Approve It or Veto It

The emerging debate about the presidential use of “signing statements” is one that should be followed closely because it could represent a turning point in our democratic and constitutional process. Washington and Washington watchers love to talk about “power grabs”, but this highly debatable practice has serious implications that need to be resolved sooner rather than later. Someone has said that I paint President Bush as a dictator. That’s a strong word that hasn’t entered my mind, but the attempted consolidation of power under his administration invites a discussion about any president who tries to combine all three branches of our government into one – becoming judge, jury and executioner, as the saying goes. Usurpation is a word that does come to mind.

Signing statements are tag lines attached to a newly enacted piece of legislation when it’s being signed by the president. Such statements have been around since James Monroe, but only 75 were issued before the Reagan administration. In days gone by, they were merely pieces of political rhetoric that expressed support or concern about the bill or some element in the bill. They first became a strategic tool under Reagan and since then they’ve morphed into essentially reserving the right to revise, interpret or disregard certain provisions of law based on the president’s views on national security or on his interpretation of the Constitution. That is not the form of checks and balances or separation of powers set forth in the Constitution. This practice purports to combine legislative and judicial power with the executive power. Some might regard that as somewhat dictatorial. But I’ll stick with usurpation.

President Bush, in particular, is a study in contrasts. He has issued only one veto in six years in office. Since the Civil War the only president with a single-digit veto record is Warren Harding, and no president wants to be on any list that includes Warren Harding. You have to go back to the 1880s to find another president with less than 20 vetoes (Chester Arthur). Ronald Reagan issued 78, even with the Senate having been controlled by his party for most of his presidency.

On the other hand, this president has issued more signing statements than all other presidents combined, about 800 from No. 43 versus about 600 from Nos. 1 – 42. The burgeoning use of this tool has caused an ABA task force, which includes heavy-hitting Republicans, to declare the practice to be unconstitutional and the Republican chair of the Senate Judiciary Committee to introduce a bill allowing Congress to sue the president in federal court in an effort to curtail the practice.

Under the Constitution, the president can sign a bill, veto a bill, or take no action on a bill. Under the Constitution, any bill that is signed into law or that becomes law without a signature, must be “faithfully executed” by the president and the executive branch. The president cannot legislate or adjudicate. If the president believes that a bill is a threat to national security or is unconstitutional, then his constitutional remedy is to veto the bill. The president cannot “cherry pick” a new law by, in effect, exercising a line-item veto. The Supreme Court has declared that practice to be unconstitutional.

Notwithstanding the fairly clear directives in Articles I and II of the Constitution, legal memos out of the Reagan and Clinton Departments of Justice (the Reagan memo being authored by Samuel Alito, the newest member of the Supreme Court), have crafted a theory, sometimes referred to as the “unitary executive theory”, that purports to support the use of conditional or limitation-laden signing statements. Those memos are not very persuasive and their expansive assessments and circular logic are not likely to withstand close judicial scrutiny, though we may assume they would be supported by Justice Alito, who may also persuade Justices Thomas and Scalia.

An example is the signing statement attached to the new law that prohibits cruel, inhuman and degrading treatment of detainees in U.S. custody. It reads:

The Executive Branch shall construe [the torture ban] 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.

It’s not difficult to see the executive branch exercising legislative and judicial functions in statements of this nature.

Why has this practice become more pronounced under the current administration? One reason is because the White House and Congress are controlled by the same party and any presidential veto is a direct confrontation with the congressional leadership of his own party. That spells “a house divided” and in politics that’s a bad thing because the lack of partisan unity on one side of the aisle gets exploited by the partisan gang on the other side of the aisle.

It’s time to return to some fundamentals in American government and one of those fundamentals provides that when a newly enacted law comes the to president’s desk, s/he should sign it and then faithfully execute it or s/he should veto it. A veto is the exercise of the constitutional power to check and balance. Signing statements, as they have evolved in the last 25 years, are a threat to the constitutional separation of powers.