Another mess is the disintegration of our checks and balances system. From today's WSJ:
Higher Authority
The Supreme Court’s 1803 decision in Marbury v. Madison confirmed the power of federal courts to strike down acts of Congress. But if the president himself finds a law unconstitutional, no court has ever determined whether he may decline to enforce it. Long subject to debate among legal scholars, the question generated renewed attention following reports that President Bush has challenged the validity of hundreds of legislative provisions, even as he penned them into law.
In a report sharply critical of President Bush’s use of such “signing statements,” an American Bar Association task force today urged Congress to pass legislation enabling federal courts to review the constitutionality of the practice. The report said that declining to enforce certain provisions of federal law –- or interpreting them contrary to clear congressional intent –- was no different than exercising a line-item veto, a practice the Supreme Court struck down under President Clinton. Calling the practice “contrary to the rule of law and our constitutional system of separation of powers,” the report urged this and all future presidents to either voice their concerns prior to passage or veto legislation entirely.
To be sure, the report noted that presidents dating to James Monroe have issued signing statements to counter sections of law they viewed as usurping executive authority. But in less than six years in office President Bush has challenged over 800 legislative provisions, more than all previous presidents combined, the report found. Among the most prominent were constitutional objections to a section of the Patriot Act requiring reports on the use of secret searches, and to a section of the Detainee Treatment Act barring the use of torture or cruel and inhumane treatment of prisoners.
Though prevalent for nearly two centuries, presidential signing statements have never faced legal scrutiny. That’s because plaintiffs can sue government officials only for harm they have actually suffered, not for practices they deem unconstitutional in the abstract. Thus the report urged Congress to pass a law that would grant “standing” to any member of the House or Senate to sue the President over a signing statement that conflicted with congressional will. But even if Congress were to pass such a law, the report conceded it may itself be found unconstitutional –- by the Supreme Court, that is. – Ben Winograd |
