As the media sleeps on the job, the constitutional nightmare continues. Just before Christmas, “W” quietly claimed sweeping new powers to open Americans' mail without a judge's warrant. Bush asserted the new authority on December 20 after signing legislation that overhauls postal regulations. He then issued a "signing statement" that declared his right to open mail under certain conditions, contrary to existing law and contradicting the bill he had just signed, according to legal experts. The move, one year after the disclosure of a secret program that allowed warrantless monitoring of Americans' phone calls and e-mail, caught Capitol Hill by surprise.
"Despite the president's statement that he may be able to circumvent a basic privacy protection, the new postal law continues to prohibit the government from snooping into peo-ple's mail without a warrant," said Rep. Henry Waxman, D (CA), the incoming House Government Reform Committee chairman, who co-sponsored the bill. "The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming," said Kate Martin, di-rector of the Center for National Security Studies in Washington. "You have to be concerned," a senior U.S. official agreed. "It takes executive-branch authority beyond anything we've ever known."
Most of the Postal Accountability and Enhancement Act deals with mundane changes. But the legislation also explicitly reinforces protections of first-class mail from searches without a court's approval. Yet, in his signing statement, Bush said he will "construe" an exception " in exigent circumstances." Critics noted the administration could obtain a warrant quickly from a court or a Foreign Intelligence Surveillance Court judge, and the Postal Service could block delivery.
The postal bill’s signing statement is the latest in an ongoing controversy concerning the extensive use of signing statements by George W. Bush to modify the meaning of laws. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers".
Signing statements do not appear to have legal force by themselves. As a practical matter, they may give notice of the way that the Executive intends to implement a law, which does not make them any more significant than the law itself. They may also be included as part of legislative history in clarifying the intent of a law. Until the 1980s, with some exceptions, signing statements were generally triumphal, rhetorical, or political proclamations and went mostly unnoticed. Until Ronald Reagan became President, only 75 statements had ever been issued. Reagan, Bush Sr., and Clinton produced 247 signing statements among the three of them. By the end of 2006, G.W. Bush alone had issued over 135 signing statements challenging 810 federal laws.
The upswing in reliance on signing statements during the Reagan administration coincides with the writing by Samuel A. Alito-- then a staff attorney in the Justice Department's Office of Legal Counsel-- of a 1986 memorandum advocating the use of "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law." In a recent commentary, the New York Times said, “None [prior to G.W. Bush] have used [signing statements] so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.”
G.W.’s signing statement accompanying the McCain bill prohibiting detainee torture attracted similar controversy. In that statement, G.W. said, “The Executive Branch shall construe the [torture ban] in a manner consistent with the constitutional authority to supervise [the military] as Commander in Chief and consistent with the constitutional limitations on judicial power.”
Concerned with the potential abuse of constitutional powers, Sen. Arlen Specter (R-PA) introduced the Presidential Signing Statements Act of 2006 last summer. The bill instructed all state and federal courts to ignore presidential signing statements, and directed the Supreme Court to allow the Congress to file suit in order to determine the constitutionality of signing statements. As with all unpassed bills, it expired with the end of the 109th United States Congress over the Christmas holidays.
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