What worries me most are presidential signing statements, which are little comments the president writes when he signs a bill. There are a few of flavors of this, most importantly the political, which is used to define unclear parts of the bill to help guide executive agencies, and the constitutional, which is used to call parts of the bill unconstitutional. This isn't new, it's been used since Monroe, but it was only used a handful of times until Ronald Reagan came around. Reagan, GHW Bush, and Clinton all used the signing statement, but their use was generally of the political kind in order to clarify a portion of a bill they considered unclear, and in any case they used it much less frequently than President Bush has. In general, when they had a fundamental disagreement with a bill, they just vetoed it.
It's important to realize just how frequently and how strange President Bush's signing statements have been. Here are some of the more egregious examples, as well as a note that Bush has used signing statements against more than 750 statutes. Here's an article that has some background on the issue, the debate, and the frequency of use under George W. Bush (thanks to the Boston Globe). As you can see, these are some pretty serious things. Some excerpts:
March 9: Justice Department officials must give reports to Congress by certain dates on how the FBI is using the USA Patriot Act to search homes and secretly seize papers... Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress
Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment... Bush's signing statement: The president, as commander in chief, can waive the torture ban
Okay? There's a definite pattern here: Congress passes a law, Bush says, "No, I don't have to follow this part of it." And then there's this lovely snippet:Nov. 6, 2003: US officials in Iraq cannot prevent an inspector general... from carrying out any investigation. The inspector general must tell Congress if officials refuse to cooperate with his inquiries... Bush's signing statement: The inspector general ''shall refrain" from investigating anything involving sensitive plans, intelligence, national security, or anything already being investigated by the Pentagon. The inspector cannot tell Congress anything if the president decides that disclosing the information would impair foreign relations, national security, or executive branch operations.
Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements... Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.This is a blatant case of the executive disregarding the other branches of government. This is Bush saying that he just doesn't care what Congress or the Supreme Court says. This represents an attempt by the executive branch to subsume the powers of the other branches, and that's obviously unconstitutional.
Bush has used signing statements to effectively legislate on his own; instead of using the veto, which would get rid of an entire bill (including parts the president likes) and which would actually be, ya know, constitutional, Bush has used the signing statement to keep the parts of bills that he likes and to throw out the parts he doesn't like. Didn't the Supreme Court deny the line-item veto a decade ago? Yes, yes it did, because it's unconstitutional, and yet here we are today with a new president who has discovered that he can just interpret away the decisions of a supposedly coequal branch of government.
At the same time, Bush has used signing statements to take upon himself the power to interpret legislation, something which, as you'll recall, is actually the entire reason we have a judicial branch. When he declares that "he has the power to set aside the laws when they conflict with his legal interpretation of the Constitution," he's essentially saying that the executive branch is not simply the branch that faithfully executes the laws passed by Congress and interpreted by the Court, it's also the branch that gets to decide what should be executed and when, and if he decides that the entire body of United States law ever created by Congress and signed by previous presidents conflicts with his legal interpretation of the Constitution, well, . The president does have the right to interpret portions of laws if, according to Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, "Congress has not directly spoken to the precise question at issue," but obviously, for most of the statutes Bush has signing statement-ed, Congress sure has. This is not legal, people.
Should the Court decide that signing statements are blatantly unconstitutional when used this way, what would happen? I submit that not a whole lot would change. Considering that the Bush administration believes that "he has the power to set aside the laws when they conflict with his legal interpretation of the Constitution," it seems likely to me that he'd just keep on keepin on, claiming that the Court cannot force the executive to branch to execute the laws in a way that would go against the executive's interpretation of that duty, or something. Having an executive branch that does not feel beholden to the other branches and does not feel itself coequal is a big step toward authoritarian rule, and it's also totally unconstitutional.
And that's why I think Bush's use of signing statements open him up to impeachment: he swore to uphold the Constitution, and instead he's rolling right over it.
2 comments:
To what degree has the Court dealt with this issue?
And are there any good academic works you can recommend on the topic? There was Charles Tiefer's book on the first Bush administration, but that doesn't cover the last 13 years.
It's basic constitutional law that judicial review is the right of the judicial branch, see Marbury v. Madison. And that Chevron case I linked to says the president can only interpret a law if Congress hasn't directly addressed some issue in it. Plus, you could read into the fact that the line-item veto was found unconstitutional in Clinton v. City of New York that the president can't choose to nullify certain parts of a bill without vetoing the whole thing.
As far as I know, the Court has never explicitly addressed the signing statement issue. In Hamdan v. Rumsfeld the Court had a great chance to address the impact of a signing statement on the Detainee Treatment Act, but unfortunately it declined to do so. And again, I'm not sure whether it would even matter to the Bush administration if the Court found his use of signing statements unconstitutional.
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