Presidential History

Sign Your Life Away

The problem with presidential signing statements

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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.

NEXT: Joe the Muzzled

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  1. This needs to get to the SCOTUS.
    I’ve warned that when the Dems take the White House, they will be happy to follow the Bush precedents.

  2. Thankfully, George W. Bush won’t be president much longer, writes Damon Root.

    Unfortunately, someone else will.

  3. The President can, and should, refuse to implement unconstitutional laws, even if SCOTUS says they are constitutional. And putting it into writing why he or she thinks it is unconstitutional would lend some clarity.

    If Congress disagrees, and thinks that the president is behaving unconstitutionally by refusing to implement their laws, they should promptly institute impeachment proceedings.

    That being said, a President also has the sworn duty, taken during their oath of office, to VETO laws containing any unconstitutional provision, not sign them and then issue a statement stating say he/she won’t enforce the bad parts.

    All this is predicated on a President and members of Congress actually believing in and following the Constitution, and doing so with great vigor, which with a few rare exceptions (Paul, Flake) ain’t the case. And even those two haven’t had the cojones to try and impeach Bush over this.

  4. Signing statements are meaningless. So what if he writes down that he won’t follow a certain law. He is still subject to that law no matter what he thinks. Signing statements have zero authority behind them. Just because Bush thinks they have some meaning doesn’t make it so.

  5. Signing statements are meaningless. So what if he writes down that he won’t follow a certain law. He is still subject to that law no matter what he thinks. Signing statements have zero authority behind them. Just because Bush thinks they have some meaning doesn’t make it so.

    Bingo! And the President isn’t the guy who’ll take the fall for it, either. The schmuck on the ground who gets told to do something that violates the law will be in prison pending the outcome of his appeal. Way to respect the law and the people that work for you. Good jorb!

  6. My instincts and history both tell me that while Senator Obama will be worse in the abuse of such things than McCain. His sense of destiny and purpose suggests to me a megolmaniacal quality that McCain, for all of his authoritarian tendency, lacks.

    We are in for a very troubling few years I think…

  7. I’ve always thought that if Ron Paul were elected president, he would use signing statements and also refuse to execute laws that he thought were unConstitutional, no matter what Congress and the Supreme Court said. Has anyone asked him about this?

    I imagine that it would be as hilarious as watching Republicans switch on the imperial presidency. Many libertarians would love the resultant chaos of the “imperial president” Ron Paul refusing to implement unconstitutional law.

  8. In addition to civil rights, signing statements and other forms of abuse of executive power can undermine environmental, health and safety provisions passed by Congress.

    For concrete examples from Republican and Democratic presidents, and for the legal and historical arguments that surround these questions, see the new policy note from the World Resources Institute at
    http://pdf.wri.org/presiding_with_principle.pdf

  9. If Congress disagrees, and thinks that the president is behaving unconstitutionally by refusing to implement their laws, they should promptly institute impeachment proceedings.

    Impeachment isn’t meant to be a primary method of interaction between the legislative and executive branches. It should always be kept in Congress’ back pocket, but keep in mind it’s about as blunt a political instrument as there is.

    Be that as it may, I think GWB has long since crossed any sane threshold of impeachability, but that’s more a case of Congress letting him push the envelope so far.

  10. http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/08/03/signing_statements_its_a_presidents_right/

    Signing statements: It’s a president’s right
    By Curtis Bradley and Eric Posner | August 3, 2006

    http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/08/09/signing_statements_are_a_phantom_target/

    `Signing statements’ are a phantom target
    By Laurence H. Tribe | August 9, 2006

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