Presidential signing statements: above the law?

That final flourish of the presidential pen has a certain magic to it. Seated in the Rose Garden, television cameras recording every movement and every spoken word, the President of the United States performs an act of transformation. What was once just an idea now has emerged (often after a long and bitter struggle) as an official act of the United States Congress. Surrounded by smiling legislators and supporters (each of whom will receive a souvenir pen and a copy of the legislation, suitable for framing), the President takes the final step and turns that idea into the law of the land. It is a moment that symbolizes the way American government works, the real world of "how a bill becomes a law."

At this point, Presidents often issue quite public statements describing their reaction to the occasion. Sometimes they will grumble that they have signed the bill reluctantly, fearing it was the best they could do. However, far more often they will celebrate the signing as a moment of tremendous importance.

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Through March 2006, this is probably what most Americans pictured in their minds when they thought of presidential "signing statements." After 16 years as a member of Congress and 14 more years teaching about government at Harvard, Princeton and Georgetown universities, that is what this writer would have thought, too. In past years, I had received such pens and been present in the Rose Garden to hear such statements. Signing statements? No big deal, really; just a President getting his share of the credit.

The Problem

Then, in April 2006, Charlie Savage, a reporter for the Boston Globe, provided a look at a new twist to the idea of presidential signing statements. Savage revealed that the current President, George W. Bush, had quietly issued more than 750 written statements in which he challenged parts of the very laws he had just signed. Furthermore, he often claimed the right, as President, to disregard those sections of the laws that he had challenged. In other words, he invoked a presidential right to simply disobey the law.

The best-known example of a signing statement asserting the President's right to ignore a law came in response to legislation which contained a provision specifically prohibiting the use of torture in the questioning of captured enemy combatants. That provision had been written by Senator John McCain (R AZ), himself a former torture victim, after disclosure of abuses at the Abu Ghraib detention facility. Passage of the McCain amendment had been front-page news, as had been the President's act making the provision the law of the land. At the time, the signing statement which attempted to nullify the provision went virtually unnoticed.

Many other such presidential assertions have also escaped notice, among them challenges to laws providing for congressional oversight of the Administration's implementation of the USA PATRIOT Act, restrictions on the use of American military forces stationed in Colombia, protection for government whistle-blowers, protections against politically-motivated interference with taxpayer-funded research programs, and a variety of directives requiring federal agencies to provide information to Congress.

In this regard, research revealed that this President has issued more signing statements than all 42 previous presidents combined--750 plus compared to fewer than 600. And, this President has used them more frequently in order to assert his authority to disregard provisions of the law that he signed.

In the uproar that followed Savage's report, numerous articles and critical editorials appeared in newspapers across the country. At the same time, the American Bar Association, which represents more than 400,000 lawyers, appointed a nonpartisan task force to take a balanced, scholarly look at the use and implications of signing statements.

In July 2006, at the end of the process, the ABA issued a statement challenging the President's claim that he had the authority to disobey the law and urging the passage of legislation that would allow the Congress the necessary "standing" to challenge the President's decisions before the Supreme Court. The nonpartisan Constitution Project issued a similar statement.

This "new" usage of presidential signing statements that the current President has introduced is of vital concern not only because of its immediate effect on the legislation he has signed into law. This usage has grave ramifications beyond the particular laws it affects. Hence, it would be wise to consider both sides of this very important issue, those supporting the current usage of presidential signing statements and those opposing it.

In Defense of Signing Statements

The contention is that presidential signing statements are not new. They have been used for many years by Presidents of both parties. President Reagan issued them. President Bush's father, George H. W. Bush, issued statements challenging 232 laws over his four-year presidency. Former President Bill Clinton issued 140 in eight years.

When the courts consider the constitutionality of a piece of legislation, they often take into account congressional statements of legislative intent. Presidents are also part of the legislating process. Sometimes they provide the impetus for a bill to be passed. And, they are almost always involved in discussions, and sometimes negotiations, prior to passage. It is only appropriate, therefore, that the courts also take into account an Administration point of view.

In addition, the President takes an oath of office to "... preserve, protect and defend the Constitution of the United States." His oath requires him to refuse to implement any law he believes to be a violation of the Constitution. Presumably, the Congress, in passing legislation, believes the bills it sends to the President are constitutional; the President has an equal ability to make that determination.

Furthermore, the President is the head of a "unitary" executive branch of government. The legislative branch has no authority to impose requirements on the departments and agencies of government which fall under the President's jurisdiction.

The reality of the political process is such that presidents are frequently presented with bills that are broad in scope and mingle many items. Presidents do not have line-item veto authority (meaning they must accept a bill in its entirety or veto it in its entirety). As a result, a President may find that in order to veto a bill that contains a constitutionally objectionable item--one that he believes impinges on his own constitutional prerogatives--he would also have to strike down legislation that is both constitutional and necessary (disaster relief, security enhancement, health care programs). In such circumstances, it is more rational to simply refuse to obey what he deems to be an unconstitutional provision.

The Opponents

Those who are concerned about and opposed to the "new" usage of presidential signing statements have no quarrel with such statements per se and as used by previous presidents (including former Presidents Bush and Clinton).

They do find the "new" usage alarming. No American is above the law. Thus, the President may oppose passage of legislation, but the moment he signs it, it becomes the law of the land and he has no more right to then disobey it than any other American citizen would have.

The Constitution is quite clear in stating the choices available to a President when he is presented with an act of Congress: "If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated ..." (Article I, Section 7). In other words, the President may sign it (making it law) or he may veto it. Those are the only choices he has.

Consistent with this argument, critics of the President's use of signing statements point out that as of the end of his first six years in office, he had used the veto only once. Thus, his signing statements served as a substitute means of disapproval, one which denied the Congress its constitutional authority to vote on whether to sustain or override the President's veto.

In effect, the President's signing statements act as a line-item veto, a procedure the courts have ruled to be unconstitutional.

The "real-world" scenario presented by those who defend the President's use of "signing statements" is not, in fact, how the real world works. In the past, presidents who have had concerns about certain provisions in pending legislation have been very open in communicating those concerns to members of Congress--often making clear that if the offending provisions are not removed, the President will veto the entire bill. At that point, representatives of the Administration and members of Congress will generally begin negotiations in an attempt to accommodate the President or amend the legislation to resolve the controversy.

Just as a President wishes to preserve the "good" or "necessary" parts of a bill with which he is presented, so, too, do members of Congress want to ensure that those provisions which they have passed will not be struck down unilaterally.

Should the Congress insist on including the provisions the President finds objectionable, the President may then veto the bill and return it to Congress. This would fulfill the constitutional requirement that the peoples' representatives be given an opportunity to override the President's veto. In fact, the odds are very much on the President's side. If even one-third of the members of either the House or the Senate agree with the President, he wins. Thus, even if the House of Representatives voted 435-0 to override the veto, and the Senate voted 66-34 to override the veto, the veto would stand. Under such circumstances, the President has ample opportunity to express--and enforce--his concerns.

Thus, the opposition contends that no President should be free to simply disregard the law.

The Challenge

Serious scholars have come to different conclusions about the validity of this new and more far-reaching use of presidential signing statements. It has been difficult, however, to engage the Supreme Court in undertaking its usual role as a referee of constitutional controversies. The Court has been reluctant to grant individuals, including members of Congress, the requisite standing to bring a challenge on the grounds that they have not suffered personal injury.

That may change. Congressman Barney Frank (D MA) filed a joint resolution in 2006 that would require the President to notify the Congress if, on signing a bill, he makes a determination that he will ignore any of its provisions. Under Frank's resolution, the Congress would then follow an expedited procedure to determine a legislative response.

At the time Frank filed the resolution, he was a member of the minority party, with little chance that his proposal would get much consideration. Now, with the change in party control of Congress, its prospects may be considerably improved.

Passage of such a resolution might pave the way for the Congress, as an institution, to more formally challenge a President's declaration of the right to disobey the law. It is an issue on which the final word is yet to be written.

VOTER LINKS

* www.abanet.org

* www.presidency.ucsb.edu/signingstatements

Mickey Edwards is a lecturer at Princeton University's Woodrow Wilson School of Public and International Affairs as well as the director of the Aspen Institute's Rodel Fellowships in Public Leadership Program. He is a director of the Constitution Project and served on the American Bar Association 2006 Task Force on Presidential Signing Statements and the Separation of Powers Doctrine. Edwards was a Republican member of Congress from 1977-92.