Saturday, January 21, 2006

Word Search

The current White House policy that creates a legal significance for that were once just ceremonial documents is troubling to those concerned about the traditional balance of powers between the Executive, Legislative, and Judicial branches of the Federal government. Rather than commemorate the successful end of the legislative process, recent signing statements are legalistic amendments designed to nullify key parts of legislation with the obvious intention of exercising a covert form of line-item veto that can never be overridden.

The recent signing statement on the Congressional prohibition on torture (in which the phrase "unitary executive" appears four times) is particularly troubling case in point. However, according to Phillip Cooper, author of By Order of the President: The Use and Abuse of Executive Direct Action, the current president has used signing statements over a hundred times in his first term, raising over five hundred separate Constitutional objections.

As a rhetorician who reads my Aristotle, I find the repurposing of epideictic rhetoric to legislative or juridical ends disquieting as well. Why rebrand a political veto with a guise of ceremony? Why mask the deliberative character of contentious political discourse under pomp and circumstance?

To make matters worse, this strategy is being buried by impenetrable information design. Since this is such an important policy stance that affects so many stakeholders, it seems to me that all legislation from which the Executive branch considers itself exempted should be together on some easily navigable Federal .gov site for public view and comment. Unfortunately this isn't the case. When I went to the White House website and tried their search engine, I couldn't find these signing statements without knowing specific bill numbers. When I tried "signing statement," many of the results were from bills with which the President agreed, and "H. R." (for the legislation number) produced an even more inflated number of hits.

Undeterred, I read about a dozen signing statements to get a sense of the legalistic rhetoric they contained. Soon, I couldn't miss the repeated use of the odd phrase "construe" as in "the Executive shall construe . . ." When I tried "construe" in the search engine, I was finally pleased with the results. Now I wonder if we're all being construed over.

It also turned out that the phrase "unitary executive" was a pretty good finding aid, but "construe" was considerably better. Those seeking more reading on the subject should check out the recent New York Times article "For President, Final Say on a Bill Sometimes Comes after Signing" and a key memo from Supreme Court nominee Samuel Alito, which has been released by the National Archives, that defends the legality and legitimacy of such statements.

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