SIGNING STATEMENTS AND JUDICIAL REVIEW….Richard Epstein explains in the Chicago Tribune why he’s disturbed by President Bush’s lavish and unorthodox use of presidential signing statements. He thinks it’s the first step in a new theory that justifies circumvention of the congressional and judicial checks built into the constitution:
Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president’s ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers ? he just couldn’t use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.
Over at The Corner, Ramesh Ponnuru is unpersuaded:
I’m sympathetic enough to coordinate construction, and hostile enough to the “modern understanding of judicial review,” not to be frightened by the bottom of this particular slippery slope. If Congress or a court purported to order the president (or one of his agents) to exceed his constitutional powers, for example, it would probably be right for the president to disobey.
Hell, even Nixon turned over the tapes when the Supreme Court told him to ? and God knows what would have happened if he’d stuck to his executive privilege guns and told the court to pound sand. I think I’ll stick with the modern understanding of judicial review, thank you very much.