Originally Posted by O'Sullivan Bere

IMHO, there really needs to be a showdown on the issue of signing statements. More than just terrorism has been cited as a justification for this signing statement, but also ordinary law enforcement such as drug law enforcement. Court decisions and laws already permit warrantless opening of mail in the case of a deemed physical threat in the mail (bombs, anthrax, etc) but not mere review of non-physical threats. If involvement in terrorism is suspected in a piece of mail, then the FISA court is there for recourse for warrants to open it. If other crime is there, then the regular courts are available for warrants to open it. This kind of mail need not be immediately delivered, but held in custody pending the warrant request being submitted and ruled upon. I see no basis except mischief for the signing statement, its blatant unconstitutionality on its face (IMO) aside.

Historically, POTUSes who chose to issue a signing statement for any bill they signed into law did so as a matter of political posturing and puffery. (Example: "This bill is a wonderful tool to combat . . . blah blah blah . . . and will serve the great ends of . . . blah blah blah . . . which I fully support . . blah blah blah). Hence, it was deemed harmless nonbinding stuff.

However, the practice started to take a far more questionable turn during the Reagan Presidency. Reagan started to use signing statements on occasion to state his intentions upon signing a bill of what parts of the bill meant and/or what parts or interpretations thereof he felt were not applicable to what he was signing and/or were not things he was effectively signing.

Every POTUS since Reagan has adopted his practice. George H.W. Bush issued 146 and Bill Clinton issued 105 such statements as tools intended to shape or crop the bills they signed into law. Dubya has now made the same practice a regular act when signing bills, having issued over 800 of them so far in his two term Presidency, often to state what part of the laws he feels are 'applicable' or 'mean' etc.

IMO, the signing statement is plainly unconstitutional not only as a violation of the separation of powers but also an action not delegated to the executive. Congress is the branch entirely entrusted to write bills. The executive branch has absolutely no power whatsoever to shape proposed legislation. The only thing the executive is authorised to do is either sign a bill into law in its full form as passed by Congress, allow it to become law or expire without his signature after the passage of the requisite time, or veto it. 'Line item' vetoes are not allowed by the US constitution (i.e., vetoing specific portions of a bill whilst signing the rest into law). Moreover, the judicial branch is solely entrusted to interpret the language of laws and rule upon their constitutionality. The executive has no power to interpret the meaning of laws or decide their constitutionality.

I hope that litigation can enjoin the POTUS from attaching these statements by having them declared unconstitutional. I believe that the SCOTUS would hold them unconstitutional. I predict that the liberals and moderates would find them to be unconstitutional, and I believe that Justice Scalia, as a self-described 'originalist' and Justice Thomas as a 'strict constructionist/originalist' would side with finding these statements unconstitutional.

Prior to a ruling, I think the practice could be stopped in practicality by having willing US Attorneys in federal prosecution offices who likewise find this practice constitutionally offensive to issue policy statements that signing statements are viewed as being void on their face, and that any acts made by any government officials who choose to rely upon a signing statement as a justification for an act when they know or should know that the act does not comport with existing federal laws exactly as written and/or are made in spite of established case law from court decisions will result in their firing and/or potential prosecution for wilfully violating the law. I'd try to get other government officials that feel likewise to adopt the same policy insofar as firing subordinates who choose to cite a signing statement for committing an act otherwise viewed as unlawful looking at the statutes and case law.

Originally Posted by jviehe

How can a signing statement be unconstitutional? It has no legal property. It is not put into the federal code. It is simply the expression of the opinion of the signer, and a guide to the govt as to how a law should be followed. If an action taken is against the law, the courts can address that, but I see nothing in the constitution that prohibits the President from expressing an opinion on the law. In fact, as the Executor of law, it makes perfect sense for the President to issue guidelines on how the law should be implimented.

Originally Posted by jviehe

How can a signing statement be unconstitutional? It has no legal property. It is not put into the federal code. It is simply the expression of the opinion of the signer, and a guide to the govt as to how a law should be followed. If an action taken is against the law, the courts can address that, but I see nothing in the constitution that prohibits the President from expressing an opinion on the law. In fact, as the Executor of law, it makes perfect sense for the President to issue guidelines on how the law should be implimented.

Originally Posted by Imperator

hardly...that may have been a bit of a cheap shot inyo, but as an example its germane.....put it down to general exhaustion of the topic imho..I think the issue is out there and the pros and cons are spelled out....we'll see how it works out..but I would not expect the dems to be rushing to shut this down..the american public is not on that side...last poll I saw, had the support for the issue around 60%..then again, I admit it all depends no who is asking and how...the courts will have to work it out if congress does not...

Originally Posted by timj219

Polls are irrelevant in deciding what's constitutional and what's not. As for the pros and cons, I have cited concrete violations of citizens' rights which are being perpetrated as we speak You on the other hand have provided nothing but "not apparent" and "a shadow".

Originally Posted by O'Sullivan Bere

I have no problem with a POTUS expressing his or her opinions off the record about a law and how they feel a law ought to be interpreted. But, what they say in that regard has no more weight that what you or I say about it--it has no legal effect. The actions of a POTUS to act or not to act is done in the permissions and peril of the law the same way average citizens must do it. We must all judge our conduct accordingly in light of the laws, and accept the risks of what they say if we look to push their limits, challenge, or defy them insofar as the risks of possible criminal and/or civil court actions and unfavourable rulings on the path taken.

A signing statement is not a public gratuitous opinion about how a law should be deemed on its applicability and interpretation. Rather, it is an actual attachment to a bill that has the intent of claiming what the POTUS is signing insofar as application and intepretation. The language of bills written by Congress speak for themselves as written, and nothing in the Constitution authorises a POTUS to attach a signing statement to a bill when signing them as explained, and therefore IMHO to do so is unauthorised by the Constitution and speaks on matters delegated to the two other branches of government, namely Congress to write the legislation and the judiciary to interpret their meaning and rule upon their constitutionality.

The mischief of which I am concerned is POTUSes acting upon their own claims in signing statements and then, when litigation arises based upon what they do, citing to the courts and public that their signing statements set forth what they felt were the aspects of what they were signing and what they were not, and what scope the laws have and do not have as set forth in their signing statement, and that anything contrary to what they wrote is not what they felt they were signing and provides an excuse, in cases where the courts decide against the actions taken by the POTUS, that they acted in good faith based upon the signing statements. Moreover, signing statements can be issued in bad faith by a POTUS who, when looking at a bill, want to do things they feel the bill, if signed, might prevent them from doing or do something they do not want seen done, and thus use the signing statement as an argument and excuse for whatever they feel like doing or preventing. The proper answer for a POTUS is to veto any legislation (or refuse to sign a bill and let it expire if the time is short enough for expiration prior to signing) that they feel would hamper their desired acts or cause an undesired result, or simply sign or allow them to become law by not vetoing within the allowed time period. They must take them 'as is' and make a decision to take all or none of it on caveat emptor (buyer beware), and make that decision without extraneous comments being attached to them.

Originally Posted by doniston

As I said at the beginning of this thread,l While I don't think this is nearly as serious as other such actions by the president have been, It is a definite continuation of what I beleive are a ursurpation of powers. HOWEVER (reference the embodied portion above) I beleive that he is openly fluanting the intent of the law passed by congress by his stated intentions, and I strongly disagree with you. To me, he is saying that he will likely ignore the law as passed. thus disobeying his oath of office, And that is an impeachable offense.

Originally Posted by Imperator

then I suggest you look at other potus' that have done the same, regards interception of communiqués etc....lets stop the selectivity ..if its wrong for him then its wrong for all, past present and future..if a dem wins the WH in 08, I would not want to hamstring their and this authority....

No president, since 78 has ever conceded that this act trumped the presidents power to make exceptions....if national security was at stake..further..in Sealed case 2002, a special panel of appellate court judges was established to hear FISA appeals...,(from wall st journal Dec 20 page 14, Paul Gigot);

the court noted that in a previous FISA case (U.S. v. Truong), a federal court as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrant less searches to obtain foreign intelligence information."

Originally Posted by varrussword

Given up our basic rights? Exactly what "right" has been violated? There is absolutely no right to privacy mentioned in the constitution.

Originally Posted by jviehe

And when they do, they will be dealt with. Until that time, my life is more important than my privacy. But thats just me.

Originally Posted by Gort

Actually this one is more serious. The bill iteself calls for warrants and Bush has said essentially he doesn't think he needs on even though he signed the bill. To my knowledge this is the first time that instead of adding a simple addendum to a bill through a signing statement he completely ignored the will of the congress which was fairly explicit. Now until he acts on that signing statement no law has been broken however if he does act on it, this could be the start of the end.

Originally Posted by Thematic-Device

A far cry from the 'give me liberty or give me death' rhetoric of Patrick Henry and the founding fathers.

Originally Posted by jviehe

Yep. it was a much simpler world back then.