Part 6 of a series on the McCain amendment: Just when I thought I was finished...

Overview

I was about to write a short (no, really) explanation of why I bothered to keep writing about Bush's opposition to the McCain amendment after it became clear that the provision would be passed by the Congress and signed by the Prez. And then ol' George went and did something else that simply must be discussed.

George Bush's latest act in regard to the McCain amendment is further evidence that he is an arrogant, power-mad moron who is being aided by plenty of other arrogant, power-mad morons in his administration.

The McCain amendment becomes law, but will it be followed?

Congress did indeed pass the McCain amendment as part of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006."

And Bush did indeed sign the McCain amendment into law. When he signed H.R. 2863, Bush issued what is known as a "signing statement." The Washington Post ran an article on January 2, 2006, which discussed "signing statements."

As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

The Post went on to cite an article by Phillip J. Cooper (a professor at Portland State University) from the September 2005 issue of Presidential Studies Quarterly which asserts that Bush "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress."

What makes the foregoing relevant to this post is what Bush said about the McCain amendment in the signing statement for H.R. 2863:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

What the hell?

Translation

So just what is Bush saying here? I found two good statements of the answer. Marty Lederman at Balkinization gives a meaning specific to the McCain amendment: "I reserve the constitutional right to waterboard when it will 'assist' in protecting the American people from terrorist attacks."

Michael Roston at Looking for Someone to Lie to Me puts the matter into a broader perspective:

How often has a president ever said "I'm going to interpret a limitation on my authority in such a way that it does not in fact limit my authority?"

In other words, Bush's signing statement on the McCain amendment shows his overall attitude and SOP towards Congress: "Screw you, I will do whatever I want."

A review of checks and balances reveals the arrogance and ignorance of the Bush administration.

• Initial analysis
  

The intended use of "signing statements" as described by Alito is ridiculous. As noted above, the idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent." The way our system of government is set up, the President's interpretation of legislation passed by Congress and signed by the President is irrelevant. To argue otherwise is to argue that the President has control of the legislative process, and that clearly is not allowed by the Constitution.

• The legislative process
  

The Executive branch--led by the President--does not create or vote on legislation. Yes, the President does play a role in creating proposed legislation and in negotiations, but the facts are that the President does not directly introduce or vote on any legislation. That is the sole province of the Legislative branch pursuant to Article 1, Section 1 of the Constitution.

The role played by the President comes after legislation has been passed by both houses of the Legislative branch (See Article 1, Section 7 of the Constitution). At that point, the President gets to "vote" by either signing the legislation or vetoing it. In other words, at that point the President can either approve or disapprove of the legislation. If the President issues a veto, he sends the legislation back to Congress "with his objections." In other words, the President then gets to detail his desires and interpretations. Through the veto power, the Executive branch acts as a check on the Legislative branch. However, the Legislative branch can check and balance the President's veto power by overriding the veto. If the Congress then overrides the veto, the President's objections and interpretations are not part of the law.

It follows that--as between the Congress and the President--the ultimate authority on what given legislation means is the Congress.

• The role of the Judicial branch and the focus on the intent of Congress
  

The ultimate arbiter of what legislation means is the Judicial branch. In this way, the Judicial branch acts as a check and balance on both the Legislative and Executive branches. This process is known as statutory construction. The overriding objective is to determine the intent of Congress. As the U.S. Supreme Court said in Negonsott v. Samuels, 507 U.S. 99, 104 (1993), "Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive." (emphasis added). In Miller v. French, 530 U.S. 327 (2000), the Supreme Court ruled "where Congress has made its intent clear, 'we must give effect to that intent,'" citing Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215 (1962). Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117 (1991), declared that "As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us. 'If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress,'" citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). And in Dodd v. U.S., 540 U.S. 526 (2005), the Supremes stated this rule as follows: "[W]hen the statute's language is plain, the sole function of the courts--at least where the disposition required by the text is not absurd--is to enforce it according to its terms," quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000). The Court in Dodd also said "We 'must presume that [the] legislature says in a statute what it means and means in a statute what it says there.'"

Here's a quick summary (and another is presented below): 1) the Supreme Court determines what a given statute means. 2) Legislative intent, not the President's interpretation, is the determining factor in that process. 3) When the language of a statute clearly and unambiguously shows Congressional intent, that intent--not the President's wishes or interpretation--must be enforced.

In other words, once the President signs legislation or has his veto overriden what the President thinks is irrelevant.

Still not convinced? By signing legislation, the President basically gives his approval to that legislation. What Bush wants to do through his signing statements is tantamount to saying, "I know I approved this legislation, but I reserve the right to interpret how I want and not follow it." What an asshole.

There is another reason--given the rules of statutory construction--why the concept of signing statements as described by Alito and used by Bush is just wrong. Recall that Alito felt that the signing statement should be considered by the courts along with legislative history when interpreting a statute. The problem is that, as stated in Ratzlaf v. United States, 510 U. S. 135, 147-148 (1994), "(courts) do not resort to legislative history to cloud a statutory text that is clear. 18 See Barnhill v. Johnson, 503 U.S. ___, ___ (1992) (appeals to legislative history are well taken only to resolve statutory ambiguity)." In other words, when the language of a statute is unambiguous, legislative history is irrelevant. It follows that the President's interpretation is also irrelevant. As discussed below, the McCain amendment is unambiguous.

• Summary of statutory construction process

The job of statutory construction (interpretation) belongs to the Judicial branch. Pursuant to the Constitution, Congress, not the President, creates and votes on legislation. The President has a chance to voice his concerns, objections, and interpretation through the veto power. However that veto power can be overridden by Congress. As a result, the Congress has the final say--as between the Legislative and Executive branches--as to the meaning of a statute. That is why the goal of the Judicial branch in statutory construction is to determine the intent of Congress, not the President. The courts look first and foremost to the language of the statute. If that language is clear and unambiguous, that language comprises legislative intent and must be enforced as written. In these instances, what the President thinks is irrelevant.

• Application of statutory construction to the McCain amendment

The McCain amendment is unambiguous. It applies to every person in the custody or control of the U.S. Government and Department of Defense. It clearly defines what treatment is prohibited. As to detainees held or controlled by the DoD, it clearly defines what is allowable now and in the future (the Army Field Manual). It must be followed by all military and government personnel.

There is no ambiguity. That means that the McCain amendment "says what it means and means what it says." That means that the McCain amendment clearly expresses the intent of Congress and will be enforced by the courts as written. That means that--according to established law--Bush's signing statement regarding the McCain amendment is of no effect or importance.

There is another question...

In terms of statutory construction, there is no question that Bush does not have a leg to stand on. The McCain amendment is clear and unambiguous and must be enforced according to its express terms--unless it violates the Constitution's principles of separation of powers. Bush seems to be saying that treatment of detainees comes with his exclusive Constitutional domain as Commander in Chief, meaning that Congress cannot tell him what to do.

This issue will be examined in Part 7.