Sign Your Life Away
The problem with presidential signing statements
By Damon W. Root
Reason Online, October 29, 2008
go to original
See Article I.2 Self-Exemption
from Laws Upon Signing
| |
Will the next president continue
to use signing statements?
Source: AP
|
Prior to 2006, few Americans had much reason to think
about presidential signing statements. That changed
with the passage of H.R. 2863 on December 30, 2005.
Also known as the Department of Defense, Emergency
Supplemental Appropriations to Address Hurricanes
in the Gulf of Mexico, and Pandemic Influenza Act,
this awkwardly named bill featured the so-called McCain
Amendment, which prohibited "cruel, inhuman,
or degrading treatment or punishment of persons under
custody or control of the United States government."
At the time, its passage was seen as a major victory
against the use of waterboarding and other forms of
torture by U.S. forces. But on the same day he signed
the law, President George W. Bush also issued a signing
statement declaring that he would only implement the
McCain Amendment "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."
Three months later, after signing the USA Patriot
Improvement and Reauthorization Act in a well-publicized
White House ceremony, Bush issued another important
signing statement. This time he declared that the
executive branch was in no way bound by those provisions
requiring congressional oversight of the FBI's new
surveillance powers, since such oversight "could
impair...national security, the deliberative processes
of the Executive, or the performance of the Executive's
constitutional duties."
President Bush, in other words, would be waging the
War on Terror as he saw fit, regardless of what Congress
or the courts had to say about it. As Charlie Savage
reports in his superb 2007 book Takeover: The Return
of the Imperial Presidency and the Subversion of American
Democracy, Bush has issued hundreds of similar statements
claiming his authority to reject or ignore more than
1,000 sections of federal law—the very laws,
it's worth repeating, that Bush has just signed. Such
documents, Savage writes, "left it to legal specialists
to point out in plain English that Bush was claiming
that only the parts of the bill that expanded his
power were constitutional, essentially nullifying
the parts of the bill that checked those new powers."
The U.S. Constitution, of course, already provides
the president with a crucial check on the legislative
branch: It's called the veto. Nowhere in our founding
documents, however, does the president receive the
authority to pick and choose which laws he's going
to obey.
Thankfully, George W. Bush won't be president much
longer. But the executive powers he helped forge will
still be around. Is there any reason to think his
successor will be much better?
Not really. Last December, the Boston Globe quizzed
all of the major party candidates about executive
authority. With less than a week before the election—and
with qualms about presidential power apparently forgotten
in the frenzy to bring about hope, change, and the
nationalization of Wall Street—it's useful to
revisit what Sen. John McCain (R-Ariz.) and Sen. Barack
Obama (D-Ill.) had to say about signing statements.
For what it's worth, McCain gave one of the best
responses of his campaign: "As President, I won't
have signing statements. I will either sign or veto
any legislation that comes across my desk." It's
hard to improve on that, though as reason's Jacob
Sullum has noted, "his campaign has indicated
that McCain's view of the president's authority is
broad enough to permit violation of statutes governing
surveillance of people in the United States."
Obama proved a little harder to pin down. On the
one hand, he told the Globe it was "a clear abuse
of power to use such statements as a license to evade
laws that the president does not like or as an end-run
around provisions designed to foster accountability."
But he also added this: "No one doubts that it
is appropriate to use signing statements to protect
a president's constitutional prerogatives." No
one? And what's the difference between making an "end-run"
around legislation and protecting the "constitutional
prerogatives" of the president? Bush clearly
saw his actions as appropriate, not as some sort of
dodge. What's to stop Obama (or anybody else) from
doing the same?
It's not like this is a partisan issue. Democratic
President Bill Clinton, for instance, issued signing
statements undermining 140 sections of federal law—at
that point, the second largest amount in American
history. In a November 1993 memo prepared for Clinton
White House counsel Bernard Nussman, moreover, Assistant
Attorney General Walter Dellinger endorsed this approach.
"If the President may properly decline to enforce
a law, at least when it unconstitutionally encroaches
on his powers," Dellinger wrote, "then it
arguably follows that he may properly announce to
Congress and to the public that he will not enforce
a provision of an enactment he is signing." Therefore,
Dellinger continued, "a signing statement that
challenges what the President determines to be an
unconstitutional encroachment on his power, or that
announces the President's unwillingness to enforce...such
a provision, can be a valid and reasonable exercise
of Presidential authority."
With a cooperative Democratic Congress on his side,
Obama probably won't need to use signing statements.
But what happens if the Republicans regroup, regain
the majority, and offer an agenda of their own? At
that point, Obama will have every incentive to emulate
the Clinton administration and use signing statements
to protect his "constitutional prerogatives"
against a Republican Congress.
At that point, of course, it'll be conservatives
howling about an imperial presidency and liberals
rallying around the executive. How far does the president
have to go before both sides agree to rein him in?
Perhaps it's better if we don't find out.
