Presidential Signing Statements

Presidential signing statements. Yeah, I've heard of them before, but getting a whiff of how Bush is using them is giving me nausea. I'll note that there isn't any indication in any of these articles that Bush has actually bypassed any legislation with the statements, but then, there isn't any evidence that he hasn't either.

The White House on Tuesday defended President Bush's frequent use of special statements that claim authority to limit the effects of bills he signs, saying the statements help him uphold the Constitution and defend national security.

Senators weren't so sure.

"It's a challenge to the plain language of the Constitution," said Arlen Specter, a Republican whose Senate Judiciary Committee opened hearings on the issue. "There is a sense that the president has taken signing statements far beyond the customary purview."

I'd be more convinced if it wasn't Specter complaining. To be honest, I think he's been doing his utmost to strip the presidency of it's constitutional powers and reserving them for the Congress. Just my opinion.

The bill-signing statements say Bush reserves a right to revise, interpret or disregard measures on national security and constitutional grounds. Some 110 statements have challenged about 750 statutes passed by Congress, according to numbers combined from White House and the Senate committee. They include documents revising or disregarding parts of legislation to ban torture of detainees and to renew the Patriot Act.

Snow said presidents from Dwight Eisenhower to Bill Clinton have issued such statements.

"The president has done the same thing that his predecessors have," he told reporters. "Presidents generally had the same concerns about defending the presidential prerogatives when it comes to national security."

I heard somewhere that Madison was the first to use the signing statement, and that is a long time ago. But I'm going to guess that he didn't do it 110 times instead of using a veto. I'm a bit disgusted that the president has refused to veto legislation and let it come down to use on normal operations that were intended for the government. I'm also displeased with the continued use of National Security as an excuse. Either the power is under the president's constitutional powers, or it's not. National Security is part of his responsibilities, and if a bill tries to strip presidential powers, then there is a veto or the courts.

Orin Kerr points part of the issue:

Watching the webcast of the Judiciary Committee hearing on Presidential signing statements brings up a broader point about the Bush Administration's approach to Article II powers. It seems to me that the Bush Administration's approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration's broad view of Article II powers. Most criticism of the Administration's approach has focused on (1). I'm no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).

Imagine the Administration changed course on (2), and was very explicit about its interpretation of Article II. If that were the case, Congress could respond. Congress would know exactly how the Executive branch is interpreting the law, and would be able to respond accordingly. I believe John Yoo has conceded that Congress would be free to do this even under a broad reading of Article II; for example, Congress could cut funding to the Administration's efforts that go beyond Congress's prohibitions. The details of this may be tricky, but the basic idea is sound: When the feedback loop exists, Constitutional checks and balances can adjust to the President's vision of Article II powers. Think of it as the Coase Theorem of separation of powers.

I have to say I think that the thought of the President laying out his administrations exact policies regarding the constitution is just foolish. And for the exact reason that Kerr provides. If the president fully detailed his beliefs in his constitutional powers and the congress took this statement and used it to draft legislation to restrict presidential powers, the whole government would cascade into a dead lock. After seeing the ability of the Democrats to dead lock judicial nominees just because they want to or because they want some information from the president, I'm not surprised that the president holds his policy close to the chest. Kerr appears to be missing the point that feedback loops can be unbreakable.

He goes on with a more cogent part of his argument:

The problem with Presidential signing statements in their current practice is that they announce that the President will follow a constitutional vision that no one outside the Executive Branch understands. Take the McCain Amendment. Here is the Presidential signing statement that accompanied it:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Does anyone actually know what that means? We can read John Yoo's scholarship and take some guesses about what it might mean, but my sense is that for the most part we don't really know. And that's the difficulty: Less that the Administration takes a strong view of Article II than that it won't disclose precisely what that strong view is. Without the feedback loop, it's hard for the other branches to respond.

Personally, I don't see the various branches working in a feedback loop. It's more like a running battle. All the branches try to maintain their powers and try to restrict those of the other branches. I don't think the judiciary is quite as bad, but that could be because they are far more cryptic and quiet about how they do it. The most unfortunate part with the present president is the is the Bush Dementia Syndrome. Those that have the most hatred of Bush want to chop away his powers, and completely forget that their actions will have detrimental effects on any future president. The MSM has been playing that game, though they claim to be fair and balanced.

I'm certain the argument can be made for giving the president too much power, but I don't see that as happening at present. The NSA phone tapping issue is a perfect example. A large number of politicos have been briefed on the issue, and only one, Feingold, seems to still state that it is illegal. That in itself gives me an understanding that Bush is being responsible and restrained in that activity. If he was over-reaching his powers, you certainly haven't heard it from those that were briefed.

I'd be less disturbed if Bush were using the veto. He isn't, and just puts out these signing statements. That strikes me as being dishonest to the process. I haven't heard any accounts of excessive statements, but this topic hasn't exactly been overwhelming in its coverage.

The Cato Institute has a paper on the topic that I've only touched on. I think it's a bit of an over-reaction at first glance, but I'll have to finish it and then see.