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July 26, 2006

Moving against the presidential power grab

It's not one of those issues to be readily reduced to a bumper-sticked slogan or a 10-second TV spot aimed at the base, as we've seen in the cases of flag-burning, same-sex marriage, abortion and immigration, among others.

It's merely more important to the future of the Republic than any of those, or perhaps all of them put together.

It's time for serious people to talk seriously about what is known as a "signing statement." That's the device our presidents have used for some 180 years to declare that some provision or another in a bill being signed into law does not apply to the executive. The device, in short, by which the president declares he is above the law.

Our current president has made use of this device more often than all his predecessors put together -- an American Bar Association task force said in its report this week that '`From the inception of the Republic until 2000, Presidents produced fewer than 600 signing statements taking issue with the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George Walker Bush ..... has produced more than 800.''

They've all been blatantly unconstitutional, Mr. Bush's 800-plus and all the 600 that came before him.

The Constitution gives a president but three options for dealing with a bill presented by Congress. He can sign it, in which case it becomes law; he can ignote it, in which case it becomes law after 10 days; or he can veto it, in which case it does not become law unless each house of Congress approves it by a two-thirds majority.
There's nothing at all in Article I, Section 7, that provides any other option, no excepts, ifs, howevers or excepts. Nothing about "signing statements." No line-item veto.

The only constitutional choice a president can make when confronted with a bill that he believes -- rightly or not -- impinges upon his rights and responsibilites, is to veto it. That view was shared by early presidents and their advisers. Louis Fisher of the Congressional Research Service said the originator of the signing statement may have been Andrew Jackson, who used one to limit the reach of a new law in 1830.

The then-sitting Congress objected, as did subsequent congresses when other presidents followed Jackson's precedent. But none have pushed the issue, settling instead for groaning and grumping, accepting the resulting gray area. As a result, the practice steadily grew until 2001, when the current president launched his blizzard of signing statements.

The report the bar association released this week begins thusly: "RESOLVED, That the American Bar Association opposes, as contrary to the rule of law
and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with theclear intent of Congress..."

The report urges the president and Congress to seek and support a judicial resolution to the issue.

Sen. Arlen Spector, R-Pa., the chairman of the Judiciary Committee, is taking the lead. He said on the Senate floor this week that his committee will seek legisation to "… authorize the Congress to undertake judicial review of those signing statements with the view to having the president’s acts declared unconstitutional."

The issue has been ripening since the time of Andrew Jackson. Its difficult to see how Congress cannot at last proceed to assert its constitutional role --its rights, its responsbilities. Those are being eroded, one signing statement as a time.

I do not want to see a further accretion of presidential power, not for this president, nor for the one who follows him nor for the ones who follow after. Overweening executive power wasn't and isn't part of the plan.

There's an excellent overview of the issue in a memorandum written by assistant attorney general Walter Dellinger in 1993 for President Clinton's counsel Bernard Nussbaun. While Mr. Dellinger's conclusion -- that signing statements are constitutionally defensible --is wrong, the memorandum covers both viewpoints thoroughly. You can find it on the web at www.usdoj.gov/olc/signing.htm#N_1_.

Posted by jcb at July 26, 2006 08:36 PM


As stated, this is something that every President has utilized in the past.

If there is a specific and real issue, then, yes, it needs to be dealt with, but it is not fair to just look at hard numbers and start with the conspiracy theories.

Based on the unusual circumstances that President Bush has had to deal with (9-11, War on Terror), unless there is a specific and real concern, I would suggest that we all start acting like Americans (as though we have a common interest - WHICH WE DO) and keep our eye on the ball (which is winning what is fast becoming WW III).

Posted by: Jim Mowen at July 28, 2006 07:55 AM

jcb, I guess I should have kept my first try at this a little less verbose.

From what I read in the report, signing statements can be used a few different ways, so judging GWB on numbers along isn't fair without considering the content.

I like GHWB, so this won't describe any opinion I have, but numbers-wise it's interesting to note that Presidents Bush account for 1052 of 1600 signing statements.

Just about every president in modern history used them, but only a handful were used to defy the content of laws produced by Congress before GWB.

I think if there was another vehicle to allow the Executive to disagree with a law before its signed and "influence" its modification (similar to a line item veto) before it reaches the President's desk, we'd have a better set of laws to agree on and execute without the need to challenge evey law or every action (or inaction) in its execution.

Posted by: Huck Finn at August 1, 2006 07:37 PM

Huck -- Anything in the neighorhood of a line item veto will be a tough sell. Line item veto would give the president the last word on every deal cut in Congress -- ie., the delicately balanced pork handouts.

Illinois gives its gov a line item veto, but three-fifths majority in legislature can restore whatever gov cut.

Even with that condition, Congress is gonna be real reluctant to go there.

(BTW -- first try????)

Posted by: jcb at August 1, 2006 11:07 PM

On the first try I must have deleted instead of submitted the A+ version instead of posting to you. Next time I write a novel, I'll use word then cut/paste....

With the "line item veto," the House passed H.R. 4890 on 22 June, which is being called "line item veto lite."

What I don't like about it is that it still singles out certain provisions and allows the president to avoid executing a provision for 45 days.

I'd rather see a process where the president can voice his concern about certain provisions within a law and give Congress the opportunity to recind/modify those provisions before a decision to sign or veto the bill in its entirety is made.

Posted by: Huck Finn at August 2, 2006 08:48 AM

Huck -- I followed your link, and went on to read the text of the bill that passed the House. Yi, yi yi.

You could keep an entire corps of Philadelphia lawyers arguing forever about what that document means. It's about 10 times as long as the entire Constitution, including amendments, and all in order to alter he provisions of one simple, straightforward paragraph.

I'm really skeptical that bill is a solution of any real utility, even if its goal is admirable.

Posted by: jcb at August 2, 2006 11:05 PM

I don't understand it either; and I'm really not making any attempt to endorse that paper tiger as the answer but rather to note that it is interesting that the concept is still alive and kicking in Congress. Heck, it at least made it to a vote and passed.

Really, what I'd like to see is a something that let's the President ask Congress:

1) "Before I decide to sign or veto, is that really what you wanted to say about building a NAFTA super highway through Illinois. If you take that project out, I'll sign it into law before close of business." or;
2) "I think this Patriot Act requirement for me to report to you is unconstitutional. I like the rest of it, but I'd blow that requirement off if this becomes law."

It simply adds a formalized feedback loop between the White House and the Hill. In effect, it would force the President to document his concerns with a law BEFORE it is signed or vetoed, so that once it's signed, he has no excuse to fail to execute.

I'm sure much of this happens now verbally and behind closed doors. This would just force a transparency on both branches.

Posted by: Huck Finn at August 3, 2006 05:31 PM