The Conservative Resistance

Richard Epstein weighs in on the Bush-Cheney innovation of countless signing statements, designed to remove legislative and potentially judicial checks on executive power. Epstein is a limited government conservative with libertarian leanings. Hence his resistance to King George. Money quote:

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

Vive la resistance. Scalia, of course, has dutifully backed the logic behind the "signing statements" in his Hamdan dissent. We are one Supreme Court Justice away from an executive above the law, and able to interpret it retroactively as s/he sees fit.