Bush And The Signing Statement

And here we go again. This time it’s brought to us by who else? None other then the New York Times along with the Democrat Arlen Specter:

Senators on the Judiciary Committee accused President Bush of an “unprecedented” and “astonishing” power grab on Tuesday for making use of a device that gave him the authority to revise or ignore more than 750 laws enacted since he became president.

By using what are known as signing statements, memorandums issued with legislation as he signs it, the president has reserved the right to not enforce any laws he thinks violate the Constitution or national security, or that impair foreign relations.

A lawyer for the White House said that Mr. Bush was only doing his duty to uphold the Constitution. But Senator Arlen Specter, Republican of Pennsylvania and chairman of the Judiciary Committee, characterized the president’s actions as a declaration that he “will do as he pleases,” without regard to the laws passed by Congress.

“There’s a real issue here as to whether the president may, in effect, cherry-pick the provisions he likes and exclude the ones he doesn’t like,” Mr. Specter said at a hearing.

“Wouldn’t it be better, as a matter of comity,” he said, “for the president to have come to the Congress and said, ‘I’d like to have this in the bill; I’d like to have these exceptions in the bill,’ so that we could have considered that?”

[…]Senator Dianne Feinstein, Democrat of California, said the expansion of executive power would be the “lasting legacy” of the Bush administration. “This new use of signing statements is a means to undermine and weaken the law,” she said.

What the president is saying, she added, is “Congress, what you do isn’t really important; I’m going to do what I want to do.”

Ms. Boardman said the president had inserted 110 statements, which senators said applied to 750 statutes, compared with 30 by President Jimmy Carter. The number has increased, she said, but only marginally, and only because national security concerns have increased since the attacks of Sept. 11 and more laws have been passed. She acknowledged that the increase might be construed as “a lack of good communication” with Congress.

But Senator John Cornyn, Republican of Texas, said the committee was making too much of the statements. “It is precedented,” he said, “and it’s not new.”

Senator Feinstein says this is a “new use” of the signing statement, guess the fact that Presidents from Monroe and Jackson have used them all the way to Carter and Clinton, and in the same numbers, matters not:

The first president to issue a signing statement was James Monroe.[2] Until the 1980s, with some exceptions, signing statements were generally triumphal, rhetorical, or political proclamations and went mostly unannounced. Until Ronald Reagan became President, only 75 statements had been issued. Reagan and his successors George H. W. Bush and Bill Clinton made 247 signing statements between them. As of 2006, George W. Bush, the current President, has issued over 100 signing statements containing more than 500 constitutional challenges. [3]

This study tells us some more in depth numbers:

A look at the Clinton record of the use of the presidential signing statement shows that Clinton used the constitutional signing statement less than his predecessor (105 to 146), but still more than the Reagan administration (105 to 71).

Plus it tells us that Clinton did in fact believe the same thing as Bush does, that the use of the signing statement to decline to enforce provisions of a statute that may be unconstitutional was his right:

And like the Bush administration, President Clinton in at least three separate instances asked the OLC to issue opinions either buttressing the president’s authority to decline to enforce provisions of a statute or to direct inferior officers on how to implement the terms of a constitutional signing statement, and in two additional cases, the OLC wrote highly expansive and detailed memorandum on the legal significance of the constitutionally-based signing statement.

Not only did Clinton believe it was part of his duties, he used them much the same way as President Bush now:

In using the constitutional signing statement, Clinton was similar to the Bush administration in issuing most in the area of foreign policy (52%), precisely where presidential power is at its zenith. But even where the power of the presidency is clearest, President Clinton was still willing to use the constitutional signing statement from the high profile to the mundane, often to achieve what could not be achieved after veto bargaining had taken place.

This Department of Justice memo stated in 1993 (who was in office then?) much the same thing, it is not a “new use”:

Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create “legislative history” remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.

[…]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)

As far as why he doesn’t just veto a bill he feels may be unconstitutional:

The contrary view — that it is the President’s constitutional duty not to sign legislation that he believes is unconstitutional — has been advanced on occasion. For example, Secretary of State Thomas Jefferson advised President Washington in 1791 that the veto power “is the shield provided by the constitution to protect against the invasions of the legislature [of] 1. the rights of the Executive 2. of the Judiciary 3. of the states and state legislatures.” Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), reprinted in III The Founders’ Constitution 247 (Philip B. Kurland & Ralph Lerner eds. 1987). James Madison appears to have held a similar view and as President once vetoed a bill on constitutional grounds even though he supported it as a matter of policy. See Message to the House of Representatives (Mar. 3, 1817), in I James Richardson (ed.), Messages and Papers of the Presidents, 585 (1896) (while praising the bill’s “beneficial objects,” Madison wrote that he “ha[d] no option but to withhold [his] signature from it” because he thought it unconstitutional). Jefferson and Madison, however, did not in fact always act on this understanding of the President’s duties: in 1803 President Jefferson, with Secretary of State Madison’s agreement, signed legislation appropriating funds for the Louisiana Purchase even though Jefferson thought the purchase unconstitutional. See I William M. Goldsmith, The Growth of Presidential Power 438-50 (1974). In light of our constitutional history, we do not believe that the President is under any duty to veto legislation containing a constitutionally infirm provision, although of course it is entirely appropriate for the President to do so.

The memo also details the fact that the President is not supposed to be just a signing machine, that he is involved in the process of the legislation:

In support of the view that signing statements can be used to create a species of legislative history, it can be argued that the President as a matter both of constitutional right and of political reality plays a critical role in the legislative process. The Constitution prescribes that the President “shall from time to time . . . recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” U.S. Const., art. II, § 3, cl. 1. Moreover, before a bill is enacted into law, it must be presented to the President. “If he approve it he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated.” U.S. Const., art. I, § 7, cl. 2.(11) Plainly, the Constitution envisages that the President will be an important actor in the legislative process, whether in originating bills, in signing them into law, or in vetoing them. Furthermore, for much of American history the President has de facto been “a sort of prime minister or ‘third House of Congress.’ . . . [H]e is now expected to make detailed recommendations in the form of messages and proposed bills, to watch them closely in their tortuous progress on the floor and in committee in each house, and to use every honorable means within his power to persuade . . . Congress to give him what he wanted in the first place.” Clinton Rossiter, The American Presidency, 110 (2d ed. 1960). It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress’s) intention was in making the legislation law, particularly if the Administration has played a significant part in moving the legislation through Congress. And in fact several courts of appeals have relied on signing statements when construing legislation. See United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) (“though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan’s views are significant here because the Executive Branch participated in the negotiation of the compromise legislation.”); Berry v. Dep’t of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson’s signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman’s description in signing statement of proper legal standard to be used in Portal-to-Portal Act).

So Clinton used it 105 times, Bush Sr. used it 146, Reagan used it 71, and Bush Jr. has used it 110 times.

None of these numbers are unusual, or rare.

Just another case of the NYT’s attempting to smear President Bush, no matter the facts. Just smear him.

UPDATE

Found this memo written in 1994 by Walter Dellinger, Assistant Attorney General, that has even more direct language:

The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President’s authority.

[…]I]f resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency.

[…]The fact that a sitting President signed the statute in question does not change this analysis. The text of the Constitution offers no basis for distinguishing bills based on who signed them; there is no constitutional analogue to the principles of waiver and estoppel. Moreover, every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions.

[…]Finally, the Supreme Court recognized this practice in INS v. Chadha, 462 U.S. 919 (1983): the Court stated that “it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds” and then cited the example of President Franklin Roosevelt’s memorandum to Attorney General Jackson, in which he indicated his intention not to implement an unconstitutional provision in a statute that he had just signed. Id. at 942 n.13. These sources suggest that the President’s signing of a bill does not affect his authority to decline to enforce constitutionally objectionable provisions thereof.

And President Clinton’s Assistant Attorney General conclusion?

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.

Here is the bill in which President Roosevelt used the signing statement:

One such instance came when President Roosevelt signed the Emergency Price Control Act of 1942. The Emergency Price Control Act was designed to help stabilize the economy during the height of the Second World War. Roosevelt objected to a section of the bill that was a “protectionist measure for farmers” in the United States. Roosevelt stated:

…there is nothing contained therein which can be construed as a limitation upon the existing powers of governmental agencies, such as the Commodity Credit Corporation to make sales of agricultural commodities in the normal conduct of their operations.

Roosevelt further demanded that the provision be removed and if the Congress did not remove it, he would treat it as a nullity.

But alas, this is all a “new use” by President Bush.

Other’s Blogging:

• Rhymes With Right
• Another Rovian Conspiracy
• Outside The Beltway

Senator Feinstein says this is a “new use” of the signing statement, guess the fact that Presidents from Monroe and Jackson have used them all the way to Carter and Clinton, and in the same numbers, matters not:

Curt

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