George W., Indian Giver

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July 24 2006 4:07 PM

George W., Indian Giver

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The American Bar Association has issued a report condemning President Bush for abuse of presidential "signing statements" during his five-and-one-half years in office. Signing statements are announcements put out by the White House whenever the president signs some piece of legislation into law. Presidents going back to James Monroe have used signing statements to place caveats on their willingness to enforce the laws in question, based on their reading of the Constitution. It's a sort of executive-branch fudge.

Until the election of George W. Bush, signing statements were used sparingly as a means to defy Congress. From the dawn of the republic until the inauguration of Bush fils, the nation's first 42 presidents collectively used signing statements to challenge fewer than 600 laws. By the current sixth year of his presidency, Dubya has thus far used signing statements to challenge about 800 laws. Every piece of legislation that President Bush signs is first routed through Vice President Dick Cheney's office, where Cheney's Chief of Staff, David Addington, scans the bill for any perceived challenges to executive-branch authority. President Bush recently signed the first out-and-out veto of his administration, rejecting a bill that would have eased somewhat the current restrictions on stem-cell research. This was greeted as big news. But Addington has quietly been vetoing legislation for years by arranging, in effect, for Bush routinely to sign bills with two fingers crossed behind his back.

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As Slate's Dahlia Lithwick has explained, presidential signing statements may not hold sway over many judges (two notable exceptions being Supreme Court Justices Antonin Scalia and Clarence Thomas), but signing statements have enormous influence over the federal agencies that implement legislation. Owing in large part to the White House's abuse of signing statements, the Bush administration's stance toward Congress calls to mind more than most Woody Allen's joke about the South Sea Island tribe that lacks a word for "no." Instead its tribespeople say, "I'll get back to you."

The ABA report recommends, among other things, that Congress pass a law requiring the president to inform Congress in timely fashion of those parts of existing legislation he intends to ignore, and why. The report then poses the inevitable question: "Could a president, in a signing statement, disregard even this legislation?" This, the ABA explains, is "precisely what occurred in 2002" after Congress, exasperated by Bush's use of signing statements to withold all sorts of information that he was required by law to share with the legislative branch, passed a law requiring the attorney general to submit to Congress a detailed report of every instance in which he or any Justice Department official ignored these or any other legislative mandates.

You see where this is going. Bush signed the bill into law (U.S. Code 28 § 530D). Then the White House issued a signing statement  that completely negated it. To read the footnotes, roll your mouse over the highlighted portions.

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The legislation only "purports to" impose the obligations listed below because Vice President Cheney's chief of staff doesn't care for that provision.
U.S. Code 28 § 530D, which Bush signed into law, states that the attorney general shall alert Congress whenever he or an underling chooses to refrain "from enforcing, applying, or administering any provision of any federal statute, rule, regulation, program, policy, or other law...on the grounds that such provision is unconstitutional."
This language has become standard Bushie boilerplate in signing statements. The phrase "unitary executive" alludes to a cultish legal theory granting the president power over Congress and the courts. Elizabeth Drew points out in the June 22 New York Review of Books that unitary theory defies Marbury v. Madison, the Supreme Court case that established judicial review in 1803. So long, 203 years of jurisprudence, it's been good to know ya!
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Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.

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