Saturday, June 24, 2006
Step Right Up
I have been studying the list of experts scheduled to testify next week to the Senate Judiciary Committee on the signing statement. On Tuesday, June 27 at 10 am, the Senate Judiciary Committee will bathe in the warm lights of the television cameras as the members of the Committee scratch their chins and furrow their brows, and even wag their fingers at the sneaky, yellow bellied tactics of the administration to negate provisions of laws without anybody knowing any better (my friend Joyce Green has done a great deal to alleviate the trouble for Senate staffers who do not know where one can find all of these sneaky signing statements--and she has provided it for free!).
Those scheduled to testify are what interest me the most, particularly the person from the DoJ who the Senate "invited" over to chat for a couple of hours or so. Their choice seems to me to be something akin to either a sacrificial lamb or (more likely) a slap right across Senator Specter's face.
Deputy Assistant Attorney General Michelle Boardman is scheduled for session one while session two brings in the wise law professors to expound on whether this practice is constitutional or not (despite the fact that it has occurred, continues to be used, and will continue to be used despite where the law school profs fall on the issue--but why engage in the meaningless parts of the signing statement?). Batting for the law school profs is Charles Ogletree of Harvard (could we have a hearing without someone from Harvard in attendance?), Christopher Yoo of Vanderbilt, Bruce Fein, former member of the Reagan Justice Department and now outspoken critic of the Bush administration, and finally Georgetown Law Center prof Nicholas Rosenkranz, a former Bush counsel and a member of the nefarious Federalist Society.
What can this cast of characters offer with respect to the signing statement? Starting with session two first. Professor Ogletree has a list of areas where he can serve as a source for press stories, and not one of those areas concern presidential power, separation of powers, constitutional law, and the signing statement, the subject of the hearing in the first place.
Professor Rosenkranz can probably shed some insights on the signing statement where it applies to attempts to influence judicial interpretations of the law. The fact that he also hails from the Federalist Society should also allow him to connect the signing statement to the broader issue of presidential power, at least power envisioned by the theory of the Unitary Executive.
Christopher Yoo should have a great deal to say about the signing statement, but again largely as it applies to the bigger picture of presidential power. Yoo has written, along with main author Steven Calabresi, a great deal on the UE from Washington to the present (see "Articles, Essays, and Reviews").
Bruce Fein, interestingly, may be able to speak to the origins of the presidential signing statement, but I seriously doubt it. I am willing to bet his time will be spent furthering his media fame as the keeper of the conservative faith speaking out against the heretics in his midst. Before W, Fein was out attacking conservatives on the Supreme Court, as in a 1991 "New York Times" interview when he described the Rehnquist/Reagan appointed justices as "incestuous [and] sloppiness that goes on when people of the same ideology just talk to themselves." My guess is his time will be spent lashing out at the administration while distorting what the signing statement truly is.
Finally, there is Ms. Boardman, who is on loan to the Justice Department from the law school at George Mason University. While she currently works in the OLC, she is not very old (BA from Brown in 1994) and what I can assess from her expertise at GM, it doesn't seem to be in the area of separation of powers or the constitutionality of the signing statement. If Ms. Boardman wishes, I would be happy to give her crib notes to at least give her a sense of the signing statement, and not the "White Paper" the administration has been pushing that does a pitiful job of context and detailing its use. One wonders why the head of the OLC does not go himself, which is something I am sure Senator Specter is asking himself, and will probably note it during his opening remarks. Either way, you have to give her props for taking on the assignment.
The unfortunate thing in all of this, of course, is it probably will not move the public's understanding forward regarding all the fuss over the signing statement, particularly when President Bush seems to be pushing something called the line-item veto?
So let me ask a couple questions that probably won't be asked, and if they are, probably won't be answered.
**Why does the administration feel the need to rely so often on the signing statement? Is your intent to undercut the authority of the Congress? If not, then what is your intent?
**How many challenges to provisions contained in signing statements has the administration issued to date (hopefully this will begin a discussion over accuracy)? Who is responsible for all of these signing statements? Do they come from within the Justice Department, particularly the OLC? If not, can you tell us who is responsible for adding all of these challenges?
**In accordance with Senator Leahy's provision in the Justice Department appropriations bill passed in 2002 that requires you, or a particular agency head, to inform us whenever the administration tries to sever a provision of law because of constitutional concerns, can you tell us whether you have followed that provision? All? None? Some, but not all? If you do, can you tell us who here in Congress you report to? If you do not, can you explain why you are refusing to follow this law?
**(Big money question) Charlie Savage at the "Boston Globe" has reported that the administration has severed over 750 provisions of law, while Chris Kelley and Phillip Cooper have found 505 as of 12/05. Out of all of these challenges, can you tell us 1) how many are followed through and 2) which areas trigger the administration to implement the challenges laid down in the signing statement.
I am willing to also bet that none of the experts in session two can answer these questions. Might as well pose it to them to show that perhaps they may not be the experts they think themselves to be! If you can think of any other questions the SJC should ask, add them here in the comments section. Who knows? One of the members may actually be paying attention!
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Those scheduled to testify are what interest me the most, particularly the person from the DoJ who the Senate "invited" over to chat for a couple of hours or so. Their choice seems to me to be something akin to either a sacrificial lamb or (more likely) a slap right across Senator Specter's face.
Deputy Assistant Attorney General Michelle Boardman is scheduled for session one while session two brings in the wise law professors to expound on whether this practice is constitutional or not (despite the fact that it has occurred, continues to be used, and will continue to be used despite where the law school profs fall on the issue--but why engage in the meaningless parts of the signing statement?). Batting for the law school profs is Charles Ogletree of Harvard (could we have a hearing without someone from Harvard in attendance?), Christopher Yoo of Vanderbilt, Bruce Fein, former member of the Reagan Justice Department and now outspoken critic of the Bush administration, and finally Georgetown Law Center prof Nicholas Rosenkranz, a former Bush counsel and a member of the nefarious Federalist Society.
What can this cast of characters offer with respect to the signing statement? Starting with session two first. Professor Ogletree has a list of areas where he can serve as a source for press stories, and not one of those areas concern presidential power, separation of powers, constitutional law, and the signing statement, the subject of the hearing in the first place.
Professor Rosenkranz can probably shed some insights on the signing statement where it applies to attempts to influence judicial interpretations of the law. The fact that he also hails from the Federalist Society should also allow him to connect the signing statement to the broader issue of presidential power, at least power envisioned by the theory of the Unitary Executive.
Christopher Yoo should have a great deal to say about the signing statement, but again largely as it applies to the bigger picture of presidential power. Yoo has written, along with main author Steven Calabresi, a great deal on the UE from Washington to the present (see "Articles, Essays, and Reviews").
Bruce Fein, interestingly, may be able to speak to the origins of the presidential signing statement, but I seriously doubt it. I am willing to bet his time will be spent furthering his media fame as the keeper of the conservative faith speaking out against the heretics in his midst. Before W, Fein was out attacking conservatives on the Supreme Court, as in a 1991 "New York Times" interview when he described the Rehnquist/Reagan appointed justices as "incestuous [and] sloppiness that goes on when people of the same ideology just talk to themselves." My guess is his time will be spent lashing out at the administration while distorting what the signing statement truly is.
Finally, there is Ms. Boardman, who is on loan to the Justice Department from the law school at George Mason University. While she currently works in the OLC, she is not very old (BA from Brown in 1994) and what I can assess from her expertise at GM, it doesn't seem to be in the area of separation of powers or the constitutionality of the signing statement. If Ms. Boardman wishes, I would be happy to give her crib notes to at least give her a sense of the signing statement, and not the "White Paper" the administration has been pushing that does a pitiful job of context and detailing its use. One wonders why the head of the OLC does not go himself, which is something I am sure Senator Specter is asking himself, and will probably note it during his opening remarks. Either way, you have to give her props for taking on the assignment.
The unfortunate thing in all of this, of course, is it probably will not move the public's understanding forward regarding all the fuss over the signing statement, particularly when President Bush seems to be pushing something called the line-item veto?
So let me ask a couple questions that probably won't be asked, and if they are, probably won't be answered.
**Why does the administration feel the need to rely so often on the signing statement? Is your intent to undercut the authority of the Congress? If not, then what is your intent?
**How many challenges to provisions contained in signing statements has the administration issued to date (hopefully this will begin a discussion over accuracy)? Who is responsible for all of these signing statements? Do they come from within the Justice Department, particularly the OLC? If not, can you tell us who is responsible for adding all of these challenges?
**In accordance with Senator Leahy's provision in the Justice Department appropriations bill passed in 2002 that requires you, or a particular agency head, to inform us whenever the administration tries to sever a provision of law because of constitutional concerns, can you tell us whether you have followed that provision? All? None? Some, but not all? If you do, can you tell us who here in Congress you report to? If you do not, can you explain why you are refusing to follow this law?
**(Big money question) Charlie Savage at the "Boston Globe" has reported that the administration has severed over 750 provisions of law, while Chris Kelley and Phillip Cooper have found 505 as of 12/05. Out of all of these challenges, can you tell us 1) how many are followed through and 2) which areas trigger the administration to implement the challenges laid down in the signing statement.
I am willing to also bet that none of the experts in session two can answer these questions. Might as well pose it to them to show that perhaps they may not be the experts they think themselves to be! If you can think of any other questions the SJC should ask, add them here in the comments section. Who knows? One of the members may actually be paying attention!
