The Unitary Executive, Part I: Signing Statements

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Bush Administration

Junior is sneaking about behind Congress’s back and making up his own laws. For example, last week Charlie Savage of the Boston Globe described the signing of the renewed Patriot Act:

The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates.

So what did Bush do?

Bush signed the bill with fanfare at a White House ceremony March 9, calling it ”a piece of legislation that’s vital to win the war on terror and to protect the American people.” But after the reporters and guests had left, the White House quietly issued a ”signing statement,” an official document in which a president lays out his interpretation of a new law.

Sneaky.

In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law’s requirements, he could withhold the information if he decided that disclosure would ”impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”

Bush wrote: ”The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information . . . ”

The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law.

How alarmed should we be about this “unitary executive” stuff? I think the answer is, very.

This FindLaw column of Jan. 9, 2006, by Jennifer Van Bergen provides some good background on signing statements and the unitary executive doctrine. First, let’s look at signing statements:

Presidential signing statements have gotten very little media attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protect the prerogative of their office and ensure control over the executive branch functions.

Presidents also — since Reagan — have used such statements to create a kind of alternative legislative history.

The alternative legislative history would, according to Dr. Christopher S. Kelley [PDF], professor of political science at the Miami University at Oxford, Ohio, “contain certain policy or principles that the administration had lost in its negotiations” with Congress.

In other words, Bush can concede a point to Congress, which then writes a law for him to sign, and then after he signs it he writes up the part he had conceded and puts it back into the law.

The development of this particular constitutional end-run is attributed to Daddy Bush by Professor Kelly:

The Bush I administration, for example, worked with fellow Republicans in Congress to create an alternative legislative history on important bills. The alternative legislative history would contain certain policy or principles that the administration had lost in its negotiations with the Democrats. Thus when President Bush signed the bill into law, he would use the signing statement to direct executive branch agencies to the alternative legislative history as guidance of congressional intent.

No wonder Junior hasn’t felt the need to use his veto power. He essentially “vetoes” by rewriting law as he chooses.

Are these signing statements a new thing? Well, yes and no. Ms. Van Bergen says they started with James Madison.

From President Monroe’s administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan’s administration through Clinton’s, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone.

According to “The Legal Significance of Presidential Signing Statements,” prepared by Assistant Attorney General Walter Dellinger, November 3, 1993 [PDF], since Madison U.S. presidents have used signing statements two different ways.

First, presidents use signing statements “to explain to the public, and more particularly to interested constituencies, what the President understands to be the likely effects of the bill, and how it coheres or fails to cohere with the Administration’s views or programs.”

As I understand this, the President might write “OK, I signed the fool bill, but when we go ahead with this thing it’s going to turn everybody’s ears bright green. Don’t say I didn’t warn you.”

Second, presidents use signing statements “to guide and direct Executive officials in interpreting or administering a statute.” I haven’t found a specific example of this circumstance, but if anyone else finds one please post it in the comments.

For many years presidential signing statements were only used as explained above. And in all those years I don’t believe anyone was much bothered by them. But along came the Reagan Administration, and the Reaganites came up with a new and more controversial twist, which was —

the use of signing statements to announce the President’s view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would “save” it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how — or whether — the legislation will be enforced. … More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it.

Now, there’s nothing in the Constitution that says a President can’t express an opinion that a law is unconstitutional. The notion that the Supreme Court is the only and final arbiter of constitutionality developed in the years after the Constitution was ratified. But until Reagan if a President believed a law was unconstitutional he vetoed it. And then the bill went back to Congress, which could decide to override the veto, or not, or revise the bill per the President’s request.

But now the President has made himself the final arbiter of constitutionality. Even if an overwhelming majority of Congress were to disagree with the President’s interpretation of the Constitution — too bad. And in the case of law that is meant to provide some congressional oversight of questionable presidential practices — too dangerous.

John Dean wrote for FindLaw (January 13, 2006):

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.

Following the Court’s logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill — not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill. Yet that is exactly what Bush is doing. The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part.

As I recall, Junior wants line item veto power, too. I’m not sure how he plans to get around SCOTUS on that.

Above I cited a document written by Walter Dellinger, Assistant Attorney General, in 1993. Dellinger expressed the opinion that that use of signing statements to, in effect, veto part of a piece of legislation was constitutional. This was before SCOTUS ruled on line-item vetoes, and I think it can be argued that Junior has taken the signing statement thing way further than past presidents. But be prepared for the “Clinton did it too” arguments from the Right if Bush’s use of signing statements ever heats up into a big controversy on the Blogosphere.

More on signing statements, from an editorial in today’s Boston Globe:

BENJAMIN FRANKLIN’S warning that the Founding Fathers had created ”a republic, if you can keep it” came home this week with The Boston Globe’s report that President Bush had once again added a signing statement to a bill, undermining the intent of Congress. Bush said he would not be held to the USA Patriot Act’s requirement that the Justice Department keep closer track of the FBI’s new powers and report on their use to Congress. Weeks before, Bush used a signing statement to exempt himself from Senator John McCain’s antitorture amendment. …

… When Bush crossed his fingers behind his back on the antitorture bill, Senators McCain and John Warner, both Republicans, issued a statement saying Congress had specifically denied the president the waiver authority he claimed in the signing statement. They said the Armed Services Committee would monitor implementation of the law ”through strict oversight.” By the same token, Congress will have to insist on the reports required by the Patriot Act or watch as the principle of separation of powers turns into the practice of separation of the powerless.

Remember, back in Daddy’s day, Daddy would work with Republicans in Congress to establish an “alternative legislative history” of a bill that could be imposed by Daddy’s fiat after the bill was signed. But Junior ain’t workin’ with anybody in Congress. He’s just making up his own laws. This is one clue that Junior is going further with the signing statements than any president has gone before.

Glenn Greenwald wrote today:

The Republicans and Democrats on the House Judiciary Committee submitted detailed questions to the Bush Administration regarding the NSA program, and the DoJ’s responses to both the Democrats’ questions and its responses to the Republicans’ are now available.

There are numerous noteworthy items, but the most significant, by far, is that the DoJ made clear to Congress that even if Congress passes some sort of newly amended FISA of the type which Sen. DeWine introduced, and even if the President “agrees” to it and signs it into law, the President still has the power to violate that law if he wants to. Put another way, the Administration is telling the Congress — again — that they can go and pass all the laws they want which purport to liberalize or restrict the President’s powers, and it does not matter, because the President has and intends to preserve the power to do whatever he wants regardless of what those laws provide.

The righties can make all the “Clinton did it too” arguments they can pile into a garbage truck. Junior’s out of control. He must be stopped.

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13 Comments

  1. Jack  •  Mar 25, 2006 @6:49 pm

    This president’s contempt for the principle of checks and balances is very disturbing. He famously used a signing statement to undermine the act that prohibited torture. If he had vetoed it, the veto would have been overridden by enormous majorities, and there would be no question that the Executive Branch would have to obey it as written. But he signed it along with a statement that he will obey it when he wants to. From his perspective, that is much better than a veto.
    Unlike a line-item veto, a signing statement does not have the force of law. It only works if the Congress allows it to work. Maybe with the President’s popularity declining, the Congress will feel emboldened to reassert its authority.

  2. The Jay  •  Mar 25, 2006 @6:54 pm

    I should try that trick next time i go to sign something. My next student loan form will have a nice little “P.S. My interpretation is that this document may severely threaten the finiacial viability and security of my pocketbook, and in the event that my loan comes due, this administration reserves the right to ignore the section titled “repayment” on the grounds that i dont wanna. I mean… national security… and patritorism.”

    Hes clearly misusing his obligation to uphold the constitution and defend the people as a loophole to do just the opposite. Its quite frustrating and i hate the fact that congress has not called him on it more often than they have. Soon he will be George Bush, head of the unitary executive branch… and not long after that King George. Maybe just Caesar and be done with it.

  3. maha  •  Mar 25, 2006 @6:59 pm

    It only works if the Congress allows it to work.

    However, I believe only the President can supervise and give direction to anyone employed in the Executive Branch. So if Congress says one thing and the President orders his branch to do something else, how can Congress enforce its powers except by removing the president from office?

    And what happens if, say, an NSA lawsuit gets to SCOTUS, and SCOTUS rules Bush’s acts unconstitutonal? Who’s going to enforce THAT?

    We may be setting ourselves up with a nice constitutional crisis here.

  4. the bewilderness  •  Mar 25, 2006 @7:20 pm

    As I recall Bush 41 got in a bit of trouble for a signing statement that directed the agency to do the opposite of what the bill directed.

  5. Anonymous  •  Mar 25, 2006 @9:38 pm

    i guess it’s easier to keep being ‘surprised’ with every new low then it is to face reality.

    9/11, they did it.

  6. Swami  •  Mar 25, 2006 @9:44 pm

    Bush might be getting off on himself with his. I’ll do as I please, cause i’m the President, attitude, but I suspect he’s pissin’ off a whole bunch of people. I got a feeling Bush is going to have his world flipped after the November elections and he’s going to be held to account for his nonsense. I don’t know who made the pronouncement that Bush is to secure within the GOP to even consider the possiblity of being impeached..Maybe, but he’s pushed the envelope to the point where it’s going to come down to Republicans saving there own political hide or defending Bush to their own political detriment..America is coming to her senses andf the bullshit is growing old.

    Isn’t a bubble considered unitary?

  7. Elayne Riggs  •  Mar 25, 2006 @10:13 pm

    I always thought “unitary executive” was just the current euphemism in vogue for “dictator.”

  8. Britwit  •  Mar 25, 2006 @10:31 pm

    Bush has a new addiction and the drug is Power.

  9. Sue  •  Mar 26, 2006 @2:56 am

    Thank you for making this a topic maha. I still can’t decide if I was more upset by Bush’s “signing statement” of the McCain torture bill or the fact that if I blinked I would have missed the reporting that it received ala the MSM. The Boston Globe restored my faith just a bit when Bush’s most recent “in your face” move (the Patriot Bill signing statement) actually made the front page (above the fold no less).

  10. david  •  Mar 26, 2006 @3:13 am

    so tell me, now we have Bush as dictator (except of course that he’ll leave office after his term is out).

    Aside from that he thinks he runs the show. Trouble brewing….

  11. LT  •  Mar 26, 2006 @9:11 pm

    There’s a good rundown on the use of signing statements and other maneuvers in “The Semi-Sovereign Presidency: The Bush Administration’s Strategy for Governing without Congress,” by Charles Tiefer. I picked this book up at the library, thinking it would give me some insight into the current administration and was astounded to find that it was published in 1994 and examines the George H.W. Bush administration. Tiefer was acting legal counsel for the House of Representatives and witnessed many attempts by the executive branch to subvert the normal system of checks and balances and achieve its goals, no matter how radical or lacking in popular support they may have been. As deputy House legal counsel, he challenged Edwin Meese’s doctrine that the attorney general and the president could declare laws unconstitutional and refuse to obey them.

    Tiefer devotes a chapter to signing statements, which, he writes, were the Bush White House’s “sovereign powers for shaping or escaping laws and for governing without Congress by voiding or revising key provisions in congressional enactments.” And this description of the president’s governing style also sounds familiar: “In the language of the Framers of the Constitution, President Bush needed an approach that would sustain a sovereign’s claims to ‘personal rule.’ … the power claims of a sovereign who would accept a lesser scale of policymaking so long as he could work his will through internal and unaccountable channels. Such a strategy for a semi-sovereign presidency depends on personal staffs and special mechanisms outside the system of democratic checks and balances.”

    Tiefer’s conclusion at the time was that semi-sovereign presidencies generally result from divided government, when the executive branch may feel frustrated with its inability to govern as it sees fit, given resistance from a legislative branch controlled by the other party. This of course isn’t the situation today. Nevertheless, the book was very enlightening in many ways and may be worth seeking out if you’re interested in learning more about past battles over separation of powers.

  12. Charlie  •  Mar 27, 2006 @5:16 am

    Did no one listen to the man during his first campaign?
    “I have no problem with a dictatorship as long as I’m the dictator”
    If not dealt with soon, he still has three years to see that he “doesn’t” leave office when his time is up, that is of course, if there is anything left for him to be a dictator of…

  13. jacob  •  Mar 27, 2006 @7:42 am

    Is being the worst president ever an impeachable offense?

    If not, then will someone please give this guy a blow job so we can impeach him!

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