SIGNING AWAY THE CONSTITUTION

By William Fisher

When George W. Bush signed the 2008 National Defense Authorization Act into law last week, he again thumbed his nose at Congress by taking a second now-familiar step: He issued a “Signing Statement” – a declaration that effectively asserts his authority to ignore parts of the law he disagrees with.

His action brought harsh criticism from dozens of legal scholars and advocacy groups who point out that U.S. presidents have the authority under the Constitution to veto or approve acts of Congress – but not to modify them.

Bush's latest Signing Statement declares his right to ignore sections of the law establishing a commission to investigate U.S. contractor fraud in Iraq and Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence agencies respond to congressional requests for documents, banning funding for permanent bases in Iraq, and prohibiting funding of any actions that exercise U.S. control over Iraq's oil revenues.

One Administration critic, United for Peace and Justice (UFPJ) -- the country's largest anti-war coalition with over 1,400 member groups – characterized Bush's action as “arrogant and unconstitutional” and called on Congress to convene hearings to impeach the president.

Bush’s use of Signing Statements has become one of the hallmarks of his Administration. The UFPJ charged that during the past seven years, the same kind of language used by Bush last week “has been the precursor to numerous violations of law by his administration, including sections of law banning the use of torture and banning the use of funds to construct permanent U.S. military bases in Iraq. The president has signed laws blocking funding for the construction of permanent bases in Iraq six times, but never stopped the construction.”

And, in a recent statement, The Constitution Project’s “Coalition to Defend Check and Balances” – a bipartisan group of legal scholars and former Republican and Democratic presidential advisors – declared: “To restore our system of checks and balances, Congress can, and must, exercise its responsibility as a separate and independent branch of government. Congress has a clear constitutional obligation to make the laws, and when it has made such laws, to ensure through oversight that the executive branch is enforcing those laws and is otherwise carrying out its responsibilities in a manner consistent with the laws and the Constitution”

Last month, a senior Department of Justice (DOJ) official testified before the House of Representatives Judiciary Committee that the president is free to violate any laws until the Supreme Court rules otherwise. However, the U.S. Constitution gives Congress the sole authority to legislate and requires the president to "take care that the laws be faithfully executed."

A year earlier, a blue-ribbon American Bar Association task force composed of constitutional scholars, former presidential advisers, and legal and judicial experts urged Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress and demanded that the President veto bills he feels are not constitutional. Since he took office in 2001, the president has vetoed only one bill -- a measure to expand health care for children of poor families.

Another Bush critic, the American Civil Liberties Union (ACLU), declared, “When Congress sends a law to the president for signature it is not asking for his comments. The Constitution doesn’t provide for the president to cherry pick which laws – or which parts of the laws – he will enforce. The Founding Fathers of our country designed a system that works when Congress writes the laws and the president implements them,” said the ACLU’s Caroline Fredrickson. “The president needs to respect the separation of powers,” she added.

Arguably, the most controversial of Bush’s Signing Statements rejected the so-called McCain Amendment in the Detainee Treatment Act of 2006, which categorically prohibits cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world.

In his Signing Statement, the President asserted that he was free to construe that provision “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.”

Bush’s Signing Statements cover not only the so-called war on terror, but also a wide array of bills passed by Congress, ranging from affirmative action programs to requirements of statistical compilations by executive agencies to establishing basic qualifications for executive appointees.

The use of Signing Statements, however, did not start with George W. Bush. In recent U.S. political history, they have been used by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton as a tool to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.

Earlier presidents, beginning with James Monroe, the nation’s fifth chief executive, have issued such statements. Monroe signed a bill mandating a reduction in the size of the army and prescribed the method by which the president should select military officers. But a month later, he issued a statement declaring that the president, not Congress, had the Constitutional authority to appoint military officers.

In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago, but issued a statement insisting that the road was not to extend beyond Michigan.

President Abraham Lincoln wrote that he was signing one bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his Signing Statement a draft veto message he had prepared before the joint resolution was adopted.

His successor, President Andrew Johnson, signed but protested an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army."

In 1876, when signing a river and harbor appropriations bill that included local appropriations, President Ulysses S. Grant issued a Signing Statement saying that "under no circumstances will I allow expenditures upon works not clearly national."

In 1909, President Theodore Roosevelt issued a Signing Statement proclaiming his intention to ignore a restriction on his power to establish volunteer commissions. In 1920, President Woodrow Wilson signed a merchant marine bill, but determined not to enforce a provision he found unconstitutional.

In 1941, President Franklin Roosevelt found a provision of the Lend-Lease bill “clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Ten years later, when President Harry S. Truman signed the General Appropriation Act of 1951, he issued a statement describing as unconstitutional a provision authorizing loans to Spain.

In 1959, President Dwight Eisenhower signed the Mutual Security Act, but made it clear in a Signing Statement that he was willing only to enforce the bill to the extent that it did not infringe on his definition of executive authority.

When President Lyndon B. Johnson signed a crime bill in 1968, he criticized as "vague and ambiguous" provisions dealing with Federal rules of evidence in criminal cases.

President Richard Nixon objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina. He said the bill was, “without binding force or effect.”

President Gerald Ford objected to a provision of a 1976 Defense Appropriation that restricted the Executive's ability to obligate certain funds until it received approval from several Congressional committees. Ford said he could not "concur in this legislative encroachment," and that he would treat the restriction "as a complete nullity."

President Jimmy Carter issued several Signing Statements in 1980-81. The first of these related to a bill mandating the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President."

But it was not until the administration of Ronald Reagan that the nation saw a dramatic increase in the frequency of presidential Signing Statements. Reagan saw the statements as a strategic tool for molding and influencing the way legislation was interpreted by Executive agencies. In eight years as president, he issued statements objecting to 72 congressional provisions, a record at the time. His successor, George Herbert Walker Bush, topped that mark in only four years in the White House. Bush objected to 232 provisions. President Bill Clinton followed with 140 objections in eight years.

But, as noted by the ABA’s bipartisan task force, while the current president is not the first to use signing statements, “the frequency of signing statements that challenge laws has escalated substantially.”

From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.

Prof. Peter Shane of Ohio State University law school believes the current Bush Administration is creating faux law. He told us, “The Bush Administration’s repeated utterance of its constitutional philosophy shapes executive branch behavior by solidifying allegiance to norms of hostility to external accountability. Like the torture memo or the rationalizations for warrantless NSA wiretapping of domestic telephone calls, the Bush 43 signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and a disregard for the necessity to ground legal claims in plausible law. They are best understood as an attempt to invent law, and as an exploitation of Congress’s unwillingness, at least while in Republican hands, to allow the Administration’s more extreme theories of presidential authority to go unchallenged.”