This is a follow up to the article, A Nation of Laws? Whose Laws? If you're not familiar with it, you may wish to start there.

http://www.voiceofarizona.com/content/p/5031/catid/2/artid/2372so

My reading suggests the signing statement began as a benign social nicety which permitted the President to acknowledge the benefits of a law, its beneficiaries, thank the legislative supporters, chortle, etc., etc. However, the signing statement, beginning with Reagan, became a powerful political expedient, a pseudo-legal concept that enables the President to implement a law in practically any fashion he desires. Bushdailymirror

It's an operational concept in search of a legal justification and the sheer volume of Constitutional arguments, pro and con, would indicate there's no resolution in sight - short of a Supreme Court ruling - and that's not likely, for reasons I'll discuss here.

However, Bush has already covered the possibility of a Supreme Court review, anyway - with his second draft pick, Justice Alito.

Beginning with Reagan, the use of the signing statement was based on an interpretation of the rather vague terminology in the Constitution used to set forth the powers of the President. In the Constitution-Interpretation trade, it's called the "Unitary Executive Theory" which clearly earmarks it as something less than universally accepted interpretation of the Constitution. This theory encompasses a broad range of topics involving the separation of powers and the role of the President within the Executive branch.

The Bush Administration has implemented John Yoo's extreme interpretation of the theory. Yoo, formerly of the Justice Department's Office of Legal Counsel, is best known for his controversial position, among others, on the legality of torture, on the denial of Geneva Convention protections to enemy combatants, and for his links to the legal defense Bush is using to fend off critics of his NSA domestic warrantless surveillance program.

Yoo's interpretation of the theory doesn't specifically authorize signing statements, rather, the alleged legitimacy of signing statements is to be found in the way the theory addresses the relationship of the President to the Congress and to the Courts. To be internally consistent, the theory also reconciles the Constitutional powers of the Congress and the Courts with those of the President in such a manner as to justify the signing statement.

To get a flavor of the complexity involved, critics of the unitary executive theory point out that the Constitution clearly grants Congress the exclusive power to "make all Laws which shall be necessary and proper…" yet the unitary executive theory negates the literal interpretation of that passage from the Constitution.

To question the legality of Bush's use of the signing statement is to question the entire unitary executive theory. Being, ostensibly, an internally consistent construct, finding one element to be faulty necessarily affects other elements and other relationships which might be deemed worthy of preserving. Thus, there's a likelihood that, finding fault with the principles upon which the signing statements are based, a court would be forced to reject the entire unitary executive theory and formulate another construct to accommodate the revised principles. Technically, there's much, much more to it that just testing the legitimacy of the signing statement.

There's a major political obstacle to seeking a determination of the theory's legality, also. Would the Executive and Legislative Branches be disposed to letting the third co-equal branch define everyone's powers and roles in government? Not likely. Turf is turf, to be closely held, jealously guarded.

The mere existence of alternatives to the unitary executive theory indicates just how fragile and tenuous the balance of power really is. But the separation of powers has held together for 230 years on a gentlemen's agreement.

Bush has violated that agreement and, with an in-your-face attitude, is testing the strength of the Constitutional system. Some say he's already broken pieces of it. For sure, with the signing statement and Yoo's theory, he has usurped the Congress' and the Judiciary's powers to an unprecedented degree.

What can we do to stop the madness?

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Footnote: I recently discovered an excellent technical reference on the Unitary Executive Theory at Wikipedia. For those interested in examining the nuts, bolts and rivets used in the Bush Administration's legal boilerplate for their nefarious deeds, I'd recommend it.

http://en.wikipedia.org/wiki/Unitary_Executive#The_theory