Stealing power

Congress passes hundreds of bills each year, the vast majority being completely ordinary and uncontroversial. Funding for this or that; naming a bridge or highway in honor of some local hero; or approving a nominee for a seat on the Marine Mammal Commission. There is little debate, because as soon as the deed is done the Congress moves on to something else.

The Postal Accountability and Enhancement Act was intended to be one such wholly unremarkable piece of legislation. It passed both Houses without debate, or even recorded votes. However, the New York Daily News reports that the President issued a signing statement that would allow the Feds to open a person's mail- without a warrant or judicial oversight.

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.

Note how the President seems to imply that the legislation authorizes the opening of mail ("which provides for opening of an item of a class of mail..."), but the Act actually prohibits the opening of mail. Subsection 1010(e) says that "No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law...." This seems clear and unambiguous, but the signing statement incorporates the phrase "exigent circumstances", which anyone with a passing understanding of search and seizure law will immediately recognize. Wikipedia's definition is both accurate and simple:

An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant.... It must be a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape.

Barring the example of the letter bomb, it is virtually inconceivable that the government could demonstrate the necessary exigency. An exigent circumstance exists when a law enforcement officer has actual knowledge of a crime in progress and reasonably believes that she must act immediately to save a life or preserve evidence- if the dealer is going to flush the crack down the toilet, the police will be able to bust in and save the evidence. It is not an exigent circumstance that someone suspected of criminal activity is receiving mail from someone else suspected of criminal activity, and the government believes that the mail contains information about the crimes.

The real meat of the signing statement seems to disregard the need for exigent circumstances altogether. This is a close reading akin to statutory construction. The statement is written like bad legislation, with too many commas. The language about exigent circumstances is immediately followed by a non-restrictive clause explaining exigent circumstances themselves ("such as to protect human life and safety against hazardous materials..."). The next clause is an entirely separate justification for opening the mail that has nothing to do with exigent circumstances- take the non-restrictive clause and other legally inoperative language out, and the statement becomes:

The executive branch shall construe... subsection 1010(e) of the Act... in a manner consistent... with the need to conduct searches in exigent circumstances... and the need for physical searches specifically authorized by law for foreign intelligence collection.

Read this way, there are two separate and distinct rationales for opening mail- 1) when exigent circumstances exist or 2) when necessary for foreign intelligence collection.

Would Congress have authorized that without debate? I doubt it.