Executive Signing Statements

Ann Ikemann

Pharaoh Bush - Let My People Go

In a refreshing investigative series in the Boston Globe from 2006, journalist Charlie Savage dropped a bombshell on the Bush administration . Reporting on Bush’s use of signing statements, Savage highlighted the president’s long-standing contempt for legislative authority. Since then, the story has generally been overlooked, although it recently resurfaced when bush issued another statement that he would disregard Congress’s prohibition of permanent military bases in Iraq. The president’s issuance of this signing statement is just one of hundreds of challenges he’s made to national laws.

A signing statement is an official announcement from the Executive - an attempt to alter the intent of a law by allowing the president to interpret its execution. While signing statements hold no official legal standing, the president acts as if they grant the power to disregard segments of bills he disagrees with. Since taking office, the Bush administration has issued over 150 signing statements , containing over 500 constitutional challenges and questioning more than 1,100 provisions of national laws.

This is a significant increase from years past. Former presidents Ronald Regan, George H. W. Bush, and Bill Clinton issued over 300 such statements combined, while only a total of 75 signing statements were issued from the early 1800s through the Carter presidency.

Interpretive signing statements have received support for some legal scholars and officials associated with the administration, such as Supreme Court Justice Samuel Alito and John Yoo of the Justice Department’s Office of Legal Council.

The American Bas Association, the ACLU, and other legal scholars, however, have challenged the signing statements as unconstitutional and a violation of the principles of checks and balances and separation of powers. In response to Bush’s circumvention of the military bases ban, Harvard law professor David Barron questioned the Administration for continuing to assert the same extremely aggressive conception of the president’s unilateral power to determine how and when U.S. force will be used abroad.

Some Democrats in Congress have also challenged Bush’s assumption that he can unilaterally interpret laws outside their original intent. House Speaker Nancy Pelosi explains: I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. His job, under the constitution, is to faithfully execute the law - every part of it. And, I expect him to do just that.

Sadly, there has been little sustained effort by the Legislative and Judicial branches to prohibit these attacks on the legal system. The few bills that have been presented in Congress seeking to prohibit signing statements have gone nowhere, ignored by the majority of Democrats and Republicans. The Supreme Court has also failed to rule on the constitutionality of the signing statements, contributing to the legal ambiguity surrounding Bush’s controversial actions.

A few examples of Bush’s signing statements provide a better picture of his contempt for the law:

1. Regarding a bill requiring the Justice Department to provide reports to Congress on how the FBI has utilized the PATROIT Act to spy on citizens and confiscate property, Bush declared his power to withhold such information if he feels it would hurt national security in some way.

2. Concerning a law protecting whistleblowers at the Department of Energy and Nuclear Regulatory Commission from punishment, Bush claimed that it was within his power to determine whether potential whistleblow3rs are even allowed to provide information to Congress.

3. In response to a 2004 law preventing the U.S. from deploying troops in Colombia against FARC and FLN guerillas, Bush announced that only he, as the commander in chief, has the power to decide whether troops will be used, Bush deemed the law advisory in nature.

4. Although a law was passed requiring that scientific information prepared by government researchers and scientists shall be transmitted uncensored and without delay to congress, Bush issued a statement claiming it is within his power to withhold information if he feels it could damage U.S. national security, relations with foreign countries, or generally interfere with the operations of the Executive.

5. Perhaps most controversially, Bush issued a signing statement countering Congress’s prohibition on torture - included in the 2005 McCain Amendment - claiming that it was within his constitutional power to ignore the ban in order to combat terrorism.

You have probably noticed a pattern with many of these statements. They do not simply establish presidential power to interpret or execute the law; they represent a fundamental abrogation of the major provisions of the bills themselves.

Of what use is a bill prohibiting torture, if the ban can be bypassed by any president who does not feel bound to honor it? What is the point of prohibiting the deployment of troops to Colombia, if the president ignores this requirement?

Rather than voting against a ban on torture, Bush has taken the back-door approach, signing the bill, then quietly issuing a statement that he will not be bound by the law.

Not surprisingly, the medial response to Bush’s signing statements has been lacking. On the one hand, there are Savage’s investigative reports in the Boston Globe, which have shed light on the long-neglected story of presidential contempt for the law. On the other hand, researchers have found that the Globe’s reporting has been largely ignored in other major outlets. The watchdog group Media Matters for America concluded that: Except for a short March 24 2006 United Press International article, some scattered editorials and opinion columns, and brief mentions in an April 1 San Francisco Chronicle article and April 23 Washington Post article, Savage’s reporting on Bush’s signing statements and the Democratic response were ignored by major newspapers and wire services. Aside from Keith Olbermann, who reported on the Globs article on the March 24 edition of MSNBC’s Countdown, the cable and broadcast news networks ignored the signing statements as well.

My own analysis also indicates mixed results in the Paper of Record. On the editorial side of the New York Times, the paper actually opposed the signing statements. In a 2008 editorial on the president’s circumvention of the military bases ban, the paper attacked the Administration for its passive-aggressive attempts to undermine the power of Congress, declaring that he has no intention of obeying laws he has signed. In a 2007 op-ed, Adam Cohen censured Bush for his de-facto veto of the torture ban - for using an extralegal trick to bypass the ban on torture. It allowed him to make a coward’s escape from the moral and legal responsibility of prohibiting such behavior.

However, while the Administration has been issuing signing statements since it took office in early 2001, a review of the NYT’s coverage demonstrates that the topic did not even make an appearance in the paper until a full five years later, in January 2006. Overall, the paper has run only seven stories featuring the signing statements, in the just over seven years of the Bush administration’s tenure. Furthermore, six of those stories were clustered between January and July of 2007 when Republican Senator Arlen Specter was attacking the president for the statements and when the Senate was grilling Supreme Court nominee Samuel Alito for his support for the statements. Only one other report from mid-2006 through early 2008 featured the signing statements issue, despite the continuing conflict between congress and Bush over his distaste for national laws.

Whenever I teach the presidency section in my American government class each semester, many of my students become enraged when they find out about the Bush administration and the signing statements debacle.

They are bewildered that a political leader could be allowed to blatantly disregard the law without being held politically accountable.

While Bush’s contempt for the law my very well be an impeachable offense, it certainly has not been treated that way in Congress

Pharaoh Bush - Let My People Go

Understanding the Signing Statement

Chris Kelley

I applaud any effort to educate the American public about the issue of the signing statement. I have been writing on the signing statement since I discovered it for a research paper in graduate school back in 1996. But there is an obligation we have--or at least should have--to be clear on what the signing statement is, how it has been used, and what the nature of the problem in their use is. Unfortunately, despite Ms. Ikemann's enthusiasm to teach her American Government students about the signing statement, her zest to ding the Bush administration does more to cloud the issue of the signing statement than to clarify it. Let's be clear. The signing statement is a statement the president makes on a bill he signs into law. Most bills do not receive a signing statement. President Clinton, by percentage, issued the most signing statements to bills he signed into law, and even with that singular accomplishment, it was just under 30% of the bills he signed in one year. Most presidents average 15-18%. Second, a signing statement may contain all of the following: an explanation of what the bill is purported to do, an applause or condemnation of supporters or opponents of the bill, a challenge to provisions that are constitutionally defective, and an explanation of provisions that are unclear. It is the challenge of a provision that has received the most attention, and clearly President Bush leads in this category. But President Bush's use of the signing statement is "quantitatively" different from his predecessors, not qualitatively. There is nothing he is doing that his predecessors didn't also do. So this fixation on Bush obscures the fact that Bush would not have been "enabled" had his predecessors not handed him this particular resource. More importantly, President (Hillary) Clinton, Obama, or McCain will also use the signing statement much in the same way that President Bush has, despite what their public comments have said otherwise. Why? Because the signing statement plays an important role in explaining to bureaucrats the meaning of law and by challenging defective law so that precedents are not established. For example, in 1983 the Supreme Court declared the legislative veto unconstitutional. The legislative veto allowed the Congress to micromanage how bureaucrats behaved by forcing them to gain permission on nearly any actions they took. Presidents from Wilson through Reagan had used the signing statement to go on record that the legislative veto was unconstitutional, and the Supreme Court noted these challenges when it agreed with these presidents that the legislative veto was unconstitutional. Had these presidents not gone on record every time the legislative veto was used, then who knows whether the Supreme Court would have accepted their opinion that it was a violation of the Constitution? Thus most constitutional challenges are designed to demonstrate where the president stands on a particular provision of law and thus are not enforced by the president. So President Bush might have made over 1,100 challenges to law, but only a tiny fraction of those challenges are actually carried out. If we truly want to take action on the use of the signing statement, then we need to be committed to the following: 1) Not turn a blind eye when "our" president is issuing them. My guess is that many of you do not recall the Republican challenges to President Clinton's use of the signing statement? And yet in President Clinton's first two years in office, he asked the Office of Legal Counsel to issue two separate opinions defending the presidential signing statement in all uses and defending the president's constitutional obligation to refuse enforcement of laws "he" believes are unconstitutional. And after the Republicans took control of Congress in 1995, they were so frustrated by Clinton's use of the signing statements that they held numerous oversight hearings and passed law designed to blunt their effect. 2) Not to depend on the media to monitor whether signing statements are being used by any president. I assume that if you are reading this, you have access to the Internet? The signing statements are not hidden. You can find them at any one of the following places: * The Weekly Compilation of Presidential Documents (http://www.access.gpo.gov/nara/nara003.html) * The White House Webpage "News" section (http://www.whitehouse.gov/news/) * The American Presidency Project (http://www.presidency.ucsb.edu/signingstatements.php) Also, why not go around the press and directly to the source. There are a number of websites that allow you to read research by scholars of all stripes. Most are available through a simple search of your favorite search engine. I recommend the Social Science Research Network, which allows you to read most papers for free. My own website (http://www.users.muohio.edu/kelleycs/) has links to papers I have written as well as my blogs that often include discussion of the presidential signing statement. 3) Demand that the Congress not fall down on the job or punish them when they do go toe to toe with the president. The real crime of the last several years of the Bush presidency (at least where the signing statement is concerned) has not been all the challenges to law he has made, but rather that he made these challenges at the encouragement of the Republicans who were in control. This same group of Republicans challenged nearly every move of the Clinton administration, yet when President Bush took office, they saw themselves as the junior partner of the president. For this they deserved to lose office much earlier than they did. On the same line, now that the Democrats have taken control, they are being attacked for encouraging gridlock and obstruction because they are holding oversight hearings. For this we should praise, not condemn, the Congress. Furthermore, the Democrats have only offered symbolic measures to counter the signing statement. Every bill that has been introduced regarding the signing statement is worthless and most of the oversight hearings have been "show trials". Instead, the Congress should be vigilant in monitoring any signing statement the president issues. You would be surprised to find how few members of Congress even know where to look for a signing statement, let alone what they are used for. In the past, the Congress has threatened to withhold appropriations in order to force a president to back away from challenges made in a signing statement. The "Power of the Purse" is often all the Congress needs to force a president to behave him or herself. It should be used more often. It also has to use oversight hearings of executive branch agencies--including the Department of Justice--to find out what influence a signing statement has over how a law is administered. Unfortunately that is something that most of us still do not know. Congress has the resources. It needs to use them. So it is important to understand that the signing statement will not go away January 21st, 2009. We must remember that if we turn a blind eye to a Democratic president's use of the signing statement, it only means that it will allow a Republican president to the same tools. Our commitment to protect and defend the Constitution should be longer than every 4 to 8 years.