Pruning Shears

The administration’s program of radically expanding the power of the President will require a great deal of time and effort to undo. In addition to the precedents being set by his Senate-endorsed attempt to legalize his lawbreaking, his assertion (via) that he can sign and ratify treaties by himself and his authorization of torture there are no shortage of extremely important issues to address. The unforgivably accommodating Congress that allows this will have to be changed via the ballot box but that obviously will be a complicated process with lots of primaries, general elections, challengers and incumbents involved. It will also require ongoing contact with our representatives on the big issues like the upcoming House vote on telecom amnesty. (I’m offering to teach the secret Pruning Shears handshake to anyone who does so over here.) It looks like there will also be lots of cleanup on smaller issues as well - not of the Constitution-shredding authoritarian variety, just things that will make you smack your forehead and think “thanks a lot, pal.” Here are a couple.

The first is the signing statement. Wikipedia defines it as “any executive statement made with the signing of a law” and describes three types: Constitutional, Political and Rhetorical. The last is basically a rhetorical flourish, the first two assertions of how the President intends to enforce it. More importantly they have typically been ceremonial; from 1776 until 1980 there were 75 signing statements, as in “less than one every two years.” Under Presidents Reagan, G.H.W. Bush and Clinton there were 347. Thus far the current President has “signed 157 signing statements challenging over 1,100 provisions of federal law. ” He has made much more extensive use of them than his predecessors even though the statements have never been recognized as legally binding. What’s worse, he has used them in some troubling ways. The Detainee Treatment Act of 2005 explicitly outlawed waterboarding but he signed it with a statement essentially saying he would not enforce it. In other words he signs a law and flouts it in the same motion. What had been an instrument to indulge in some happy political talk or raise occasional concerns about implementing a law has been transformed. Now it is claimed to be a license to ignore the law entirely in the Orwellian name of “interpreting” it. Signing statements appear to be an area the courts do not want to rule on; they seem to prefer leaving it as part of the back and forth between the legislative and executive branches. George W. Bush is having none of it - the volume and brazenness of his statements will require a clearly defined ruling by the courts. Even a continuing reluctance to rule will send a decisive message; namely, that the executive is superior to the legislative branch.

Next is the depressing news that a federal judge “will allow Citizens for Responsibility and Ethics in Washington to gather a ‘very limited’ amount of information from the White House Office of Administration, which is in charge of preserving e-mail”. (Let me just say as a side note I find it extremely hard to believe that some if not all of it went missing by bad luck. When it comes to archiving data you just outline a process, set it up, test it out, work out the kinks and get it up and running. Once it’s working it requires minimal human intervention precisely because that limits the chance for something to accidentally go missing. Tapes wouldn’t disappear or get reused unless someone deliberately intervened.) CREW issued a Freedom of Information Act request for details and the administration refused, so now we have a private entity poking around an office in the White House to see what they can find. It doesn’t take a vivid imagination to see where that could go. Any private party that feels in some way aggrieved can now file a FOIA request or heaven knows what else to see if it sticks and have this ruling in hand as a precedent. Even if it’s a completely frivolous and transparently partisan attempt to cause grief or stoke a pseudo-scandal it will be treated with a measure of legitimacy because of this week’s ruling. The next generation of political footballs have just been punted onto the field.

In short, they are headaches. Signing statements won’t go away but now have been raised to an urgent level that must be dealt with. Politically motivated sensationalists now have a potent new tool to ply their trade with. These and other issues didn’t exist or laid dormant before our forty third President. He will leave us much more alarming problems but these too will be part of his legacy.