When George W. Bush signed the 2008 National Defense
Authorization Act into law last week, he again thumbed his nose at Congress
by taking a second now-familiar step: he issued a "signing statement"
a declaration that effectively asserts his authority to ignore parts
of the law he disagrees with.
His action brought harsh criticism from dozens of legal scholars and advocacy
groups who point out that U.S. presidents have the authority under the Constitution
to veto or approve acts of Congress but not to modify them.
Bush's latest signing statement declares his right to ignore sections of the
law establishing a commission to investigate U.S. contractor fraud in Iraq and
Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence
agencies respond to congressional requests for documents, banning funding for
permanent bases in Iraq, and prohibiting funding of any actions that exercise
U.S. control over Iraq's oil revenues.
One administration critic, United
for Peace and Justice (UFPJ) the country's largest antiwar coalition
with over 1,400 member groups characterized Bush's action as "arrogant
and unconstitutional" and called on Congress to convene hearings to impeach
Bush's use of signing statements has become one of the hallmarks of his administration.
UFPJ charged that during the past seven years, the same kind of language used
by Bush last week "has been the precursor to numerous violations of law
by his administration, including sections of law banning the use of torture
and banning the use of funds to construct permanent U.S. military bases in Iraq.
The president has signed laws blocking funding for the construction of permanent
bases in Iraq six times, but never stopped the construction."
And, in a recent statement, the Constitution Project's Coalition
to Defend Checks and Balances urged Congress to "ensure through oversight
that the executive branch is enforcing those laws [passed by Congress] and is
otherwise carrying out its responsibilities in a manner consistent with the
laws and the Constitution."
Last month, a senior Justice Department official testified before the House
of Representatives Judiciary Committee that the president is free to violate
any laws until the Supreme Court rules otherwise. However, the U.S. Constitution
gives Congress the sole authority to legislate and requires the president to
"take care that the laws be faithfully executed."
A year earlier, a blue-ribbon American Bar Association task force composed
of constitutional scholars, former presidential advisers, and legal and judicial
experts urged Congress to adopt legislation enabling its members to seek court
review of signing statements that assert the president's right to ignore or
not enforce laws passed by Congress and demanded that the president veto bills
he feels are not constitutional. Since he took office in 2001, the president
has vetoed only one bill a measure to expand health care for children of
Arguably, the most controversial of Bush's signing statements rejected the
so-called McCain Amendment in the Detainee Treatment Act of 2006, which categorically
prohibits cruel, inhuman, and degrading treatment of detainees by all U.S. personnel,
anywhere in the world.
In his signing statement, Bush asserted that he was free to construe that provision
"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."
Bush's signing statements cover not only the so-called war on terror, but also
a wide array of bills passed by Congress, ranging from affirmative action programs
to requirements of statistical compilations by executive agencies to establishing
basic qualifications for executive appointees.
The use of signing statements, however, did not start with George W. Bush.
In recent U.S. political history, they have been used by Presidents Ronald Reagan,
George H. W. Bush, and Bill Clinton as a tool to express constitutional and
other objections to legislation, influence judicial interpretation, and otherwise
advance policy goals.
Earlier presidents, beginning with James Monroe, the nation's fifth chief executive,
have issued such statements. But it was not until the Reagan administration
that the nation saw a dramatic increase in the frequency of presidential signing
Reagan saw the statements as a strategic tool for molding and influencing the
way legislation was interpreted by executive agencies. In eight years as president,
he issued statements objecting to 72 congressional provisions, a record at the
time. His successor, George Herbert Walker Bush, topped that mark in only four
years in the White House. Bush objected to 232 provisions. President Bill Clinton
followed with 140 objections in eight years.
But, as noted by the American Bar Association's bipartisan task force, while
the current president is not the first to use signing statements, "the
frequency of signing statements that challenge laws has escalated substantially."
From the inception of the republic until 2000, presidents produced fewer than
600 signing statements. Since 2001, President Bush has objected on constitutional
grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current
Bush administration is creating faux law. He told IPS, "The Bush administration's
repeated utterance of its constitutional philosophy shapes executive branch
behavior by solidifying allegiance to norms of hostility to external accountability."
"Like the torture memo or the rationalizations for warrantless NSA wiretapping
of domestic telephone calls, the Bush 43 signing statements embody both a disregard
for the institutional authorities of the other branches especially Congress
and a disregard for the necessity to ground legal claims in plausible
law. They are best understood as an attempt to invent law, and as an exploitation
of Congress's unwillingness, at least while in Republican hands, to allow the
administration's more extreme theories of presidential authority to go unchallenged,"
(Inter Press Service)