And if they *are* scrubbing the signing statements? "So What?" we ask...

This post is in reference to the question asked http://www.democraticunderground.com/discuss/duboard.ph... , and a follow up post of sorts to a post I wrote a short while ago after the Globe posted a significant article about the scope and extent of the use of the 'Signing Statement' by President Bush. http://journals.democraticunderground.com/salin/19 (and the original Globe article by Charlie Savage: http://www.boston.com/news/nation/washington/articles/2... / )

I don't know whether or not these are being scrubbed, but I do know that it would be exceedingly problematic, troubling and perhaps frightening were that to be the case.

Keep in mind that we have since learned that Cheney, his current chief of staff Addington, and a growing number of executive level staffers have scoured congressional legislation to find laws that to 'amend' by signing statement and to craft signing statements to fit those laws. Granted the signing statements, from what I can tell, are very formulaic and include sweeping catch phrases while giving little indication to meaning as to how *they think* the exec branch should carry out the law. They claim the right to override portions of a given law for specious national security reasons, reasons preventing the Commander in Chief from carrying out his CiC duties and... (big catch phrase), reasons that interfere with carrying out the duties of the executive branch (or something to that effect that is just as broad). From what I have read there is little that is written that is specific to the pieces of legislation, or that give a head's up as to how they might implement the law differently than was written in the law.

Conservative commentators have addressed the signing statements as a non-issue by casting the statements as an expression of opinion, in case the courts later review the law in order to get the President's opinion into the discussion as well as the intent of Congress. In this interpretation there is no problem, because the signing statements do not indicate that the President is actually acting on the difference of opinion - just stating that he (pres) thinks that he should be able to reserve the right to act in ways differing than the law as passed by Congress. Okay, if the pres doesn't authorize the executive branch (the federal govt/agencies/etc that implement the laws) to carry out the laws according to *his* signing statement, rather than execute the laws as written by Congress (and, btw signed into law by the president), than there is no Constitutional Crisis.

However - two things bother me about accepting that explanation at face value.

First, if this is a symbolic activity rather than an attempt to expand exec branch power (by being able to quietly override Congress without using the constitutional vested power of veto), then it seems to be an extremely expensive use of time, energy of top officials to be expended on a simple act of symbolism.

Second, we do not yet KNOW how the exec branch of govt is acting on the 750 pieces of legislation passed by Congress to which later Presidential signing statements were attached. Sadly, this republican ruled congress doesn't seem to be concerned about investigating to see whether or not the laws they passed are being executed as written, or executed according to Bush's signing statements. Aside from the Globe, few media outlets seem to be invested in asking/investigating to determine whether the signing statements are symbolic, or signals of executive branch usurping legislative authority from Congress. And in absence of knowing where damage might be done via implementing a Bush version of a law passed by congress, there is no court review per the Constitutionality of actions of the executive branch if/where there is an example of the signing statement shaping how the law is implemented rather than what was written by Congress. Simply stated: How do we know whether or not the Admin (and the fed agencies charged to implement the laws) are following the laws as written by Congress? How do we know where to look to determine this (look to see to which laws the signing statements have been attached...) How do we know where there might be action to require a court review of content to determine the Constitutionality of the action (implementation of a bush signing statement rather than the law passed by Congress) or into the practice of attaching signing statements to laws?

The only place to begin such an inquiry is by studying the signing statements themselves, as is being done by a few journalists, academics and others (including the DUer who found the potential problem and raised it earlier today.) Indeed the ABA has announced the forming of a committee to look into the practice (granted it isn't yet clear to me whether that group will simply be looking at the practice, or if it will also review to determine whether the fed. govt. is acting on those signing statements over the intentions of congress as indicated by the original laws.)

Back to my original question - so what?

It all hinges on being able to know what our govt is doing. Whether the signing statements spell out the law of the land, or do the laws in congress spell out how the laws are being executed? *IF* the signing statements are what determine how the govt carries out the laws, *then* a scrubbing of the record of those signing statements has a huge significance.

If the signing statements are being scrubbed, there can be no review of the actions of the fed govt to determine extra-constitutional actions because we wouldn't know where the admin has 'claimed the right' to act in ways that are in defiance of the law as passed by Congress. Worse it would indicate that in future there would be no public record of signing statements. Think about that for a second, the congress could pass a law, the WH could attach caveats/nullification of part of the law, without having the public (or Congress, or the media) knowing. There could be no review, no oversight, no checks and balances. Congress could pass laws that could be 'overridden' in complete secrecy. That is suddenly Laws of the Land would be secret to the public. Does this sound remotely like any kind of democracy? Were this the case, would the govt in anyway mirror the system of govt set out in the Constitution? To me, sounds like the seeds of a one-branch govt that dictates the law of the land, how the law is implemented, and how the courts rule on how the laws are executed. Sounds more like the framework for many-a twentieth century dictatorship.

Perhaps I would not be inclined to fear a possible insidious slide down a slippery slope toward a new form of govt - forever altering our system, one that has never been agreed upon (as in voted for) by the public had the record of the bush administration not been one of blatant contempt for laws and international treaties, one with a record of contempt for the public via absurd propaganda fear peddling full of blatant lies and manipulations, one which has acted in bad-faith toward the American people and institutions of the American Government (military, vets, ssa, etc.) Instead it is the track record of this administration that has led me to be highly suspicious of their actions, and concerned about the implications of those actions on the future of our country.

Someone, please tell me that we are not there yet. Tell me that the record of these documents can still be found, studied, and investigated. Tell me that there are still some constraints on this out of control administration. Tell me that we can still review the record of their actions to the written record of their 'intents' via the signing statements to determine whether laws being executed following congressional direction (as written), or whether the signing statements are in practice the de facto law of the land - as then there can be review and oversight. Tell me that these signing statements can still be reviewed, and that we are not getting some sick preview of a future where laws of the land are crafted in secret documents unattainable to the public. How dangerous of a system might that become - where the laws are not known, but are acted upon by the federal govt? Almost unfathomable. Certainly not American. In such a place, guess one may not know what those secret laws are, until one breaks one?? (Okay that is over the top cynicism - but in a system of secret laws, is it really that scenario really implausible?)

Yes, imo, it is a very serious issue, with very significant implications, were the signing statements that exist (and all future ones) kept from the public domain. It would be bigger than a "Toto, we aren't in Kansas anymore" moment.

The checks and balances are gone. Congress is content to act as either a rubber stamp or an abused spouse.

A very thoughtful post on a very important topic which is getting little play. Glen Greenwald had a very good piece about Congressional abdication and how it is a Constitutional crisis.

*PTB steamroller on to fuck the next "election" the ROTW. You don't need no info! *THEY will tell you what *THEY decide you need to know.

before getting caught and saying OOPS! (no follow up in the news, did they really purge the information?) It is under THEM that in some states hiring for civil service (state level) jobs required party affiliation/participation/donations... The more I read, the more it sounds like the GOP and BUSHco would like to recreate a soviet style authoritarian system of govt in order to ensure ongoing power, while conferring very little (no) power to citizens.

to act as an official corrupt arm ala Tammany Hall. Give me money, and we'll give you the taxpayer's money via earmarks. Don't need to actually legislate if we begin to view our 'business' not as the peoples' business, but the business of reallocating the peoples' money to our cronies. Very sad state of affairs, that. However that doesn't even begin to suggest a morphing of our system of govt - which is exactly what the actions of the executive branch IS suggesting.

We will ride out the Bush years. But what form of govt emerges on the other side is up in the air. A quick rejection in Congress in 2006 - and perhaps our system is salvagable. Without one, and with two more years of no balance - I have begun to believe thazt what emerges will look very different than the form of govt that existed for more than 200 years.

what is happening:
check the Federal Register to see what is happening to the areas where legislation has been targeted by a signing statement. The federal agencies have to post their regulations which are the enablers for legislation in the Register. Later, the regs. are published in the Code of Federal Regulations. I do not expect that we would find some of the topics, as they are probably sheltered under some "national security" umbrella, but there should be other areas that would be accessible by the public. (Also, the agencies do not "enact" laws, they promulgate regulations that enable the laws to take effect.)

you are correct, they carry out - implement, etc.

but I hope that Syndie will read this and follow up (as she has been doing) per your suggestions.

time passed since some of these signing statements were filed is sufficient to track how the agencies are responding. The other thing to note is that the purpose of publishing in the FR is to allow for public comment, so one would want to see whether anyone is saying anything about the regulations not being in accord with the letter of the law. And then there is the question of whether the agency is simply avoiding topics governed by new legislation--which I don't think they can do legally.

my cynicism has spiked so high in these years. You are correct per the public comment per the agencies... but call me a skeptic does it matter that it might be against the law for them to ignore/avoid topics related to the new legislation?

I would guess that, yes, enough time has gone by in terms of the earlier signing statements. I would also venture to guess that procedures per posting were followed, as it was expected that the signing statements were buried in the records (fed register) that few read, and thus there would be no cross checking and following up on agencies websites/records. In short, for years things the practice was so obscured that noone had to worry about it. Indeed it seems the practice went unchecked for five years before it came to light due to the controversy surrounding the torture amendment (with Cheney lobbying the senate to LET THE CIA torture), being passed and signed into law... and some media followup which stumbled across the signing statement on that legislation. Even after that it was months before the practice came up again (now folks were looking for it) in the Patriot Act - and finally with the Savage/Globe expse which highlighted the scope and frequency of the practice. Long way of getting to my point:

They probably didn't have to try to hide anything for a long time, as it was so obscure that noone was looking. (The old hiding in plain sight). Now that there is intense scrutiny, I would bet all sorts of odd maneuvers guided by the curiously opportune legal rulings of legal counsel in the WH, will be undertaken to make the federal agencies work more obscure to make the ability to 'cross reference' much more difficult.

beuing scrubbed. Far to many places have them already! The ABA has conviened a panel to study their constitutionality, I believe the ACLU has copies of them too, and who knows how many other places.

If they thought they could scrub them, they're way to late for that!

would never appear. That bothers me a great deal.

Register, could it be that if they aren't published SOMEWHERE even Shrub doesn't think he can call them valid?

I wouldn't think, unless someone told him he has to have them published somewhere, that anyone would ever have even heard they existed!

MO #1) we don't eaves drop on domestic calls says shrub... oh, oops, so we did and I signed a law - but if I wasn't paying attention, was I really lying?

MO #2) sure we acted in ways differing from the law, but we had a >>>>> (legal opinion... or now, a classified for national security reasons signing statement...) that said we could... point being, published somewhere just in case, but shrouded in secrecy only to be pulled out to light when caught doing something against the legislation passed by Congress in order to prove that it was "okay". Of course this would only work with a fully dominated/submissive congress.

Guess I have been following the admin too long, and have grown so very cynical per their normal operating procedures ... makes me at times exceptionally skeptical per their following any laws or regulations, and their dangerous (to our system) means for justifying such behaviors, and the frightening spector (pun intended) of Congress rolling over as if their being written off as irrelevant per the balance of power written into the Constitution. It sometimes leaves me frightened as to how far this admin and the GOP in congress will push the bounds, and were they to "go for it" in all directions (which sometimes feels as if it is the case) - what system of govt will be left in their wake.

Wicked Witch of the West: Going so soon? I wouldn't hear of it. Why my little party's just beginning.
Wicked Witch of the West: I'll get you my pretty... and your little dog too!

As you've pointed out...

Dorothy: Toto, I've

Dorothy: a feeling we're not in Kansas anymore.

Sure enough... this isn't America anymore.

Still, it's interesting how meaningful phrases in the Wizard of Oz can be on so many subjects...

Scarecrow: I haven't got a brain... only straw.
Dorothy: How can you talk if you haven't got a brain?
Scarecrow: I don't know... But some people without brains do an awful lot of talking... don't they?
Dorothy: Yes, I guess you're right.

Alas, the Republicans may have brains of straw, the man behind the curtain is very clever indeed... He knows just how to subvert the world's greatest Democratic Constitutional Republic (each of the three words are indispensible, we are not just a "Democracy" and would not want to be), leaving behind a totalitarian corporatocracy of some sort. If we don't want to live under such a government, we have to figure out what they're up to...

One thing's for sure, the party is just beginning... and the Wicked Witch is controlling everything we see, hear and read... (with the possible exception of the Internet--yet).

if only water and melting were the solution!

I think that things will be increasingly interesting as the public opinion has so clearly turned not only against bush, but his enablers in Congress. So what will the desperation bring? How will they work to hold onto power? Using the rhetoric to whip up support has just proven to be a failing effort (Senate votes of the past week). Propaganda is becoming too transparent for the public - bush didn't get a zaqwari bounce, and the Iran war talk isn't working...

I am not big into the conspiracies ... but hard to see without some odd turn of events... how the GOP can control congress next January - and hard to fathom that the GOP will allow that to happen. Vote fraud? Possibly - but will they be so desperate that they go the Enron in California route - so over the top and Obvious that in the end it will be acknowledged by all as fact (and what would the reprecussions for that be?)

Er... can we find some red slippers anywhere? ;-)