Signing away our Constitution: the Bush administration, using signing statements as tools of legislation, has recently claimed the power to open our mail without a warrant.

In his letters concerning "An Examination of the Constitution of the United States" that appeared in the Philadelphia Independent Gazetteer from September 26-29, 1788, the early American industrialist Tench Coxe--who also served as a delegate to the Continental Congress--noted that the president's power regarding legislation "amounts to no more, than a serious duty imposed upon him to request both houses to reconsider any matter on which he entertains doubts or feels apprehensions."

In this opinion Coxe was in keeping with the Founding Fathers generally, who held that the president exercised only a negative power over legislation. This was described by Alexander Hamilton in The Federalist, No. 73. There Hamilton observed that, through the veto, the president could exercise only a "qualified negative ... upon the acts or resolutions of the two houses of the legislature," by which he meant that the president has only the "power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body."

George W. Bush, it seems, disagrees with the Coxe, Hamilton, and the Founding Fathers generally on this point. Instead, his administration has adopted the use of the signing statement, affixed to legislation when signed into law, as a means by which the legislative power may be more fully exercised by the office of the president, despite and against the Constitution's sole delegation of this power to Congress.

Warrantless Surveillance

According to the Houston Chronicle and the Associated Press, President Bush has been the most prolific president in history when it comes to issuing signing statements. An analysis by Attorney Joyce A. Green found that "147 signing statements challenge over 1,140 federal laws." Bush will likely issue many more before leaving office. That number alone, however, would not be significant if his signing statements conformed to past presidential practice, wherein they were used in a relatively innocuous fashion, such as to congratulate those who passed a particular bill or to denote the importance of a particular new law. In a dangerous and revolutionary reapplication of the practice, however, President Bush has used signing statements to indicate how laws should be interpreted and enforced.

Among recent examples, the most egregious is the signing statement the president affixed to the postal reform legislation he signed into law on December 20, 2006. That law upholds the long-cherished notion that the government may not open mail without a warrant. The legislation specifies: "The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection." Moreover, it asserts: "No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee."

Despite the law's clearly worded proscription against government snooping, through a signing statement the Bush administration turned the law on its head. In his signing statement the president asserted that the executive branch would construe this section of the law "in a manner consistent ... with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection." Essentially, with the stroke of a pen the president exercised unconstitutional legislative authority granting the executive branch surveillance powers explicitly forbidden by the law passed by Congress.

The White House defended the signing statement on the new postal law, arguing that it only reasserted existing law in order to clarify the new law. "This is not a change in law, this is not new, it is not ... a sweeping new power by the president," said White House spokesman Tony Snow. Kate Martin, director of the Center for National Security Studies, observed, however, that if no new powers were being claimed, then there would have been no need for the assertion contained in the signing statement. "The administration is playing games about warrants," Martin told the Washington Post. "If they are not claiming new powers, then why did they need to issue a signing statement?"

Undermining the Constitution

As dangerous as is the Bush administration's claim to be able to snoop in the mail as it sees fit, the use of presidential signing statements to modify and even create law is even more dangerous. Writing in The Federalist, No. 47, James Madison, the primary architect of the Constitution, warned: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

By putting an unprecedented degree of legislative power in the hands of the executive, the Bush administration's new use of signing statements goes at least two-thirds of the way toward meeting Madison's definition of tyranny. Recognizing the danger inherent in using signing statements to formulate and interpret legislation, the American Bar Association (ABA) denounced the practice. According to the ABA's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, the organization "opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress." But while George W. Bush is the first president to widely employ signing statements in this way, the idea did not originate with the current administration.

This "innovation" largely grew out of a program pioneered by Supreme Court Justice Samuel Alito--a George W. Bush appointee--back in 1986 when he served as Deputy Assistant Attorney General in the Justice Department. In a memo addressed to the Litigation Strategy Working Group on February 5, 1986, Alito spelled out a revolutionary strategy using signing statements as legislative tools. Moreover, he advised that use of signing statements in this manner be phased in gradually so as not to raise alarm bells among members of Congress and others concerned about the threat to the separation of powers.

According to the Alito memo, the "novelty" of the proposal "is the suggestion that Presidential signing statements be used to address questions of interpretation." The primary purpose of the proposal, Alito observed, would be to "increase the power of the Executive to shape the law." This revolutionary proposal would run into fierce opposition, the future Supreme Court justice knew. "It seems likely that our new type of signing statement will not be warmly welcomed by Congress," he wrote. "The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction. In addition, and perhaps most important, Congress is likely to resent the fact that the President will get in the last word on questions of interpretation."

To head off opposition to this innovation in Congress and among executive branch staff still committed to maintaining the constitutional separation of powers, Alito argued that interpretive (read legislative) signing statements should be phased in gradually:

   As an introductory step, the Department
   should seek to have interpretive
   signing statements issued for a
   reasonable number of bills that fall
   within its own field of responsibility.
   By concentrating at first on a small
   number of bills, we can begin without
   a commitment of resources that
   would necessitate major changes in
   staffing. And by concentrating on
   bills within our own field of responsibility
   and concern, we can begin
   without depending upon the cooperation
   of other departments and agencies,
   which may be skeptical at first.
   If our project is successful, cooperation
   may be more readily available.

In addition, said Alito, "We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress. The first step will be to convince the courts that Presidential signing statements are valuable interpretive tools."

Congressional Inaction

In his Farewell Address, President George Washington warned against encroachments of one branch of government on the powers of the other branches. Those holding the reins of power, he warned, should "confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism."

In the summer of 2006, Pennsylvania Senator Arlen Specter introduced the Presidential Signing Statements Act of 2006. The measure would have prevented presidential signing statements from having the force of law. It was referred to the Senate Judiciary Committee where it languished until the close of the 109th Congress. No similar bill has been introduced to date in the new Congress. To avoid the despotism that worried President Washington, Congress urgently needs to take up this issue again and pass legislation preventing the president from using signing statements as a legislative tool.