Signing Statements

Finally, attention is being paid. Some months ago I started reading articles talking about President Bush's use of signing statements when a bill comes before him to be signed into law. A signing statement, as traditionally used by previous presidents, is designed to record a president's understanding of a new law so that, in any future disputes over that law's purpose and execution, his point of view can be considered together with that of the Congress. An excellent FindLaw column written by Jennifer Van Bergen talks about the history and purpose of these signing statements, noting that in two major cases the Supreme Court has in fact relied in part on presidential signing statements in their consideration of the laws involved.

But yesterday, the American Bar Association issued a report declaring that President Bush's signing statements are violations of the Constitution, and Senator Arlen Spector yesterday announced that he is introducing a bill that will "authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional." The question arises: why are people getting fidgety about these signing statements now, when they've been used since the Monroe administration? What has changed? Are Mr. Bush's opponents simply latching onto a new way to attack him? Or is there something new in the way Mr. Bush uses these signing statements that raises serious constitutional issues? In my view--and that of the ABA and Senator Spector and FindLaw's Ms. Van Bergen--it's the latter.

In our social studies classes, we all get taught the basic catechism of the U.S. separation of powers: the Legislative branch creates the law, the Executive branch enforces the law, and the Judicial branch interprets the law. (As Ms. Van Bergen notes, the idea of "judicial supremacy" has been in place ever since the famous Marbury v. Madison decision in 1803, when Justice Marshall wrote that "It is emphatically the province and duty of the judicial department to say what the law is."

But President Bush's signing statements have routinely crossed the line between "just so you know, this is what I think this new law means" into "the hell with you, this law means what I say it means." The Boston Globe ran an excellent list of examples of Bush's signing statements, first summarizing the law as written by Congress and then the import of the President's signing statement. Very often, the signing statement reads like a letter from the Bizarro world. For example, in December 2005, John McCain managed to push through legislation declaring that U.S. interrogators cannot torture prisoners. It was very plainly a reaction to the ongoing revelations about interrogation procedures at Abu Ghraib, Guantanomo Bay and elsewhere. In his signing statement, Bush simply declared that if he determines that "harsh interrogation" might help prevent a terror attack, then he will authorize it. The plain will of the Congress was simply up-ended. The President baldly declared that he will enforce the law except when he doesn't feel like it. With that, more than two hundred years of Constitutional precedent got tossed out the window.

The White House tries to insist that Bush's use of signing statements has been in keeping with presidential precedent, but they never get specific. White House spokesman Tony Snow said recently, "A great many of those signing statements may have little statements about questions about constitutionality. It never says, 'We're not going to enact the law.'" But how else is one to read Bush's declaration that he will direct the torture of a prisoner if he feels it might further the always-vague war against terror? And as far as I know, no one from the White House has ever produced a signing statement from any previous president that went as far in baldly reinterpreting the law.

As always, what will happen is this: a court challenge will arise as to one or another of these signing statements, and Bush administration officials will claim that they consulted with the office of the White House counsel, or with the Justice Department, and that Alberto "Lapdog" Gonzalez or some other lawyer said it was okay. This allows them to claim they were acting in good faith and that, if the Supreme Court declares a particular signing statement to be unconstitutional, well then so be it, and ain't it nice that now everybody's on the same page. (This was exactly their response to the recent Hamdan decision concerning military tribunals.)

By that thinking, as long as a president can get any of his lawyers to claim they were acting in good faith, then a president can never do anything wrong. Never. Signing statements have become, in effect, a kind of substitute for the line-item veto, except that they aren't being used to remove frivolous budgetary items, they're being consistently used to accrue more power to the Executive branch and to abridge the civil rights of you and me and everybody. They are perhaps the most egregious of President Bush's crimes against the body politic, and it's bloody well about time that the ABA and Sen. Spector and others have started to howl.