Akkam’s Razor

Yet again, everyone is carping about signing statements, whether or not they are constitutional or not, and lamenting how "Schoolhouse Rock" never addressed this part of the Separation of Powers and Checks and Balances that the framers designed into our Constitution (somebody sooo needs to reanimate them for a current historical context).

It's tempting to slip into cries of Facism! and snark about our democracy being in it's "last throes", but it's time to look at this power grab for what it really is, which is not what you think…

Sure, a facist police state which is obedient to it's corporate handlers is one possible outcome of the Unitary Executive Theory.  And to be sure, these actions tend to marginalize the Legislative and Executive Branches of our government, especially concerning as the House of Representatives is the only portion of our system that is truly democratically elected (a matter of debate, of course, given the handiwork of Tom Delay).

During any period of the expansion of Executive powers, it was typically preceeded by some activity by the Executive which was a cause of concern for one of the other two branches.  It is not a forward thinking doctrine or matter of philosophy, so much as a means for justifying and legitamizing their actions, not an offense, such as stripping civil liberties and enforcing a police state as much as a defense, hiding and obscurring potentially illegally activites for public and governmental view in the guise of national security, state secrets, or executive priviledge.

By reframing the debate, a skill where left is sorely deficient, the assertions of the administration can be cast under the glare of lights in an appropriate manner.  These signing statements, and the Executive's attempt to ignore inconventient constitutional truths is evident of a conspiracy, and evasion of justice, and an attempt to cover up at best negligence, and at worse, criminal malfeance.

Throughout history, president's have asserted extra-constitutional (not explicitly granted) powers from Jefferson all the way to the present day, usually given safe haven by the Supreme Court.  With the friendly coalition of Scalia, Roberts, Thomas, and one of the architects of the signing statements, Samuel Alito, sitting on the Supreme Court, it's highly unlikely that now would be any different.  What's curious, though, is the switch from Presidential footnotes in the pre-9/11 signing statements to explicit citations of federal code and Supreme Court statements evident in individual statements, as reflected in this partial list.

Related: Nature and Scope of Presidential Power via FindLaw.  Wikipedia also has a rather informative entry for Signing Statements.

To get a flavor for the intent behind signing statements, digest this strategy memo (HTML/PDF) from a young Samuel Alito, then Deputy Assistant Attorney General, written at the behest of Attorney General Ed Meese.  Interesting to note that the memo is dated 2/5/86.  President Reagan had just signed a secret presidential finding authorizing the arms-for-hostages deal with Iran on 12/5/1985, and signing a second order on 1/17/1986 authorizing the CIA to participate is said deal and to keep the deal from Congress.