In today's Chicago Tribune, noted University of Chicago law professor Richard Epstein has an op-ed highly critical of President Bush's use of signing statements. While acknowledging there is "nothing new" about the use of such statements, Epstein raises concern about the "extraordinary freqency" and "unorthodox way" these statements are used by the Bush Administration. Here's a taste:
President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution. . . .
why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.
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. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.
UPDATE: NR's Ramesh Ponnuru is unconvinced:
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.
SECOND UPDATE: Here is another take from Kevin Drum.