Dispatches from the Creation Wars

The Senate Judiciary Committee has begun holding hearings on the issue of presidential signing statements. PSS are statements that the President signs along with a piece of legislation that gives his interpretation of certain provisions of the act. Such statements are not new, but Bush has used them more often than any other President in history, by a wide margin, and for increasingly deceptive intent. In principle there is nothing wrong with such statements, but if they essentially say that the President reserves the right to ignore those provisions he doesn’t like, that’s pretty obviously a major problem. And that’s pretty much what has been happening:

Sen. John McCain thought he had a deal when President Bush, faced with a veto-proof margin in Congress, agreed to sign a bill banning the torture of detainees. Not quite. While Bush signed the new law, he also quietly approved another document: a signing statement reserving his right to ignore the law. McCain was furious, and so were other lawmakers…

Bush’s signing statement in March on Congress’s renewal of the Patriot Act particularly riled Specter and others who labored for months to craft a compromise between Senate and House versions, and what the White House wanted. Reluctantly, the administration gave in on its objections to new congressional oversight of the way the
FBI searches for terrorists.

Bush signed the bill with much flag-waving fanfare. Then he issued a signing statement asserting his right to bypass the oversight provisions in certain circumstances.

This website provides an annoated list of every presidential signing statement Bush has issued since taking office in 2001. As you go through them, you might notice a recurring phrase: “The executive branch shall implement these provisions in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President judges necessary and expedient.” In other words, “If I think any of the provisions here are a bad idea, I reserve the right to ignore them.”

Testifying at the hearings, conservative legal scholar Bruce Fein sought to distinguish between those signing statements that “elaborate on the President’s understanding of ambiguous legislative language for consideration by the judiciary in deciding cases and controversies” and those that “usurp legislative prerogatives and evade accountability.” The former are clearly permissable. The executive branch must enforce legislative acts and must issue administrative rules to do so. in cases where the language is ambiguous, some interpretation is absolutely necesarry. If challenged, the Federal courts will determine which reading is closest to the meaning of the statutory language. The latter, on the other hand, appear to be pretty much unique to President Bush. Fein gets it exactly right:

The Founding Fathers intended the veto power of the President to be employed primarily to thwart laws he believed were unconstitutional, whether because they encroached on executive branch powers or otherwise. As Alexander Hamilton amplified in Federalist 73, without a veto the President “might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote.” Indeed, the presidential oath enshrined in Article II requires the President to veto any law he believes is unconstitutional in whole or in part because it obligates him to defend the Constitution, not participate in its sabotage. The President does not enjoy a constitutional option of unilaterally pronouncing a provision he has signed into law as unconstitutional and refuse to enforce it on that count. The United States Court of Appeals for the Ninth Circuit in Lear Siegler v. Lehman, 842 F.2d 1102 (1988) explained: “Art. I, section 7 is explicit that the President must either sign or veto a bill presented to him. Once signed by the President,…the bill becomes part of the law of the land and the President must ‘take care that [it] be faithfully executed.’ Art. I, section 7 does not empower the President to employ a so-called ‘line item veto’ and excise or sever provisions of a bill with which he disagrees. The only constitutionally prescribed means for the President to effectuate his objections to a bill is to veto it and state those objections upon returning the bill to Congress. The ‘line item veto’ does not exist in the federal Constitution, and the executive branch cannot bring a de facto ‘line item veto’ into existence by promulgating orders to suspend parts of statutes which the President has signed into law.”

He further points out that Bush’s tactic of using statements to avoid enforcing the provisions of laws as written diminishes political accountability. If he vetoes a bill, he takes full responsibility for it, and quite publicly so. If Congress chooses to override that veto, they likewise take full responsibility for the outcome. But using signing statements to make vague pronouncements of one’s right to ignore provisions he believes to be problematic avoids such responsibility because any decisions on what to do or not do takes place in private, not in public view. And he uses the example of the torture provision as a textbook example of this:

The President Bush was harshly criticized by Members of Congress and others over allegations of torture or cruel, degrading, or inhuman treatment of detainees in the war against Afghanistan and international terrorism. The President’s lawyers had fashioned legal theories that would justify torture as an inherent Article II power. But Mr. Bush ultimately capitulated to public opinion and Congress and negotiated the Detainee Treatment Act of 2005 as part of a larger Defense Department Supplemental Appropriations. The Act prohibits the Executive in all its branches and agencies from torture or cruel, inhumane, or degrading interrogations whether to obtain foreign intelligence or otherwise. After taking political credit for signing the bill, President Bush issued a statement declaring in substance that he would ignore it when he saw fit as an unconstitutional encroachment on his power to protect “the American people from further terrorist attacks.” According to the signing statement, “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 which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.” While to the layman, the language of the signing statement may seem both Delphic and innocuous, to the initiated the words referring to a unitary executive and Commander in Chief powers clearly signify that President Bush is asserting that he is constitutionally entitle to commit torture if he believes it would assist the gathering of foreign intelligence. President Bush was nullified a provision of statute that he had signed into law and which he was then obliged to faithfully execute.

The Act did not create any private right to action for enforcement. Thus, the nullification will circumvent judicial review because Supreme Court decisions make dubious the standing of Members of Congress or congressional committees to challenge allegedly unconstitutional non-enforcement by the White House. President Bush’s signing statement was tantamount to a constitutionally impermissible line item veto.

What will come of these hearings? Probably nothing. The chairman of the judiciary committee, Arlen Specter, has rattled his sword at the administration over their constant constitutional overreaching time and time again and ended up doing absolutely nothing of substance to stop it. How many times have we seen Specter go on TV and announce that he’s extra super duper upset with the administration about something, then melt like cheap margarine when he actually has to do something about it? But Fein has two recommendations that I like:

I would recommend that Congress enact a generic law that prohibits the expenditure of any funds of the United States to enforce a bill that the President has signed into law but which he has declared in a signing statement that he will refuse to enforce in whole or in part because of its alleged unconstitutionality. That use of the power of the purse would transform such signing statements into the equivalent of a constitutional veto. It would force the President to accept either all of a bill or none, as the Founding Fathers intended.

I would further recommend that Congress enact a statute seeking to confer Article III standing on the House and Senate collectively to sue the President over signing statements that nullify their handiwork, at least in circumstances where there is no other plausible plaintiff who would enjoy standing.

And what does he recommend if those don’t work? He recommends that Bush be impeached. And remember, this is coming from one of the most conservative legal scholars in the nation, and one of the top officers in Reagan’s justice department. This isn’t some liberal out there suffering from Bush Derangement Syndrome.

Comments

  1. #1 mark
    June 28, 2006

    What will come of these hearings? Probably nothing.

    Well, after all, it’s not like he did something really unconstitutional, like pulling his penis out of his pants.

  2. #2 Ginger Yellow
    June 28, 2006

    I would recommend that Congress enact a generic law that prohibits the expenditure of any funds of the United States to enforce a bill that the President has signed into law but which he has declared in a signing statement that he will refuse to enforce in whole or in part because of its alleged unconstitutionality. That use of the power of the purse would transform such signing statements into the equivalent of a constitutional veto. It would force the President to accept either all of a bill or none, as the Founding Fathers intended.

    This strikes me as a really bad idea. Yes it would in theory force the president to be publicly accountable for accepting or refusing to accept a bill, but it would also give him veto power without the possibility of override. Furthermore, it relies on the media and public paying close attention to the legislative process, which is always a mistake. People sit up and take notice when the president vetoes something, because it’s so rare. Finally, how would this law be enforced? What if the unitary executive claims that it hasn’t partially accepted a law, but is interpreting the whole law in a particular light?

    The second part seems sensible however – in fact, coming from a common sense position it would seem they already have standing since by undermining the authority and power of the legislature these signing statements clearly cause legislators harm.

  3. #3 Ed Brayton
    June 28, 2006

    Ginger Yellow wrote:

    This strikes me as a really bad idea. Yes it would in theory force the president to be publicly accountable for accepting or refusing to accept a bill, but it would also give him veto power without the possibility of override.

    I don’t understand this argument. Why couldn’t they override his veto?

    Furthermore, it relies on the media and public paying close attention to the legislative process, which is always a mistake. People sit up and take notice when the president vetoes something, because it’s so rare.

    I think that’s exactly the point Fein is making – such instances would get major media attention, restoring some accountability to the public. As it is, the public has no way of knowing which provisions of a bill the administration has decided, behind the scenes, to ignore.

    Finally, how would this law be enforced? What if the unitary executive claims that it hasn’t partially accepted a law, but is interpreting the whole law in a particular light?

    Just as now, it would have to be enforced by the courts. But this would at least void the use of signing statements to moot only certain provision of a law and would require the president to veto it instead – and that would mean attention brought to bear rather than having it all go on in secret.

  4. #4 raj
    June 28, 2006

    Let’s understand something. Presidential “signing statements” are nothing more than attempts at exercising “line item vetoes.” Some time ago, the federal courts ruled that presidential line item vetoes were unconstitutional. As are signing statements.

    If the executive is not going to see that the laws be faithfully executed, he should be removed from office.

  5. #5 Ginger Yellow
    June 28, 2006

    I don’t understand this argument. Why couldn’t they override his veto?

    Because it wouldn’t be a veto, it would be a signing statement. If he doesn’t highlight any particular part, but just says he will interpret the statute in the light of his Article I authority as commander in chief, or something like that, then what would the courts or the legislature be able to do unless they could prove he was only selectively enforcing/adhering to the statute? In many cases this would be extremely hard to prove because the lawbreaking would obviously be covert.

    I think that’s exactly the point Fein is making – such instances would get major media attention, restoring some accountability to the public. As it is, the public has no way of knowing which provisions of a bill the administration has decided, behind the scenes, to ignore.

    Why do you assume they would get major media attention? The media, with the exception of the Boston Globe, doesn’t seem to care about the constitutional crisis we have now. Why would they care about just another signing statement as outlined in my previous paragraph? What would differentiate one from the next? At least in the present situation (which I agree is intolerable) we have an idea as to which parts he’s going to ignore.

    Just as now, it would have to be enforced by the courts. But this would at least void the use of signing statements to moot only certain provision of a law and would require the president to veto it instead – and that would mean attention brought to bear rather than having it all go on in secret.

    But it’s already void legally, except under extreme interpretations of constitutional law. Why do we need a new statute to confirm this, if it can only be enforced by the courts anyway? What would we have gained?

  6. #6 Nick P
    June 28, 2006

    Ed:
    I don’t understand this argument. Why couldn’t they override his veto?

    Because it isn’t actually a veto, even though as Fein points out, it would be functionally equivalent to one. Suppose the president doesn’t like a bill, but he knows that Congress will override his veto. Under Fein’s scenario, he could use a signing statement to effectively nullify it by forcing congress to apply the generic law prohibiting expenditure of funds. The new law would remain on the books, but it would be unenforceable. While congress can override a veto, in this new situation there would be nothing to override, because the bill would technically have been signed into law by the president.

    The second part of Fein’s suggestion (suing the president over the signing order) would be a potential way to get past the presidential blockade of the new law, but that would put the decision in the hands of the courts. The ability to override the veto is a power that Congress has.

    So, Fein’s suggestion would give the president a new veto-like power, but the ability to override the new power would not reside with Congress.

  7. #7 Ginger Yellow
    June 28, 2006

    What Nick P said, far more cogently than I.

  8. #8 Ed Brayton
    June 28, 2006

    Hmmm. That is a potential problem with that one suggestion, I suppose. I think the courts are the appropriate ones to settle the question in most cases, but unfortunately the courts have refused to grant standing to Congress to sue the executive for not enforcing a statute. That effectively gives the executive free reign to ignore statutes they disagree with. I can understand why there are some issues of interpretation, particularly on foreign policy and military issues, where the courts would decline to step in over a political question, but their blanket rejection of standing over non-enforcement makes no sense to me at all. I wasn’t aware of that doctrine until reading Fein’s statement, and I called my buddy Dan, who teaches con law, and he pointed me to the precedents. The primary one is Campbell v Clinton.