Signing statements revisited

Overview

Back in January of this year, I examined the issue of Presidential signing statements. For those new to the party, signing statements are documents executed by a President when signing a bill into law. George Bush has taken the signing statement to an extreme, and in so doing has tried to alter the Constitutional system of checks and balances. I began writing about this issue during the process of the McCain amendment banning torure becoming a law. Bush issued a signing statement which basically said that he would not comply with that law if he did not want to. In Parts 6 and 7 of my series on the McCain amendment (and the comments thereto) I undertook a detailed analysis showing that Bush's view and use of signing statements violates the Constitution.

And now it turns out that a group of high-powered experts feels the same way. The American Bar Association put together a 12-member Task Force to address the issue of signing statements. The Task Force's report was issued on July 24, 2006. The group was unanimous in issuing the report. The report opens with the following quote from James Madison in The Federalist No 47: "The preservation of liberty requires that the three great departments of power should be separate and distinct."

The Task Force concluded that Bush has violated this precept through his use of signing statements. It must be noted that the report expressly says "Our recommendations are not intended to be, and should not be viewed as, an attack on the current President. His term will come to an end and he will be replaced by another President, who will, in turn, be succeeded by yet another." Still, there is no question that Bush's use of the signing statement prompted the formation of the Task Force:

To be sure, it was the number and nature of the current President’s signing statements which generated the formation of this Task Force and compelled our recommendations. However, those recommendations are directed not just to the sitting President, but to all Chief Executives who will follow him, and they are intended to underscore the importance of the doctrine of separation of powers. They therefore represent a call to this President and to all his successors to fully respect the rule of law and our constitutional system of separation of powers.

With this in mind, I will focus on some of the report's recommendations.

Signing statements can be contrary to separation of powers.

The Task Force unanimously

oppose[s], as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress[.]

(emphasis added). The report explains that

The original intent of the framers was to require the President to either sign or veto a bill presented by Congress in its entirety. A line-item veto is not a constitutionally permissible alternative even when the President believes that some provisions of a bill are unconstitutional.

The plain language of Article I, §7, clause 2 (Presentment Clause) compels this conclusion.

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One of the most fundamental innovations of the American Constitution was to separate the executive from the legislative power. The Framers regarded this separation of powers as “essential to the preservation of liberty.” James Madison, The Federalist No. 51.

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The Constitution accordingly embodies “the Framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” INS v. Chadha, 462 U.S. 919 (1983). Under Article I, §7, every law requires a majority of each house of Congress and presentment to the President for approval or disapproval. The Constitution thus limits the President’s role in the lawmaking process to the recommendation of laws he thinks wise and the vetoing of laws he thinks unwise.

(emphasis added). This is what I concluded in my previous posts.

And lest you think Bush has not tried to violate the separation of powers, or that he has done only what previous Presidents have done, think again. The report contains detailed facts about Bush's use of signing statements (see pp. 13-17). As noted on p. 13,

From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George W. Bush (Bush II) has produced more than 800.

He asserted constitutional objections to over 500 in his first term: 82 of these related to his theory of the “unitary executive,” 77 to the President’s exclusive power over foreign affairs, 48 to his power to withhold information required by Congress to protect national security, 37 to his Commander in Chief powers.

And yet he has issues only one veto while in office. But wait, there's more...From p. 17:

One learned commentator sums up the Bush II use of signing statements as follows: “When in doubt challenge the legislative process whether there is a serious issue or not.” He labels the Bush record on signing statements as “an audacious claim to constitutional authority; the scope of the claims and the sweeping formulae used to present them are little short of breathtaking.” They are “dramatic declaratory judgments holding acts of Congress unconstitutional and purporting to interpret not only Article II Presidential powers but those of the legislators under Article I.

Presidential Concerns Regarding Constitutionality of Pending Bills Should Be Communicated To Congress Prior To Passage.

The key words here are "prior to passage." The report, on p. 20, says

Therefore, our second recommendation urges the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage. It is reasonable to expect the President to work cooperatively with Congress to identify and ameliorate any constitutional infirmities during the legislative process, rather than waiting until after passage of legislation to express such concerns in a signing statement.

I will take these statements further. What Bush has done is more than "wait until after the passage of legislation." He has waited until after the legislation has been passed and he signed the legislation, thus making it a law. Once legislation becomes law, everyone in this country, including the President, must abide by its terms. However, the President has additional responsibilities, for he has taken an oath to uphold the law and enforce it. What Bush has done with his bullshit signing statements is say that he has the right and privilege to violate that oath.

Signing statements should not be a substitute for a Presidential veto.

The following excerpts from pp. 20-22 of the report explain this point nicely.

[T]heRecommendation urges the President not to use signing statements in lieu of compliance with his constitutional obligation to veto any bill that he believes violates the Constitution in whole or in part. That obligation follows from the original intent and practice of the Founding Fathers, including President George Washington.

To sign a bill and refuse to enforce some of its provisions because of constitutional qualms is tantamount to exercising the line-item veto power held unconstitutional by the Supreme Court in Clinton v. New York, supra. By honoring his obligation to veto any bill he believes would violate the Constitution in any respect the President honors his oath to defend the Constitution. That obligation ensures that both Congress and the President will be politically accountable for their actions and that the law the President enforces will not be different from the one Congress enacted.

In 1969, future Chief Justice William H. Rehnquist, then the Assistant Attorney General for the Office of Legal Counsel, wrote: "It is our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a Congressional directive to spend ....[T]he execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it is free to decline to execute them." See Hearings on the Executive Impoundment of Appropriated Funds Before the Subcommittee on Separation of Powers of the Senate Judiciary Committee, 92nd Cong., 1st Sess. 279, 283 (1971).

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[T]he Task Force opposes the use of presidential signing statements to effect a line-item veto or to usurp judicial authority as the final arbiter of the constitutionality of congressional acts. Definitive constitutional interpretations are entrusted to an independent and impartial Supreme Court, not a partisan and interested President.

(emphasis added). Again, I reached basically the same conclusions in my previous posts, particularly regarding the role of the judiciary. I say this not to give myself a pat on the back, but to point out that these conclusions are obvious and shared by sure enough experts.

What Bush has tried to do, then, is negate the power of the legislature, exercise the power of the judiciary, and assert that he is impervious to the powers and duties of those two branches of government. This is in direct contravention of the Constitution.

Now I know what some of you are thinking...

Some of you are probably thinking that the American Bar Association is some sort of commie organization and that this Task Force was stacked with nothing but freedom-hating liberals. Well, think again. The list of the members can be found here. That list reveals some members who would typically be considered Republican and/or conservative, such as

• William S. Sessions, now in private practice in Washington, D.C., is a former director of the Federal Bureau of Investigation, chief U.S. district court judge for the Western District of Texas, U.S. Attorney for the Western District of Texas, and chief of the Government Operations Section of the U.S. Department of Justice.
• Former Rep. Mickey Edwards, a lecturer at Princeton University's Woodrow Wilson School of Public and International Affairs and director of the Aspen Institute-Rodel Fellowships in Public Leadership, served in the House Republican Leadership as a member of Congress from 1977-1992, was a founding trustee of the Heritage Foundation, former national chair of the American Conservative Union, and director of policy advisory task forces for the Reagan presidential campaign.
• Bruce Fein, a constitutional lawyer and international consultant with The Lichfield Group, was associate deputy attorney general and assistant director of the Office of Legal Policy of the Department of Justice under President Reagan. He also served as general counsel of the Federal Communications Commission, an adjunct scholar with the American Enterprise Institute, and a resident scholar at the Heritage Foundation.

Also, keep in mind that the Task Force was unanimous in its recommendations and conclusions.

The report is now the official position of the ABA.

On August 8, 2006, the American Bar Association adopted the Task Force's report as the official position of the ABA.

Conclusion

The Task Force's report analyzes in detail (with citation to sources) the history of signing statements, the Constitutional authorities, and the facts of what Bush has done with signing statements. It is thorough and authoritative. It shows that Bush has abused signing statements, and it also shows why this issue is important and why such abuse must stop. If Bush--and future Presidents--are allowed to continue this crap

A President could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto. The President's constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.

The American Revolution and the Constitution came about because people were trying to escape the abuses of a monarch by the name of King George. And now we have a President named George who is trying to claim that he has such monarch-like absolute authority. As Bush his ownself might say, "That there is what you call ironical."