What Fresh Hell Is This?

July 17, 2006

Super Conservative Prof Explains How Bush is Undermining Our System of Checks and Balances

University of Chicago Law Professor Richard Epstein is a conservatives' conservative. He's a fellow at both the Hoover and Cato Institutes and wrote a book "How Progressives Rewrote the Constitution," that is as unkind to liberals as it's title suggests.

So what does the Professor have to say in yesterday's Chicago Tribune about Bush's extremely aggressive use of signing statements?
What is new and troubling is the extraordinary frequency with which President Bush has used these statements, and the unorthodox way he uses them. The recent spate of presidential signing statements constitutes a threat to our country's system of checks and balances as surely as the Bush administration actions that the Hamdan ruling struck down did.


President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution.


But put the point in reverse: If the presidential signing statements are no big deal, why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards. [emphasis added]

(h/t to pontificator at Daily KOS)


EdHeath said...

Was this Epstein’s amicus brief pro or con Bush. Well, you would think Chicago would be no bastion of liberalism (Is Posner from the law school?) and at least one other self professed libertarian, William Safire, has parted company with the President as far as the President’s view of the media is concerned. It is surprising actually, the number of libertarians and conservatives are now complaining about the administration (Francis Fukeyama). What I don’t understand is if the republicans control both houses in Congress, why would the President need signing statements?

If Bush is trying to finish the war his father didn’t, Cheney seems to be trying to resurrect the Nixon administration’s imperial way of doing business. Kinda puts a dark spin on the administration’s domestic wiretapping.

Sherry P said...

yes it does.

EdHeath said...

Just to extend this a bit, I read part of Bob Herbert's column today, which runs along the same lines. He is upset about the loss of freedoms. I think he peripherally notes, as do most journalists, that polls show the American people indifferent to losing those freedoms, as long as it (A) doesn't affect them directly and (B) does affect people that might be terrorists. I think most people, like me, don't really care who tracks (my) calls because they (I) don't call anyone exciting. But we (people) are passively racist in that we (they) assume the only suspicious people will actually be affected by the loss of freedoms. If liberals want to get the public to get excited about wiretapping, they need to ask if there is a new “enemies” list, a la Nixon. And the way Tom Delay behaves, I wouldn’t be surprised. If the public finds out that Bill Keller’s or William Safire’s phone is tapped, it’s a whole new ball game.

Maria said...

"If liberals want to get the public to get excited about wiretapping, they need to ask if there is a new “enemies” list, a la Nixon."

The problem with that is with one party holding all the cards and refusing to play honorably, we never will know if that happened.

See here.

djhlights said...

"If liberals want to get the public to get excited about wiretapping, they need to ask if there is a new “enemies” list, a la Nixon."

If liberals want the public to get excited they need to get the word out that they are wiretapping gun owners and remind them that if they will violate the 4th amendment what makes you think they'll stand up for the 2nd.

Sad but true.