Bush's Signing Statement and the First 100 Hours

The wrongheadedness of the Democrats' refusal to even entertain the notion of impeachment was underscored yesterday when it emerged that in signing a piece of postal legislation last month, George Bush issued a "signing statement" that effectively granted himself the right to open any American's mail without a warrant. The statement was attached to H.R. 6407, the "Postal Accountability and Enhancement Act," and the relevant passage reads,

The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.

Translation: Bush has the authority to open Americans' mail without a court warrant.

Much of the rest of the signing statement reaffirms the "authority of the President to supervise the unitary executive branch" and asserts the "constitutional limitation of Federal courts."

Despite Bush's views on the "unitary executive" with its "plenary powers," the signing statement he issued actually contradicts existing law and the bill he just signed, say experts who have reviewed it. "It takes Executive Branch authority beyond anything we've ever known," said a career senior U.S. official who reviewed the legal underpinnings of Bush's claim.

Rep. Henry Waxman (D-CA), who co-sponsored the bill, emphasized that the signing statement does not change the intent of the legislation, which prohibits the government from violating people's privacy. "Despite the President's statement that he may be able to circumvent a basic privacy protection," he said, "the new postal law continues to prohibit the government from snooping into people's mail without a warrant."

Indeed, the section of the legislation (section 1010) that Bush is "construing" to grant him the power to open mail without warrants is actually quite clear in its prohibition of warrantless surveillance of America's mail:

The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. The rate for each such class shall be uniform throughout the United States, its territories, and possessions. One such class shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee.

With such explicit language on the matter, it's rather astounding that the Bush White House could "construe" the legislation as granting the Executive Branch authority to open mail without a warrant. But what is perhaps more astounding is that after the repudiation of the Bush agenda in November, and even with the possibility for greater oversight from Congress, that the president would make such a bold statement on his views of executive power.

What is perhaps even more astounding than that is the continuing refusal of the new Democratic leadership to make more of an issue out of civil liberties, executive power, and individual privacy. As the Washington Post pointed out on Wednesday,

Nowhere in the Democrats' consensus-driven agenda is legislation revisiting last year's establishment of military tribunals and suspending legal rights for suspected terrorists. Nor is there a revision of the civil liberties provisions of the USA Patriot Act, a measure curbing warrantless wiretapping by the National Security Agency or an aggressive confrontation of the president on his Iraq war policies.

It could also be pointed out that there is no mention of addressing the use of presidential signing statements, which under Bush has skyrocketed. He's issued more than 1,200 as president, and has taken them to a level that no previous president ever has, essentially using them as a line-item veto, or even as a way to legislate from the Oval Office.

Many legal scholars argue that his use of signing statements is flatly unconstitutional, and may even be grounds for impeachment. It's obvious that at the very least, they undermine the intent of duly passed legislation, and could pose a major obstacle to the new Democratic majority's legislative agenda. But rather than confront the president on this and other issues, it seems the Democrats' emphasis is on cooperation.