There are two ways President Bush likes to wage war on your civil liberties: He either asks you to surrender your rights directly—as he does when he strengthens and broadens provisions of the Patriot Act. Or he simply hoovers up new powers and hopes you won't find out—as he did when he granted himself authority to order warrant-less wiretapping of American citizens. The former category seems more benign, and it's tempting to lump Bush's affinity for "presidential signing statements" in that camp. It's tempting to believe that with these statements he is merely asking that the courts take his legal views into account. But President Bush never asks anything of the courts; he doesn't think he has to. His signing statements are not aimed at persuading the courts, but at reinforcing his claim that both courts and Congress are irrelevant.
Many of us had never heard of a presidential signing statement until last month, when Bush used one to eviscerate the McCain Anti-Torture bill he claimed to endorse. We all saw the big Oval Office reconciliation with McCain; we heard Bush say he was dropping his opposition to the bill, which passed with broad bipartisan support (90-9 in the Senate, 308-122 in the House) and made it illegal for Americans to engage in the "cruel, inhuman and degrading" treatment of detainees held here or abroad. What we missed was the actual signing ceremony, which took place two weeks later, at 8 p.m. on Dec. 30.
Unless you spent New Year's weekend trolling the White House Web site or catching up on your latest U.S. Code Congressional and Administrative News as you waited for the ball to drop, you probably missed the little "P.S." the president tacked onto the McCain anti-torture bill. The postscript was a statement clearly announcing that the president will only follow the new law "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch ... and consistent with the constitutional limitations on the judicial power." In other words, it is for the president—not Congress or the courts—to determine when the provisions of this bill interfere with his war-making powers, and when they do, he will freely ignore the law.
Signing statements are presidential announcements added to a piece of legislation on signing. They range from benign executive branch throat-clearing—thanking and praising the bill's sponsors—to something that approaches a line-item veto: expressions of presidential reservations about the law. These statements are perfectly legal. Presidents have used them since Monroe, and, as Bush supporters are quick to point out, Bill Clinton was one of the most prolific issuers of signing statements. But, as professor Phillip W. Cooper's paper in the Sept. 2005 issue of Presidential Studies Quarterly reveals, the difference between President Bush's use of the statements and that of his predecessors is a matter of frequency and kind.
President Ronald Reagan, guided by his Attorney General Edwin Meese III (and urged on enthusiastically by a young lawyer called Samuel Alito), launched a concerted policy to start to use signing statements as a means of reinforcing the executive's message and consolidating its power. Meese arranged to have them published for this very reason. Until the Reagan presidency, the executive branch had only ever issued a total of 75 signing statements. Reagan, Bush I, and Bill Clinton deployed them 247 times between them. (Clinton issued more statements than Bush I, but fewer than Reagan). According to Cooper, by the end of 2004, Bush had issued 108 signing statements presenting 505 different constitutional challenges. He has yet to veto anything.
How important are these executive-branch constitutional challenges? Not very. While a few courts—including the Supreme Court on occasion—have nodded their heads at a signing statement in attempting to construe the intent behind a piece of legislation, they are consulted only rarely and given limited legal weight. Bush's legal claims that black is white and up is down won't likely trump the clear and express will of Congress in a courtroom anytime soon. Certainly you'd need at least three more Sam Alitos on the Supreme Court before you need to fear a judicial declaration that they represent some kind of binding legal authority. Does that mean the statements are legally meaningless and that the fretting over them represents yet more reflexive anti-Bush hysteria?
Dismissing these statements because they carry so little legal force is as dangerous as writing off any of Bush's other extreme legal claims to boundless authority. Because while these cases slowly wend their way through the court system, there are real-life consequences to Bush's policies—and especially his torture policies—on the ground.
First, consider the substance of Bush's statements. Of the 505 constitutional objections he has raised over the years, Cooper found the most frequent to be the 82 instances in which Bush disputed the bill's constitutionality because Article II of the Constitution does not permit any interference with his "power to supervise the unitary executive." That's not an objection to some act of Congress. That's an objection to Congressional authority itself. Similarly, Cooper counted 77 claims that as president, Bush has "exclusive power over foreign affairs" and 48 claims of "authority to determine and impose national security classification and withhold information." Bush consistently uses these statements to prune back congressional authority and even—as he does in the McCain statement—to limit judicial review. He uses them to assert and reassert that his is the last word on a law's constitutional application to the executive. As he has done throughout the war on terror, Bush arrogates phenomenal new constitutional power for himself and, as Cooper notes, "these powers were often asserted without supporting authorities, or even serious efforts at explanation."
And if you believe that all this executive self-aggrandizement is meaningless until and unless a court has given it force, you are missing the whole point of a signing statement: These statements are directed at federal agencies and their lawyers. One of their main historical purposes was to afford agencies a glance at how the president wants a statute to be enforced. As Jack Balkin observed almost immediately after the McCain bill, signing statements represent the president's signal to his subordinates about how he plans to enforce a law. And when a president deliberately advises his subordinates that they may someday be asked to join him in breaking a law, he muddies the legal waters, as well as the chain of command.
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