Signing Statements and the Rollback of American Law

The Unilateral Presidency
By ANTHONY DiMAGGIO, CounterPunch

In a refreshing investigative series in the Boston Globe from 2006, journalist Charlie Savage dropped a bombshell on the Bush administration. Reporting on Bush's use of "signing statements," Savage highlighted the president's long-standing contempt for Legislative authority. Since then, the story has generally been overlooked although it recently resurfaced when Bush issued another statement that he would disregard Congress's prohibition of permanent military bases in Iraq. The President's issuance of this signing statement is just one of hundreds of challenges he's made to national laws.

A signing statement, simply put, is an official announcement from the Executive--an attempt to alter the intent of a law by allowing the President to interpret its execution in any way he sees fit. While signing statements hold no official legal standing, the president acts as if they grant him the power to disregard segments of bills with which he disagrees. Since taking office, the Bush administration has issued over 150 signing statements, containing over 500 constitutional challenges, and questioning more than 1,100 provisions of national laws. This is a significant increase from years past. Former presidents Ronald Reagan, George H. W. Bush, and Bill Clinton issued over 300 such statements combined, while only 75 signing statements were issued in total from the early 1800s through the Carter Presidency.

Interpretive signing statements have received support from some legal scholars and officials associated with the administration, such as Supreme Court Justice Samuel Alito and John Yoo of the Justice Department's Office of Legal Council. The American Bar Association, the ACLU, and other legal scholars, however, have challenged the signing statements as unconstitutional and a violation of the principles of checks and balances and separation of powers. In response to Bush's circumvention of the military bases ban, Harvard Law Professor David Barron questioned the administration for "continuing to assert the same extremely aggressive conception of the president's unilateral power to determine how and when US force will be used abroad."

Some Democrats in Congress have also challenged the President's assumption that he can unilaterally interpret laws outside their original intent. House Speaker Nancy Pelosi explains: "I reject the notion in his signing statement that he can pick and choose which provisions of this law to executeHis job, under the Constitution, is to faithfully execute the law - every part of it--and I expect him to do just that."

Sadly, there's been little sustained effort on the part of the Legislative and Judicial branches to prohibit these attacks on the legal system. The few bills that have been presented in Congress seeking to prohibit signing statements have gone nowhere, ignored by the majority of Democrats and Republicans. The Supreme Court has also failed to rule on the constitutionality of the signing statements, contributing to the legal ambiguity surrounding the President's controversial actions.

A few examples of the President's signing statements provide a better picture of his contempt for the law:

1. Regarding a bill requiring the Justice Department to provide reports to Congress on how the FBI has utilized the Patriot Act to spy on citizens and confiscate property, Bush issued a statement declaring his power to withhold such information if he feels it would hurt national security in some way.

2. Concerning a law protecting whistleblowers at the Dept. of Energy and Nuclear Regulatory Commission from punishment, the President determined that it's within his power to determine whether potential whistleblowers are even allowed to provide information to Congress.

3. In response to a 2004 law preventing the U.S. from deploying troops in Colombia against FARC and FLN guerillas, Bush announced that only he, as the commander in chief, has the power to decide whether troops will be used. Bush deemed the law as nothing more than "advisory in nature."

4. Although a law was passed requiring that scientific information "prepared by government researchers and scientists shall be transmitted uncensored and without delay" to Congress, the President issued a statement claiming it is within his power to withhold information if he feels it could damage U.S. national security, relations with foreign countries, or generally interfere with the operations of the Executive.

5. Perhaps most controversially, the President issued a signing statement countering Congress's prohibition on torture (included within the 2005 McCain amendment), claiming that it was within his constitutional power to ignore the ban in order to "combat terrorism."

You've probably noticed a pattern with many of these statements: they don't simply establish Presidential power to "interpret" or "execute" the law; quite the contrary, they represent a fundamental abrogation of the major provisions of the bills themselves. Of what use is a bill prohibiting torture, if the ban can be bypassed by any president who does not feel bound to honor it? What is the point of prohibiting the deployment of troops to Colombia, if the president simply ignores this requirement? Rather than voting against a ban on torture, the President has taken the back-door approach, signing the bill, then quietly issuing a statement that he will not be bound by the law.

Perhaps unsurprisingly, the media response to Bush's signing statements has been lacking. On the one hand, there are the wonderful investigative reports of Savage in the Boston Globe, which shed much light on the long-neglected story of presidential contempt for the law. On the other hand, researchers have found that the Globe's reporting has been largely ignored in other major outlets. The watchdog group Media Matters for America concluded that: "Except for a short March 24 United Press International article, some scattered editorials and opinion columns, and brief mentions in an April 1 San Francisco Chronicle article and an April 23 Washington Post article, Savage's reporting on Bush's 'signing statements' and the Democratic response were ignored by major newspapers and wire services. And aside from Keith Olbermann, who reported on the Globe article on the March 24 edition of MSNBC's Countdown, the cable and broadcast news networks ignored the 'signing statements' as well."

My own analysis also indicates mixed results in the case of the Paper of Record. On the editorial side of the New York Times, the paper actually came out quite opposed to the signing statements. In a 2008 editorial on the President's circumvention of the military bases ban, the paper attacked the administration for its "passive-aggressive" attempts "to undermine the power of Congressdeclaring that he [has] no intention of obeying laws he [has] signed." In his 2007 Op-Ed, Adam Cohen censured Bush for his de-facto veto of the torture ban--for using an "extralegal trickto bypass the ban on torture. It allowed him to make a coward's escape from the moral and legal responsibility" of prohibiting such behavior.

Sadly, sustained critical attention hasn't appeared in the paper's reporting. While the administration has been issuing signing statements since it took office in early 2001, a review of the paper's coverage demonstrates that the topic didn't even make an appearance in the paper until a full five years later, in January 2006. Overall, the paper has run only 7 stories featuring the signing statements, in the just over seven years of the Bush administration's tenure. Furthermore, six of those stories were clustered in the _ year period between January and July of 2007--when Republican Senator Arlen Specter was attacking the President for the statements, and when the Senate was grilling Supreme Court nominee Samuel Alito for his support for the statements. Only one report from mid 2006 through early 2008 featured the issue of the statements, despite the continuing conflict between Congress and the President over his distaste for national laws.

Whenever I reach the Presidency section in my American government class each semester, many of my students become enraged when they find out about the Bush administration and the signing statements debacle. They're bewildered that a political leader could be allowed to blatantly disregard the law without being held politically accountable. Unfortunately, most people don't seem to be aware of the travesty of the signing statements--at least if my students' responses are any indication. While Bush's contempt for the law may very well be an impeachable offense, it certainly hasn't been treated this way in a timid Congress, too afraid to challenge the President in a time of infinite war.

Anthony DiMaggio has taught Middle East Politics and American Government at Illinois State University. His book, Mass Media, Mass Propaganda: Understanding the News in the "War on Terror," is due out in April. He can be reached at: adimag2@uic.edu