Essentially Contested America

Can an amendment to the United States Constitution–one that satisfies the requirements in Art. V.–be unconstitutional? If a constitution contains an amendment process, and in the absence of any entrenched provisions, it should permit any change whatsoever. Right? If so, such a constitution can be completely revised. Jefferson’s quip about revising the Constitution every generation suggests that complete constitutional revision is unremarkable. But what if the U.S. Supreme Court considered certain kinds of amendments unconstitutional? What if the Court insisted that the Constitution has an essential structure that must be protected even from the authorized process articulated in Art. V.? For example, suppose the Court were to disallow any amendment designed to repeal Art. IV, Section 4, guaranteeing a republican form of government to the states. The Court’s reason? Altering this provision flies in the face of the basic republican character of American self-government generally.

Suppose, then, that an amendment–Amendment Twenty-eight–was ratified according to the requirements of Art. V stating that the federal government will no longer guarantee a republican form of government to the states. Suppose further that the Supreme Court, in the first case to test the meaning and constitutionality of Amendment Twenty-eight, (let’s set aside the question of justiciability for now), strikes it down. Would this be justifiable? It’s difficult to see how the Court could pull this off. If the United States Supreme Court prevented what appears to be bona fide constitutional change, it’s likely that the Justices would be impeached or, at the very least, the people would stridently call for Congress to remove the review of constitutional amendments from the Court’s jurisdiction. But what if the Court refused to accept this limitation? Ok, Ok, I know what you’re thinking. What’s the point of such far-fetched hypotheticals? It’s ridiculous to think that this scenario could occur in any constitutional democracy whatsoever.

Think again! The Indian Supreme Court has assumed the authority to determine when an amendment compromises the Indian Constitution’s basic structure. In Minerva Mills, extending “the basic structure doctrine” first formulated in Keshavananda Bharati v. the State of Kerala, the Court held that Parliament’s authority to amend the Constitution does not extend to amendments designed to change (damage, destroy) the Constitution’s “basic and essential structure.” Granville Austin in Working A Democratic Constitution: A History of the Indian Experience 502 (2004). According to Austin, Parliament’s power to amend the Constitution “was limited and it [Parliament] was not competent to alter the basic structure of the Constitution.” (504) Accordingly, “the Supreme Court ensured that it [he Court] would remain the foundation of the country’s constitutionalism.” (506) The Indian Court demonstrates just how amateurish our system of judicial supremacy really is. Indian constitutionalism is committed to judicial supremacy, but not any emaciated form of judicial supremacy like ours. No, Indian constitutionalism is committed to judicial supremacy with a vengeance, or so says the Indian Court.

What are the chances that the United States Supreme Court would ever follow the Indian Court’s lead in this¬† manner? The short answer is slim to none. However, after the 5-4 majority in Bush v. Gore

An earlier Draft of This Item Was Posted on Ratio Juris: 29 January 2007 decided to halt a remedy for any existing (or non-existing) equal protection violations in the 2000 presidential election fiasco, and thereby selected the next president of the United States,–making it responsible, in part, for the present mess we’re in–one cannot be too confident. To be wary of judicial supremacy–especially wary of what unexpected venue the Court might barge into next– does not amount to hysteria. Ironically, the presupposition behind the case for judicial supremacy provides the very reason to be wary of judicial supremacy. If external checks are necessary to prevent the elected branches from engaging in ultra vires legislation, then so too external checks are necessary to prevent the Court from engaging in ultra vires adjudication. However conscientious Supreme Court justices are, they are no more or less successful of discounting their own preferences–whether material interests, partisan allegiances, or jurisprudential convictions–than anyone else. Remember Nietzsche’s admonition that “[c]onvictions are more dangerous enemies of truth than lies.” Consequently, some effective external check on the judiciary is necessary if we are to be authentically self-governing.

Please someone tell me why Dennis Kuccinich wants Mr. Bush’s autograph? Yes, after pillorying Mr. Bush in a speech before Congress and writing an op-ed piece doing the same prior to the State of the Union Address, Mr. Kuccinich was seen preening obsequiously, waiting his turn in line for Mr. Bush to sign Mr. Kuccinich’s copy of the speech? OK, I don’t understand why anyone would want anyone else’s autograph except to make money since so many people suffer from this malignant lunacy. That aside, why would anyone say the following about a president and then seek out his autograph as the president departed the House chambers. Here’s what he wrote:

What the President has in store for his message this year is not known yet. But, we do know the President Bush will speak in glowing terms about the state of our union. The truth is the state of our union is in great peril. This Administration is conducting a war with no end in Iraq, illegally spying on Americans at home, overseeing an economy that is increasingly leaving more and more Americans behind and abandoning Gulf in their hour of great need.

If recent history is any precedent, then next week we should see more of the same old dance around reality that has been the hallmark of President Bush’s annual address.

My complaint is not based on any disapproving understanding of why Mr. Kuccinich sought the President’s autograph. No, I can’t understand it at all. I can’t, as the Austrian philosopher Ludwig Wittengstein put it, “fill it with personal content.” It is simply inexplicable to me. Indeed, I am so befuddled about Mr. Kuccinich’s behavior that I find the description “seeking the president’s autography” to be unintelligible as a description of what Mr. Kuccinich did. Maybe Mr. Kuccinich was actually doing something else. Perhaps, he owed the President money and was repaying the debt by concealing the money in his copy of the speech. Or maybe, just maybe, Mr. Bush dropped his copy of the speech and Mr. Kuccinich was graciously returning it to him. OK, I get it. Mr. Kuccinich sought the President’s autograph for his nephew who is too young to appreciate what Mr. Kuccinich knows and bellows about, namely, Mr. Bush is doing more harm to this nation than all the past presidents, and one or two infamous congresspersons, combined. That other democrats sought the president’s signature too hardly makes the situation more intelligible. Rather, it compounds the problem.

Could it be that there is something seductively attractive about a President, even a president one thinks to be the most dangerous president in history? Once history takes over this episode in the life of the nation, the emotional component will cease, and Mr. Kuccinich can say, “Yes I observed from up close that dreadful affair. Indeed, I tried to hammer home to the President the error of his ways, but alas I was unsuccessful. Oh by the way, I have a autographed copy of the President sixth State of the Union address. Would you like to see it?” Ok, now I understand it . . . NOT!

How can one believe that Mr. Bush is the worst president in history and simultaneously seek his autograph? What does this reveal about Mr. Kuccinich’s character? Is it that historical trinkets are more valuable than principle and conscience? For more than twenty years I have admired Mr. Kuccinich. But everything must come to an end. and my admiration too will end unless someone can help me understand why he so eagerly wanted Mr. Bush’s autograph.

Sandy Levinson, always an astute observer of American politics, writes:

And, of course, it is no small matter that Mr. Cheney remains vice president. As Jack points out in his own most recent posting, Cheney is absolute impeachment insurance, unless the impeachers decide to take on Bush and Cheney together at the same instant and thereby appear to be paving the way for an unconstitutional coup by which the Democrats would take over the White House without having to win an election, given the current Succession in Office Act and the resolute silence of Nancy Pelosi and Robert Byrd about the wisdom of repealing it on the best of all grouds [sic]: It is not only unconstitutional, but it is also dreadful public policy.

Why would impeaching and removing Messrs. Bush and Cheney be an “unconstitutional coup”? Doesn’t that depend entirely upon how culpable they were in initiating and conducting the war in Iraq? If both Messrs. Bush and Cheney aided and abetted Osama Bin Laden in blowing up the Sears Tower in Chicago, would impeaching and removing them from office be unconstitutional? Would it be “dreadful public policy”? Clearly, treasonous acts by presidents and vice-presidents warrant impeachment and removal from office. I’m not insisting that Messrs. Bush and Cheney are guilty of treason, but if lying to Americans about the reasons for invading Iraq qualifies as a high crime, impeachment and removal from office may be more than constitutionally permissible; it may be constitutionally desirable. And if it is constitutionally permissible or constitutionally desirable, it is not obvious that it isn’t perfectly respectable public policy. Certainly, there are circumstances in which a president and vice-president should be impeached and removed from office even if that means handing the presidency over to the opposing party. So why are these not such circumstances?

Messrs. Bush and Cheney lied or recklessly ignored the truth of the evidence for invading Iraq. Anyone who even causally observes foreign media will be quick to realize that Bush and Cheney continue to recklessly ignore the truth about the war and other aspects of our relationships with other nations. Consequently, is it so obvious that impeaching and removing them from office isn’t constitutionally impeccable and perfectly appropriate public policy? Put this point differently, if it is ever permitted constitutionally and in accordance to sound public policy to impeach and remove from office a sitting president and vice-president, why isn’t appropriate now. It might not be wise politically–since the Senate votes aren’t there–but that hardly means it is an unconstitutional coup or dreadful public policy.

Posted: 6:38 AM

C-Span’s coverage of the peace demonstration in Washington, D.C. yesterday was preceded by a conference on conservativism sponsored by the National Review. A woman in the audience, Suzanne McNeil, from Chicago, rose to speak and by doing so revealed all that is wrong with the administration’s support of the war. Ms. McNeil’s intoned: “What we are trying to do in Iraq is to enact a revolution. This is the first time in 1300 years that we are trying to push for a democracy–a true democracy–in a Muslim country in the heart of the Middle East.” This is a goal, Ms. McNeil insisted, that is worthy of respect.

Apparently, lost to Ms. McNeil and to the audience was the necessity of providing an answer to a simple question: What authorizes the United States to “enact a revolution” or “to push for a democracy” in a Muslim country? How do we respect the Iraqi people by telling them how they should be governed? The arrogance, intolerance, and self-righteousness in the room were palpable. Totally divorced from reality, Ms. McNeil’s question illustrates the inability to escape imperialistic commitments. For some, I suppose, this commitment is subliminal capable of remaining hidden from sight. The consequence of this lack of self-reflection and introspection is to cast our mission in Iraq as noble because democracy is noble. And noble democracy surely is, but not when imposed at gunpoint. What makes Ms. McNeil unable to see just how unjustified her appeal to democracy is? Some conservatives fear the demise of conservatism. But is this conservatism? Nation building at tremendous cost in life and treasure and by manifestly increasing the size of government is not a conservative commitment. It’s certainly not the conservatism of William F. Buckley. No it’s the commitment of any political perspective championed by individuals constitutionally unable to distinguish their own sincerely held beliefs and values with objective truth. And even if the same, John Stuart Mill argued persuasively that objective truth must be realized by the individual herself, not by being imposed upon her. Ms. McNeil’s attitude, after the noble garb of democracy is shorn from it, is little more than Thrasymachus’ dogma that “justice is nothing other than the advantage of the stronger.” Is that how cynical American contemporary “conservativism” has become?

Posted: 5:22 AM

With the War in Iraq spinning out of control Americans are now taking to the streets to pressure Congress to end the most unjustified war in U.S. history. We cannot afford simply to wait two years for serious efforts at withdrawing America’s children from harm’s way to begin. Congress–at least the democrats in Congress–have their marching orders. They must act now. As Senator Feingold has charged: “It’s a walk in the park right now to oppose the idea of this war. It’s also very easy to oppose the escalation. They are once again being too timid and too cautious.” More is now required.

The Bush administration is still in a delusional state of denial. As today’s Times editorial puts it: “We often wonder whether there is a limit to the Bush administration’s obsession with secrecy, its assault on the rule of law, its disdain for the powers of Congress, its willingness to con the public and its refusal to heed expert advice or recognize facts on the ground.” No there’s a small, collective solipsism occupying the White House. One salient element in the concept of evil is the inability or disinclination to realize the more serious one’s conduct, the more one should be genuinely open to the perspectives of others. On that criterion Mr. Bush’s conduct cannot be explained without invoking the concept of evil.

The American people must take action in support of “[p]eace activists from around the United States” who “will converge on Washington Saturday for what organisers hope will be the largest demonstration to date against the Iraq war.” Each concerned citizen must contact his or her elected leaders in the Senate urging them to support congressional action to counter Mr. Bush’s unreality. The time is now. The historical record demands it. There are several proposals for exiting Iraq that will prevent a holocaust. Mr. Bush simply refuses to acknowledge their existence. Like all his decisions concerning the war, he considers no views but his own. And for his own views he needs no evidence other than that they are his own views. This madness must come to end. The administration has been so discredited that only two alternatives remain: (1) the resignations of Messrs. Bush and Cheney and (2) Congress exhausting all his constitutional prerogatives to end the war. Four years of duplicity, incompetence, and war profiteering have poisoned our relationships with friends and foes alike. More importantly, they are poisoned the American character. Let’s begin to redeem our character–our souls–now by supporting our brothers and sisters marching for peace.
Posted: 11:30 AM

Maher Arar will receive a settlement of $10,000,000 in Canadian currency from the Canadian government in addition to $1,000,000 in legal fees. Good deal you say? Would you trade a year of incarceration and torture in a Syrian prison for that kind of money? Before you answer consider Mr. Arar’s own statement of the torment Canadian-American authorities put Mr. Arar through. “To be a public figure, a public personality, is something I never wanted. I have to live a stressful life every single minute. I’m tired. Every day, the cloud is still over me. I’m not like a normal family father any more. It’s very hard for people to understand what I’ve been going through, unless they come and live with me, and see it all.” Julian Falconer, Mr. Arar’s attorney convincingly added this: “To those few who may regard the compensation directed to Mr. Arar as some kind of windfall I ask you to consider this: no amount of money would cause a rational person to choose what Maher Arar and his family have been through.” Yet, the United States still refuses to remove Arar’s name from the U.S. terror watch list. Over at Balkanization, Jack Balkin, with his tongue planted squarely in his cheek, praises the United States’ decision not to remove Mr. Arar’s name from the terror watch list: “We can’t have people who have been wrongfully accused of being terrorists and sent off by American officials to be tortured running around the United States telling their stories. It might undermine people’s confidence in the War on Terror. And besides, if he really wants to commit terrorist acts in the United States, he can always rent a car and drive across the border like everybody else.” Yeah, imagine Mr. Arar on sixty minutes conveying to the American public just how committed to due process this administration is.

There needs to be an appropriate international protest directed toward Mr. Bush’s defiant, craven refusal to follow Canada in admitting its mistakes and compensating Mr. Arar for his ordeal. Word has it that the European Union has chastised Italy for permitting the flight sending Mr. Arar to Syria to refuel in one of its airports. More needs to be done to condemn Mr. Bush’s conduct in the Arar case. Minimally, the EU should issue a joint statement condemning the United States’ for human rights violations in this case. But won’t that simply follow the toothless resolution the Senate is contemplating issuing about Mr. Bush’s escalation of the war in Iraq? Maybe. But if nothing else these resolutions place Mr. Bush’s ignominious reign whee it should rest in the historical record.

Moral conduct requires admitting one is wrong when one is wrong. It further requires remedial action. ECA has posted on Mr. Arar’s deplorable treatment before, most recently here, and eagerly awaits the day when the United States will come to its senses, admits its mistakes, and where possible correct them. Unfortunately, that might require regime change in the United States.

Posted: 8:00 AM

Hasn’t Mr. Bush learned anything at all from his debacle in Iraq? His State of the Union message suggests he hasn’t. To the contrary, it seems that Mr. Bush has put United States on a collision course with Iran. In fact, the Washington Post reports today that “[t]he Bush administration has authorized the U.S. military to kill or capture Iranian operatives inside Iraq as part of an aggressive new strategy to weaken Tehran’s influence across the Middle East and compel it to give up its nuclear program.” And now a second aircraft carrier is making its way toward the Persian gulf. Such bellicosity breeds belligerence and Iran has responded by beating its chest with “war games.” Although madness, it is not out of the question that Mr. Bush will drag us into a third war with a Muslim nation. Mr. Bush, the stalwart soldier that he is (with other people’s lives) braves his lowest approval ratings to make a stand on the principle Bush’s fantasies Uberalis.
The reasons against Mr. Bush’s designs are clear. Bombing Iran’s nuclear facilities will antagonize friends, help to even further solidify enemies, and move those still open-minded into the terrorist’s camp. Moreover, it is likely to intensify Iranian efforts to assist the terrorists or to foment terrorism.

Reason must intervene here. First, Iran has a right–along with Israel, Pakistan, India, and so forth–to replace existing technologies with nuclear energy. Second, the world community, not just the United States, should make sure Iran bows to the international pressure concerning its nuclear ambitions. But to do this by bombing its nuclear sites is another example of Mr. Bush’s fantasy commitments. Reason does not stand a chance against his malevolent zealotry.

It is quite clear that Iran is a nuclear threat to Israel, the interests of the United States, and to the region. Israel must not be left out in the cold to fend for itself. Similarly, Israel must be persuaded not to take unilateral action against Iran’s nuclear sites. The world community, not the United States alone, Israel alone, or the two together, must respond to this threat. Yet, in the final analysis, Iran’s threat cannot stand. The question is how to stop Iran. The American people no longer have confidence in Mr. Bush’s ability to deal with such threats in anything but a blunt and disproportionate manner. Congress needs to make sure this doesn’t happen. If necessary, Congress should censure or reprimand Mr. Bush for his belligerent conduct. The bottom line is that if Mr. Bush intends to take military action against Iran, he must be stopped.

No one yet knows the resolution of the disputed facts in the Duke rape overstated, or in any other material way distorted the relevant details, she has added a significant new burden to every actual rape victim’s quest for justice. The credibility of all rape victims suffer when one man is falsely accused of rape. Perhaps this is unjustified, but it is true nonetheless. case. Changing stories and a rush to judgment have blocked the road to truth. However, on the assumption that the accuser has misreported,

She has, of course, had a great deal of help from a prosecutor, Michael NiFong, (pictured below left) apparently more concerned with his political ambitions than anything resembling justice. And so he too has damaged the future prosecution of rape cases. Mr. Nifong’s own forensic expert, Dr. Brian Meehan, (pictured to the right) failed to reveal that DNA was found on the accuser that did not match the DNA of any members of the Duke LaCrosse team. Mr. Nifong must assume responsibility for this failure to report. For this and other improprieties ethics charges have been filled against Mr. NiFong which can result in his disbarrment. Together he and the accuser, if her story proves unfounded, have set back the cause of actual rape victims for decades.

Rape is a complex crime motivated by power and expressed sexually. Assumptions about the relative relationship between men and women underlie rape cases as well as the general issue the role of women in American society. Unfortunately, there are still those who suspect that women often lie when they accuse someone of rape. I’m sure some women do falsely accuse some men of rape. However, the real question, in my estimation, is which of the following is more likely, all things being equal: (1) A women has consensual sex with a man and subsequently accuses him of rape, or (2) A woman who accuses a man of rape was actually raped. I think the obvious answer is that (2) is more likely. But the important point is that (2) is not just more likely, but that it is overwhelmingly more likely. That some people are inclined to think that (1) is more likely is bizarre. Similarly, believing that (1) and (2) are a toss-up is preposterous. In any event, if the accuser in the Duke rape case lied and falsely accused the three Duke LaCrosse players of raping her, future rape victims will pay the price.

“Incorrigibles of the world unite! You have nothing to lose but ‘Truth, Justice, and the American Way’.” Mr. Gonzales and the Bush administration aka “Karl Rove” have denied inexplicably Canada’s request to remove Mr. Maher Arar’s name from an American terrorist watch list, insisting that it has “secret information justifying his inclusion.” You remember Mr. Arar. He’s the Syrian-born Canadian citizen who found himself in the wrong America at the wrong time. Meet Mr. Maher in his own words:

I am a Syrian-born Canadian. I moved here with my parents when I was 17 years old. I went to university and studied hard, and eventually obtained a Masters degree in telecommunications. I met my wife, Monia at McGill University. We fell in love and eventually married in 1994. I knew then that she was special, but I had no idea how special she would turn out to be. . . . If it were not for her I believe I would still be in prison. . . . I am not a terrorist. I am not a member of al-Qaeda and I do not know any one who belongs to this group. All I know about al-Qaeda is what I have seen in the media. I have never been to Afghanistan. I have never been anywhere near Afghanistan and I do not have any desire to ever go to Afghanistan.

Mr. Arar’s treatment at the hands of both the Canadian and American authorities has been disgraceful. The Canadian government, after realizing its error, admitted it and has compensated Mr. Arar–if compensation is possible–for its mistake. Indeed, the head of the Royal Canadian Mounted Police–Mr. Giuliano Zaccardelli, pictured below right–was forced to resign over this incident. But the American authorities continue unabashed to persecute Mr. Arar by keeping his name on the list. Why the difference? Both governments wronged Mr. Arar. However, when the Canadian authorities realized their mistake, they cleared Mr. Arar of all terrorist connections. Not so with the American authorities. No the U.S. is too clever, too knowledgeable, too worldly-wise to be duped into thinking it made a mistake. After all, this is America! How can an American government make a mistake? The very idea is preposterous.

Or is it that the Canadian authorities have acted as any moral agent would, namely, when you wrong someone you admit your culpability and try to compensate your victim, at the very least by first clearing him of all charges? If that’s so, how should the American conduct be described? The word “evildoer” comes to mind. Remember Mr. Bush your pursuit of the evildoers? Well, your journey need not extend any further than a handy mirror.

The Bush administration must not be allowed to get away with this injustice. Both Canadians and Americans need to exert as much pressure on Mr. Gonzales as they can. Americans, in particular, must educate other Americans about this injustice. The scanty coverage by the American media is woefully insufficient. As Americans, we believe in justice for all. That must include Mr. Arar. Mr. Bush has drawn the United States so far down the road to infamy that only concerted efforts by American citizens can begin the long journey back.

Last month, when signing a postal reform bill, George W. Bush issued a signing statement asserting his authority, in emergency circumstances, to open the mail of Americans without a warrant. Mr. Bush said that “he will ‘construe’ an exception, ‘which provides for opening of an item of a class of mail otherwise sealed against inspection in a manner consistent … with the need to conduct searches in exigent circumstances.’” Thus, he alone, without congressional oversight or a judicial green light, can act in a manner that, if performed by ordinary law enforcement agencies, would be a violation of the Fourth Amendment.

The procedural mechanism permitting him to deny a provision in the very law he signed is the signing statement. According to defenders of the practice, since modern legislation takes the form of omnibus bills containing hundreds of provisions, signing statements are necessary if the President has some concern over one or more possibly inadvisable or unconstitutional provisions. If American governing institutions adopted the woefully ineffective method of single issue bills, the need for signing statements would be markedly reduced. However, this change would throw a monkey wrench into the machinery of legislation forcing it to a grinding halt.

Unlike line-item vetoes, signing statements per se formally retain the challenged provision. However, they announce the president’s intention to ignore it or interpret it in a way incompatible with clear congressional intent or even with the letter of the law. Accordingly, in the case of a signing statement governing the execution of a law, future executives may restore the proper interpretation. With a line-item veto, there’s no longer a provision to interpret. While this distinction is important, in critical cases, signing statements, in any given administration, effectively operate as line-item vetoes. The relevant provision, for now, has no practical application or force. Although even in this case, the president may be persuaded to enforce the provision, if someone can seduce her into ignoring–however unlikely this prospect may be–her own signing statement, while a vetoed provision precludes this possibility.

Signing statements are used in at least three ways: First, signing statements inform the public what the president believes the probable consequences of the legislation. Second signing statements are necessary to explain to the executive branch how to interpret and administer the law. Third, and more controversially, signing statements reveal the President’s beliefs about the proper constitutional meaning of the legislation. Accordingly, signing statements have legitimate uses.

However, they are also potentially dangerous. The controversy over signing statements is that in the hands of wayward presidents their use may constitute nothing less than ultra vires presidential power. In Mr. Bush’s case, he has indicated, through signing statements, his intention to ignore hundreds of provisions of bills he himself has signed, most notably the McCain Amendment prohibiting torture. Mr. Bush, in effect,members of Congress who lost the vote. Something surely is amiss.

Mr. Bush has issued approximately 750 signing statements effectively announcing his intention to ignore or reinterpret scores of provisions, more, in fact, than any other president. The sheer number of these statements, which typically remain under the public’s radar, suggests a broader problem: Mr. Bush’s autocratic rule. Is there anyway to prevent Mr. Bush and future Bush-clones from misusing signing statements in the way he has done? The question then is, on balance, do the legitimate uses of signing statements outweigh the possibility of their abuse. If so, is there anyway to guard against abuse? claims the right to interpret legislation to reflect the understanding of those

The American Bar Association has come out clearly against the practice of signing statements. In the ABA’s view, this practice does not comport with the rule of law or the essential constitutional doctrine of separation of powers. Of course, whether the ABA is right depends on just how signing statements are used. Surely, some uses of signing statements enhance both the rule of law and separation of powers. The rule of law requires clarity of law, and if signing statements can contribute to clarity, there’s no rule of law problem at all. Similarly, in directing the executive branch how to execute and administer a provision, a signing statement can contribute to the consistent application of congressional legislation. Surely, that enhances the doctrine of separation of powers. Similarly, there’s no presentment problem if a president correctly clarifies the bill presented to the executive for signing or vetoing. The critical question is whether this practice can be cabined to legitimate uses, and a negative answer to this question does condemn the practice.

This raises a broader issue about constraints on executive power. Is there a remedy for preventing a president from ignoring statutes with whom she disagrees? This problem may be stated as follows: what can be done when President asserts “a power to ignore “statutes that have been on the books for years, that were widely acknowledged to be constitutional when they were enacted (including by the President when he signed the law), that for many years thereafter have been implemented by the executive branch, and that have never been called into question by the Supreme Court”? The underlying problem rests with administration’s conception of the role of the executive which “threatens to dangerously expand the powers of the President in a manner that fails to respect the checks and balances of our constitutional system.” This is no doubt true. But why then shouldn’t we recognize that signing statements give wayward presidents another mechanism for autocratic rule. The tendency to autocracy is, to be sure, the problem, not just the practice of signing statements. But unless it is demonstrable that signing statements are indispensable, why not recognize that this practice, while not the core of ultra vires executive power, certainly provides that core with another vehicle of expression.

Perhaps, we need not be resigned to suffer the dangers of signing statements. There may be alternatives involving greater communication between the executive and legislative branches. For now, however, it is important for both proponents and opponents of this practice to emphasize this administration’s underlying misuse of the practice.

How will the new democratic majority in Congress react should Mr. Bush announce, when signing a bill the majority feels strongly about, that he intends to nullify, ignore, or reinterpret a key provision? Since, in present circumstance we need a muscular Congress, if the democratic controlled Congress buckles under their own weight perhaps it’s time to form a third party or a party to replace weak-kneed Democrats.