By Dan Froomkin
froomkin@niemanwatchdog.org

A June 18 report from the Government Accountability Office found that federal officials have not complied with at least six new laws that President Bush had asserted in signing statements that he had no obligation to follow. GAO researchers studied a tiny sample of the provisions that Bush had objected to in appropriations acts for fiscal year 2006 and found that more than 30 percent -- six out of 19 -- were not carried out according to the law.

This was a significant finding, as up until then it was unclear whether Bush’s frequent use of signing statements to assert his right not to follow certain laws had in fact resulted in non-compliance. (See my article on NiemanWatchdog.org exactly a year ago, Bush’s signing statements: Constitutional crisis or empty rhetoric?)

In fact, the administration’s official position has been that signing statements were not indicative of non-compliance. In January 2007, the House Judiciary Committee held a hearing on presidential signing statements, at which Deputy Assistant Attorney General John Elwood testified that “signing statements are not acts of Executive defiance of Congress, nor are they an indication that the President will adhere to the laws selectively as he wishes. While signing statements often seek to preserve the Executive’s role in our system of checks and balances, the mere description of constitutional concerns about a provision does not imply that the law will not be enforced as written.”

The GAO report shies away from the obvious conclusion: That the noncompliance came about as a result of the signing statements. (Determining causality was apparently out of their scope.) But what other reason could there be? Are such laws regularly ignored – and this was just a coincidence? (Nelson Lund, a George Mason University law professor who served in the White House counsel’s office during the first Bush administration, actually makes that argument here.)

Bush administration officials – starting with Elwood – should be asked the following questions:

Q. How did these six provisions end up not being carried out according to the law?

Q. How many other provisions have not been carried out according to the law?

Q. How are signing statements communicated to officials who are charged with enforcing those provisions that the president has asserted he is not under any obligation to follow? And what effect do they have on those officials?

One key drawback of the report is that, as the Boston Globe’s Charlie Savage reported on June 19: “None of the laws the GAO investigated included the president's most controversial claims involving national security, such as his assertion that he can set aside a torture ban and new oversight provisions in the USA Patriot Act because he is the commander in chief.” Determining whether some of Bush’s more high-profile signing statements have similarly resulted in non-compliance should be a high priority for reporters – and congressional investigators.

Christopher S. Kelley, a political science professor at Miami University of Ohio who has extensively studied the history and use of signing statements, makes another compelling argument: “It is clear that reporters and members of Congress need to use this report as a starting point to understanding how the president influences the bureaucracy,” he wrote to me in an e-mail. “For instance, it is often reported, when telling the history of signing statements, that the Reagan administration added the signing statement to the legislative history of bills signed into law. Most thought it was designed to influence judges but my recent research argues that it was designed to influence bureaucrats—something the president had the potential to control.”

“There has been insufficient examination into how signing statements are used to influence the bureaucracy. What is clear is that they are not used in isolation, but rather in conjunction with other presidential devices. For instance, a recent executive order by President Bush put White House minders in a position to vet regulatory decisions by bureaucrats throughout the government. All of us need to broaden our focus and look at how these individual devices fit together in a way that enhances presidential power.”

You’d think Washington reporters might have learned a lesson from Globe reporter Charlie Savage’s Pulitzer Prize for National Reporting, awarded on the basis of his dogged coverage of this story. But aside from a few newspaper editorials, I haven’t seen any follow-up on the GAO report and its revelations.

In his blog, Kelley relates a disturbing e-mail exchange with an unnamed national reporter who described several reasons why she and her colleagues are not covering the signing statement story more aggressively. Among them “The 2006 coverage--including the awarding of the Pulitzer—‘was way overblown if you ask me. Other reporters feel the same way.’ I get the sense of sour grapes,” Kelley writes. So do I.

Dan Froomkin is the deputy editor of the Nieman Watchdog Project. He is also Washington Bureau Chief for the Huffington Post. E-mail: froomkin@niemanwatchdog.org

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