparently, he sees something different in it. Because despite the fact that the American system of law is based on the precedents of English common law, and despite the fact that there is no precedent whatsoever for using Presidential signing statements to interpret specific provision of law passed by Congress, Scalia saw fit to upbraid the majority decision. For what, you may ask? FOR FAILING TO TAKE THE PRESIDENT'S SIGNING STATEMENT INTO ACCOUNT:

Of course in its discussion of legislative history the court wholly ignores the president's signing statement, which explicitly set forth his understanding that the [Detainee Treatment Act] ousted jurisdiction over pending cases.

What utter hypocrisy on Scalia's part. For someone who likes to wave around a copy of the Constitution; for someone who claims to be a strict constructionist; this declaration goes beyond false. It transcends into the realm of the patently absurd. You see, Scalia, I'm a strict constructionist. And I'm going to Construct it Strictly for you right now. Article III, Section 2 of the Constitution of the United States, regarding the authority of the United States Judiciary:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

The duty of the President is execute the law. The Constitution is pretty damn clear on this too, wouldn't you know. Article II, Section 3 of the United States Constitution:

he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

And how are laws made in this country? Well, I put this one to rest in a previous diary, in perhaps an angrier mood:

Let's talk about signing statements for a minute, shall we? In The Scotty Show with Tony Snow, karateexplosions quoted Snowjob on a question on how signing statements were used. This was part of Tony's response:

and also, to interpret specific holdings of the Supreme Court like the Chadha decision, which I just referred to before, with regard to the use of the legislative veto. So that's how he uses them.

Well, that's fascinating. Let me pull out my pocket Constitution one more time--damn, the pages on this thing are really getting ratty by now. Oh yes--here's Article I, section 7.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

Fucking fascinating, don't you think? I didn't see anywhere in that Article any text to the effect that the President shall have the power, upon signing a bill, to use a signing statement to re-interpret decisions of the Supreme Court concerning individual provisions of legislation passed by Congress. Didn't see that in there. Did you see that in there? Ok, good. I'm not as fucking blind as I thought.

Back when we actually taught civics in school, this is what you used to learn. The Legislative Branch creates laws; the Executive branch enforces and executes laws; and the Judicial Branch interprets the law.

It is clear that the framers of the Constitution intended for the Executive to be able to advocate for the passage of specific legislation, but clearly never intended for the Executive to have a hand in interpretation. Article II, Section 3 of the United States Constitution:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.

YOU SEE THAT, SCALIA? IDIOT? The President has no hand WHATSOEVER in interpretation of law. He pushes for laws to be considered, and approves of laws that are passed. He HAS NO HAND in interpreting the law. That's YOUR JOB.

And guess what, everyone. This is no accident. This trend toward dictatorship is many decades old--and it extends all the way back two decades ago, to a memo written by everyone's favorite person--current Supreme Court Justice Samuel Alito. From the Boston Herald:

Legal specialists also noted that Alito was among the justices who backed Scalia's citation to a signing statement. In 1986, 20 years before Bush put him on the Supreme Court, Alito helped pioneer the strategy of using signing statements as a way to increase the power of the White House.

In a 1986 memo that surfaced last year amid his confirmation fight, Alito -- then an official in the Reagan administration -- wrote that presidents should use signing statements to record their own interpretations about the meaning of new statutes. If a question arose about a law's meaning, Alito wrote, judges could look to the statement for guidance, rather than relying solely on its legislative history.

``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 in a memo dated Feb. 5, 1986.

He warned, however, that ``Congress is likely to resent the fact that the president will get in the last word on questions of interpretation."

The Constitution is clear as day on this issue. But the major point is that Scalia and Alito--and, by extension, Thomas, since he signed onto this dissent--are not conservative judges. Conservatism is, however problematic at its heart, an ideology concerning what policies to enact for the betterment of the country.

No, my friends, this is not "conservatism"--and calling Alito and Scalia "conservative" is a disservice. Conservatism is often described as a respect for tradition and a shunning of innovocation. Well, my friends, this type of legal reasoning concerning the President's power to interpret the law is anything but traditional, and is wholly innovative.

Scalia and Alito aren't conservative judges. They are proto-fascist monarchist sympathizers who believe wholeheartedly in turning this country into an elective monarchy. Presumably they do this because they believe that someone who believes as they do will always be "the decider." But one wonders if they'd give those same powers to Al Gore if he decided to claim them--or any Democratic President come 2008 and beyond.

My friends, if Roberts hadn't recused himself from this case, this decision could easily have been 5-4. All it takes is one more Justice to establish a precedent for Monarchy in this country.

It's up to us to stop it.

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