Signing Statements and Pantomimes
The implementation of Indo-US nuclear deal is an object lesson for India as to how not to conduct business with US. First Bush and Singh conclude the deal, Bush conceding 'x' to India. US Senate which has the sole constitutional authority to ratify treaties and with the House, the sole prerogative to make law, subtracts 'y' from the 'x' and adds 'z' which were not in the deal.
Singh without making a big fuss about the 'y' and 'z' mildy protests. Then Bush takes out his weapon of choice: the presidential signing statement. In the last 6 years of all the bills Bush signed into law, he has effectuated his power of veto exactly once. Does it mean he likes all those legislations coming out of the Congress? No. When he doesn't like certain provisions, instead of vetoing the bill, he issues a signing statement. In that statement, he declares his intention to bypass, violate, ignore those provisions he is in disagreement with, treating the law he just signed and obligated, like a fruit salad.
This practice though has a very limited precedence in very limited scope, is rampant and widepsread now. The constitutionality of this practice is very much in question and there is a case pending before the US Supreme Court brought by none other than the American Bar Association to repudiate and disallow him to get around the law with these dubious, legless signing statements. Depending on the mood of Justice Kennedy on the day of hearings, Bush may lose the case. If indeed Bush's position prevails, there is a decent chance that his successor may not pursue the challenge with the same vigor when it re-emerges under different form. But don't bet on it. Democrats and Republicans when they are in White House, seem to hold a widening view of Presidential power.
Now coming back to Singh's 'happiness' expressed today at Bush's clarifications, on our end of the deal, the 'y's that are removed and the 'z's that are added are impinging upon a lame duck President's (with 2 years remaining) dubious 'signing statements' the constitutionality of which is pending before the US Supreme Court. Way to go!
posted by Srinivasan @ 12:32 PM
2 comments
2 Comments:
Srini,
What is important for India's interest is that "traditionally" how well signing statements of presidents are followed by the same presidents subsequently, and subsequent presidents, setting aside the constitutional validity case. if bush's successor decides to not continue the signing statement then it is going to hurt india's interest. So it all depends on 1) whether bush is going to add such signing statement to add 'y' and remove 'z' 2) if so, for atleast a few decades to come will this signing statement be 'in use'.
btw the signing statement constitution validity case doesn't seem to be a a open & shut case for/against the president. if i'm not wrong the US president has the arbitratory powers in external affairs as long that power doesn't violate the "basic constitution". the ground on which the american bar association is standing is bypassing (in part/full) a congress ratified form of bill is "unconstitution", which i feel would not hold good overall but be decided 'case-by-case'. am i an authority to say? no. but its merely a blog and moreover am a commentator, so i can say whatever i wish, as if i were an constitutional expert :)
Kuppa,
I believe you are wrong on the law and facts here. US Constituition does not grant any supreme authority to conduct foreign policy to the President, certainly no 'arbitrary' powers. It has to be said that power here, flows from the laws (though laws are made in mysterious and secretive ways sometimes). Now if you look at Harkin's amendment and Obama's amendment they look like unnecessary bland statements. But why are they in the bill? These are screws loosely put in place, just in case they needed to be tightened later. Provisions for hedge. True, India needn't have cause for worry about it if they won't be used. But they are still there. Case in point is the Pressler Amendment. In early 80s, Larry Pressler, inserted some amendments requiring US presidents to issue an annual conduct certificate that Pakistan is not developing nuclear weapons to continue military sales to it. Reagan lied thru his teeth all 8 years because Pakistan was a crucial ally on the war on soviet terror in Afghanistan. When the Soviet Union wound up, Bush I immediately stopped issuing that certificate, automatically activating the Pressler screws.
Now coming back to Bush's signing statements, the ABA case is an overall review of this approach, not a case by case thing. The remedy ABA seeks is not to restrain Bush from issuing signing statements. It says, he can sign all he wants, but ultimately he shall be obligated under the letter of the law he signed. If you don't like it,if you find something remotely, even in abstract, contradicting your constitutional authority, use the veto. Fair enough? So the case is to reduce the legal position of these statements from their current exalted position (as claimed by Bush) of equivalency to laws passed by Congress to mere papers.
Now going back to India's problem here, they are two fold. These signing statements are policies of this administration, which has 2 years of limping life left in it. They are not binding on future administrations. After 2 years, the screws get back in their place. Furthermore if Bush loses this case, the screws get back even earlier.
But Dr.Jai Sankar, one of the guy who negotiated the deal for us promises that any future US president will consider the 'totality of our strategic relationship' before tightening the screws. Pray it is true. But in a nation of laws, all it takes is some nobody to file a suit in a court and ask for enforcement.
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