· Categorize public officials into one of three branches of government.
Apparently the current occupants of the White House were so clever they skipped the sixth grade. This was evidenced most recently when Vice President Cheney tried to tell the House Government Oversight and Government Reform Committee that he wasn’t a member of the executive branch. Which branch might you belong to, he was asked? Unfortunately Cheney backed down without uttering what was probably on his mind, “The only one that counts, my branch you fools!”
The Limited Use of Signing Statements in the Past
It is not uncommon for a president to attach a signing statement to legislation outlining the importance and significance of the act either to the public or government agencies. These are called rhetorical and political signing statements. They don’t change or challenge laws passed. Broad based constitutional signing statements, uncommon in the past, are now a very serious matter. Essentially, the chief executive states that he will not enforce parts of legislation that he signs into law because he thinks it is unconstitutional, a power not granted to the president.
Jennifer Van Bergen cites James Madison’s most salient argument against this executive hubris:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Legal scholar, Neil Kinkopf carries Madison’s analysis forward:
The assertion of a presidential power to refuse to enforce a law stands in deep tension with the constitution. As the Supreme court has repeatedly recognized, the take care clause--which provides that the President "shall take care that the Laws be faithfully executed"--establishes that the President does not hold the royal prerogative of a dispensing power, which is the power to dispense with or suspend the execution of the laws. The take care clause, then, makes plain that the President is duty-bound to enforce all the laws, whether he agrees with them or not.
If a president feels compelled to issue a signing statement, it’s expected that he will proceed only when a dire constitutional violation is involved He should attempt to get the sections he finds abjectly unconstitutional changed by Congress and also take the matter to the Courts. President Clinton objected to a defense bill requiring immediate discharge of military personnel with HIV AIDS. After the signing statement, he tried to reverse this legislatively and took it to court. This was the rare exception, not the rule until 2001.
The Bush Signing Statements – Slouching Toward Tyranny
It’s no surprise that the two previous reigning champions of signing statements include former President’s Reagan and George H.W. Bush. But their record is nothing compared to the 43rd president. He signs with a vengeance invoking broad constitutional powers foreign to the executive branch. He is a self proclaimed judiciary of one.
Unless Bush thought this up on his own, it was some strange council that urged the frequent use of the aberrant practice. Cheney, Gonzales, or Ted Olson, who knows? There’s a long list of suspects.
Despite having a Republican Congress for the first six years of his reign, Bush issued signing statements containing 1046 constitutional challenges to the legislation that he’s signed. There are two common elements.
The first is petulance. If he wants to ignore any part of a bill that Congress passes, Bush simply issues a signing statement and implements his subversive scheme. As Kinkopf said earlier, “… the President does not hold the royal prerogative of a dispensing power … the power to dispense with or suspend the execution of the laws.”
The second element involves an Orwellian process of creating meaningless words that support the process. The key words are unitary executive. Stripping away historical distortions, “the unitary executive is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.”
Legal scholar and former Reagan Justice Department official, Bruce Fein, testified before Congress and explained how the process works. Fein pointed out that the Bush signing statement for the Detainee Treatment Act of 2005, which prohibited torture, lead to a 180 degree change in the law:
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