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The Constitution is not what the President [alone] says it is. —American Bar Association Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, July 24.
When George W. Bush signs a bill from Congress into law, he adds a “signing statement”—more of them than any of his predecessors—that he will not enforce that law if it impedes his inherent constitutional authority as head of “the unitary executive.” (Press secretary Tony Snow brushes these off as “little statements.”
In Bush’s first term, he has, as the Associated Press notes, issued at least 750 of these—”reserving the right to revise, interpret, or disregard laws.
Most notoriously, after a televised White House surrender to Senator John McCain, Bush signed a law including McCain’s banning of “cruel, inhuman, or degrading punishment” of U.S. detainees—but then, in a signing statement, he said he could ignore that part of the law in the war on terrorism.
The increasingly intense national debate on the president’s bypassing the representatives of the people whenever he chooses has even reached the comic pages. On August 1, in The Record, a daily newspaper in Bergen, New Jersey, Wiley Miller’s strip Non Sequitor shows a father remonstrating with his small son: “I hear you don’t think you have to clean your room.”
“Well,” says the child, “while I grant you the existence and legitimacy of your rules, I’ve enacted the power of a signing statement that makes me the exception to those rules.”
On July 13, on the editorial page of The Lufkin Daily News, serving a small community in Texas, supporters of Bush’s frequent use of signing statements are asked if they’re “willing to provide such leeway in skirting laws to a President Hillary Clinton? Or a President John Kerry? We doubt it.”
Of much greater concern to the White House than those barbs is a stinging American Bar Association task force report—summarized by ABA President Michael Greco—accusing Bush of violating his oath of office by signing a law and then refusing to enforce it.
This ignoring of Bush’s oath of office, says Greco, “is made clear in Article I of the Constitution, in the so-called ‘presentment clause,’ which decrees that a president must accept or reject a law as a whole. He cannot pick and choose the parts he likes. . . . The president must sign or veto a law as a whole.”
Greco, who has become the immediate past president of the ABA since the report, his term having ended, reminded the president that Tom Paine, in stoking the fires that led to the American Revolution, “famously remarked that, in England the king was the law, but in America the law is king.” (Emphasis added.)
Or, as Bush’s very first predecessor, a fellow named George Washington, put it, the president “must approve all the parts of a bill or reject it in toto.”
The 10 members of the ABA task force included three prominent Republican constitutionalists: former congressman Mickey Edwards; Bruce Fein, who was in the Reagan Justice Department; and William Sessions, former head of the FBI and CIA and a former federal circuit court judge. (I’ve known Bruce Fein for many years and can attest there is no fiercer Republican conservative scholar nor a fiercer protector of the Constitution.)
It’s also important to note that before the ABA report on the signing statements, the valuable bipartisan Constitution Project in Washington—composed of an array of judges, scholars, and other constitutional experts—also issued a sharp criticism of Bush, challenging the constitutionality of his signing statements.
“We have come together,” said the signers of the Constitution Project’s accusation, “because we agree that we face a constitutional crisis. . . . The separation of powers is not a mere ‘technicality.’ It is the centerpiece of our Constitution—and our freedoms depend on it.” (Emphasis added.)
Among the long list of signers were: former congressman Bob Barr; law professor David Cole and John Dean (both penetrating critics of the administration’s assaults on civil liberties); David Keene, chairman of the American Conservative Union; law professor Geoffrey Stone, author of the essential book Perilous Times: Free Speech in Wartime (W.W. Norton and Co.); and Fein.
The American Bar Association report urged Congress to enact legislation to require a review by the courts—exercising the separation of powers—of these “signing statements that assert the President’s right to ignore laws passed by Congress.”
And on the floor of the Senate, on July 24, Republican Arlen Specter, chairman of the Senate Judiciary Committee, declared bluntly: “We will submit legislation to the United States Senate which will authorize Congress to undertake judicial review of these signing statements with the view to having the president’s acts declared unconstitutional.” (Emphasis added.)
This proposed legislation is based on the draft bill written by the indomitable Fein, whose keen sense of the sources of our Constitution is illustrated by this portion of the bill: “Article II, Section I [of the Constitution] declares that the President ‘shall take Care that the Laws be faithfully executed. . . . ‘ Its inspiration was the English Bill of Rights in 1688. It declared, ‘That the pretending power of suspending the laws or the execution of laws by regal authority, without the consent of Parliament, is ‘illegal.’ ”
In his signing statement, and in scores of violations of the Constitution, detailed in this column starting after 9-11, Bush has unilaterally assumed “the pretending power” to issue “regal” suspensions of our rules of law.
So long as there is a Republican-controlled Congress, however, I doubt very much that the Specter-Fein legislation—to strip this king of his false authority to degrade the separation of powers—will have any effect.
So, do the so-called leaders of the Democratic Party plan to campaign at all, during the forthcoming elections, on the actions of this “regal” president?