Via Volokh, I see that he has written an article against President Bush’s use of signing statements. As one would expect from Epstein, it is smarter than most of the commentaries sounding the alarm about signing statements. He acknowledges, for example, that they’re not unprecedented; and he notes that legislative “histories” raise many of the same issues that presidential signing statements do. But Epstein’s case isn’t especially persuasive, at least to me.

He writes: “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.” I’m sympathetic enough to coordinate construction, and hostile enough to the “modern understanding of judicial review,” not to be frightened by the bottom of this particular slippery slope. If Congress or a court purported to order the president (or one of his agents) to exceed his constitutional powers, for example, it would probably be right for the president to disobey.

But I also don’t think this slope is especially slippery. Signing statements could be an “opening wedge,” but they aren’t necessarily. If the administration were taking the posture Epstein fears, its response to Hamdan would have been different.