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We all know the textbook description of how a law is enacted. Congress passes the legislation and it's sent to the President. If the President accepts the legislation, he signs it and it becomes law.
The next step involves the Executive Department's drafting of the Federal Regulations to implement the law. Here, the drafters look to the statute itself and, more importantly, to the Legislative History of the statute to define Congress's intent in passing the legislation in the first place. 
Once the Regulations are adopted, the Executive Branch is responsible for enforcing the law. Suspected violations are referred to the Judiciary Branch.
Ostensibly, the will of the people is translated into Congressional intent, becomes law with the President's signature and the Federal Regulations tell us, as well as the Judiciary, how the law is to be administered.
That's how I learned it. But then, I was out of school by the time Nixon took office and it seems that the fallout of the Watergate scandal wrought a new wrinkle in the lawmaking process.
Nixon's successor, President Ford, had a Chief of Staff by the name of Dick Cheney - yup, the same guy. Cheney and other Executive Branch staffers came up with the concept of a "Presidential Signing Statement". This is a document that the President attaches to laws he's signed to lay out his own interpretation of the law. Read that as, to challenge Congressional intent. In other words, the President uses the signing statements to reject, revise or put his spin on Congressional intent as he signs a bill into law.
Signing statements have been in the news recently when they became a Democratic sticking point in Judge Alito's confirmation hearings and again when Bush issued a signing statement as he signed John McCain's Anti-Torture legislation into law.
The legitimacy and legality of signing statement has yet to be resolved but that's not affected the functionality of the concept. Until the Reagan Presidency, the Executive Branch had only issued a total of 75 signing statements. Reagan used signing statements to challenge 71 pieces of legislation; George H.W. Bush challenged 146 laws; Bill Clinton challenged 105. And, tah-tah, Dubya - who has never vetoed a bill, right?
Dubya has lodged more than 500 challenges to the laws he's signed so far. The veto has become a quaint vestige of the past when a President can pick and choose the portions of a law he considers to be the law.
For example, the Anti-Torture legislation was sent to the President after receiving broad bipartisan support (90-9 in the Senate, 308-122 in the House) and it made it illegal for Americans to engage in the "cruel, inhuman and degrading" treatment of detainees held here or abroad.
Bush's signing statement included the passage, "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."
http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html
In street English, it is for the President - not Congress, not the Courts - to determine when the provisions of the Anti-Torture bill interfere with his duties as Commander-In-Chief , and when they do, he will freely ignore the law.
One other teenie-weenie aspect is worth noting. Bush is the boss of the Executive Branch, right? Say you're the member of that branch who's responsible for drafting the Federal Regulations associated with the Ant-Torture Law. Are you going to incorporate Congressional intent in the regulations you write? Or, are you going to accept the President's invitation to deviate from Congressional intent and codify what's in his signing statement?
Before you answer, you should consider two things. First, the Federal Regulations you draft will implement the law - you'll be defining what's legal and what's illegal. Second, the boss isn't always right but he is always the boss.
So, when Russ Feingold said, "I was taught that it's the Congress that makes the laws and the president is supposed to sign them and he's supposed to enforce them. He's not just supposed to make them up…" he may have been addressing Bush's violation of the Foreign Intelligence Surveillance Act but he could well have been addressing the more than 500 modifications to Congressional intent that Bush has made. Does that constitute "making them up"?
A nation of laws? Whose? Your and my will translated into Congressional intent? It used to be that way but, today, it looks more like a crapshoot to me!
Some interesting references:
http://www.blackwell-synergy.com/doi/abs/10.1111/j.1741-5705.2005.00262.x
Bush has been having his way with the law for so long that, considered in the context of signing statements, the NSA's secret wiretapping program seems to make sense - there's a shocking seamy consistency, at any rate!
I understood that Bush had an angle for avoiding the restrictions of McCain's anti-torture bill, but...
but, but...
The ability to nullify explicit Congressional intent and redirect the Judiciary, through Regulation?
Mind-boggling! And far more dangerous than I'd ever imagined - I can see there's a lot of catch-up reading to do.
I'll be back when I've regained my balance. Thanks fast one!
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