A relatively rare tactic called the signing statement provides the President with the ability to offer nuance or pushbacks on legislation he signs into law. This rare tactic had only been used just over a dozen times in the history of the country until the 1980’s. Ronald Reagon used the signing statement to challenge 71 legislative provisions. Clinton used the tactic 105 times. So far, George Bush has used the tactic around 500 times!
It’s no accident that this practice became more widespread in the 1980’s. And just who came up with using this obscure method of challenging legislation in the 1980’s. Why, none other than Samuel Alito.
From WaPo …
In the 1980s, the Reagan administration, like other White Houses
before and after, chafed at the reality that Congress's reach on the meaning of
laws extends beyond the words of statutes passed on Capitol Hill. Judges may
turn to the trail of statements lawmakers left behind in the Congressional
Record when trying to glean the intent behind a law. The White House left no
comparable record.
In a Feb. 5, 1986, draft memo, Alito, then deputy
assistant attorney general in the Office of Legal Counsel, outlined a strategy
for changing that. It laid out a case for having the president routinely issue
statements about the meaning of statutes when he signs them into law.
Such "interpretive signing statements" would be a significant departure
from run-of-the-mill bill signing pronouncements, which are "often little more
than a press release," Alito wrote. The idea was to flag constitutional concerns
and get courts to pay as much attention to the president's take on a law as to
"legislative intent."
"Since the president's approval is just as
important as that of the House or Senate, it seems to follow that the
president's understanding of the bill should be just as important as that of
Congress," Alito wrote. He later added that "by forcing some rethinking by
courts, scholars, and litigants, it may help to curb some of the prevalent
abuses of legislative history."
The Reagan administration popularized
the use of such statements and subsequent administrations continued the
practice. (The courts have yet to give them much weight, though.)
In signing the McCain Anti-Torture legislation into law, the President in effect said never mind or this doesn’t apply to me. Although the legislation was crystal clear in its meaning and intent, the president’s signing statement went on to read “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 as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
Translation – If the President feels torture is warranted to protect the country he will violate the law and use torture. If the courts try to stop him he’ll ignore them too.
Now, if I put two and two together, it seems that Alito supports the notion of Presidential power not too dissimilar than that of Britain’s King George.
Another fine point was raised on Balkanization …
“Several days ago, I posted a comment suggesting that the
Alito nomination was part of a plot designed to reinforce Executive power and
that the issue in particular of abortion was designed to serve as a distraction.
An article in today's Washington Post that focuses on Alito's views of executive
power offers some support for this view of connecting the dots and explaining,
for example, why the relatively obscure Judge Alito was selected instead of the
substantially more distinguished Judge McConnell:
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html.
The most important paragraph is the following:"Since the president's
approval is just as important as that of the House or Senate, it seems to follow
that the president's understanding of the bill should be just as important as
that of Congress," Alito wrote. He later added that "by forcing some rethinking
by courts, scholars, and litigants, it may help to curb some of the prevalent
abuses of legislative history."Important to whom, one might ask? The first
answer is "internal": I.e., one might well view this as supporting the view that
Department of Justice lawyers, including lawyers in the Office of Legal Counsel,
which is at least as important as any given Federal Court of Appeals, should
look to presidential undersanding when interpreting statutes. Only, presumably,
in the absence of a signing statement, should any attention be paid to
legislative history. Of course, if one is a strong Scalian, then it is not clear
why a presidential signing statement should have any more authority than a
committee report. Neither, according to Scalia, should be paid the slightest
attention. This may suggest that Alito is less of a Scalia clone than has been
suggested and that he is in fact more dangerous, at least if one fears Executive
supremacy.”
John Dean writes the following over at FindLaw …
Pumping Up the Bush Presidency With Signing Statements
Generally, Bush's signing statements tend to be brief and very broad,
and they seldom cite the authority on which the president is relying for his
reading of the law. None has yet been tested in court. But they do appear to be
bulking up the powers of the presidency. Here are a few examples:
Suppose a new law requires the President to act in a certain manner -
for instance, to report to Congress on how he is dealing with terrorism. Bush's
signing statement will flat out reject the law, and state that he will construe
the law "in a manner consistent with the President's constitutional authority to
withhold information the disclosure of which could impair foreign relations, the
national security, the deliberative processes of the Executive, or the
performance of the Executive's constitutional duties."
The upshot? It is
as if no law had been passed on the matter at all.
Or suppose a new law
suggests even the slightest intrusion into the President's undefined
"prerogative powers" under Article II of the Constitution, relating to national
security, intelligence gathering, or law enforcement. Bush's signing statement
will claim that notwithstanding the clear intent of Congress, which has used
mandatory language, the provision will be considered as "advisory."
The
upshot? It is as if Congress had acted as a mere advisor, with no more formal
power than, say, Karl Rove - not as a coordinate and coequal branch of
government, which in fact it is.
As Phillip Cooper observes, the President's
signing statements are, in some instances, effectively rewriting the laws by
reinterpreting how the law will be implemented. Notably, Cooper finds some of
Bush's signing statements - and he has the benefit of judging them against his
extensive knowledge of other President's signing statements -- "excessive,
unhelpful, and needlessly confrontational."
The Constitutional and
Practical Problems With Bush's Use of Signing Statements
Given the
incredible number of constitutional challenges Bush is issuing to new laws,
without vetoing them, his use of signing statements is going to sooner or later
put him in an untenable position. And there is a strong argument that it has
already put him in a position contrary to Supreme Court precedent, and the
Constitution, vis-à-vis the veto power.
Bush is using signing statements
like line item vetoes. Yet the Supreme Court has held the line item vetoes are
unconstitutional. In 1988, in Clinton
v. New York, the High Court said a president had to veto an entire law: Even
Congress, with its Line Item Veto Act, could not permit him to veto provisions
he might not like.
The Court held the Line Item Veto Act
unconstitutional in that it violated the Constitution's Presentment Clause. That
Clause says that after a bill has passed both Houses, but "before it become[s] a
Law," it must be presented to the President, who "shall sign it" if he approves
it, but "return it" - that is, veto the bill, in its entirety-- if he does not.
Political scientist Andy Rudalevige discusses all of this over at NPR.
Now I’m going to let you in on a little secret. The “Talking Point” of “Spin” from the right is that Clinton used this signing statement power more than Ronald Reagon. And that’s totally true. But it ignores and deflects the point that Bush has used it nearly 500 times without vetoing legislation. That’s more than twice the number of times of Reagon and Clinton combined! The right will seek to avoid that point, as seen on confirmhim.com.
The US Department of Justice has a lot to say about signing statements HERE, if you care to grab a comfy chair. It’s a long read.
Here are some other links to media stories on this subject. NYTimes, Billings Gazette compliments of Knight-Ridder. And of course the National Review flatly rejects the argument put forth by Sullivan. Ramesh Ponnuru writes …
There are two dangers here. One is that the president will, acting on a false
understanding of that authority and those limitations, twist the law or even
effectively disregard it. If that happens, however, how much will the signing
statement be to blame for it? Would the critics be happier if the president
twisted or disregarded the law without making a statement? The second danger is
that the courts will give too much deference to the president's views and
thereby twist the law themselves. Signing statements, however, have no magical
power to compel judges to reach this result; and the president could just as
easily make his case to the courts in legal briefs filed by the Justice
Department.
Perhaps one of my conservative friends could translate that for me. I am totally missing Ponnuru’s point. Although the National Review may attempt to explain away the issue, I think they fail in doing so. But I do give them credit for attempting to do so. What they offered was more than a talking point and more than the traditional spin. However wrong their reasoning may be, they did not evade the issue at hand – and nor should we.
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