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 anti-war coalition with over 1,400 member groups – characterized Bush's action as “arrogant and unconstitutional” and called on Congress to convene hearings to impeach the president.
Bush’s use of Signing Statements has become one of the hallmarks of his Administration. The 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 Check and Balances” – a bipartisan group of legal scholars and former Republican and Democratic presidential advisors – declared: “To restore our system of checks and balances, Congress can, and must, exercise its responsibility as a separate and independent branch of government. Congress has a clear constitutional obligation to make the laws, and when it has made such laws, to ensure through oversight that the executive branch is enforcing those laws and is otherwise carrying out its responsibilities in a manner consistent with the laws and the Constitution”
Last month, a senior Department of Justice (DOJ) 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 poor families.
Another Bush critic, the American Civil Liberties Union (ACLU), declared, “When Congress sends a law to the president for signature it is not asking for his comments. The Constitution doesn’t provide for the president to cherry pick which laws – or which parts of the laws – he will enforce. The Founding Fathers of our country designed a system that works when Congress writes the laws and the president implements them,” said the ACLU’s Caroline Fredrickson. “The president needs to respect the separation of powers,” she added.
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, the President 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. Monroe signed a bill mandating a reduction in the size of the army and prescribed the method by which the president should select military officers. But a month later, he issued a statement declaring that the president, not Congress, had the Constitutional authority to appoint military officers.
In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago, but issued a statement insisting that the road was not to extend beyond Michigan.
President Abraham Lincoln wrote that he was signing one bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his Signing Statement a draft veto message he had prepared before the joint resolution was adopted.