Usurpation

Mark Schmitt nails this one on Bush's "signing statement" regarding the McCain amendment in the Defense Appropriations Bill.

Here's the inserted statement:

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.

Here's Alito's take:

"Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

Here's Schmitt:

...it seems to me there is a simple reason to reject Alito’s seemingly sensible recommendation, exemplified by the McCain statement. It gives the President a kind of after-the-fact last word on the matter that legislators don’t have. Legislative expressions of intent generally involve some kind of consent. If a group of legislators who support a bill don’t like the interpretation suggested in the committee report, they can put their own statement in the record, or vote against it. The president can even weigh in and threaten to veto the bill if expressions of legislative intent are made that he’s not comfortable with. It’s a multilateral process. But once the bill is out of Congress, the President is acting totally alone in declaring his intent in signing it. Consider, for example, what would have happened if before the amendment had passed, or while the final language was being negotiated with Cheney, the president had said exactly what he said in the signing statement. McCain and the bill’s other supporters might have gone back and tightened the language, or they might have added their own expressions of intent. But by the time the President signs a bill, Congress is done with it. There’s no opportunity for consent.

...A president who can sign a bill and then declare that he’ll obey it if and when he feels like it is truly a step too far. And because Alito seems to have played a key role in setting up this situation, the confirmation hearings are the right place for the debate on this practice to play out.