Presidential Signing Statements Their Use and Misuse by the Bush Administration

Some of the most egregious ways in which Bush is taking the country into fascism are not getting the attention they deserve. In an editorial today, the NYT briefly mentioned the problem of Bush's use of 'signing statements.' But it provided little background and as usual has failed in its responsibility in keeping up with important political and constitutional matters. John I. Dean, however, offers the following, chilling, analysis of signing statements. Here are some excerpts.

Link: FindLaw's Writ - Dean: The Problem with Presidential Signing Statements Their Use and Misuse by the Bush Administration.

Rather than veto laws passed by Congress, Bush is using his signing statements to effectively nullify them as they relate to the executive branch. These statements, for him, function as directives to executive branch departments and agencies as to how they are to implement the relevant law. ...

Bush has quietly been using these statements to bolster presidential powers. It is a calculated, systematic scheme that has gone largely unnoticed (even though these statements are published in the Weekly Compilation of Presidential Documents) until recently, when President Bush's used a signing statement to attempt to nullify the recent, controversial McCain amendment regarding torture, which drew some media attention.

The immediate impact of signing statements, of course, is felt within the Executive Branch: As I noted, Bush's statements will likely have a direct influence on how that branch's agencies and departments interpret and enforce the law. 

It is remarkable that Bush believes he can ignore a law, and protect himself, through a signing statement. Despite the McCain Amendment's clear anti-torture stance, the military may feel free to use torture anyway, based on the President's attempt to use a signing statement to wholly undercut the bill. 

This kind of expansive use of a signing statement presents not only Presentment Clause problems, but also clashes with the Constitutional implication that a veto is the President's only and exclusive avenue to prevent a bill's becoming law. The powers of foot-dragging and resistance-by-signing-statement, are not mentioned in the Constitution alongside the veto, after all. Congress wanted to impeach Nixon for impounding money he thought should not be spent. Telling Congress its laws do not apply makes Nixon's impounding look like cooperation with Congress, by comparison.

Edward Lazarus discusses Bush's signing statement for the McCain amendment:

Last month, to much public fanfare, the President brought John McCain into the White House to announce before the assembled cameras that he was going to drop his opposition to McCain's proposed legislation banning cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world. But under the Administration's approach to executive power, this concession -- as well as Bush's subsequent signing of the ban on torture -- was all an elaborate charade.

After all, under the Administration's theory, Congress has absolutely no power to limit the president's inherent authority as commander in chief to fight the war on terror. Which means that Bush signed the McCain bill while reserving to himself the right to violate its anti-torture provisions with impunity - and, of course, to do so in secret, so that the American people will never know (barring another leak to the New York Times) that he has flouted this very popular law.

In fact, when signing the Defense appropriation bill containing the McCain Amendment, Bush issued a signing statement euphemistically reserving just this authority to ignore the very law to which he had just put his name. Thus, the President wrote: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

That signed statement shows, in microcosm, how the President sees the separation of powers: The President, in his view of the world, can interpret away constraints on his power, such as those in the McCain Amendment, or FISA before it. And the courts can hardly question his dubious "interpretations" even if they gut the very statutes they construe: After all, there are "constitutional limitations on the judicial power" - though not, apparently, on the power of the executive.

 

Comments

[Alain]

Jodi, thank you for posting this. I really think more attention needs to this issue desparately. At this point, we are on the verge of dictatorship, if we are not already there. The fact that Alito's position on the unitary executive was not connected to the signing statements (during the hearings) is a travesty.