Wednesday, June 28, 2006

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Your scary quote of the day
"It is often not at all the situation that the president doesn't intend to enact the bill."
Michelle Boardman, a deputy assistant attorney general, testifying before a Senate pane on presidential signing statementsl, as quoted in the New York Times.

Getting rid of the double negative, and this translates into, "the president often intends to enact the bill." Not always, but often. Which is great, but I always thought that when Congress passes a law -- no matter how stupid that law might be -- the president is always supposed to implement it. UPDATE: Obviously, the president can veto a bill. Signing a bill and only partially implementing it, however, is another kettle of fish entirely.

To be fair, let's see how Boardman expands on her comments:

Michelle Boardman, a deputy assistant attorney general, said the statements were "not an abuse of power."

Rather, Ms. Boardman said, the president has the responsibility to make sure the Constitution is upheld. He uses signing statements, she argued, to "save" statutes from being found unconstitutional. And he reserves the right, she said, only to raise questions about a law "that could in some unknown future application" be declared unconstitutional.

The problem with this line of reasoning is that the current president is operating under a theory of executive branch power that is way, way out of the mainstream.

I'm not opposed to signing statements in principle -- indeed, they probably serve as useful guidance for executive branch agencies. However, quotes like the one above give me hives.

ANOTHER UPDATE: Thanks to Appalled Moderate for adding more context to Broadman's comments.

YET ANOTHER UPDATE: Orin Kerr puts his finger on the larger problem:

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).

posted by Dan on 06.28.06 at 08:10 AM


Which is great, but I always thought that when Congfess passes a law -- no matter how stupid that law might be -- passed the president is always supposed to implement it.

Sounds like you need to re-read Article I, Section 7.

posted by: rosignol on 06.28.06 at 08:10 AM [permalink]

Good. It's about time for a "theory of executive branch power that is way, way out o the mainstream."

posted by: Useless Grant on 06.28.06 at 08:10 AM [permalink]

In 2002, Bush signed the McCain-Feingold campaign finance bill, even though he repeated maintained that it's unconstitutional. I don't know if he issued a signing statement, but the president's ability to determine how McCain-Feingold is enforced is very limited, because it's the independent Federal Elections Commission that does the enforcement.

In other words, this was a case where Bush really needed to veto the bill. His failure to do so shows that his tender concern for constitutionality is a sham.


posted by: Hal Grossman on 06.28.06 at 08:10 AM [permalink]

Isn't this just an analogue of the impoundment controversy? Sort of a mirror image, in that you seem to be concerned about the president ignoring or subverting legislative limits on executive action, rather than presidential refusal to spend to enact?

Administrations obviously implement laws with different degrees of enthusiasm and effort. There's a Constitutional balance point here, and I doubt it's where the admin would like it to be. However, "scary" seems hyperbolic. Congress found a legislative solution to the impoundment issue, and likely can find one here. If a mojority wants to, that is. If this whole thing isn't a case of the Times and guys like Leahy channeling Jeremiah.

posted by: CS on 06.28.06 at 08:10 AM [permalink]

No different than prosecutor discretion. Little different than earmarks. Law of men not words.

If you dislike Bush why don't you say so. I know. You have in no uncertain terms. In comparison to FDR and Lincoln he hasn't came close in twisting laws for politics. He's done about the same as LBJ, RN, JC, RR, GB1, BC (or is it BCE). Just generally worked out better for him.
Historically GB2 is on tract to be this centuries Teddy Roosevelt. About 2050 after all his current critics are dead and Iraq is still a democracy.

posted by: Huggy on 06.28.06 at 08:10 AM [permalink]

Historically GB2 is on tract to be this centuries Teddy Roosevelt.

Well, there is that pesky matter of charging up hills in combat vs. fainting on eating pretzels.

posted by: Rosrscach on 06.28.06 at 08:10 AM [permalink]

"Mojority." Consider as read all "Get yo' mojority workin'" jokes. That is all.

posted by: CS on 06.28.06 at 08:10 AM [permalink]

Well, I'm glad to see that Boardman wasn't just pretending to be a hack at the Volokh Conspiracy, but is one in real life as well. At least she's got sincerity.

Orin Kerr's latest post on signing statements is quite good. Look at Steve in the comments for an example of how Clinton did 'em.

Oh, and Drezner, what's with the dotted blue lines through everyone's comments?

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]

In full fairness, Ms. Broadman's prepared statement is here. She sounds far less doofy in print than the NYT's selected quotes. Nevertheless, it does appear that the President has determined that, from time to time, he must assume the authority of the Supreme Court:

The President takes an oath to “preserve, protect and defend the Constitution of the United States.” U.S. Const., art. II, § 1, cl. 8. The President has the responsibility and duty also to faithfully execute the laws of the United States. U.S. Const., art. II. § 3. But these duties are not in conflict: the law the President must execute includes the Constitution—the supreme law of the land. Because the Constitution is supreme over all other law, the President must resolve any conflict between statutory law and the Constitution in favor of the Constitution, just as courts must.

Also, the parts of the statement that deal with the things that excite everyone are not exactly reassuring:

Confidentiality of national security information. The Supreme Court has held that the Constitution gives the President authority to control the access of Executive Branch officials to classified information. The Supreme Court has stated that the President’s “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988). Presidents commonly have issued signing statements when newly enacted provisions might be construed to involve the disclosure of sensitive information. See, e.g., Statement by the President Upon Approval of Bill Amending the Naval Security Act of 1954Pub. Papers of Dwight D. Eisenhower 549, 549 (1959) (“I have signed this bill on the express premise that the three amendments relating to disclosure are not intended to alter and cannot alter the recognized Constitutional duty and power of the Executive with respect to the disclosure of information, documents, and other materials. Indeed, any other construction of these amendments would raise grave Constitutional questions under the historic Separation of Powers Doctrine.”).

By our count, President Bush raised this concern approximately 62 times in his 110 constitutional signing statements. President Bush’s statements regarding this issue are nearly identical to the statements issued by past Presidents, including Presidents Eisenhower and Clinton. Compare, e.g., Statement on Signing Legislation on Amendments to the Mexico-United States Agreement on the Border Environment Cooperation Commission and the North American Development Bank, 40 Weekly Comp. Pres. Doc. 550, 550-51 (Apr. 5, 2004) (President Bush) (“Sections 2(5) and 2(6) of the Act purport to require the annual report of the Secretary of the Treasury to include a description of discussions between the United States and Mexican governments. In order to avoid intrusion into the President's negotiating authority and ability to maintain the confidentiality of diplomatic negotiations, the executive branch will not interpret this provision to require the disclosure of either the contents of diplomatic communications or specific plans for particular negotiations in the future.”), with, e.g., Statement on Signing the National Defense Authorization Act for Fiscal Year 2000, 2 Pub. Papers of William J. Clinton 1685, 1688 (1999) (President Clinton) (“A number of other provisions of this bill raise serious constitutional concerns. Because the President is the Commander in Chief and the Chief Executive under the Constitution, the Congress may not interfere with the President's duty to protect classified and other sensitive national security information or his responsibility to control the disclosure of such information by subordinate officials of the executive branch (sections 1042, 3150, and 3164) . . . . To the extent that these provisions conflict with my constitutional responsibilities in these areas, I will construe them where possible to avoid such conflicts, and where it is impossible to do so, I will treat them as advisory. I hereby direct all executive branch officials to do likewise.”); Statement on Signing the National Defense Authorization Act for Fiscal Year 1998, 2 Pub. Papers of William J. Clinton 1611, 1612 (1997) (Nov. 18, 1997) (President Clinton) (“Because of the President’s constitutional role, the Congress may not prevent the President from controlling the disclosure of classified and other sensitive information by subordinate officials of the executive branch.”).

Foreign Affairs and Power as Commander in Chief. President Bush also has used signing statements to safeguard the President’s well-established role in the Nation’s foreign affairs and the President’s wartime power. These signing statements also are in keeping with the practice of his predecessors. See, e.g., Louis Fisher, Constitutional Conflicts between Congress and the President 134 (4th ed. rev.1997) (noting that President Wilson expressed an intention not to enforce a provision on the grounds it was unconstitutional because doing so “would amount to nothing less than the breach or violation” of some thirty-two treaties) (citation omitted); Statement on Signing the General Appropriations Act, Pub. Papers of Harry S. Truman 616 (1950) (Statement on Signing the General Appropriations Act of 1951) (“I do not regard this provision [involving loans to Spain] as a directive, which would be unconstitutional, but instead as an authorization, in addition to the authority already in existence under which loans to Spain may be made.”); Statement on Signing the Military Appropriations Authorization Bill Pub. Papers of Richard M. Nixon 1114, 1114 (1971) (Mansfield Amendment setting a final date for the withdrawal of U.S. Forces from Indochina was “without binding force or effect”); Statement on Signing the FY 1980-81 Department of State Appropriations Act, 2 Pub. Papers of Jimmy Carter 1434, 1434 (1979) (“Congress cannot mandate the establishment of consular relations at a time and place unacceptable to the President”).

Excuse the length, all. Just trying to help the blogger out by adding some context. By the way, a very articulate refutation of the President's position (with some suggested possible legislative remedies) is found here.

posted by: Appalled Moderate on 06.28.06 at 08:10 AM [permalink]

The problem with this line of reasoning is that the current president is operating under a theory of executive branch power that is way, way out of the mainstream.

I'm not sure to what Dan is referring here, since the linked post has nothing to do with signing statements.

The fact is, though, that Bush's use of signing statements are NOT AT ALL out of the mainstream. In fact, the rationale that Michelle Boardman gave and which Dan quoted above is the exact same rationale for signing statements given by PRESIDENT CLINTON'S DEPARTMENT OF JUSTICE:

A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced.

Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions.

More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion.(6)

In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law.(7) This advice is, we believe, consistent with the views of the Framers.(8) Moreover, four sitting Justices of the Supreme Court have joined in the opinion that the President may resist laws that encroach upon his powers by "disregard[ing] them when they are unconstitutional." Freytag v. C.I.R., 111 S. Ct. 2631, 2653 (1991) (Scalia, J., joined by O'Connor, Kennedy and Souter, JJ., concurring in part and concurring in judgment).(9)

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.(10) And indeed, in a recent decision by the United States Court of Appeals for the District of Columbia Circuit, Federal Election Comm'n v. NRA Political Victory Fund, supra, the court cited to and relied upon a Presidential signing statement that had declared that a Congressionally-enacted limitation on the President's constitutional authority to appoint officers of the United States was without legal force or effect. Id. at * 11.

Now, maybe Dan wants to say that President Clinton was also "way, way out of the mainstream" with respect to executive power, I don't know. But the OLC opinion quoted above also notes that the Presidents who have used signing statements to raise and address the legal or constitutional questions they believed were presented by the legislation they were signing include the following:

Andrew Johnson
Theodore Roosevelt
Franklin Roosevelt
Lyndon Johnson
George H.W. Bush

If Dan wants to say that the use of signing statements by Bush for the purposes elucidated by Michelle Boardman are "way, way out of the mainstream", then Dan should also acknowledge that the above 16 Presidents were also "way, way out of the mainstream."

posted by: A.S. on 06.28.06 at 08:10 AM [permalink]

Which is great, but I always thought that when Congress passes a law -- no matter how stupid that law might be -- the president is always supposed to implement it.

BTW, there's another Clinton OLC memo that discusses just how ignorant Dan's statement (above) really is:

I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).


In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.

Again, that's the CLINTON Department of Justice. Bottom line is that Dan's statement is exactly WRONG.

Sorry, Dan, but it's YOU who are "way, way out of the mainstream" on this question.

posted by: A.S. on 06.28.06 at 08:10 AM [permalink]

A.S. conveniently fails to note the difference b/t Clinton's specification of statutory provisions whose constitutionality he questioned, vs. Bush's mysterious "we may or may not enforce some part or other of this law." The Orin Kerr post that I linked upthread discusses this as the real problem with Bush's abuse of signing statements.

A.S., come into the mainstream! The water's fine!

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]

Orin Kerr puts his finger on the weirdness of this situation.

Remedies are available to Congress -- through appeal to the Supreme Court in addition to the appropriations process -- if a President specifies what provisions of law he will not enforce. With Bush, though, we seem so often to read signing statements indicating in general his reservation of the right to designate provisions of law he may not enforce.

Trying to avoid either hyperbole or understatement here, I have to say this represents a literally irresponsible approach to leadership of the executive branch, a commitment by the President to keep his options open no matter what happens. My impression is buttressed by the suspicion that in reality Bush's Presidential signing statements fundamentally represent not his views of Presidential authority but instead those of the Vice President.

Now, this could simply be a matter of Cheney wanting to preserve turf. In this view, what counts is not what the executive branch now does under the (nominal) direction of the President, but what it may choose to do at some time in the future; the options being kept open are not necessarily even being kept open for use with respect to the law enacted with a White House signing statement, but instead are being reserved for some future law. It is also possible, of course, in cases like the one involving McCain's torture amendment, that what the administration wants to do is ignore the law while trying to keep this fact secret. But such cases represents a minority of all the signing statements this White House has issued.

In any event this is no way to run the constitutional railroad. Presidents are entitled to challenge Congress as to the constitutionality of any provision of law it passes, first of all through the veto that Bush, alone among modern Presidents, has never had the belly to use, and secondly through statements upon enactment stating which provisions the President has reservations about and why. To be fair, and as noted upthread, some Bush administration signing statements have had the required specificity, but only some of them. Rather than argue back and forth about whether an administration has or has not the right to do something it hasn't done yet, Congress needs to insist that each administration spell out the circumstances under which duly enacted provisions of law may not be enforced. Again as noted upthread, previous administrations have done this. President Chen...forgive me, President Bush's administration can too.

posted by: Zathras on 06.28.06 at 08:10 AM [permalink]

All this talk suffers from the lack of any examples of Bush's CONDUCT.

The words he uses are the usual flapdoodle that has been used by presidents forever. What has Bush actually done by way of not enforcing some law that he signed with a signing statement? (I'm not talking about laws he did not issue signing statements on. We are talking about his signing statements.)How has he implemented his own signing statements? Without this info, the discussion is really silly, since he's not doing anything different from Clinton and the other many presidents who've issued such statements.

posted by: John Friedman on 06.28.06 at 08:10 AM [permalink]


Given that so many of the President's troubling signing statements relate to matters which he has declared relevant to national security (in terms of actions, see the numerous lawsuits the DOJ has requested be dismissed on national security grounds), they have not been subject to judicial review and getting the facts that you are demanding is not possible. Furthermore, it is very difficult to illustrate examples of the President having *not* done something, since his deliberations and choices are not a matter of public record, and those in a position to know have a vested interest against providing such information.

Needless to say, requiring evidence of malfeasance while simultaneously refusing to divulge information on one's actions is both illogical and presents a fairly obvious conflict of interest. I'll also go on record as opposing the concept behind Clinton's signing statements, although needless to say those statements were attached to far less significant legislation and subject to judicial review. "A Democrat did it too!" is not a useful defense.

posted by: Geoff on 06.28.06 at 08:10 AM [permalink]

I've been a Republican since Nixon gave his Checkers speech, but I've grown enraged at the GOP in the past year, to an extent that I haven't in decades before.

Bush has been appallingly dismissive about the constraints on the Executive Branch that the Constitution imposes. But our supposedly "conservative" Congress has been little better, letting him get away with it while frittering away billions of dollars in the most incompetently waged war in recent US history, in Iraq.

Don't even get me started on those idiots that Bush has chosen to surround himself with, aka Donald Rumsfeld and Condoleezza Rice. Rumsfeld looks like a guy whose ego is so enormous he trips on it every damn time he has to make a decision. Condi Rice, meanwhile, is so infatuated with her own pretentious exaggeration of her almost nonexistent foreign policy competence that she's strung together perhaps the most impressive and consistent collection of incredible policy screw-ups in a century for the USA. She's a big factor in spreading the Stupidity Virus that's basically led the Bush Administration to spend over $1 trillion in the Middle East to... hand over Iraq's oil fields and power centers to Iran's proxies and Shiite militias present in Baghdad. Hail to the chief!

Even with all these failures and the Katrina fiasco-- which, trust me, has done permanent and irreparable damage to US prestige in the world-- I still haven't left the GOP. But now, this India nuclear deal that the GOP and the Bush Administration are supporting, is pushing me and dozens of my friends and neighbors in the direction of permanently withdrawing our support for the GOP, and working to support a real conservative Third Party instead.

How incomparably foolish can Bush and the Congressional Republicans be? They want to give nuclear fuel and technology to India-- while exempting India's nuke weapons reactors from inspections? Why don't we just give a few vials of smallpox to Kim Jong-Il while we're at it? We'll only inspect the labs with "vaccine processing" signs on their doors-- the bioweapons labs producing smallpox-tipped missiles headed for New York and Chicago, nah, we'll just leave those alone. I think we should also give a few hundred tons of sarin to Osama bin Laden. We'll inspect all his cleaning chemical closets in his Afghan cave, but that top-secret base spilling over with sarin vials wrapped in packaging labeled "To: Manhattan From: Your old buddy Osama," no, can't inspect those, they're "military" you know. I've known my fellow Republicans to be stubborn and myopic at times-- I've never seen them to be stupid, but that's what they've obviously become.

If Congress is truly idiotic enough to allow India-- which has never signed the NPT, and has at best a checkered record toward its Christians with severe persecution and thousands killed in many regions of the nation-- to get uninspected technology and fuel in military reactors that are used for nuclear weapons production, then the NPT is nothing more than a scrap of paper, and Iran and North Korea are then legally free to start chugging out nukes to their hearts content. There would be no more legal sanction against them, and the whole international law basis for gathering international allies against Iran in our negotiations, collapses disastrously. The India nuclear deal would open the floodgates-- every madman dictator and his brother would then have access to nukes as they spread throughout the world. We should not be so closely associating nukes with prestige status and basically farting all over the treaty that restricts their proliferation, but that's precisely what the India nuclear deal is doing. As nukes spread, more and more countries want them and see them as conferring prestige status, which makes them even more desirable. This of course, means that nukes will basically soon be almost as available as old baseball cards on E-Bay-- which means that US civilization is in the crosshairs. I can't even begin to count how many ways this India nuclear deal with the US, that Bush has proposed, reeks of rank idiocy.

If the GOP pushes for this nuclear deal, not only will I and millions of other once-loyal Republicans leave the party, but we will also actively work to dismantle the Republican Party for good. The GOP would go the way of the Whig Party in the 1800's. We would throw our support behind a Third Party, vote for its candidates and support its operations financially. Congress and the Administration should let this foolish accord die quietly, and move on to more important concerns-- like restoring some semblance of fiscal solvency to our government and some clue about managing our accounts.

posted by: Enraged Repub on 06.28.06 at 08:10 AM [permalink]

Wrt signing statements, it seems to me that Orin Kerr's interpretation is right: the problem is secrecy. A president's job is not ministerial. He's supposed to "faithfully execute" the law, sure -- but the Constitution is the supreme law, and laws that contradict it are void ab initio. If a president believes a particular law is unconstitutional, of course he shouldn't enforce it. I can't believe anybody would suggest otherwise. (If Congress passed a law making it illegal to criticize the government, does anybody suggest that Bush's legal duty would be to arrest people who did so?) The problem is us not knowing when he's ignoring a law, not the mere fact that he does so.

Enraged Repub, I don't doubt the sincerity of your dislike for this policy. But if you think millions of Republicans are going to "leave the party" and "actively work to dismantle" it "for good" because of a nuclear deal with India, then I doubt your sanity. Somehow I suspect that the number of people who are actively thinking about this deal -- approvingly or disapprovingly -- could be counted on one hand with enough fingers left over to make an obscene gesture at the politicians who voted for the flag-burning amendment.

posted by: David Nieporent on 06.28.06 at 08:10 AM [permalink]

John Friedman:

Bush has a habit of acting in a super-secret way without getting much input, or informing folks he should be informing. The whole NSA brouhaha is an example of this, as is the business with the telephone calls. That is informing a lot of the heartburn about this particular Presidential (or Vice-Presidential, if you believe Zathras) maneuver. The context of the entire thrust iof the Bush presidency is getting ingnored by many posters, and that is allowing folks to argue that this is just a traditional jurisdictional dispute between Congress and the Presidency. Never mind that one of the things being pushed for is the constutional right of the President to order his branch to disregard Congressional strictures on the use of torture.

In any event, let's disregard the signing statement on the McCain bill that related to actually following the Geneva Convention. Let's instead take an entirely different example from Bruce Fein., a former Reagan administration official, who also testified Tuesday.

The Intelligence Authorization Act of 2005, like its predecessors, restricts the President’s employment of military force in Colombia. It is modeled after statutes during the Vietnam War that prohibited expenditures for military force in Cambodia or Laos, and the so-called “Clark Amendment” which prohibited monies for covert operations in Angola. Section 502(c) declares: “No United States Armed Forces personnel or United States civilian contractor employed by the United States Armed Forces will participate in any combat operation in connection with assistance made available under this section, except for the purpose of acting in self-defense or during the course of search and rescue operations for United States citizens.” Its objective is to keep the United States military out of Colombia’s civil war with narco-terrorists. President Bush, however, issued a signing statement nullifying the law that he had signed. It asserted: “The executive branch shall construe the restrictions in that 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.”

If President Bush believed section 502 was unconstitutional, he was obligated to veto the entire Intelligence Authorization Act and to explain his veto to Congress. He could ask Congress to delete the allegedly offensive provisions, or Congress might override the veto. But his nullification of section 502 after signing it into law was without constitutional standing. The precedent is alarming. Suppose Congress were to enact a law forbidding the President to employ military force in Iran aiming to destroy its nuclear facilities. President Bush might sign the law but in a signing statement declare that he would treat it as advisory to preserve his Commander in Chief prerogatives. The ability of Congress to participate in shaping the foreign relations and national security of the United States would be crippled, and the express congressional authority to enact laws to regulate the constitutional powers of the President in Article I, section 8, clause 18 would be a dead letter.

President Bush’s nullification of section 502 also evaded judicial review because of the problematic nature of discovering a plaintiff who would enjoy Article III standing.

Mr. Friedman, does this conduct trouble you?

posted by: Appalled Moderate on 06.28.06 at 08:10 AM [permalink]

Appalled, I actually think there's a good argument that Bush doesn't have to veto the statute b/c he thinks one part (sec. 502) is unconstitutional. Given the megabills presented nowadays, that may not be practical.

What we're entitled to, as happened under Clinton, is a specific statement of what part the President challenges and on what grounds. Then Congress, the people, and the courts know whether and how to respond.

It's this abracadabra "unitary executive, C-in-C, yada yada yada" stuff that suggests we've ceased to become a nation of laws.

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]


I might be more willing to agree with you if Bush wasn't making assertions that Congressional restrictions on his conduct are unconstitutional; therefore I will not abide by them. There's more than a slight conflict of interest involved, and, as Mr. Fein notes, it is not an easy matter to take to the Courts because of the structure of the legislation.

This is different than a statement of belief about the import of most domestic legislation, as there is a rulemaking process which must follow established procedures, and plenty of opportunity for domestic stakeholders to intervene in the process.

posted by: Appalled Moderate on 06.28.06 at 08:10 AM [permalink]

A.S. conveniently fails to note the difference b/t Clinton's specification of statutory provisions whose constitutionality he questioned, vs. Bush's mysterious "we may or may not enforce some part or other of this law."

That's factually incorrect. Clinton, like Bush, did not always cite the provisions of the law he was refusing to enforce. It took me all 1 minute to find the following:

Finally, there are provisions in the Act that purport to condition my authority or that of certain officers to use funds appropriated by the Act on the approval of congressional committees. My Administration will interpret such provisions to require notification only, since any other interpretation would contradict the Supreme Court ruling in INS v. Chadha.


Well, golly gee, Clinton doesn't name the provisions he is refusing to enforce! Who'd have thunk it?

I'll bet if I spent more than a whole minute, I could find MORE examples where Clinton's signing statements were just as vague as Bush's.

Not that anything like the FACTS will do anything to persuade Bush opponents.

posted by: A.S. on 06.28.06 at 08:10 AM [permalink]

A.S., you're not taking this very well, are you?

provisions in the Act that purport to condition my authority or that of certain officers to use funds appropriated by the Act on the approval of congressional committees

That is clear as distilled water compared to Bush's Addington-drafted boilerplate. One could actually use the Clinton language to go through the statute and find what he's talking about.

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]

Appalled, I'm with you, and I think Bush (1) has no right to refuse to enforce a statute w/out telling us what statute and why, and (2) has grossly abused the process.

I just don't necessarily think there's a "duty to veto."

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]

Heh. Too funny, Anderson. First it was that Clinton specifically cited the sections he objected to. Then, given evidence that this is manifestly false, you fall back to that someone could go through the statute and figure out the provisions Clinton's talking about. Well, duh! Someone can likewise go through the statute and figure out the provisions Bush is talking about too!

Always interesting to see people's reactions when you point out that what they are saying is in fact false.

posted by: A.S. on 06.28.06 at 08:10 AM [permalink]


Do you really want to use "no worse than Clinton" (a.k.a. "barely legal") as your talking point? It's not like abiding by the letter or the spirit of an inconvenient law was a strong point of that administration.

posted by: Appalled Moderate on 06.28.06 at 08:10 AM [permalink]

"Not that anything like the FACTS will do anything to persuade Bush opponents."

And the same could be said of most of you Kool-Aid drinkers.

posted by: v on 06.28.06 at 08:10 AM [permalink]

Do you really want to use "no worse than Clinton" (a.k.a. "barely legal") as your talking point?

What the Clinton Administration did in this regard was fine. Why would you call it "barely legal"? As I noted above, what Clinton did was no different that Presidents Jackson, Tyler, Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford, Carter, Reagan, and George H.W. Bush.

Now, it is perfectly fine for you to assert (as you apparently are) that they all engaged in a "barely legal" practice. If so, then George W. Bush is simply in good company.

posted by: A.S. on 06.28.06 at 08:10 AM [permalink]

I fear for my grandchildren(7) and great-grandchildren (2) I believe that all governments lie and take advantage of their people. The question is how to minimize and control this. We face many bad things and bad people today:
1. Osama binLaden and Al Qaeda
2. Our President and his incompetent helpers
3. Our Congress, both parties, who are in effect a nomenklatura, concerned only with keeping themselves in office and getting richer
4. Our culture, one segment of which encourages a dog eat dog materialistic mentality and magnifies small differences between groups – whites vs. blacks, heterosexuals vs. homosexuals, etc..
When A.S. says that signing statements are OK because Jackson and others did this, I say, “wait, let’s review the Indian relocation act of 1830”. Jackson proposed in his 1829 inaugural address to free up land held by Indians, based on treaties with our government, east of the Mississippi. In 1830 gold was found on Cherokee lands. Some Cherokees were educated, could read English and had the foolish hope that the rule of law would protect them. The US Supreme Court held that it was wrong for Georgia to give away their land. What Jackson do? He said “John Marshall (Chief Justice of the Supreme Court) has made his decision; let him enforce it now if he can.” He sent them on the trail of tears and signed a treaty with a small remnant of about 500 who agreed to do what he wanted (treaty of New Echota). The signers weren’t elected tribal officials and thousands of Cherokees protested this treaty. However, the US Senate ratified it. Cherokees suffered an ordeal almost as bad as the Bataan Death March. Jackson made his own rules regarding the Indians, those were evil rules. Jackson is not a man to admire. Likewise Clinton’s signing statements don’t matter. I find much to criticize in both Clintons, but they are not secretive, they don’t try to suppress scientific data as Bush through his FDA, NOAA and other agencies, does.
My constitution says that bills passed by Congress shall be “ presented to the President of the United States; 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 ....”

Are any Presidents above criticism? No- I rate Lincoln highest, but he overstepped his authority on several occasions, as did FDR. Instead of bowing down and blabbing about wonderful Presidents (false gods), I would restrict the President’s authority to wage war. Our Presidents (not just GWB) think that they are “running the world” and have the authority to attack any government that might harbor evil intentions toward us. That attitude and the invasion of Iraq have convinced millions of Muslims that America is their enemy. Their belligerent attitude will cost my grandchildren.
Here is my ranking of evil:
1. Our nomenklatura Congress is the worst - all executives take advantage if allowed to do so. The Constitution provides a means to control that but only if Congress acts against the polls and the jingoistic blowhards who love to attack foreigners. They don’t and won’t. I see the Constitution as unenforceable in our political climate. Congress can’t oversee intelligence actions that they don’t even know of. They let this happen.
2. Our culture
3. George W. Bush and his incompetent cronies- they took power because Congress abdicated
4. OBL and AQ -bad but their number and ability to attack us has been seriously and systematically exaggerated. I advise the article by Michael Hirsch, The Myth of Al Qaeda (Newsweek) and Pat Buchanan’s “Time for an agonizing reappraisal” (The American Conservative) for those who believe that GB2 is “on tract” to be a hero for future generations.
I rank Bush as more dangerous than bin Laden, and Congress as the worst of all threats to my grandchildren

posted by: anciano on 06.28.06 at 08:10 AM [permalink]

There was a comment made upthread about whether a President faced with legislation part of which he considers to be unconstitutional has a duty to veto it.

You could discuss this question, in the abstract, for hours. And there is a place for that discussion. At least for the lawyers among us, an understanding of how a situation most administrations have faced at one time or another has been handled in the past, and the reasons for it, seems pretty important to me. In the abstract, I don't think a veto is always warranted.

However, I gave up some time ago looking at this administration's conduct as if what were involved were Constitutional or other issues in the abstract. President Bush has never vetoed a bill, ever. We're not talking about an administration choosing between means of expressing its disagreement with Congress (as in the past) but instead about an administration reserving its right to ignore duly enacted provisions of law when it feels like it, without the inconvenience of being challenged in Congress or the courts.

A discussion of a "duty to veto" assumes, I think, a level of trust in this administration's motives I don't have anymore. To argue that there is no duty to veto in all cases in which legislation contains potentially unconstitutional provisions begs the question of why an administration would never use the veto in any such case. Again, in the abstract one could assemble a rationale for this course that did not involve contempt for Congress on the administration's part, or its intent to file inconvenient provisions of law in a drawer at some future time when it thought this could be gotten away with, or even simple fear on the President's part of having to defend his Vice President's views on executive authority at a press conference. At this point, even if an administration spokesman did announce such a rationale I wouldn't believe him.

posted by: Zathras on 06.28.06 at 08:10 AM [permalink]

And how many times have each of the Presidents used these signing statements?

posted by: JakeB on 06.28.06 at 08:10 AM [permalink]

Well said, Zathras, and very sad. It's more like late Weimar every day around here.

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]

A.S., in both your example and mine, Clinton indicated what parts of the legislation he had a problem with.

If you think you've won the point by arguing that he did it different ways, and if you think this somehow compares to Bush's boilerplate statements that read the same way no matter what he's signing ... then fine, you win. Congratulations. You deserve a Mars bar.

posted by: Anderson on 06.28.06 at 08:10 AM [permalink]

I think the issue is simple and straightforward. If the president thinks a law might be constitutionally unsound, it is his duty to veto that law, not issue a signing statement. Then, if Congress chooses to override his veto, the courts can address the constitutionality of the law.

posted by: flaime on 06.28.06 at 08:10 AM [permalink]

A.S.: To anyone with even the slightest clue as to the key rulings of the Supreme Court in the last 3 decades, Clinton's signing statement is abundantly clear: he doesn't recognize the legitimacy of the "legislative veto," which was declared unconstitional by the Supreme Court in Chadha. Any provisions that are a legislative veto, then, are presumptively unconstitutional and unenforceable, and any person with knowledge of the holding in Chadha would easily be able to identify the provisions Clinton is not going to enforce.

Bush's bogus "unitary executive" theory is a whole other kettle of fish, that basically asserts that the executive has the unfettered authority to decide the legality and constitutionality of its own actions, and (more brazenly) to completely disregard the views of the two co-equal branches on those points.

posted by: Chris Lawrence on 06.28.06 at 08:10 AM [permalink]

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