Prior to 2006, few Americans had much reason to think about presidential signing statements. That changed with the passage of H.R. 2863 on December 30, 2005. Also known as the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, this awkwardly named bill featured the so-called McCain Amendment, which prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."
At the time, its passage was seen as a major victory against the use of waterboarding and other forms of torture by U.S. forces. But on the same day he signed the law, President George W. Bush also issued a signing statement declaring that he would only implement the McCain Amendment "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."
Three months later, after signing the USA Patriot Improvement and Reauthorization Act in a well-publicized White House ceremony, Bush issued another important signing statement. This time he declared that the executive branch was in no way bound by those provisions requiring congressional oversight of the FBI's new surveillance powers, since such oversight "could impair…national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
President Bush, in other words, would be waging the War on Terror as he saw fit, regardless of what Congress or the courts had to say about it. As Charlie Savage reports in his superb 2007 book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Bush has issued hundreds of similar statements claiming his authority to reject or ignore more than 1,000 sections of federal law—the very laws, it's worth repeating, that Bush has just signed. Such documents, Savage writes, "left it to legal specialists to point out in plain English that Bush was claiming that only the parts of the bill that expanded his power were constitutional, essentially nullifying the parts of the bill that checked those new powers."
The U.S. Constitution, of course, already provides the president with a crucial check on the legislative branch: It's called the veto. Nowhere in our founding documents, however, does the president receive the authority to pick and choose which laws he's going to obey.
Thankfully, George W. Bush won't be president much longer. But the executive powers he helped forge will still be around. Is there any reason to think his successor will be much better?
Not really. Last December, the Boston Globe quizzed all of the major party candidates about executive authority. With less than a week before the election—and with qualms about presidential power apparently forgotten in the frenzy to bring about hope, change, and the nationalization of Wall Street—it's useful to revisit what Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) had to say about signing statements.
For what it's worth, McCain gave one of the best responses of his campaign: "As President, I won't have signing statements. I will either sign or veto any legislation that comes across my desk." It's hard to improve on that, though as reason's Jacob Sullum has noted, "his campaign has indicated that McCain's view of the president's authority is broad enough to permit violation of statutes governing surveillance of people in the United States."
Obama proved a little harder to pin down. On the one hand, he told the Globe it was "a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability." But he also added this: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives." No one? And what's the difference between making an "end-run" around legislation and protecting the "constitutional prerogatives" of the president? Bush clearly saw his actions as appropriate, not as some sort of dodge. What's to stop Obama (or anybody else) from doing the same?
It's not like this is a partisan issue. Democratic President Bill Clinton, for instance, issued signing statements undermining 140 sections of federal law—at that point, the second largest amount in American history. In a November 1993 memo prepared for Clinton White House counsel Bernard Nussman, moreover, Assistant Attorney General Walter Dellinger endorsed this approach. "If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers," Dellinger wrote, "then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing." Therefore, Dellinger continued, "a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce…such a provision, can be a valid and reasonable exercise of Presidential authority."
With a cooperative Democratic Congress on his side, Obama probably won't need to use signing statements. But what happens if the Republicans regroup, regain the majority, and offer an agenda of their own? At that point, Obama will have every incentive to emulate the Clinton administration and use signing statements to protect his "constitutional prerogatives" against a Republican Congress.
At that point, of course, it'll be conservatives howling about an imperial presidency and liberals rallying around the executive. How far does the president have to go before both sides agree to rein him in? Perhaps it's better if we don't find out.
Damon W. Root is an associate editor of reason.