Sunday, April 30, 2006
Bush never met a law he couldn't sign. And ignore.
At last we know why President Bush hasn't vetoed a single piece of legislation. As the top story in today's Boston Globe reports, Bush "has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution." Using "signing statements" — which most of us learned about for the first time earlier this year when newspapers reported that Bush claimed the new anti-torture legislation imposes absolutely no restrictions on him at all — the White House has claimed a constitutional privilege to disregard a broad range of legislation. This is not a picture of the American system of checks and balances, nor is it a picture of an accountable representative democracy:
Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.
Then, after the media and the lawmakers have left the White House, Bush quietly files "signing statements" — official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.
In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills — sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.
"He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises — and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power. (emphasis mine)
Bush's court philosophers wave off this behavior by pointing out that his predecessors also issued signing statements. Reagan's attorney general introduced using a signing statement to opt out of some of the provisions of a law in the 1980s (with intellectual justification by then-counsel Samuel Alito Jr). Bush's father held the previous record for signing statements, challenging 232 laws in his four years as president. Clinton, the only Democrat in the stealth-veto era, challenged 140 laws in eight years — a considerable drop. Our pro-"democracy" president, however, has challenged 750 laws in only five years. The Globe's Charlie Savage observes: "Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions. But the current President Bush has abandoned the veto entirely." That's a problem because Congress can't even tell which of the laws it passed — and for which lawmakers are accountable to the people — are actually being followed by the government.
Bush's intellectual cheerleaders also say that the signing statements don't really count. Harvard law professor Jack Goldsmith, who oversaw the Justice Department's Office of Legal Counsel in Bush's first term, dismisses the signing statements as relatively trivial:
"Nobody reads them," said Goldsmith. "They have no significance. Nothing in the world changes by the publication of a signing statement. The statements merely serve as public notice about how the administration is interpreting the law. Criticism of this practice is surprising, since the usual complaint is that the administration is too secretive in its legal interpretations."
After reading Savage's roundup of the kinds of legal requirements Bush is disregarding, however, it looks to me like Goldsmith is blowing smoke. Savage writes that law professor Phillip Cooper, who studies Bush's claims about executive power, has concluded that the signing statements do make a difference because "the documents are being read closely by one key group of people: the bureaucrats who are charged with implementing new laws."
Lower-level officials will follow the president's instructions even when his understanding of a law conflicts with the clear intent of Congress, crafting policies that may endure long after Bush leaves office, Cooper said.
"Years down the road, people will not understand why the policy doesn't look like the legislation," he said.
In other words, Bush is dangerously muddying the meaning of the rule of law. We're not really subject to the laws passed by our elected representatives; we're subject to the obscure legal theories of appointed courtesans. Almost as alarming as the White House theory of unchecked executive power is the fact that Congress, according to Savage and the experts he quotes, is the only institution in a position to challenge Bush. But doesn't it seem that the ruling party has stumbled onto an incredibly convenient charade? Congress can pass laws designed to appeal either to the public in general or at least to the Republican base — generating good publicity — while the government as a whole can neglect to enact any parts of those laws that the president dislikes, without any political cost to the president. That's profoundly dangerous. Congress should be ashamed.
I hope you'll write to your representatives to protest this abuse of power.
(Charlie Savage, "Bush challenges hundreds of laws: President cites power of his office," Boston Globe 4.30.06, reg req'd)
Update 5.3.06: Sen. Arlen Specter, chairman of the Judiciary Committee, announced that he will hold hearings on the administration's use of signing statements in June. ("Hearing vowed on Bush's powers: Senator questions bypassing of laws," Charlie Savage, Boston Globe 5.3.06, reg req'd)
Update 4.16.07: Charlie Savage and the Boston Globe won the Pulitzer Prize for National Reporting today for the series of stories discussed here.
Copyright © 2006 by Philocrites | Posted 30 April 2006 at 3:15 PM