Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.You can find a detailed description of these sections here, on Balkinization. In perusing the statute and signing statement, I found two potential sources of conflict. Section 841 would require the Department of Defense to turn over documents to congressional commissions investigating fraud and corruption in the Iraqi war. Given the amount of fraud and waste already demonstrated in the conduct of the war (and this must be true any time billions are appropriated with little or no oversight), it may not be an unreasonable request. But it could lead to juicy conflicts later on.
Far more interesting is Section 1222, which does not allow money to be allocated to the building of permanent bases in Iraq or to control Iraqi oil. This seems an almost meaningless prescription (who defines what a permanent base would be?) but does appear to be an attempt by Congress to set some limits on the conduct of our engagement in Iraq. Whether such limitations are constitutionally acceptable after Congress voted the AUMF in 2003 is debatable. But whether the President can sign it into law and then dispense with this portion of it ought to be settled by now.
Will the next president issue signing statements that take issue with constitutional aspects of congressional law? This could well be a precedent in the making, and a powerful one at that.
1 comment:
I've begun to wonder whether the ambiguity in the Constitution about where responsibility lies in determining constitutionality is a serious, maybe fatal, flaw? Or is it a strength, by allowing for room to be flexible to deal with evolving exigencies over time?.
If the Executive is going to assume that power, it's hard to see what could be done to check it. Maybe Congress could assert itself, but what in recent history suggests that will happen? And it seems there are plenty John Yoo's around to tell the president what he wants to hear.
The signing statement says the president has " constitutional obligations to ... protect national security..." The words "national security" are not in Article II, including the oath of office. What is national security? Who decides what it is? How far can the president go to protect it? What could limit his actions? Say what one will about Bush II, this is clever stuff.
The October 22, 2007 cover of Time asks: "Does the Supreme Court Still Matter?" Maybe it's not a dumb question.
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