More on Signing Statements

There has been a fair amount in the press recently on President Bush's use of so-called "signing statements." The press has been fairly good about explaining the concept, but the lack of concrete examples in all of the articles I read left me feeling a little unsatisfied. So, here's a little more information:

A "signing statement" is a statement made by a President in connection with his signing of an act of legislation approved by both houses of Congress. These statements are often ceremonial and political in nature - an opportunity to acknowledge particular individuals or events.

However, other signing statements are used to put the President's own interpretation on a law (even if that interpretation is directly contrary to Congress') or to expresss the President's intent not to enforce the law, even though he is signing it.

The ABA has said this latter usage is contrary to the U.S. Constitution's requirement that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

U.S. Const. Art. I, Sec. 7, par. 2. In other words, the President has the choice of signing a bill into law, or vetoing it. The Constitution (that thing the President keeps saying liberal judges ignore), does not give the President the opportunity to pick and choose those parts of the law he is instead required to "take Care that the Laws be faithfully executed." U.S. Const. Art. II, Sec. 3.

President Bush has issued signing statements objecting to 807 laws in his five and a half years in office. That's 200 more than all of the other presidents in U.S. History put together.

Some examples of signing statements in which President Bush has indicated he will not follow the law are: bills banning the use of U.S. troops in combat against rebels in Colombia; bills requiring reports to Congress when money from regular appropriations is diverted to secret operations; two bills forbidding the use in military intelligence of materials “not lawfully collected” in violation of the Fourth Amendment; a post-Abu Ghraib bill mandating new regulations for military prisons in which military lawyers were permitted to advise commanders on the legality of certain kinds of treatment even if the Department of Justice lawyers did not agree; bills requiring the retraining of prison guards in humane treatment under the Geneva Conventions, requiring background checks for civilian contractors in Iraq and banning contractors from performing security, law enforcement, intelligence and criminal justice functions.

* * * *

Congressional requirements to report back to Congress on the use of Patriot Act authority to secretly search homes and seize private papers; The McCain amendment forbidding any U.S. officials to use torture or cruel, inhuman, or degrading treatment on prisoners (the President said in his statement that as Commander in Chief he could waive any such requirement if necessary to prevent terrorist attacks); A requirement that government scientists transmit their findings to Congress uncensored, along with a guarantee that whistleblower employees at the Department of Energy and the Nuclear Regulatory Commission will not be punished for providing information to Congress about safety issues in the planned nuclear waste repository at Yucca Mountain.

ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, at 15 -16.

I think the Constitution makes it fairly plain that the President either signs a law or he doesn't, but once he signs it, he has to enforce it. You can say all you want about checks and balances and separation of powers, but they have nothing to do with it. The check and balance in this case is the President's right to veto any bill put before him. Nothing in the Constitution (either explicitly or implicityly) gives the President the right to select, at his own discretion, which laws he chooses to follow. The quotations above prove quite the opposite.

Since the signing statement is not authorized by the Constitution, what is to prevent the President from abandoning the pretext of the signing statement and simply issuing notices of which laws he will and won't enforce? What is to prevent the President from arguing that he can disobey laws that other Presidents signed before him, the reason being that he would not have signed that law had he been President then, or would have at least issued a signing statement justifying his current position.

No one is above the law. No one should be. Not even (especially not) the President of the United States. I agree with the ABA. The President's use of the signing statement is nothing less than the assertion of the tyrannical authority to make the law subject to the will of one person alone. A practice condemned in the Declaration of Independance, the U.S. Constitution, and in every civil society.

To read more about signing statements, including the full text of George W. Bush's signing statements and others from the previous 100 years check out:

Presidential Signing Statements 2001 - 2006; George W. Bush

The American Presidency Project: Presidential Signing Statements