Tuesday, January 10

Schoolhouse Rock never covered that ...

Call me naive, but I have always thought that Schoolhouse Rock did a pretty good job outlining how a bill becomes a law.

I have been listening to the Alito hearings, and have just found out about something called "signing statements."

Apparently, the President has been attaching these statements to laws he has signed. By itself, that sounds pretty innocuous.

However, these statements have made interpretations on the laws he has signed. He has used these statements to declare what portions of that signed law he will follow and those he will not.

In our system of government, an executive should not be able to unilaterally strip the power to make law from the legislature and the power to interpret the law from the judiciary.

The President can say whatever he wants when he signs a bill. However, that statement should have no bearing on that law's application. The executive has the power to say yea or nea when the legislature passes legislation. That should be the entire extent of the legislative power given to the executive.

6 comments:

Doug A. said...
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Anonymous said...

and similarly, the courts shouldn't legislate or twist the constitution so that things never intended by the constitution suddenly spring from it.

It is for the legislature to create new law.

Did you know for example that one of the rationales for Miranda was that "new" criminals spilt the beans and hardened cons knew to keep their traps shut, so Miranda was a way to level the playing field. What bull. Overturn Miranda and if Congress want to pass a "criminal rights" bill," let it. (see Thomas Sowell, “The Vision of the Anointed.”

This is one of but 100s of rulings that should be overturned.

Dave Sfeld (NJ/FLA Jew)

Treasure State Jew said...

I don't have a problem with the courts looking to legislative history to determine intent. The legislature is vested with the power to make law.

However, executive intent should be strictly irrelevant.

ZenPanda said...

Now I have "I'm just a bill" stuck in my head- Thanks Aaron!

GeeGuy said...

I don't purport to know much about "signing statements," but what I have been able to learn in the last couple days convinces me that Aaron is mostly right. A couple points, though.

First, what I saw was not so much that the president will say he will or will not enforce a law, as how he interprets it. That may not be a bad thing, if held in check, in terms of notice to those affected or potentially affected.

Second, it is not the executive's place, though, to say a particular law is unconstitutional. (Think Marbury v. Madison) If it's passed lawfully, the executive should enforce it.

There is an area where an executive's interpretation is taken into account but, if you think about it, it really goes more to legislative intent. If the executive places a particular interpretation on a statute, and the legislature meets and adjourns, then the courts will presume that the executive's interpretation is correct. The rationale, though, is not that the executive's interpretation trumps the legislature, but follows from the belief that if the legislature disagreed with the interpretation, it would amend the statute.

Legislative intent is a fine thing, assuming it can be gleaned. It is only relevant, though, if a finding is first made that the statute is ambiguous.

Finally, and this is the bigger point, the whole notion of the "separation of powers" has really fallen by the wayside in our country. The fault for this lies mainly with the judiciary as they were to act as the check on the other two. The legislative branch got lazy and delegated its real work to the executive in the form of "rulemaking." If you look at the Federal Statutes, USC, you'll find that most of the actual legislating is done by the executive branch. (I think Congress is busy with constituent service and re-election campaigns.)

And who decides the disputes surrounding the "rules?" (Which are really just laws adopted by the executive.) The agency that adopted the rules.

It's not as bad in Montana...yet...but it's getting there. I will post an old piece I wrote about this some time ago. In Montana it's the Montana Administrative Procedures Act (MAPA), and it's the scourge of good government.

Treasure State Jew said...

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