Thursday, February 01, 2007

Bush and the Signing Statement.

Congressman John Conyers has initiated the first action examining the misdeeds of President Bush. Conyers has targeted Dubya's obsessive use of signing statements in the House Judiciary Committee, a panel which he heads. The commitee is holding a hearing entitled "Presidential Signing Statements under the Bush Administration: A Threat to Checks and Balances and the Rule of Law?"

So what exactly is a Presidential signing statement? When a bill is passed into law by Congress, it travels to the desk of the Chief Executive. According to the Constitution, the president has the option to veto the bill (in its entirety), in which case it gets sent back to Congress for another vote. Another option however, is to sign the bill into law... but issue an accompanying "signing statement". Such a document is intended to direct the executive departments as to how to apply the law, according to the President's interpretation of the Constitution. Traditionally, past administrations have used them to assert that a law is "Constitutionally-defective", or to clarify the terms in the bill. Sometimes political or rhetorical statements are included as well.

It's important to note that the Constitution does not specifically permit or prohibit signing statements. They're just not mentioned. And for this reason they are not considered to have legal force. Legal precedent has established that the judicial branch (and not the executive) has the power of "judicial review" (i.e., the courts define the constitutionality of legislation). The Supreme Court has upheld the right of the President to clarify legislation if Congress "has not directly spoken to the precise issue at issue", and if the interpretation is "reasonable" (467 U.S. 837 ). They have explicitly invalidated any type of line-item veto (in Clinton v. City of New York (1998)).

James Monroe issued the first signing statement, but up until Reagan's presidency only 75 had been issued. Between Reagan, Bush Sr. and Clinton, 247 signing statements were produced. As of October, 2006, George W. Bush had manufactured 134 statements containing 810 challenges to federal law (refer here for examples). Tellingly, the increase in use of this maneuver was prompted by recent Supreme Court appointee Samuel Alito. Alito made a case during Reagan's administration that signing statements could be used as interpretive measures, in order to increase the power of the President. The Clinton justice department reaffirmed this judgement, adding that it is within the President's authority to announce his unwillingness to enforce a provision that he deems to be anti-constitutional.

Dubya has raised the bar when it comes to signing statements. He is the first president to elicit substantial media criticism for his seeming overuse of these caveats when signing bills into law. His actions have prompted an American Bar Association Blue Ribbon Task Force (7/06) to pronounce signing statements (used to modify legislation) to be "contrary to the rule of law". But Bush is unrepentant. He has even gone so far as to seize upon an obscure and suspect phrase to justify his actions- the "unitary executive theory". With this dubious coinage he attempts to consolidate his self-generated power to challenge every bit of law he disagrees with, without regard to congressional intention.

If Bush disagrees with a piece of legislation, he should simply veto it- or otherwise express his specific objections to the proposal before Congress votes upon it. This opposition must be framed in terms of constitutionality. To act in a way that blatantly disregards the spirit of a bill that he has signed is clearly disingenuous. A perfect example of this was the McCain Detainee Amendment. This bill was clearly meant to address the Bush Administration's advocacy of torture during the "War on Terror". Bush and Co. knew that it would be political suicide to veto it- so they signed it with the inclusion of a signing statement. It specified their intention to limit judicial power and to continue to carry out the duties of Commander-in-Chief in a manner of their own determination. This was in flagrant disregard to the purpose of the bill.

Regardless of the practice's origination, Bush has made it an issue of national significance. Last July, Senator Arlen Specter introduced a bill which sought to allow the Congress to bring a suit to the Supreme Court in order to determine the constitutionality of presidential signing statements. The Bill would have also instructed all state and federal courts to ignore the statements. Unfortunately this legislation languished in the Senate Judiciary Community until the end of term. Hopefully Congressman John Conyers will have more luck in addressing the issue.

2 Comments:

Anonymous Anonymous said...

enlightning. I never gave bush & admin credit enough to be so wittingly conniving.

9:36 AM  
Blogger Merge Divide said...

You know, I think one of the biggest mistakes people make is to underestimate this administration. People believe that it is incompetent. Yet I think that cabal has achieved every single goal that they had at the beginning of their first term in office. The disorder in Iraq that requires an indefinite US troop presence... forming a perception that the federal government cannot be counted on to help people during an emergency... driving up the federal debt to necessitate future cuts in spending... tax cuts for the wealthy... setting up a no-win evaluative system for the public schools... procuring contracts for their military-industrial complex buddies... disenfranchising Congress...

The list just goes on and on.

8:08 PM  

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