Bush’s signing statements: Constitutional crisis or empty rhetoric?
ASK THIS | June 27, 2006
Lackluster reporting about this big story has left many critically important questions unanswered.
By Dan Froomkin
President Bush’s unprecedented use of “signing statements” to quietly assert his right to ignore legislation passed by Congress – including its ban on torture – first came to light in January due to some aggressive reporting by Boston Globe reporter Charlie Savage.
In April, Savage reported his astonishing discovery that Bush has claimed the authority to disobey more than 750 laws in all since he took office:
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.
Since then, a few major news organizations have taken note of this amazing story -- then let it drop. Most haven’t covered it at all. Up until this morning, not one reporter had asked the president, the vice president, or even the press secretary a single question about Bush’s penchant for signing statements.
(According to Laurie Kellman of the Associated Press, the topic came up at this morning's White House press gaggle just before a Senate hearing on the topic was set to begin, and press secretary Tony Snow explained: "It's important for the president at least to express reservations about the constitutionality of certain provisions.")
Savage has kept at the story, but this is not a job for a one-man band.
There’s so much we don’t know. Is this the Constitutional crisis the critics say it is? Or is it just a bunch of ideological bluster from overenthusiastic White House lawyers? (Or something in between?)
There are crucial questions for the White House, for Congress, for Congress to ask the White House, and for reporters to ask every Congressional candidate before the November election.
“I think one of the important things here is for reporters to apply their journalistic instincts to this story,” says Phillip Cooper, a Portland State University public administration professor. Cooper’s seminal scholarly article on signing statements appeared in the academic journal, Presidential Studies Quarterly, last fall.
Cooper wrote that the Bush White House “has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress.”
In fact, many of the objections the White House has raised in signing statements seem to be less about the specific legislation at issue and more about consistently resisting any limitations on executive power. For instance, any bill that requires a report to Congress sets off a signing-statement tripwire.
Here’s an archive of all of Bush’s signing statement. Here are some examples compiled by the Boston Globe. Here’s an excerpt from a not atypical signing statement, from March 9, 2006:
The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.”
As a result of their ambiguous language, it’s not abundantly clear what practical effect the signing statements are having – conceivably, not so very much.
It’s also not clear what they really mean. Is the White House simply expressing abstract philosophical objections? Or is it documenting, right in front of our very eyes, an enormous ongoing expansion of presidential power?
The Coverage Thus Far
Savage’s most recent piece on signing statements was about how the board of governors of the American Bar Association has put together an all-star legal panel to investigate whether Bush is using signing statements to exceed his Constitutional authority.
Elizabeth Drew weighed in with a substantial New York Review of Books story on the topic earlier this month:
For five years, Bush has been issuing a series of signing statements which amount to a systematic attempt to take power from the legislative branch.
Bush asserts broad powers without being specific in his objections or saying how he plans to implement the law. His interpretations of the law, as in his "signing statement" on the McCain amendment, often construe the bill to mean something different from —and at times almost the opposite of—what everyone knows it means.
For the first time in more than thirty years, and to a greater extent than even then, our constitutional form of government is in jeopardy.
The only analysis I've seen of the practical effects of the signing statements came just last week, from Brian Friel of the National Journal. He wrote that
[M]ost of the signing statements issued by Bush -- and past presidents, for that matter -- seem largely symbolic and do not necessarily change how agencies implement legislation, according to some scholars and a review of the implementation of several statements. Though the president's lawyers may raise legal arguments against congressional actions, bureaucrats across the federal government are reluctant to challenge the appropriators and committee chiefs who control their budgets…
Christopher Kelley, a political scientist at Miami University of Ohio, ….said that agencies may not follow through on some statements that are not particularly important to the administration, but they do heed others. In 2002, for example, Bush announced in the signing statement for the Sarbanes-Oxley corporate accountability law that he would interpret whistle-blower rights more narrowly than Congress had written them.
Labor Department Solicitor Eugene Scalia followed through on the president's interpretation, issuing a brief adhering to Bush's guidelines. The department backed down, however, after pressure from lawmakers (and Scalia's departure from Labor).
Several news organizations have filed a single story each on signing statements. Here is the work of Ron Hutcheson and James Kuhnhenn for Knight-Ridder Newspapers; Bob Egelko for the San Francisco Chronicle; and Ken Herman for Cox News Service. In U.S. News and World Report, Chitra Ragavan wrote a long profile of David Addington, the vice presidential chief of staff and legal adviser who she explained is widely seen as a key force behind the signing statements.
But inexplicably, the usual suspects have been almost silent. The New York Times weighed in with an almost lighthearted Elisabeth Bumiller piece inside the A section early on. The Washington Post – at least its news columns – has been silent. So have the Los Angeles Times, the Chicago Tribune and the Wall Street Journal.
[UPDATE: In early January, Christopher Lee of The Washington Post and Jess Bravin of the Wall Street Journal (subscription required) both wrote stories that discussed signing statements, in the context of the confirmation hearings for now-Supreme Court Justice Sam Alito, who is an advocate of signing statements and expansive executive power.]
Editorially, the reaction has been louder, though unsustained. Here are editorials from the New York Times, the St. Petersburg Times, the San Francisco Chronicle and Newsday. A Washington Post editorial on torture noted the role a signing statement played in that arena.
Op-eds on the issue have been few and far between. Rosa Brooks wrote one in May for the Los Angeles Times; David Sarasohn of the Oregonian wrote one last week.
Questions the Press Should Ask
Professor Cooper of Portland State helped me compile some of the following questions. A handful were sent in by readers of my “White House Briefing” column on washingtonpost.com, back in May, when I asked for questions they would like to ask incoming press secretary Tony Snow.
For the White House
Q. What do these signing statements mean?
Q. What effect have they had? For instance, how do these signing statements translate into internal executive-branch memos?
Q. What precisely is the White House saying about the limits of executive power, if any, and the relationship between Article I and Article II of the Constitution?
Q. What exactly do White House lawyers mean by “unitary executive”?
Q. What does it mean when the president says things like “the executive branch shall construe section so-and-so in a manner consistent with the constitutional authority of the President”? Should that be construed as notice that he plans to ignore it? Likewise when he says a provision will be construed in a manner “consistent with my constitutional authority in the area of foreign affairs” or “consistent with my constitutional duty as Commander in Chief of the Armed Forces”?
Q. When the president says the “Executive Branch shall construe as advisory certain provisions” of a law, does that mean he will ignore them? Will he let Congress know if he does so?
Q. From the president's perspective, how does the practice of issuing signing statements fit with the constitutional separation of powers? Why does the President think he can choose which laws to uphold? (Deb Junod, Eagan, Minn.)
Q. Why is it wrong for the judiciary to redefine the law but right for the President? Or: why is "activist judge" bad but "signing statement" good? Or: how is it a problem if the judicial branch takes power from the legislative, but not a problem if the executive branch takes power from the legislative? (Jonathan Krueger, Pleasanton, Calif.)
Q. Are there any statutes currently on the books whose express provisions the Administration is violating, or declining to enforce, in reliance on "signing statements" or the "inherent powers" of the presidency, whether as commander in chief or otherwise? If so, do the American people have a right to know what are they? Does Congress? Will you provide us a list? (Vince Canzoneri, Boston)
Q. Why make a big show of trying to get lawmakers to reach compromises with the White House on legislation (see John McCain's anti-torture legislation) if he's then going to append a signing statement proclaiming that there's no need for him to observe the very law he just signed? Why bother going through the motions at all? (Lou Morin, Freeport, Maine)
For Members of Congress
Q. How do members of Congress feel about the president saying he can ignore their laws when he unilaterally deems them an encroachment on his executive power?
Q. Who in Congress is monitoring this issue?
Q. Are committee staff in a position to actually monitor these statements and track what is and isn’t happening as a result of these statements?
Q. For members whose bills have passed both Houses, been signed by the president, then been qualified with a signing statement: As part of your oversight plan, have you identified any mechanism for following up on presidential declarations about your statutes? How can you be sure your statutes are being followed?
For Congressional Candidates
Q. Will you be willing to use Congress’s traditional mechanisms to force answers from the executive – issuing subpoenas and threatening to reduce appropriations – to determine how signing statements are affecting laws passed by Congress? Will you sue the president if he refuses to say?
Q. When you’re on a committee, will you call for hearings and insist that representatives from the executive branch explain, for each signing statement attached to a bill from your committee, what the president meant, and what he intends to do about it?
Q. When you’re on a committee, what do you intend to do from this point forward to make sure not just that the agencies are doing their jobs, but that the agencies are being given the proper direction from the White House?
Many of these questions will almost inevitably get stonewalled, rather than answered, but some of these mysteries could be cleared up simply with some diligent reporting on the Hill and inside the federal government. For instance: Has the executive branch in fact refused to turn over any reports to Congress as required by statute? If a signing statement objects to, say, contractual set-asides for minorities, how were the contracts actually awarded and who got them?
At the very least, you would think that now that the press is on to these signing statements, someone would be keeping an eye on them. The White House doesn’t e-mail them to reporters, but they do appear in the Federal Register.
As Cooper told me: “Certainly, from this point forward, reporters should track any further signing statements and ask Bush or his aides: What do you mean by this? What is your intention? What is the significance?”
But after a three-month lull, the White House issued a signing statement that appeared in the May 29 Federal Register, objecting to the deeply threatening Coastal Barrier Resources Reauthorization Act of 2005.
The law, sponsored by five Republicans from both houses, and passed by unanimous consent in the Senate and by voice vote in the House, directs the Secretary of the Interior, among other things, to report to Congress on the creation of digital maps of the John H. Chafee Coastal Barrier Resources System units and other protected areas under a digital mapping pilot project.
Bush's signing statement says he will construe the law’s reporting provisions “in a manner consistent with the Constitution's commitment to the President of the authority to submit for the consideration of the Congress such measures as the President judges necessary and expedient and to supervise the unitary executive branch."
In other words: You get your reports if I feel like giving them to you.
But so far, it would not appear that anyone has even asked the bill's sponsors -- including John Chafee's son, Sen. Lincoln Chafee of Rhode Island – what they think of that.
Legislating from the Oval Office?
IVAN SAFONOFF -
08/16/2006, 08:50 PM
Thanks to Dan Froomkin for his fine piece. It surely took the issue of presidential signing statements out of the realm of "empty rhetoric". Unfortunately this problem will die a quiet death as long as we have one party rule and a virtually quiet mainstream media.
On 7/24/06 the bipartisan Taskforce on Presidential Signing Statements of the American Bar Assn. released their report. They basically found that, although signing statements, in general, are legal, Pres. Bush, in many instancces, misuused this power in a manner that skirted the law and was unconstitutional.Although this news was reported the next day by the majority of the mass media, it quietly disappeared within a week or so. Then, on 8/8/06, when the House of Delegates of the ABA passed the report by voice vote with the same verdict (www.usnews.com of 8/9/06), the news was more than hard to find without Google.
Underlying the problems of presidential power seems to be the White House's murky and largely undefined doctrine of the Unitary Executive which, in their view, allows the president to thumb his nose at both the Legislatve and Judicial branches of government.
Can anyone believe that the original intent of the framers and signers of our great Constitution intended to create a presidency with powers akin to those of King George III of England?
Shouldn't the media, the Democrats, and yes all Americans be asking the question: Do we now or ever want an "activist" president who legislates and adjudicates from the Oval Office?