Question for the next GOP debate: yea or nay on signing statements?

February 2, 2008

Bush’s abuse of signing statements has been a constitutional mess for several years now — with more than 151 signing statements challenging 1149 provisions of laws, Bush is without rival in American history — but this week, matters grew particularly ugly.

After a bizarre and unexpected veto, Congress passed a defense authorization bill, funding, among other things, salaries for U.S. troops. The president signed the measure into law, but issued signing statements explaining which parts of the law he’s decided to ignore. Most notably, Congress (you know, the branch with the power of the purse), prohibited the use of federal funds to establish permanent US military bases in Iraq. Bush made the measure law, and then said he reserves the right to use federal funds to establish permanent US military bases in Iraq.

Dan Froomkin translated: “The overall message to Congress was clear: I’m not bound by your laws.”

As one might imagine, lawmakers were less than pleased.

* House Speaker Nancy Pelosi (D-Calif.): “I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. His job, under the Constitution, is to faithfully execute the law – every part of it – and I expect him to do just that.”

* Senate Armed Services Committee Chairman Carl Levin (D-Mich.): “Congress has a right to expect that the Administration will faithfully implement all of the provisions of the National Defense Authorization Act for Fiscal Year 2008 — not just the ones the President happens to agree with…. With his signature these provisions become the law of the land. Congress and the American people have a right to expect that the Administration will now faithfully carry them out.”

* Sen. Jim Webb (D-Va.): “[T]he President of the United States — who has been in charge of the conduct of this war and whose administration has been in charge of executing these contracts, supervising them, making sure that they meet the requirements of fairness in the law — is now saying that he believes that a legislative body can enact a law that he can choose to ignore because he says it would interfere with his responsibility to supervise a war as Commander-and-Chief.”

So, here’s the question: where are the Republicans? More notably, where are the Republican presidential candidates, led by a sitting senator?

We know what Hillary Clinton and Barack Obama think; they’ve both decried these extra-constitutional signing statements on several occasions. But Matt at TP raises a good point: John McCain at least used to oppose Bush’s favorite tactic.

In the past, McCain has spoken out aggressively against signing statements, saying they are “wrong” and that they “should not be done”:

“I would never issue a signing statement,” the Arizona senator said at a Rotary Club meeting in Nashua, adding that he “would only sign it or veto” any legislation that reached his desk as president.

Perhaps McCain is keeping silent because he shares Bush’s goal of an indefinite, long-term presence of American troops in Iraq. Last month, McCain said it would be “fine with” him “if we maintain a presence in” Iraq for “a hundred” years.

Maybe some enterprising political reporter could follow up on this. Do McCain, Romney, and Huckabee all believe Bush has the constitutional authority to give himself a pass on following certain parts of bills? Are any of them prepared to publicly criticize Bush’s latest signing statements? Are any of them prepared to assure voters they won’t follow in Bush’s constitutionally dubious wake?

On a related note, most of the major dailies ignored the signing statement flap, but The Daily Show provided a pretty solid overview of why the president’s tactic is so offensive.

If Congress has the power of the purse, and Bu$h takes money from a legislated mandate for the purpose of using it in an arena that Congress says “no” to—wouldn’t that make Bu$h guilty of grand larceny? The last time I checked, “grand larceny” is a felony.

Can a convicted felon hold the office of President?

Bush would look good in “Gitmo orange”—now wouldn’t he?

  • I don’t think it’s hyperbole to say that this is why impeachment really is (and was) necessary. Bush has, for the most part, been relatively careful with signing statments. He uses them to declare that he’s going to break the law, but always on things where it’s hard to determine if he has actually followed through and done it. (The permanent bases would be an exception in the long term, but it will be hard to determine if he’s violated it before he leaves office.)

    He’s trying to lay the groundwork, and leave a record that establishes this practice as legal, without pushing it far enough to invite a legal challenge that contradicts that conclusion. Since he probably hasn’t succeeded in completely destroying the Republican Party, this will be a time bomb just laying there until the next Bush, who will be able to say “nobody brought any legal objections then, so how can you say it’s illegal?”

  • What the representatives in Congress say about the bush signing statements is simply “blah, blah, blah”, unless they get off their butts and do something to hold the bush administration accountable for their crimes.

    Congress, both senators and representatives, may just as well go home until January of 2009 – for all the use they have been as an oversight entity. Useless, except for a few brave souls. They are, for the most part, complicit in any law-breaking by the bush administration.

    The voters should remember who in Congress enabled the bush coup of 2000, and their concerted attempts to destroy our country.

  • You know, by today’s standards the whole Iran-Contra thing could have been avoided if Pres. Reagan had just used a signing statement. However, back then congressional Dems had spines and it would have been interesting to see how they would have handled a signing statement that basically says “piss off!”

  • I’d follow up by asking them how they justify NOT impeaching Bush over his flouting of the Constitution, and whether they would favor impeaching President Hillary Clinton if she were to do the same thing.

  • “Congress is a limp dick,
    Yes it is,
    Wang, wang, poot, poot…”*

    *Sung to the tune of “Happiness is a Warm Gun”

  • Sounds like Bush got by fiat what the Repubs have been trying to grab for year–the line item veto. And he thought it would be easier to be dictator.

  • When the executive branch joins with the judicial branch then the legislative branch loses because there is no one to protect them or carry out their decrees or laws. Mukasey has told congress the are irrelevant and that the president can do what he wants and is not accountable to the congress. Plus, he doesn’t even need to keep the congress informed of his actions. The executive and judicial branches control all the troops including the national (state) guard, the police, the FBI and the CIA. There is no one to carry out the orders of the legislative branch. Our founding fathers figured that by this point the citizens would have stood up and a revolution would be underway because this is a dictatorship enabled by 2 branches of government.

    There are and have been no consequences for this administration’s lawlessness. Bush has demonstrated that he can break the law at will with these so called ‘signing statements’ and does so because congress has refused to hold him accountable…on any occasion.

    “…House Speaker Nancy Pelosi (D-Calif.): “I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. His job, under the Constitution, is to faithfully execute the law – every part of it – and I expect him to do just that.”

    This is exactly the reason why it will continue,…”…I expect him to do just that”?????
    Why should he…there are no consequences because Pelosi took impeachment off the table making congress powerless to interfere. Being more stubborn than Bush it would take Cheney shooting Pelosi in the head for her to change her mind, So Bush is clearly free to do what ever he wants…Pelosi has waited too long and now there is nobody left to stop Bush because congress has refused to hold Him accountable. Pelosi might as well be saying “bad dog, bad dog” as there are no consequences.

    Have we become powerless to prevent fascism from taking control of our country because congress did nothing all along until finally it is too late TO do something.

    So in spite of congress, our tax payer dollars are going to be used to build permanent bases in Iraq (paying his war profiteering buddies to build them) making it more difficult to leave the area…propping up Exxon/Mobile and others. What did you think would happen Pelosi?

  • I hope this presidential signing statement binge will end with Bush’s term. Bush wins the title for “President who Twisted the Constitution Most.” He:
    – never vetoes, removing a check of power on Congress (Ford vetoed a good 60 bills over 4 years; Bush, less than 10 over 8 years)
    – issues “signing statements”
    – uses “national security letters” (aka. subpoenas without judicial approval)
    – spies on us (ever heard of the PATRIOT act?)

    I could go on and on….

  • Isn’t a signing statement just a generalized form of the line item veto, which the Supreme Court struck down in 1998? I don’t have the ruling in front of me, but I don’t see how you can look at it any other way.

    I agree with those who are disgusted with the Democrats, who issue mild tongue lashings directed at the president, and then do nothing to back them up. And very few of them have the guts to go that far. Isn’t one Arlen Specter enough? And he’s a Republican, for chris sakes.

    I don’t understand the Democrats’ timidity. Had a Democrat committed any of the flagrant crimes Bush has, the Republicans would have impeached and convicted him/her in no time flat. What is wrong with these people? Why won’t they perform their constituional duties?

  • My biggest worry is that neither party, once in the White House, will stop using the signing statement. Bush has set a precedent, and anyone who follows him can now say, “Well you didn’t try to stop Bush so you can’t try to stop me.” Historically speaking, once power congregates, it rarely dissipates.

  • Last December the Boston Globe asked the candidates to fill out a questionairre about their views on the extent of executive power. McCain said he wouldn’t use signing statements. Romney supports their use.

    see

  • Considering the LARGE numbers of people convicted of conspiracy for merely committing “thought crimes” or allegedly planning to violate a law, why should conspiracy not be considered as a charge against Bush since he is committing a “thought crime” to not adhere to or violate a law?

  • you know, Steve, I would be very confortable defending Bush against your theory.

    no jury in America is going to believe GW has ever committed a thought. . . crime.

  • Nice thought Zeitgeist. Many have not thought about thinking the thought that Bush may not have committed a thought, especially thinking thoughts about consequences of his actions. Conspiracy involves thought, so your defense stands, BUT the judge and jury in this case would be the House and Senate. Oh well it’s off the table there and the Senate would not convict anyway. LET THE SIGNING STATEMENT GOOD TIMES ROLL ON. Heck we might even get martial law and suspension of November’s elections. Just a THOUGHT.

  • Daniel (13), my brother, good link, thanks. But nuanced answers? Clinton said “in very rare instances,” she might attach a so-called signing statement to a bill reserving a right to bypass “provisions that contradict the Constitution.” Sounds exactly like what Bush would say. And Obama said, “These are essential questions that all the candidates should answer. The American people need to know where we stand on these issues before they entrust us with this responsibility – particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration.” I wouldn’t call that an answer, nuanced or otherwise.

  • A question for both the Dems and the Rethugs: If elected President, will you rescind all of President Bush’s signing statements, and promise not to issue any more?

    I have not understood how Congress has let him get away with it for so long. Unless, of course, the word is out that the supremes will rule in favor of Bush. In which case the entire premise of a separation of powers, and three independent branches of government is out the window for good. Tear up what’s left of the Constitution. We live in an “elected” dictatorship. Heil Diebold.

  • Why does someone in congress not introduce legislation that prohibits the use of “signing Statements” by the President? There is nothing in Article II of the US Constitution that gives the president this authority. Make it a law to clarify the Constitution if the president and his advisers cannot understand it now.

  • House Speaker Nancy Pelosi (D-Calif.): “I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. His job, under the Constitution, is to faithfully execute the law – every part of it – and I expect him to do just that.”

    Yeah. Or else… what, Nancy? This is what impeachment is for. If you won’t use it, you might as well fold up your tent and go home.

  • If I might reply to the other Steve regarding thoughts, perhaps Bu$h could merely be convicted “in absentia”—since thought is a term most likely absent from Bu$h’s vocabulary, and “the vacant outhouse between his ears….”

  • Speaking of absence, Steve– the IQ rankings of the past eight presidents have Clinton at 183 and The Shrub at 91. The Dems occupy the top 4 slots and the Reps occupy the bottom 4 slots with the Bushes being the bottom 2.

  • ya know why approval ratings for congress are lower than bush’s? because they let this brat get his way.

  • I read in House of Bush House of Saud— “He was born on 3rd base and thought he had hit a triple.”

  • Last week, in the thread about Bush’s most recent signing statement, I commented as follows:

    I figured Charlie Savage would be on top of this one – he covered the subject extensively in his book, Takeover, but the sad truth is that while Bush may have used signing statements more than any other president, and for reasons that are questionable in their assertion that the laws he is attaching these statements to infringe on his constitutional authority, he is only the latest in a long line of presidents who have done the same.

    I would highly recommend that you read Savage’s book, because it will not only blow your mind, it will give you some historical perspective on how we got where we are. The difference between Bush and past presidents is that Bush saw the executive branch as an authority unto itself, and staffed the various departments within the executive branch with people who were told that their job was to take any and every opportunity to strengthen executive power. These people were the means to whatever end Bush was seeking, and those who dared to question tthose means did not last long – they were not expected to push back, they were expected to interpret the law in the executive’s favor.

    I’m telling you – if you think you are angry now, reading this book will take that anger to a level you didn’t think it was possible to reach without having a stroke.

    And:

    The last paragraph of the (Charlie Savage-authored) Boston Globe article states:

    Among the presidential candidates, Mitt Romney, Hillary Clinton, and Barack Obama have said they would issue signing statements if elected. John McCain said he would not.

    For what it’s worth, I think McCain is making a promise he would not keep, especially if he were working with a Democratic Congress. Unless he figures he would just veto anything that he believed would restrict his authority.

    Bush issues signing statements on any legislation or part of legislation that he believes restricts his constitutional authority to supervise the unitary executive branch – and as we know he also views many of the things he attaches signing statements to as infringing on his authority as commander-in-chief.

    Back in 1993, Bernard Nussbaum, who was Clinton’s WH counsel, made the argument that the Department of Justice had advised three prior presidents that the president has the constitutional authority to decline to enforce a clearly unconstitutional law. That 1993 memo may be found here: http://www.usdoj.gov/olc/signing.htm

    The question is: how does the president come to have the power to do something – decide the law is unconstitutional – that we always thought was reserved for the courts? That is where the terminally toadified Office of Legal Counsel, and WH counsel’s office come into play.

    But don’t kid yourselves – if you think for one minute there will never be another signing statement issued out of the WH, you are dreaming.

  • Isn’t the job of the executive branch to enforce laws and the job of the judicial branch to interpret the laws. It seems that signing statements are attempts at interpreting the laws.

  • Signing statements are a canard. If the executive through its actions defies the law, it can and should be punished accordingly. There’s a reason Congress mostly ignores signing statements – they are meaningless in law.

  • The “pure” idea behind signing statements is that, if a recently passed law has any vagary, any contradiction, ant confusing passage that could be used against a President who thinks he/she is acting within the law, the signing statement allows the President to say, “Well, here’s how my lawyers & I interpret this law.” If the statement then contradicts the law’s intent, Congress can go back & make greater clarifications on the original law, and make the law more cut-and-dry.

    What Bush has been doing is saying over and over and over “This law does not apply to me ‘cuz I’m the Decider.” No offer to an interpretation, no way for Congress to tighten the law, just a good ol’ Bronx cheer to the entire legislative branch from the executive branch with an assist from the judicial. As has been said before, if this isn’t an impachable offense, nothing is. This is Nixon saying “If the President does something, it is not illegal” all over again. And if Congress won’t stand up for the Constitution, then it really is, as the President once put it, just a goddamned piece of paper.

    A signing statement, in theory, isn’t necessarily a bad thing, just like a car isn’t necessarily a bad thing. But put eithe one in the hands of a corrupt soulless idiot who’s never forced to accept any consequences for his actions, there’s going to be damage.

  • According to the Congressional Research Service (It’s a pdf.) Bill Clinton issued 381 signing statements. As of September, 2007, the date of the linked report, George W. Bush had issued 156. The kicker is that, because many of G>W> Bush’s signing statements included multiple objections, they collectively challenge over 1000 provisions of law.

    Until the Reagan administration, Presidents had only issued 76 signing statements. Reagan, buoyed by the arguments of a young lawyer named Samuel J. Alito, issued 250 signing statements. George H. W. Bush picked up the pace by issuing 228 during his four years.

    The report goes on to state (In part):
    However, in analyzing the constitutional basis for, and legal effect of,
    presidential signing statements, it becomes apparent that no constitutional or legal
    deficiencies adhere to the issuance of such statements in and of themselves. Rather,
    it appears that the appropriate focus of inquiry in this context is on the assertions of
    presidential authoritycontained therein, coupled with an examination of substantive
    executive action taken or forborne with regard to the provisions of law implicated in
    a presidential signing statement.

  • are there ANY republicans saying these actions are wrong?
    my god… surely some of them have a sense of whats coming down.

  • excellent point ‘slappy magoo’ And certainly a point to keep in mind, as we’ll all be hearing about every president, especially Bill Clinton having done it before. Conveniently ignoring the fact that Bush is doing it a completely illegal way, and probably previous presidents using it as a clarification.

  • Steve at 1 writes: Bush would look good in “Gitmo orange”—now wouldn’t he?

    He’d look even better in handcuffs as they frogmarch his sorry ass to The Hague for the war crimes trial he so richly deserves.

  • It’s time Congress passes a law requiring Congressional signing statement commentary, requiring a joint committee to assess the legality of Presidential signing statements. This asessment could then be appended to every bill on which a president made a signing statement.
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