Use of signing statements could threaten liberty

Freedom Newspapers

It has long been viewed as an anomaly, even a curiosity, that President Bush, who has been more jealous of the powers and prerogatives of the presidency than any recent inhabitant of that office, has not used his power to veto a single law passed by Congress. Recent surveys of his use of what are known as presidential “signing statements,” however, might suggest that even this record is consistent with the view that the powers of the presidency, especially but not exclusively when it comes to national security, are virtually unlimited.

Many commentators, including this page, noted the president’s extensive use of signing statements, many of which included the controversial term “unitary executive power,” during confirmation hearings for Supreme Court Justice Samuel Alito. As an aide during the Reagan administration, Alito had helped to begin the practice of presidential signing statements, which explain the president’s interpretation of the law just signed, in hopes of creating a record that might influence future court decisions.

If the high court has been influenced by presidential signing statements it so far has not acknowledged it in written opinions, but the signing statements do influence the way laws are implemented by the bureaucracy. President Reagan attached signing statements to a few dozen bills. President George H.W. Bush used them to challenge or reinterpret bills he signed 232 times. President Clinton used them 140 times.

The current President Bush, as the Boston Globe has reported, has issued 750 signing statements. Most of them claim more power for the executive branch, both in interpreting the law and in carrying it out, than is contained in the language Congress approved. Some come very close to saying, in effect, I’ll choose to ignore this law because I think it tramples on executive privilege.

For example, an October 2004 bill created the position of inspector general for Iraq to oversee actions by the military occupation forces. The president’s signing statement said the inspector “shall refrain” from investigating anything the Pentagon prefers to investigate itself.

In December 2004, Congress passed an intelligence bill requiring the Justice Department to tell Congress how often, and in what situations, it was using national security wiretaps on U.S. soil. Bush’s signing statement said he could withhold such information at his discretion.

After Congress passed a law last December to clarify that torture was forbidden, a Bush signing statement said it would be interpreted in accordance with “unitary executive power,” implying strongly that it could be overridden if the president decided to do so.

Thus it is perhaps no surprise that this president has not vetoed a single bill. Many of his signing statements amount to partial vetoes, or to a declaration that he has extraordinary freedom to decide how to execute the laws Congress has passed.

This is not healthy. If a president believes a new law infringes on presidential powers in a way he thinks is unconstitutional — a common argument in Bush signing statements — he has the power (perhaps the duty) to veto it and challenge Congress to do better. That is the major avenue the Constitution provides for a president to “protect and defend” the Constitution. With a veto a challenge occurs in the open, in a way calculated to engender public discussion.

Challenging new laws through signing statements is less open, less subject to public scrutiny and less likely to inspire healthy debate and discussion. In the long run it could well pose a threat to the separation of powers, one of the cornerstones of American liberty.