When a bill passed by Congress faces litigation, judges can look back at the congressional record to better understand the purpose and intent of the legislation. When a president signs a bill into law, historically there’s nothing he could do to express his own intentions about what the law means and is supposed to do.
In the 1980s, a young Justice Department lawyer named Samuel Alito helped the Reagan administration shift the balance a bit in the executive’s direction through a mechanism called “signing statements.” Instead of just putting their signature on the bill, presidents could use these statements to expand on how the White House interprets the law. The Reagan administration embraced the idea and it’s been used by every president since.
Most of the time, these statements don’t generate much interest, from the courts or anyone else. In his first term, Bush issued over 100 of them, to no particular fanfare. Presidential scholar Phillip J. Cooper argued that Bush’s signing statements are significant, however, because they help Bush “address specific provisions of legislation that the White House wishes to nullify.”
And it seems just such a provision recently came across the president’s desk — in the form of John McCain’s anti-torture amendment to the Defense Appropriations bill passed by Congress last month.
To hear the White House tell it, despite having fought against the anti-torture measure, Bush was delighted to accept it. But as Jack Balkin noted, Bush issued one of those pesky signing statements when he signed the bill, which suggests the president doesn’t quite read the amendment the same way McCain does.
First, with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates…. Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:
“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.”
Translation: I reserve the constitutional right to waterboard when it will “assist” in protecting the American people from terrorist attacks.
That’s not exactly what Congress had in mind when the amendment was easily approved with broad bi-partisan support in both chambers.
Like Slate’s Eric Umansky, I think this offers a terrific opportunity for the White House press corps to push Scott McClellan a bit. Here’s the question someone should ask him: “The White House said it had accepted the McCain language; now there’s some ambiguity. Yes or no, does the president believe the government is bound by McCain’s ban on torture?” I’m not a betting man, but I’d be tempted to put money on the idea that McClellan a) won’t answer the question; and b) would reference 9/11 in his evasive response.
Bonus reporter assignment: maybe some enterprising young reporter can also give McCain a call and ask for his response to the signing statement. He might have some interesting things to say.