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(02/14/06) -

The questionable propriety of Bush’s signing statements

As incidence and role expands, the legality of presidential disclaimers aggravates concerns.
(Angus Reid Global Scan) Wilson Lam – While many United States presidents, beginning at least with Andrew Jackson in 1829, have issued statements as they signed bills into law, the exercise as practiced by current president George W. Bush has caused much debate recently.

(Angus Reid Global Scan) Wilson Lam – While many United States presidents, beginning at least with Andrew Jackson in 1829, have issued statements as they signed bills into law, the exercise as practiced by current president George W. Bush has caused much debate recently.

In the past, the signing statements were generally proclamatory in nature. Upon signing the 1935 Social Security Act, for example, Franklin Roosevelt wrote, in part: “I congratulate you ladies and gentlemen, all of you in the Congress.and I thank you for your splendid efforts in behalf of this sound, needed and patriotic legislation.”

Since Ronald Reagan, however, signing statements have taken a decided turn in tone and purpose. In a 1986 Justice Department memorandum, a deputy assistant attorney general named Samuel Alito argued that signing statements should “assume their rightful place in the interpretation of legislation,” which would, in turn, “increase the power of the [president] to shape the law.” Punctuating the point, the Reagan administration’s attorney general, Edwin Meese, said in a speech three weeks later that signing statements should clarify for the courts “what that statute really means.”

Putting the strategy into practice, recent presidents have increasingly used signing statements to express reservations about the pieces of legislation they were set to authorize. Indeed, some have even articulated in signing statements instances in which the legislation would not be invoked. Citing concerns for infringement on the constitutional right to free expression, for instance, Bill Clinton wrote in his signing statement to the 1996 Telecommunications Act that the Justice Department “will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech.”

While the constitution of the United States clearly intends for the president to be an important actor in the legislative process, it is a matter of some discourse whether it permits such unchecked presidential caveats on legislation. Once a bill is passed in both the House of Representatives and the Senate, it is up to the president either to sign it into law or to veto it in its entirety. The power to nullify selective clauses in legislation, known as a line-item veto, is not constitutionally available to the president.

Some consider the contemporary form of signing statements to be de facto line-item vetoes. Nonetheless, it was only with the revelation of the current Bush administration’s usage of signing statements that the issue has garnered widespread media coverage.

The publicity may be the result of the extent to which Bush has adapted the practice. It is inarguable, for example, that Bush has increased the prevalence of signing statements. According author and journalist Jennifer Van Bergen, there were 322 signing statements in the history of the American presidency before Bush took office in 2000; comparatively, Bush issued 435 such statements in his first term alone.

More pertinently, there is the difference in substance between Bush’s signing statements and those of previous presidents. Rather than express limited eschewal due to specific qualms (as in the Clinton example), Bush has, in his signing statements, broadened the scope of reservations without offering much clarification of his intent.

Perhaps the most cited signing statement of the Bush administration is the one in reference to the anti-torture amendment introduced by John McCain, the Republican senator from Arizona. After repeated attempts to exempt the Central Intelligence Agency (CIA) from the proscription failed, Bush wrote in the signing statement: “the executive branch shall construe [the clause] in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power.”

It merits noting that it is unclear whether the courts are obliged to consider signing statements in their deliberations. Nonetheless, were the issue to arise before the Supreme Court, it seems reasonable to assume that at least one justice, the recently confirmed Alito, will have intimate working knowledge of the matter.