Today’s Washington Post editorial doesn’t say it as bluntly as the title of this post, but that’s its clear and correct message. Far from accepting the ABA task force’s unhinged conclusion that there’s something wrong with a president’s use of signing statements to present constitutional objections, the Post recognizes that signing statements “are actually a useful device for transparent and open government.” And it says that it’s “generally a good thing” that “the use of signing statements has been on the upswing.” (Somehow it, at the same time, criticizes President Bush for supposedly using signing statements “far more frequently than other presidents.” I believe this charge to be mistaken—it confuses the number of statements with the number of challenges they contain—but, for the other reasons spelled out by the Post, I find this whole numbers game a distraction from serious analysis.) The Post also notes one of the many elementary points that escaped the ABA task force: signing statements “have no legal consequences over and above the president’s powers to instruct the executive branch as to how to interpret a law — which he could do privately in any case.”
Just wondering: Is there any serious voice that has embraced the ABA task force’s conclusion? Is there any legal academic anywhere (serious or otherwise) who agrees with the position that Yale Law School dean Harold Koh, Harvard law professor Charles Ogletree, and Stanford law professor Kathleen Sullivan somehow put their names to? Isn’t it time for the many silent critics to start “speaking truth to power”?
Back to the Post’s editorial: The editorial is critical of the constitutional positions that the Bush administration has taken in signing statements and elsewhere, and, as I’ve said before, that’s exactly where any debate ought to be focused. Oddly, though, the Post’s only example of an improper position in a signing statement is President Bush’s statement that the McCain amendment on degrading treatment of detainees would be construed consistent with the President’s constitutional authority. The Post reads this boilerplate as the President’s “apparently reserving for himself the power to override the prohibition,” but that seems quite a leap. I don’t claim to have followed this issue closely, but when one understands (as the Post does) that signing statements have no special weight and that one ought to look to the entirety of executive-branch statements (including its rejection of the so-called torture memo) to understand the executive branch’s position, is the Post’s leap a sensible one? Further, the scope of any such reservation would in any event be entirely unclear, and one can imagine extreme circumstances where the Post might endorse such an override.