Bush's "Signing Statement" - Unconstitutional?
by sethco, Fri Mar 24, 2006 at 05:08:57 AM EST
In a previous post I mentioned that Bush, when signing the bill re-authorizing the Patriot Act, issued a so-called "signing statement" to the effect that he will ignore the oversight requirements. Today, The Boston Globe has more on the story.
Bush signed the bill with fanfare at a White House ceremony March 9, calling it ''a piece of legislation that's vital to win the war on terror and to protect the American people." But after the reporters and guests had left, the White House quietly issued a ''signing statement," an official document in which a president lays out his interpretation of a new law.
In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law's requirements, he could withhold the information if he decided that disclosure would ''impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties."
It struck me at the time that this was a blatant overreach by the President, and I did not see how it could stand up to Constitutional scrutiny. Apparently, I'm not the only one who thought so.
Yesterday, Leahy said Bush's assertion that he could ignore the new provisions of the Patriot Act -- provisions that were the subject of intense negotiations in Congress -- represented ''nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law."
''The president's signing statements are not the law, and Congress should not allow them to be the last word," Leahy said in a prepared statement. ''The president's constitutional duty is to faithfully execute the laws as written by the Congress, not cherry-pick the laws he decides he wants to follow. It is our duty to ensure, by means of congressional oversight, that he does so."
The White House, of course, responded by saying "that the president will faithfully execute the law in a manner that is consistent with the Constitution." This is an important statement, and one that deserves some attention.
One of two things is going on with this "signing statement":
First, the White House is violating the separation of powers by legislating. As Senator Leahy notes, the President is responsible for executing the law as written by Congress. By issuing the "signing statement" to the effect that he will not follow certain parts of the law, he is in fact changing the law.
If the President does not want to or feels he cannot follow a law as passed by Congress, he has the ability to veto the law. He can also work with Congress to suggest legislation. He does not, however, have the right to change certain parts of the law and execute only what he finds convenient.
Second, if the White House issues a statement to the effect that the President will not follow certain parts of a law because he is not required to under the Constitution, then the White House is engaging in Constitutional interpretation - a power reserved for the Courts.
The White House has the right to retain counsel and the right to ask that counsel for their advice on how the President should act so as to be in accordance with the law as passed by Congress. But, the White House cannot set up an ad hoc judicial review office in which they interpret laws and judge inconvenient parts unconstitutional and, therefore, void. If the President is truly concerned with the constitutionality of a law, or part thereof, there is a separate branch of government to handle that situation.
NYU Law Professor David Golove told the Boston Globe that
the statement illustrates the administration's ''mind-bogglingly expansive conception" of executive power, and its low regard for legislative power.
I would argue that it also illustrates the administration's low regard for judicial power, separation of powers, or the Constitution as a whole.
This administration has far exceeded the bounds of acceptable conduct by a good faith executive. I am truly baffled that citizens concerned with good government, especially those that call themselves "conservatives", are not more concerned about these abuses of power. Silence, remember, is considered consent.