Legislator-in-Chief?

Critics warn that George Bush has been using an Alito strategy to shift legislative power to the executive branch

During the last days of 2005, after months of threatening to veto the McCain-Feingold torture ban, President George W. Bush finally signed the bill into law. For many, it seemed that reason had won out in a black-and-white human-rights issue.

However, in a legal statement that was released on the night of the bill signing, Bush asserted that he would interpret the law “in a manner consistent with the constitutional authority of the President,” with an objective of “protecting the American people from further terrorist attacks.”

Over the years, many presidents have issued statements when signing bills. Some trumpeted successes; others pointed out sections of legislation that didn’t please them yet were not significant enough to warrant a veto. However, the Bush administration seems to be forging new ground in the use of the statements, and the administration has help from the writings of new Supreme Court Justice Samuel Alito.

The Washington Post has reported that during the Reagan administration, Alito, who was then deputy assistant to the attorney general, helped author a memo that argued for “interpretive signing statements.” These statements would be issued in the hope that courts would regard them in the same way they regard the legislative intent of those who have worked to create a bill. Critics insist that the statements have become a tool in the Bush administration’s bid to broadly increase the power of the executive branch.

“The problem with what Bush is trying to do is, it’s a little bit like stating what the contract means after it’s done,” said Albany Law School professor Stephen Gottlieb. Gottlieb said that if the president were making statements prior to the passage of bills, it would be a different story.

“If you keep your mouth shut and then when the job is done you open your mouth to say something that conflicts with what everyone understood, why should anybody give that any weight at all?” he asked.

Bush has issued more signing statements than any other president in history—more than 100 statements during his first term alone. To many, it seems the president has used the statements to nullify laws he disagrees with without suffering public disapproval that might be incurred by a veto. Critics insist that in some ways the president is simply picking and choosing the laws he wants to obey.

In 2002, Republicans and Democrats alike were outraged when Bush issued a signing statement that reinterpreted whistleblower protections in cases of corporate fraud. Ironically, according to Gottlieb, if Bush were using signing statements in the corporate arena the way he is in the political, he would be committing fraud himself. “You got a business partner to enter into an agreement and then you said that’s not what it means,” he said. “That bespeaks fraud.”

In his memo about presidential signing statements, Alito made it clear that he did not expect the strategy to be warmly accepted by Congress, and stated that “Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.”

Later in the memo, Alito describes how the use of the statements should be introduced so as not to attract much attention. “Our interpretive statements should be of moderate size and scope. Only relatively important questions should be addressed,” he wrote.

While signing statements have been under the radar for many people, including most members of Congress, the Bush administration likely has only one audience in mind.

That audience is the Supreme Court. As of yet, the Court has not weighed in on signing statements, and Alito has dismissed his memo for the Reagan administration as the work of someone simply doing his job. But with an architect of the blueprint for more aggressive uses of signing statements now on the court, many wonder whether the court will be able to ignore them.

“There are people now in judicial position on the courts that will be all too happy to pay attention to Bush’s statements,” warned Gottlieb, “not withstanding that they are fraudulent, and Alito is about to be one of them.”

—David King

dking@metroland.net

Another Kind of Prison photo:Teri Currie

Activists gathered Tuesday (Jan. 31) for a weekly vigil against prison abuse in state and federal prisons. This was the second of the vigils, which have been scheduled for every Tuesday at 5:30 PM at the corner of Washington Avenue and Lark Street in Albany. Organizers, many of whom have loved ones in prison, say they are aiming to shed light on the difficulty those incarcerated face in receiving justice or protection from physical abuse and medical neglect. “I have personally known men who have been . . . left to suffer and die from treatable illnesses which prison authorities refused to administer to or treat,” wrote prisoner Donnell Joseph in a statement vigil participants were handing out. Organizers hope to eventually persuade lawmakers to investigate prison conditions at home as has been done overseas. They said reactions to the vigils have been mixed so far, but some who were skeptical have signed their petition to Congress after hearing their stories.

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