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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

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Scott Wells:

April 30, 2006 04:26 PM | Permalink for this comment

Ah, if I only had voting representation in Congress!

Paul Wilczynski:

April 30, 2006 07:30 PM | Permalink for this comment

I've commented on this in my own blog (saying that I believe it's time to impeach the president).

I wonder what benefit there is to writing our representatives about this. Certainly they know about it, and one of the major points of the article is the Bush uses the signing statements to ignore the intent of Congress.


April 30, 2006 07:37 PM | Permalink for this comment

Paul, the point of writing is putting enough pressure on senators and representatives that they'll feel it's better to anger the president than to anger the voters who elect them.

Scott, perhaps you could write to the representatives from whatever state you happen to spend the most money in. Or to whichever representative happens to have a D.C. apartment closest to yours. Be creative.

Scott Wells:

April 30, 2006 08:15 PM | Permalink for this comment

I spend my money, deliberately, in the District whenever possible.

Like some DC people, however, I look to Maryland as my state by proxy. But I think it is a shame that more than a half-million Americans have to go hat-in-hand to someone else's representative.


May 1, 2006 09:41 AM | Permalink for this comment

The fact that DC voters don't have voting representation in either chamber ought to be one of the top issues of the national Democratic Party. It's shameful that all the time that Dems controlled both chambers this travesty wasn't corrected. It seems the only time we heard Democrats address this was during the 04 primaries as they were soliciting DC votes, but perhaps I'm wrong. I've written to my Senators in MI about this.


May 1, 2006 04:22 PM | Permalink for this comment

Congress has lots of power. They can subpeona any federal employee whenever they feel like it. They can cut funding for any activity they don't like. They can refuse to confirm Presidential appointments. They can pass laws over presidential vetoes. And they can impeach anyone they like whenever they want. Congress is very aware of its prerogatives and will fight to defend them.

If Congress isn't fighting with the President it is because Congress doesn't _want_ to fight with the President. If a Democrat were President I am sure Mr. Hastert and Mr. Frist would be more combative. Look at how the Republican congress treated President Clinton!

The Globe story does not present a shred of evidence that these signing statements have any impact in the real world. The only substantive issue mentioned is warrantless wiretapping. But the law that Bush is allegedly violating was passed years ago. This has nothing to do with signing statements. Indeed an intellectually coherent argument would be that Bush does not see his power to interpret laws as he sees fit to be in any way encumbered by the presence or absence of signing statements.

If the President doesn't feel encumbered by signing statements, who does? The Globe offers no evidence that Congress or the Courts are impressed. The Globe speculates that bureaucrats might be impressed. But the Globe couldn't find one bureaucrat who even admits reading a signing statement. The story only cites law professors' fantasies. Maybe the whole exercise is just a way for underemployed lawyers to pad their resumes. If the signing statements are actually read by law professors, maybe they are a way to get attention from people who might later hire you. It worked for Alito!

But then the Globe wouldn't have a story.


May 1, 2006 05:30 PM | Permalink for this comment

Congress could override a veto if the president bothered to veto something. But he hasn't vetoed anything.

Perhaps you didn't read the Globe story very closely. Charlie Savage offered numerous concrete examples, including the following:

  • The signing statement for the anti-torture bill said that the president's constitutional powers allowed him (and consequently the military and intelligence agencies) to disregard any provisions of that law that he chooses.
  • On at least four occasions during Bush's tenure, Congress has forbidden the use of U.S. combat troops in Columbia, but Bush's signing statements declared that he doesn't need to abide by these laws.
  • Twice since 2000 Congress has forbidden the military to obtain unlawfully collected intelligence about American citizens; in the signing statements Bush declared that only he could decide whether to allow the military to use such information.
  • In the signing statements for the USA Patriot Act, Bush opted to disregard Congressional requests for reports on how various parts of the law were implemented.

As far as I'm concerned, it's bad enough if the president only has a theoretical interest in grossly expanded executive privilege. I find it hard to believe, however, that 750 instances of "we just don't think Congress has the authority to tell us what to do" represents a purely theoretical protest. I seems more likely that, when it comes to "national security issues," the administration is charting its own extralegal course under the cover of its idiosyncratic and antidemocratic interpretation of the Constitution. It's appalling that Republicans are covering for him.


May 1, 2006 08:12 PM | Permalink for this comment

Lawyers often say things like "I have a right to do x. I freely choose to do y instead. This does not mean that I am conceding that I can't do x if I change my mind."

This is is boilerplate language to disguise surrender. You can't litigate someone for claiming the right to do something they aren't actually doing.

The fact that this formulation has been used by the President 750 times yet the Globe cannot identify a single case where it had practical consequences suggests this is no big deal, which is what the Harvard professor says. Evidently jealous defenders of Congressional prerogatives, like John McCain, also don't think it is a big deal. Back when President Clinton was issuing signing statements Newt Gingrich et al. never complained.

The underlying issue in dispute in most of the cited examples is the extent to which Congress can legislate operational orders to the US military. Presidents and Congresses have been arguing about this for decades. I don't think it is surprising that Presidents have tended to a broader assertion of Presidential power than has Congress. But neither the President nor Congress gets the final decision. That goes to the Supreme Court. And the Supreme Court won't rule on something unless there is a substantive issue.

In 1952 the Supreme Court _did_ rule that President Truman's inherent powers as commander-in-chief did _not_ give him the right to seize steel mills. That's the decision that everyone cites in these arguments. But seizing steel mills is a lot farther from military operations than, say, sending combat troops into Colombia. Bush is reaching a lot less far than Truman tried to.

Nevertheless, on the warrantless wiretapping, President Bush has clearly reached in a substantive and ongoing way into territory that Congress thought was its own. I think this is an important issue. It seems headed, appropriately, for the Supreme Court. Congress could also consider impeachment.

I am not arguing that President Bush has not exceeded his legitimate powers. I just thought the Globe was hyping a red herring.


May 3, 2006 06:43 AM | Permalink for this comment

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)


May 3, 2006 03:08 PM | Permalink for this comment

I am confident that Senator Specter will ably defend congressional prerogatives, just as administration lawyers will defend executive prerogatives. I am sure that in the event of a substantive dispute Chief Justice Roberts and colleagues willl sort it out. Republicans are pretty good at working things out among themselves. I just wish that these folks weren't all Republicans.


May 5, 2006 04:19 PM | Permalink for this comment

Slate's Michael Kinsley comes down on uuwonk's side:

It is not necessarily an outrage for the president to run the government according to his own interpretation of the Constitution. And it is certainly not an outrage for the president to simply state his view and then do nothing about it. Legitimate outrage comes when the president acts in flagrant violation of the Constitution, defending his actions unconvincingly, disingenuously, or not at all. And Bush has offered plenty of grist for this mill in his assertion of the right to kidnap people off the streets, keep them locked up for years without a trial or even a public acknowledgment of their existence, to torture them, and so on. But nailing him simply for stating his views on a constitutional issue, without even asking whether those views are right or wrong, is wrong.

("Sign language," Michael Kinsley, Slate 5.5.06)


May 30, 2006 05:38 PM | Permalink for this comment

Charlie Savage talked to Terry Gross on "Fresh Air" about the president's signing statements; here's an excerpt of the transcript published in the Sacramento Bee.

Savage followed up this weekend with another front-page story about the role of the vice president's office in preparing the signing statements. See "Cheney aide is screening legislation" (Boston Globe 5.28.06).


April 16, 2007 05:56 PM | Permalink for this comment

Charlie Savage won a Pulitzer today for his Boston Globe stories on Bush's use of signing statements. Congratulations!

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