December 21, 2007
By Alan W. Dowd
President George W. Bush’s critics are howling again, this time about his use of “signing statements,” the comments and clarifications he issues when signing a bill and filing it with the Federal Register.
For example, Frank Rich of The New York Times labels Bush “a president who tries to void laws he doesn’t like by encumbering them with ‘signing statements.’” Elsewhere in the Times, we find a reprint of a chapter from Robert Kuttner’s “The Squandering of America” declaring that Bush’s “autocratic administration…invents extra-constitutional doctrines such as presidential ‘signing statements.’”
MSNBC has also sounded the alarm. Dan Abrams vows to expose “the president’s unprecedented use and misuse of so-called signing statements.” Likewise, Keith Olbermann makes a point to point out Bush’s signing statements, sharing air time with John Dean and other self-styled experts in the abuse of power.
This follows on the heels of 2006 reports in The Boston Globe detailing how Bush “has quietly claimed the authority to disobey more than 750 laws enacted since he took office.”
In truth, if this president is abusing power and employing “extra-constitutional doctrines,” he’s only following the precedent set by his predecessors.
But don’t take my word for it. Instead, consider this memo penned in 1993 for Bernard Nussbaum, counsel to President Bill Clinton, which reminds us that this practice is decades old and arguably serves an important purpose.
The preamble to the memo notes that “Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed.”
Specifically, the memo concludes:
“We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.”
According to the Nussbaum memo, signing statements “guide and direct Executive officials in interpreting or administering a statute.” Reasserting something Congress sometimes ignores, the memo adds: “The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch.”
Signing statements, the memo explains, “announce the President's view of the constitutionality of the legislation he is signing…Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it.”
The memo continues: “More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it.” (Gasp!)
According to the memo, “In each of the last three administrations, the Department of Justice has advised the president that the constitution provides him with the authority to decline to enforce a clearly unconstitutional law. This advice is, we believe, consistent with the views of the Framers.”
Note that in 1993, “the last three administrations” would be George H.W. Bush’s, Ronald Reagan’s and Jimmy Carter’s.
And the practice dates even further back. An appendix to the memo explains that President Andrew Jackson “signed a bill and simultaneously sent to Congress a message that restricted the reach of the statute.” That was in 1830. President Jackson is the same man, it pays to recall, who forcibly removed all Native American tribes living east of the Mississippi—in open violation of a U.S. Supreme Court decision. How’s that for autocratic?
The Nussbaum memo notes that even President Abraham Lincoln, sainted savior of the republic, “stated that he was signing the Confiscation Bill on the understanding that the bill and the joint resolution explaining it were ‘substantially one.’ He attached to his signing statement the draft veto message he had prepared before the joint resolution was adopted.”
President Woodrow Wilson signed a bill in 1920, “but determined not to enforce a provision he found unconstitutional.” And the list goes on and on. The guilty presidents also include TR, FDR, Truman, Ike, LBJ, Nixon, Ford and others.
As the memo concludes, “If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing.” (Underlined emphasis in the original.)
In other words, as with so much of what the left criticizes about George W. Bush—his words and actions regarding Iraq, which differ from President Clinton’s only by degrees, not in substance; his commutation of an associate’s sentence, which is an abuse of power today but was simply an expression of presidential prerogatives in January 2001; his opposition to the International Criminal Court, which President Clinton shared until the eleventh hour of his presidency; his administration’s intelligence failures, which are blamed for not connecting the dots prior to 9/11 and for connecting too many dots prior to Iraq, failures which began during the Clinton administration; his decision to relieve and replace U.S. attorneys appointed by previous administrations, which today is derided as the “politicization of our prosecutorial system” but was simply a “routine” matter in 1993, when 93 U.S. attorneys were summarily sacked; his faith-based initiatives, which are rooted in the Clinton-era Charitable Choice reforms; and for that matter, his faith—the reality is that this president’s actions have usually followed precedent, including the precedents set or continued by President Clinton.