What Is Goin’ On?

Sitting around the house over the holidays is a dangerous thing. I came across the website for the American Presidency Project, which contains a lot of information about the public papers of the Presidents, some as far back as 1789. You can find easy references to State of the Union addresses, inaugural addresses, radio addresses, executive orders and just about anything else you can think of relating to the public papers and statements of a president.

It also has for your reading pleasure the signing statements of presidents beginning with Hoover, Herbert, not J. Edgar. Never heard of a signing statement? Me neither! According to American Presidency Project,

A “Signing Statement” is a written comment issued by a President at the time of signing legislation. Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs. The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3).

In 1929, the year of the crash, President Hoover saw fit to issue one such statement indicating his pleasure at signing a bill to build veteran hospitals. FDR signed 13 of them from 1941 through 1945, the years of WWII. It seems the frequency of issuing signing statements rose significantly after FDR. This is not surprising, since signing statements are, first and foremost, public relations tools whereby a president doesn’t just sign a bill, but either takes his share of credit for it or criticizes the Congress that passed it.

Our current president has magnified the controversy as to the legal implications of these signing statements. You have to remember that signing statements occur only where a president signs a bill into law. If he didn’t like the law, he could veto it. Instead of a veto, a president signs the legislation into law and uses a signing statement to put his spin on why he will not enforce it as written.

If you read a few of these statements, you may believe (and rightfully so) that Congress is always trying to make the president do something that he doesn’t think he should have to do. The phrase that epitomizes this attitude is “unitary executive,” a phrase apparently coined by the great communicator himself, Ronald Reagan.

The following language is contained in the signing statement issued when President Bush signed into law the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006. In case you don’t recognize it by the name, this legislation incuded the McCain Anit-Torture Amendment which the President signed into law on December 30, 2005.

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. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

I am sure we could argue about exactly what this language means, but it seems the clear intent of signing statements like this is to declare that the president gets to decide whether or not a law violates the Constitution. Thus, if the Congress makes if clear that we, as a nation, will not torture people, in this case detainees, the president gets to say this is the law only to the exent this prohibition is consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.

The primary responsibility of the president is to enforce the law, not make it, and to some extent, not interpret it. The effect of these signing statements is to gut the balance of power established in the Constitution. The president signs a law and binds himself to enforce it, while at the same time thwarting the clear legislative intent of a valid law which he signed. The Supreme Court interprets and declares the law, but the president usurps that power by claiming the power not enforce those provisions of a law he has signed which he considers unconstitutional. He doesn’t go to court to have the law challenged. He just asserts a constitutional power that does not really exist, except in the impotency of a divided Congress.

The idea that a president can unilaterally decide whether or not a law he (or some president) has signed is constitutional was openly discussed in a 1993 memo by Bernard Nussbaum, Counsel to President Clinton. You can also read a 2006 ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine on the use of signing statements for a better understanding of the impact of this practice on constitutional government which claims to be a government of laws.

I wonder how long this democratic society will continue where power is the goal of the great majority of all of our elected officials and the idea of a humble public servant is foreign to our politics.