Balkinization  

Monday, May 01, 2006

President Bush: "It's Not Law Unless I Say So (And Even If I Said So)"

JB

Today, May the 1st, is Law Day, celebrating the Rule of Law, which, under this Administration, has been honored more in the breach than the observance. Indeed, this article by Charlie Savage in the Boston Globe points out that
President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution. Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Savage is pointing to one of the effects of the explosion of Presidential signing statements under the Bush Presidency: Bush's decision-- instead of vetoing legislation-- to state that certain parts of laws that he signs are unconstitutional and will not be enforced or will be applied in very limited ways. One effect of this policy, as I've described here, is that the President may be directing his subordinates to refuse to enforce a wide variety of federal laws in secret, with little or no public accountability, and with no effective way for the courts or Congress to hold him to his duties to enforce the law and "take care that the laws be faithfully executed" under the Constitution.

A second important effect of Bush's policy is that he doesn't have to take the political heat for vetoing statutes that he believes are unconstitutional or unconstitutionally overbroad. Indeed, he has not yet vetoed a single bill sent to him by Congress.

The irony is that, at least in the early years of the Republic, the only time that Presidents tended to use their power of veto was when they believed that a law was unconstitutional. Bush's decision *never* to veto any bills he believes are unconstitutional is in some tension with his duties under the Constitution, at least if his views about unconstitutionality are in good faith. Surely Presidents shouldn't be required to veto every bill that passes their desk that has a constitutional difficulty, especially if the problem is a relatively minor part of a major piece of legislation. However, it is hard to argue that none of the 750 bills he claims are unconstitutional don't deserve a veto if he is serious about the constitutional claims he is making. One suspects that the President is primarily interested in escaping accountability for executive actions rather than having courts determine the constitutionality of provisions the President objects to; this is especially the case in the area of foreign relations, prisoner detention and prisoner interrogation. The Bush Administration didn't want Congress regulating how the it treated prisoners, regarding any such interventions as unconstitutional; at the same time, it didn't want the courts deciding the question of constitutionality either. It simply wanted to be free of legal obligations or responsibilities in this area other than those that it choose for itself.

Bush is not the first President to try this strategy, but he has taken it to new extremes, making it a regular part of his relationship to law, as Savage details in his article. Making this a regular and pervasive practice is constitutionally worrisome, because it allows the President to escape responsibility for enforcing laws that he himself signs into law based on what may be unreasonable claims about constitutionality which are devised primarily to increase his own power. It allows the President to gain many of the advantages of the veto without incurring the political disadvantages, and it allows him, by riddling bills with exceptions in how he will enforce them, to produce what is in effect legislation that Congress never passed. In this way, Bush does an end run around the logic of separation of powers, one of whose central purposes, it should be pointed out, is to restrain the arbitrary exercise of power.

Bush has already adopted President Nixon's view that if the President authorizes something, it isn't illegal, despite what the text of the law says. Now Bush has taken the converse position that if the President doesn't agree with legislation, even legislation that he signs, it isn't law. Together, these two attitudes are deeply corrosive of the Rule of Law and move us down the path to a dictatorial conception of Presidential power-- that is, the conception that the President on his own may dictate what is and what is not law, rather than the President merely being the person in constitutional system entrusted with faithful implementation and enforcement of the law.


Comments:

While there appears to be little dispute among scholars that Bush has usurped his Constitutional power and disregarded his executve responsibilities, no one seems to be doing anything about it. Is this just an instance of all talk and no action, or is the American democracy designed to insulate the President from all efforts to curb his power apart from that of Congress? Put another way: If Congress refuses to act (which is certainly the case) what can be done?
 

I am intrigued that this is only getting attention after five years.

FWIW, I checked the NY Times search on "signing statement".

One Reagan story, but that was by Linda Greenhouse in 1986 telling us that Reagan was adoting the tactic regularly (excerpt follows);

Two Bush 41 bills (Civil Rights, miltary) drew five stories;

One Clinton story on a budget stop-gap bill keeping the government open;

And a flurry (4) for Bush 43 after the McCain torture bill incident.


Here is Greenhouse 1986:

WASHINGTON TALK: THE WHITE HOUSE; In Signing Bills, Reagan Tries to Write History

The traditional battleground for fighting over the meaning of a new law is the courtroom, where Federal judges scrutinize the language and history of a disputed statute to figure out what Congress intended and how the law should be applied.

In recent months, the Reagan Administration has opened a second front in this age-old battle. The White House has begun issuing ''signing statements'' at the time President Reagan signs a bill into law, to convey his own interpretation for the guidance of administrators and judges.

Whether such Presidential interpretations would really have any effect, as far as the judicial determination of legislative intent is concerned, remains an open question. But one recent signing statement, among a few dozen Mr. Reagan has issued in the last year or so, has infuriated some key supporters of the bill at issue, making evident the politically charged nature of the practice.

...


Tom Maguire
 

All right, Mr. Maguire, I'll bite: what is so "intriguing" about it "only getting attention after five years"? Bush's use of signing statements is orders of magnitude greater than anyone else's, both in sheer quantity and in the growing number of boilerplate pretexts employed; it takes a while for that to become apparent, especially to today's sleepwalking press corps. As I mention here,

Christopher Kelley counts 76 signing statements by all presidents before Carter, 322 for all presidents before George W. Bush -- and 435 in Bush's first term alone (p. 31).

Kelley's article ("Rethinking Presidential Power -- The Unitary Executive and the George W. Bush Presidency") is here (Acrobat).
 

Cato has a very systematic analysis of the President's usurpation of legislative powers here: http://www.cato-at-liberty.org/2006/05/01/bush-ignores-hundreds-of-laws/
 

O Ye Constitutional Legal Beagles,

I ask naive constitional questions here from time to time. This is another.

If Bush the Younger claims that Laws from Congress do not apply to him as Commander-and-Chief (of the Army, Navy and states' Militia--nothing about executive departments) under Article II, Section 2, how does he get around the following powers granted to Congress in Article I, Section 8?

* To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
* To make Rules for the Government and Regulation of the land and naval Forces;

...and the nice catch-all...

* To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
 

Bush's rationale is that inasmuch as we're in a war (whose goals and duration are his to determine), he is free to disregard laws hampering his way of waging the war. What was Reagan's?
 

How fast could we find a cause of action to that would enable the validity of the signing statements to get tested in court? Or would we even want to do that?
 

The signing statements don't actually enable the executive to decide not to enforce a law generally, do they? I'm thinking the president would have to individually authorize specific violations--maybe operation-by-operation or administrative subdivision by administrative subdivision. This would dupe Congress into imagining wider and more universal enforcement than they actually get (so that it would be more sporting, if not more constitutional for the president to veto and ask them to write him in some exceptions) but it's generally it's not a refusal to enforce the law. It's a refusal to enforce the law without exception, or to enforce it universally, is what I'm guessing. I think there's some slipperiness in the term "enforce." We take it to connote "universally." But a legislature would rather have some captured thieves despoiled than to have none at all, so to get less than universal enforcement isn't necessarily to get bupkus.
 

" Surely Presidents shouldn't be required to veto every bill that passes their desk that has a constitutional difficulty, especially if the problem is a relatively minor part of a major piece of legislation."

I fail to see what's "surely" about it. It's seldom indeed, if ever, that Congress delivers up a partially unconstitutional bill that's so important that the sky would fall if it's enactment were held up a while, or even never occured.

You just don't take constitutional violations seriously enough.
 

It is not the signing statements themselves that are the problem, but the extent to which the President in fact disregards statutes.

Violating FISA, for example, had nothing to do with a signing statement. Yet if it were not for the exposure by the press, none of us would even know of the breach. And if Bush does violate the McCain anti-torture amendment, as his signing statement asserted the right to do, how will anyone even know?

Beyond secrecy, a huge problem with such behavior is the lack of judicial review. Our constitutional republic depends on a minimal level of good-faith compliance by the President and respect for his coordinate branches. It is one thing to balk at executing a statute deemed to be unconstitutional, with the purpose of facilitating a test case for Supreme Court review. But Bush has adopted a strategy of avoiding the courts -- in the FISA controversy and in the Jose Padilla case, for example -- at all costs.

Interestingly, when OLC attorney Samuel Alito proposed expanding the use of signing statements in 1986, his purpose was to build an expanded "legislative history" for eventual judicial review. That purpose seems quaintly benign in the context of Bush's unilateralism today.

Finally, congressional oversight now is crippled by extreme partisan forces that supplant institutional checks and balances. In some cases, justiciability issues require Congress to enforce its own standing directly rather than depending on the courts, but Congress fails to do so. In others, Congress could act to facilitate judicial review but lacks the political will.
 

An update: Chairman Specter says there will be hearings in June.
 

Besides the 2004 CSKelley paper linked in contributor T.Nephew's comment, above, regarding the unitary executive I highly recommend the companion articles at CSK's site written in the past six years. The 2003 paper gives ample specifics to contextualize some of the first political nexa which various presidents resolved by signing-memos. In addition, CSK draws the signing documents into three genres: some memos were to comment about constitutional questions, other memos were akin to advertisements to placate vested interests whose advocacy had lost in congressional lawmaking, but the modernist trend which comprises the third genre is about remaking laws to the executive's liking and does more than sequester lineitems the president finds repugnant, rather, increasingly has become the functional equivalent of reshaping congressional debate by either restating it in the executive's own terms, or introducing suggestions which, in fact, were not vetted widely at all during congressional debate; an executive exercise which controverts the balance among the three branches arrogating unto the executive elements of the spheres of activity of each of the other two branches. See there.
In sum, reading the scientific papers cited, it seems a lot of historical legal work needs to occur to understand the tensions which the modern memo tool has resolved. For example, one comment was that advocacy group praise was a hallmark of the Clinton use of signing memos, yet, the paper goes on to discuss other problemsolving techniques the memos supported for that president.
That the first president Bush's term constituted the beginning of the statistical avalance of such memos may or may not be significant; in my opinion at the moment, I need to research the specifics before making judgment. Then the second president Bush employed a quantum leap in numbers of such memos utilized; perhaps most telling is the second president Bush's terms' absolute absence of use of the archaic form of interaction with congress: the veto; the second president Bush has channeled all rejections into the new tool, the 'enhanced veto', which is the signing memo.

Utilization of the presidential signing memo to promote effectiveness of government; devising a definition of a territoriless foe; and other topics are likely to be among those presented at the congressional hearings soon to be held on this matter, as it is likely proponents of the signing memo will proffer multiple such reasons for its effectiveness as the enhanced veto tool of choice for the US President.
 

The media has done an extremely poor job of covering this.

The most important of these is the nsa program. It is not only flagrant, it also creates raises 1st, 4th, and 5th amendment issues, and most importantly, creates a wholly unchecked government power.
Yyet to much of the kowtowed mainstream meida, the issue has "two seemingly equal sides."

Yet in a recent Wasington Post article, despite this horrendously sugar coated coverage of the realities of the bush administrations policies, reporters jim vandehei and Michael Fletcher duly recited the administration's claim that it does not receive fair treatment from the press.

here is a letter to Vandehei that paints a different perspective.
 

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