Saturday, January 06, 2007

Where is Richard Nixon When You Need Him?

The Daily News reported this week that when President Bush signed a postal reform bill in December requiring government officials to obtain a warrant before opening first-class mail, he issued a statement reserving the right to forego a warrant in emergency situations. The President’s “signing statements” are well known by now. Whenever a bill contains a provision he dislikes or thinks might restrict his power, he accompanies his signing of the bill with a statement intended to nullify the provision. So far, he has challenged more than 750 provisions, far more than the number challenged by all other presidents combined. Perhaps the most famous Bush signing statement is the one accompanying the McCain Amendment, which banned torture of detainees by U.S. troops. That statement asserted that Bush would construe the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.” Although written in coded language, the message was clear: Bush did not view the law as binding.

Bush’s latest signing statement is more explicit. In signing the Postal Accountability and Enhancement Act, he wrote that he would construe the warrant requirement “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.” The reference to “exigent circumstances” comes from Supreme Court cases interpreting the 4th Amendment, which generally requires police to obtain a warrant before conducting a search. Under an exception the Court has carved out, police can search without a warrant in “exigent circumstances” – meaning that immediate action is required and it would be impracticable to obtain a warrant. Bush appears to be claiming that officials can rely on the same exception when it comes to first-class mail. But it’s not clear they can. The exigent circumstances exception is an inference from the 4th Amendment warrant requirement. The postal bill imposes its own warrant requirement, and I have seen no evidence that Congress intended to permit exceptions to that requirement for exigent circumstances. It may seem odd that a search permissible under the 4th Amendment could violate a federal statute, but in truth it’s not. The Constitution establishes the floor for individual rights, not the ceiling. Congress is free to provide greater rights if it chooses.

Still, one might argue that Congress assumed the exigent circumstances exception would apply and that the view of the president signing the bill is evidence of that assumption. But that leads to a bigger problem with Bush’s signing statement. The warrant requirement imposed by the postal reform bill is not new. It has been part of the law since 1970 when Congress passed the Postal Reorganization Act. The bill signed by Bush merely moved the requirement from one part of the United States Code to another. Indeed, it was only mentioned in the bill under a section entitled “Technical and Conforming Amendments.” So even if one thinks the view of the president who signs a bill should be relevant to its interpretation, Bush’s view of the warrant requirement is worthless. Instead, we should be asking Richard Nixon what he thought. And unfortunately, tricky Dick isn’t around to tell us.