This time we really mean it, Mr. President
The Framers of our Constitution had this quaint idea for resolving differences between Congress and the president over legislation: If the president didn't like a bill that Congress had passed and sent to the White House, the president could veto the bill. If Congress didn't like the presidential veto, it could override it and make the bill law anyway, if it mustered a two-thirds majority in each house.
But presidents invented a new solution of their own: presidential signing statements, issued when a president signs bills. Sometimes, the signing statements were little more than happy rhetoric to accompany the distribution of pens used to sign the legislation. On other occasions, though, the president would sign the bill, but use a signing statement to say he had no intention of enforcing some objectionable section of the law. As The Constitution Project points out, this is a really bad idea. One big question is what impact the statements have on the executive agencies that are supposed to be carrying out the intent of Congress, but answer to the president. Nobody really knows, but the Congressional Research Service did a study of that and other aspects of the issue.
Other presidents before George W. Bush have used signing statements to take issue with sections of laws they were signing. Bush's father was one example. So was Bill Clinton. But no one has used this device more than Bush. He used it so often that Charlie Savage of the Boston Globe won a Pulitzer Prize in 2007 for writing about signing-statement abuse.
Now a Republican congressman from the Outer Banks of North Carolina, Walter Jones, is sponsoring legislation designed to ride herd on the statements.
The bill, H.R. 5993, wouldn't prohibit the president from issuing the statements. But it would require him or her to send to key congressional leaders any signing statements declaring an intention not to enforce the law. The president would also have to publish the statements in the Federal Register, as if they were final rules. And top administration officials, all the way up to the attorney general, would have to testify before congressional committees about them.
Finally, if the White House did not comply with these provisions, the Congress could withhold any funding for the law in question. What a concept! Congress exercising the power of the purse.
It's unfortunate that the current presidency is so relentless in its pursuit of more power than the Framers had in mind. So this bill is a sad exercise, but one of many necessary steps to begin restoring some semblance of executive-legislative balance. Let's hope that it passes and that Bush doesn't just sign it and issue a signing statement that he doesn't intend to enforce it.
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Comments (1)
There is an old saying, " A day late and a dollar short." Its meaning is so aptly captured by this "daring" posting, which might have been ground breaking had it happened two years ago or more.
Presidents have used signing statements since the early part of the 19th century, and they have been used to challenge the constitutionality of legislation since that time. Thus there is not one thing that President Bush has done that has not occurred before *except for* the number of challenges. And in that category he has excelled.
Furthermore, Representative Jones has introduced a piece of legislation that is no different from the other legislation introduced before regarding the signing statement. It is all symbol and no substance. His legislation demands that signing statements not only need to be made public but also Congress needs to be aware of their use. This legislation is not just useless, it is redundant.
The signing statement, since 1965, can be found in the "Weekly Compilation of Presidential Documents," a series located in most any library and certainly at the Library of Congress. And since the advent of the Internet, it can be found online--simply go to http://www.gpoaccess.gov/wcomp/search.html, select the year, and type "statement on signing." It will give you every signing statement issued for that particular year.
In addition, the Reagan administration had the signing statement added to the "Legislative History" section of bills signed into law. And since that time, the "Lexis-Nexis" search engine has gone ahead and added the signing statement to the legislative history of bills before the Reagan administration.
And finally, since 1978, the Department of Justice has been required to inform the Congress whenever it challenges the constitutionality of law by refusing to defend the defective law. This provision was enhanced in 2002, now requiring the Department of Justice to inform Congress whenever the president refuses to carry out the law. So if Congress is ignorant to the use of the signing statement, they have no one to blame but themselves.
Since the Democrats have taken control of the Congress beginning in 2007, the use of the signing statement for any purpose has dropped off dramatically. The president has only issued 16 signing statements since the start of 2007, and of that number has only challenged 24 provisions of the law. So it appears that the "danger" to the system by the use of the signing statement has been addressed by us the voters.