Fun with presidential signing statements

The pen is mightier than the word

Here's the part I don't get: The president has left a long paper trail that attests to his contempt for legislative intent, yet he is pitching a fit over congressional measures that stipulate a timeline for the end of our occupation of Iraq. Why does he care?

Perhaps he's just seizing the opportunity for a bit of political theater, but the record is otherwise clear that President Bush disdains—and considers himself unfettered by—congressional directives. This was manifestly true when the Republicans ran Capitol Hill and we should expect it to be even more so under the new Democratic leadership. The president's chosen device for the expression of his contempt for the supposedly co-equal legislative branch of government is the signing statement, so I'm wondering why he acts as if he's being forced to give it up for Lent. Doesn't he believe he could just sign the supplemental funding measure for the debacle in Iraq and then ignore the withdrawal timeline? Doesn't he think he's king?

Presidents have long made a practice of issuing statements on the occasion of signing significant legislation. During the Bush administration, however, the presidential signing statement has morphed into the functional equivalent of after-the-fact amendments or codicils to the bills being signed into law. There are now many instances where Bush signs a legislative act into law while simultaneously issuing a signing statement that qualifies or even guts the impact of the measure.

A year ago, the Boston Globe published a list of significant presidential signing statements. Here are a couple of particularly notable examples of the supposed power of the president's imperial pen:

Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.

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The bill in question was H.R. 2863. It included Sen. McCain's anti-torture language, which had already been significantly compromised on its way to legislative enactment. The “compromise” was promptly rendered a dead letter when Bush said, “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch.” There's more, of course, but it all boils down to the assertion that Congress can say whatever it wants, but the president will do whatever he wants, up to and including the authorization of torture. His fig leaf? He simply declared that his power as commander-in-chief allows him to do what he pleases while ostensibly “protecting the American people from further terrorist attacks.” Convenient!

In light of recent revelations concerning the FBI's abuse of the Patriot Act, here's a particularly timely example of how Bush denied Congress any oversight role in policing the implementation of the Patriot Act's domestic surveillance provisions:

March 9: Justice Department officials must give reports to Congress by certain dates on how the FBI is using the USA Patriot Act to search homes and secretly seize papers.

Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.

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Once again, the president decides. He's the decider. This time the legislation was H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005. Once again, we are talking about a measure that was enacted by a Republican Congress, but which the president found too restrictive. In his signing statement, Bush declared

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.

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The Decider himself, of course, will determine what is “necessary” or “expedient,” and Congress should be embarrassed that it dared to attempt to supervise any aspect of the unitary executive branch (the president's authority is a seamless garment, like Nero's toga) or direct executive branch officials to report to it. Such legislative brashness, dramatically exacerbated under Democratic control, must make Bush pine for the return of lèse majesté as a grievous crime.

Given the president's undeniable record of flouting congressional intent, why does he care about the legislative deadline for withdrawal from Iraq? The House has already voted for a measure containing a deadline of August 2008 (much too late, in my opinion, but they didn't ask me) and the Senate has refused to remove the deadline in its own bill. Therefore it seems certain that a deadline of some sort will be in the compromise legislation that eventually emerges from the inevitable House-Senate conference committee for approval by the Democratic majority in both houses, after which it will be delivered to the president's desk. He has promised to veto it.

This rebellious behavior naturally piques him, since he was accustomed to uncommon deference from Congress and chafes at the efforts of Pelosi and Reid to rein him in, but he clearly does not acknowledge their power to do so. Thus we get back to my bottom line:

Bush wants the funding contained in the legislation. Why doesn't he just sign the bill and then disavow the deadline with one of his imperial signing statements? Such an action would be right in line with his behavior of the past six years. Why balk now?

Perhaps he's afraid. The Republican leaders of Congress never challenged the president on his signing statements, even though these statements often gutted the bills they sent to the White House. Speaker Pelosi and Majority Leader Reid, however, are different from the GOP eunuchs who ran the last Congress. They are unlikely to ignore the president's unilateral attempt to amend their legislation after its congressional passage. Bush's brazen behavior may be reduced to public bluster combined with private cowering. He must doubt that he has packed the federal courts with enough toadies to do his bidding and strike down any legal challenges to his unconstitutional usurpation of legislative prerogatives. If only he had gotten that one additional Supreme Court appointment! But he didn't. And a Democratic Senate won't let him have another Scalia, Thomas, or Alito.

Is the imperial presidency finally tottering?