The Threat of Bush’s Signing Statements

Senate Judiciary Committee Chairman Arlen Specter held a little-noticed hearing in late June to air concerns about presidential signing statements.

No wonder the hearing drew scant attention from the media. Presidential signing statements at first glance are just rhetoric – things presidents say when they sign bills passed by Congress to explain their positions on the relevant issues.

Who cares beyond a few historians and lawyers? Sen. Specter does! The five-term Pennsylvanian Republican believes – and said at the hearing – that the new wave of presidential signing statements are a serious challenge to our country’s system of checks and balances. We agree.

Presidents have used signing statements since early in the republic. But the character, intent and volume have changed since George W. Bush became president.

Since 2001, President Bush has objected on constitutional grounds to more than 500 provisions in more than 100 pieces of legislation – a number approaching the 575 constitutional statements issued by all of his predecessors combined.

These bills cover not only the so-called war on terror but also affirmative action programs, requirements of statistical compilations by executive agencies, and establishing basic qualifications for executive appointees.

The president has not simply objected to an overall law – he has said flatly that he will not enforce, or will use his own interpretation, for specific provisions of the laws. And, of course, he has not vetoed a single one of the bills to challenge Congress either to override the veto or to rewrite the law to fit the president’s concerns. Nor has he turned to the courts to adjudicate the constitutionality of provisions he believes are over the line.

This use of presidential signing statements seems to us clearly to violate the Constitution. Article I of our founding document gives Congress, not the president, the power to make the laws. Article II requires the president to take care that the laws be faithfully executed. The Constitution also gives the president the authority to veto laws that he finds objectionable. And if he does, the Constitution states that Congress may either “override” the veto, in which case it becomes law, or it may sustain it, and the bill will fail.

By signing a particular bill into law and then issuing a signing statement that declares that he will not give effect to it, or to a provision of it, the president effectively circumvents these constitutional requirements, as well as displaces the courts as the final expositor of the Constitution.

The broad use of signing statements is not an aberration for the Bush administration. Indeed, this White House has advocated and pursued the most executive-centered conception of American constitutional democracy in contemporary history. Its reading of the inherent powers of the presidency, especially on matters of national security, has gone largely unchallenged by a supine Congress and a deferential judiciary.

There is an encouraging sign of change, however. The last day of its term, the Supreme Court struck down President Bush’s plan to try so-called enemy combatants through military tribunals created by the executive branch with little to no input from Congress.

The Supreme Court’s action in Hamdan v. Rumsfeld also constituted a rejection of the administration’s contention that the federal courts have a limited role – or none at all – in overseeing its post-Sept. 11 actions.

Hamdan says that essential powers related to national security were given to Congress as well as the president, making both institutions partners in the basic tasks of protecting Americans against both external dangers and internal threats to liberty. And it says the court will reject any attempt to undermine the principle of judicial review crucial to our system of checks and balances.

Despite all the other partisanship in Washington, the threat to our system of checks and balances is not a partisan issue. This is why we joined the bipartisan Constitution Project’s Coalition to Defend Checks and Balances (www.constitutionproject.org), whose members are former government officials and judges, scholars, and other Americans deeply concerned about the threat to our system of government, in which the Founders deliberately divided power and authority so that no single person would assume unfettered control.

Coalition members are advocates of a strong president, a strong Congress, and a strong federal judiciary, but they believe that the risk of permanent and unchecked presidential power, the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government, and the attempt to circumvent the role of the courts have created a constitutional crisis.

Our freedoms and our security depend upon the president and the Congress, as well as the courts, exercising their solemn constitutional obligation to protect and defend the system of separation of powers that is the centerpiece of our Constitution. The Supreme Court has just resoundingly done so. We urge the president and the Congress to follow the court’s lead.