A strategy for more executive power -- compliments of Alito

Presidential signing statements are, thankfully, front and center in the press right now. A fascinating breed of pseudo-legislation, the signing statements allow the President to essentially add a "P.S." to Congress' legislation. They don't technically have the force of law. Yet, the statements do maintain an influence in future judicial interpretations of the legislation as they go on legal record. So it's essentially a subversive, and unchecked, way of influencing future lawmaking.

The most recent use of the statments seems to be in the case of McCain's torture legislation in which Bush agreed that the U.S. would not torture people unless it did. Under the scrutinization of the press, studies have emerged revealing that President Bush has utilized these "signing statements" far more than any other president. In fact you might say that President Bush founded the use of the statements as a nice and quiet tactic through which to ignore Congress' will. But you would be wrong. That's because our new friend Samuel Alito, back in the days of Reagan, was actually the brains behind the concept of using these "signing statements" as a way to impact the future balance of power. The Washington Post reports


In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.
Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."
It seems an exhausting effort to try to counteract this logic which asserts that a law is only a law if the President decides to follow it. Knight-Ridder reports that
In 2003, lawmakers tried to get a handle on Bush's use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.
Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.

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