Presidential power grab: President Bush has been quietly attaching pronouncements to the bills he signs into law. These signing statements amount to a grab for legislative power belonging to Congress.

Republican Senator Arlen Specter (R-Pa.) announced on July 23 that within one week he would have a bill ready that authorizes Congress to sue President Bush in federal court. What could possibly persuade a prominent member of the president's own party to behave so boldly and initiate such unusual and headline-grabbing tactics? Signing statements. Never heard of them? Read on.

On January 20, 2001, George W. Bush placed his hand on the Bible and swore to "preserve, protect, and defend the Constitution of the United States." On January 21, he forsook that oath. Since entering office, President Bush has issued documents called "presidential signing statements" with the intent of disintegrating the Constitution. For instance, when he signed the Intelligence Authorization Act, 2005, Bush attached a signing statement that said, in part:

   Section 502 of the Act purports to
   place restrictions on use of the U.S.
   Armed Forces and other personnel
   in certain operations. The executive
   branch shall construe the restrictions
   in this section as advisory in nature,
   so that the provisions are consistent
   with the President's constitutional
   authority as Commander-in-Chief,
   including for the conduct of intelligence
   operations, and to supervise
   the unitary executive branch. [Emphasis
   added.]

"Advisory in nature"? In essence, President Bush said that he simply intends to ignore the congressional legislation that he was signing into law--sent to him from our federal lawmaking body.

Defiance of Law

A presidential signing statement is a pronouncement that the president appends to a bill he signs into law. Nowadays, this executive addendum sets forth the president's understanding of the law and gives guidance to the myriad departments under the executive branch umbrella on how to carry out the requirements of the new legislation.

Signing statements change the laws, revoking parts of them or adding provisions to them, at the same time redefining the Constitution and nullifying its checks and balances. Using them, the president assumes all power--executive, legislative, and judicial--unto himself and does so in a manner that is beyond question, beyond debate, beyond vote, and beyond the reach of the American people.

If a president does not like a piece of legislation, the only recourse allowed him by the Constitution is a veto. It is telling that while President Bush habitually distorts the power delegated to him by the Constitution, in his nearly six years in office, he has vetoed only one piece of legislation--the stem-cell research bill. Until now, the president has successfully avoided attracting attention to his power-pilfering pronouncements, obviously so that he can duck public reaction--like reaction that might accompany a veto. Why risk public scrutiny that would accompany a veto when he can accomplish the same end by issuing a signing statement that will never be discussed? He sits quietly in the dark solitude of the Oval Office having his monarchical cake and eating it, too.

President Bush is being clever through so openly defying the law that almost no one even thinks to question his right to do so.

Bush has issued over 750 constitutional challenges in his 100-plus signing statements, yet the president never refers to them in public, the text is almost never included in stories about the new legislation, and studying them and understanding their threatening nature requires diligent study of the actual text of the law that the statement usually seeks to recast. Until a hearing took place in June on Capitol Hill about the dangers of signing statements, little was said about them. And media coverage has done little to illuminate their implications.

Despite the failings of the mainstream press, the Bush administration has felt enough heat from activist groups that it has been forced to defend the practice of issuing signing statements. According to the Jurist, Deputy Assistant Attorney General Michelle E. Boardman offered a prepared statement on Bush's behalf. She said:

   It is important to establish at the outset
   what presidential signing statements
   are not: an attempt to "cherry-pick"
   among the parts of a duly enacted
   law that the President will choose
   to follow, or an attempt unilaterally
   to redefine what the law is after its
   enactment. Presidential signing statements
   are, rather, a statement by the
   President explaining his interpretation
   of and responsibilities under the
   law, and they are therefore an essential
   part of the constitutional dialogue
   between the branches that has been
   a part of government since the early
   days of the Republic.

She added that President Bush's use of signing statements is "indistinguishable" from previous presidents'. But she is misrepresenting history. A brief sketch of the history of early uses of the presidential signing statement will show that early presidents used signing statements for rather benign reasons: thanking supporters, nods to constituents, or communicating executive favor or disfavor. When early presidents did try to impose their will through signing statements, Congress chastised them.

Historical Overview

Andrew Jackson, a lightning rod to controversy, issued a controversial signing statement. In a bill authorizing construction of new roads and the improvement of existing roads, Congress included a provision dealing with internal improvements, a matter Jackson believed was under the exclusive jurisdiction of the states. In his signing statement, Jackson mandated that the road not extend beyond the territorial boundaries of Michigan. Congress rebuffed Jackson's attack, calling his statement a de facto unconstitutional line-item veto. (Despite the House of Representatives' defense, however, Congress eventually caved, and Jackson's direction was followed.)

President John Tyler received a stern rebuke from the House of Representatives after he issued a signing statement questioning the constitutionality of a bill apportioning congressional districts. The House of Representatives reacted quickly and sharply in a response authored by John Quincy Adams demanding that Tyler's signing statement "be regarded in no other light than a defacement of the public records and archives." For the most part, this forceful congressional reproof scared future presidents straight with regard to the issuing of controversial signing statements.

One has to look to more modern presidents, such as Franklin Roosevelt, to find examples of Congress acquiescing to presidents seeking to abuse the use of a signing statement.

Franklin Roosevelt, facing perhaps the most milquetoast Congress of the modern era, removed all obstacles that impeded his program to drag the United States into the mire of his socialistic New Deal scheme. Commenting in a signing statement attached to the Emergency Price Control Act of 1942, which was designed to stabilize the economy without harming American farmers, Roosevelt adamantly declared:

   There is nothing contained therein
   which can be construed as a limitation
   upon the existing powers of
   governmental agencies, such as the
   Commodity Credit Corporation, to
   make sales of agricultural commodities
   in the normal conduct of their
   operations.

In addition to this edict, Roosevelt promised Congress that if it did not remove the "offensive" portion of the bill, he would ignore it and treat it as nonexistent and inapplicable to his administration. Congress capitulated, and the protection for American farmers was removed from the bill. Roosevelt was supported by a sympathetic legal adviser who assured him that if he decided "that a certain course of action is essential as a war measure, it supersedes congressional action."

Signing statements gained teeth with the aid of a lackluster, inattentive Supreme Court. In the case of United States v. Lovett, a suit in which Roosevelt argued in a signing statement that the Urgency Deficiency Appropriations Act of 1943 contained restrictions on his management of the executive branch, the court accepted Roosevelt's signing statements as persuasive and held in dictum that presidential signing statements merited consideration and mention in their decision.

Congressional complacency married with judicial complicity removed the checks and abandoned the balances.

The Reagan Revolution

Presidential signing statements are "cherry-picking" the parts of a law that presidents wish to follow or ignore. The uses to which signing statements have been put since they began to flourish in earnest during the Reagan administration show that their clear intent is to subvert the law.

The principal promoter of this new, albeit unconstitutional, definition of the separation of powers was Reagan's attorney general, Edwin Meese, III. He and his cohorts in the "conservative" Reagan administration set their sights on the Constitution in order to "provide an opportunity for the chief executive to participate more actively in the creation of legislation than the mere decision to sign or veto bills transmitted from the Congress." These are Meese's own words!

Article II, Section 3 of the Constitution--called the "Take Care" clause of the Constitution, wherein the president is charged with a duty to "take care that the laws be faithfully executed"--was used as justification for overruling congressional acts. If a part of a law doesn't jibe with the president's notion of his constitutional role, then rather than veto a bill and throw the baby out with the bath water, the president interlineates his own language into the bill, thus directing the bureaucrats tasked with implementing the provisions of the law to do so according to the president's definition of "constitutional," rather than according to the express will of the people as manifested through the actions of their elected representatives. With this statement, then, the president elevates his mind and will above that of the people, Congress, and the courts.

Attorney General Meese was not the only faithful foot soldier of the Reagan Revolution. Future Supreme Court Justice Samuel Alito, Jr., while working as a lawyer in the Reagan Justice Department, provided President Reagan with "constitutional" justification for his boss's official disdain for congressional authority to limit executive dominion. In a memo from the Office of Legal Counsel to the White House, Alito argued that "since the President's approval [of a bill] is just as important as that of the House or Senate, it seems to follow that the President's understanding of the bill should be just as important of that of Congress." He goes on to assert that when interpreting a statute, a court should give equal weight to the letter of the law and the president's understanding of the letter of the law as contained in the presidential signing statement accompanying the bill, ignoring the fact that such a consideration by the courts would disrupt the balance of power and throw the government into chaos.

President George W. Bush has fine-tuned these arguments. He not only uses the "Take Care" clause to justify his actions but also references the "Vesting Clause"--"The executive power shall be vested in a President of the United States." Piecing the two together, a constitutional Frankenstein known as the doctrine of the "unitary executive" was created and given life. The party line is that regardless of legislation or adjudication to the contrary, neither the Congress nor the courts may interfere in the president's oversight and management of any of the agencies and departments under the Executive branch head. Moreover, if any bill or legal decision dares to make such an attempt at control, the president may ignore such acts and execute the laws according to his own interpretation of checks and balances.

Obviously, these abstract justifications are in direct conflict with the Constitution's explicit grant of "all Legislative powers ... in a Congress of the United States which shall consist of a Senate and House of Representatives" (Article I, Section 1). Further, the Constitution could be no clearer in its granting of exclusive power to the Congress 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" (Article I, Section 8), and "to make Rules for the Government and Regulation of the land and naval Forces" (Article I, Section 8).

Presumed Powers

"Conservative" Bush I and "liberal" Bill Clinton played a pernicious game of follow the leader by perpetuating the "accomplishments" of the Reagan Revolution by veiling all their machinations behind a curtain of implied constitutional authority. President George W. Bush habitually uses his statements as tools to create an unconstitutional imbalance of power, one buried paragraph at a time. These statements are employed so often and with such regularity that otherwise careful inspectors glaze over these statements like so much legal boilerplate, and thus the march toward tyranny continues on unchecked and nearly unnoticed.

There are those content to assume that President Bush is ignorant and generally oversteps his constitutional bounds because of his tendency to shoot from the hip. There is a sort of tacit allowance made for the actions of a tool. Bush is no fool. He and the executives who have preceded him (and undoubtedly those who will follow him) have systematically and carefully followed a course designed to subvert the Constitution and link by link free themselves from the chains that wise statesmen forged over 200 years ago to restrain the monster that is political power.

Today we urgently need a congressional denunciation of President Bush's attempts to make Congress irrelevant to the legislative process. Perhaps such a steadfast response from our elected representatives would make the next administration think twice before grabbing for legislative power that does not belong to them. If left unchecked, our inaction will render the Constitution and all its restraints on power irrelevant and one day soon the president will become king in deed if not in fact. His whims will truly be enshrined as "the law" and the Constitution that we now revere will lie lifeless on the floor of history, discarded and buried under the weight of unconstitutional presidential signing statements.