Charlie Savage / Boston Globe & Andrew Sullivan / TIME Magazine – 2006-10-06 23:07:15
Bush’s Use of Signing Statements Criticized
Charlie Savage / Boston Globe
WASHINGTON (October 5, 2006) — President Bush’s frequent use of signing statements to assert that he has the power to disobey newly enacted laws is “an integral part” of his “comprehensive strategy to strengthen and expand executive power” at the expense of the legislative branch, according to a report by the nonpartisan Congressional Research Service.
In a 27-page report written for lawmakers, the research service said the Bush administration is using signing statements as a means to slowly condition Congress into accepting the White House’s broad conception of presidential power, which includes a presidential right to ignore laws he believes are unconstitutional.
The “broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the president in fact possesses expansive and exclusive powers upon which the other branches may not intrude,” the report said.
Under most interpretations of the Constitution, the report said, some of the legal assertions in Bush’s signing statements are dubious. For example, it said, the administration has suggested repeatedly that the president has exclusive authority over foreign affairs and has an absolute right to withhold information from Congress. Such assertions are “generally unsupported by established legal principles,” the report said.
Despite such criticism, the administration has continued to issue signing statements for new laws. Last week, for example, Bush signed the 2007 military budget bill, but then issued a statement challenging 16 of its provisions.
The bill bars the Pentagon from using any intelligence that was collected illegally, including information about Americans that was gathered in violation of the Fourth Amendment’s protections against unreasonable government surveillance.
In Bush’s signing statement, he suggested that he alone could decide whether the Pentagon could use such information. His signing statement instructed the military to view the law in light of “the president’s constitutional authority as commander in chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.”
Bush also challenged three sections that require the Pentagon to notify Congress before diverting funds to new purposes, including top-secret activities or programs that Congress had already decided against funding. Bush said he is not bound to obey such statutes if he decided, as commander in chief, that withholding such information from Congress was necessary to protect national security secrets.
By relentlessly repeating such assertions, the Congressional Research Service report said, the administration appears to be pursuing a strategy of gradually making its view of executive power seem routine and unremarkable. The report characterized this tactic as “an attempt to leverage power and control away from Congress by establishing these broad assertions of authority as a constitutional norm.”
Like all Congressional Research Service reports, this one — dated Sept. 20 and titled “Presidential Signing Statements: Constitutional and Institutional Implications” — was written for members of Congress and was not made available to the public.
The Federation of American Scientists has posted a copy on its Web site.
The report marked the latest installment in a recent debate over the Bush administration’s use of signing statements, a previously obscure instrument of presidential power.
A signing statement is issued by the president as he signs a bill into law. It describes his interpretation of the bill, and it sometimes declares that one or more of the laws created by the bill are unconstitutional and thus need not be enforced or obeyed as written.
We Don’t Need a New King George
How can the President interpret the law as if it didn’t apply to him? < Andrew Sullivan / TIME Magazine
(January 19, 2006) — A somewhat legal law is a little like a somewhat pregnant woman. At first blush, it seems like an absurdity. But President Bush disagrees. In the past five years, quietly but systematically, he has been arguing that the law doesn’t always apply to him. How has he done this? By attaching “signing statements” that spell out his own attitude to bills he signs.
Previous Presidents have sporadically issued signing statements, but seldom and mainly as boilerplate or spin. Until the 1980s, there had been just over a dozen in two centuries. The President’s basic legislative weapon, after all, is the veto power given him by the founders.
He can use the power as leverage to affect legislation or kill it. But he cannot legislate himself or interpret the law counter to Congress’s intent. Signing statements were therefore relatively rare instances of presidential nuance or push-back. In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105.
In five years, President Bush has already challenged up to 500 provisions, according to one tally — far, far more than any predecessor. But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive.
Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all “cruel, inhuman and degrading” treatment of US military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That’s how our democracy works, right?
Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to “make Rules concerning Captures on Land and Water,” Bush demurred.
He issued a signing statement that read, “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.”
Translation: If the President believes torture is warranted to protect the country, he’ll violate the law and authorize torture. If the courts try to stop him, he’ll ignore them too. This wasn’t quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as “breathtaking.”
And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, “Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress.”
That is, of course, a very strange idea — which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the President’s view is utterly irrelevant. Alito seemed to concede that at the time, recognizing the “novelty of the procedure and the potential increase of presidential power.”
Alito, of course, didn’t foresee the war on terrorism. But put a war President’s power together with the new use of signing statements, and Executive clout has been put on steroids. “If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived,” argued Senator Lindsey Graham, a Republican from South Carolina.
As Graham shows, this isn’t a Republican-Democrat issue. It’s a very basic one. A President, Democrat or Republican, has every right to act unilaterally at times to defend the country. But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It’s disturbing to think we may now be quietly installing a second one.
Andrew Sullivan’s blog, the Daily Dish, can be found at time.com
Copyright © 2006 Time Inc. All rights reserved.
Posted in accordance with Title 17, US Code, for noncommercial, educational purposes.