Signing Statements

The Boston Globe recently reported on the issue that I am willing to argue justifies Bush’s impeachment – his use of 'signing statements' to give the President unlimited power to create and alter laws and bypass judicial review -- effectively giving himself powers reserved to the Legislative and Judicial branches of government.

These articles concern 750 signing statements that Bush has issued while in office.

Only two of these cases have been widely reported so far. When the legislative branch passed a law prohibiting the use of torture and the abusive treatment of prisoners, Bush signed that law -- then wrote a signing statement effectively nullifying the law. The signing statement in this case was used as an ultra-powerful veto -- a way of vetoing a law that Bush did not like without giving the Congress an opportunity to override that veto.

Specifically, the law says that US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

Specifically, from the Boston Globe:

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.

It used to be the case that if a President objected to a piece of legislation, he would veto it. This gave Congress a chance to debate the issue and see if it could come up with a two-thirds super majority to pass it over his veto.

Bush has not vetoed a single piece of legislation. He does not need to. He has invented a new tool – one not mentioned anywhere in the Constitution – that gives him the power to veto legislation without giving the Congress a chance to override his veto. His new tool, the uber-veto, involves signing a law, then writing a signing statement that effectively destroys that law.

The other widely reported use of a signing statement was the one Bush used in response to limitations Congress wrote into the Patriot Act. Bush effectively wrote, "in signing this law, I reserve the right to break it; and I alone can determine when I may or may not break this law."

Again, Bush decided to use his powers of uber-veto, over the hassle of dealing with a boring, traditional veto.

Specifically:

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.

We may assume that Bush is not acting alone on this. He is working in concert with a whole executive staff that collaborates on this effort. Their philosophy of government can only be summed up as one in which the President is an autocratic ruler with no limits on his power, and the Legislative and Judicial branches are impotent servants that exist only to execute His Majesty's commands.

Of course, one of the things that any monarch needs is to make sure that everybody answers to him and that nobody answers to another body – such as Congress. Towards this end, we see signing statements such as this:

Dec. 30: When requested, scientific information ''prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."

Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.

Aug. 8: The Department of Energy, the Nuclear Regulatory Commission and its contractors may not fire or otherwise punish an employee whistle-blower who tells Congress about possible wrongdoing.

Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.

The question then becomes, how do you stop an abuse of power from a President who claims this type of authority? The legislature passes laws that demand that the President end a pattern of abuse, and the President claims the authority to ignore the law.

So, what can we do in the face of tyranny?

Can we turn to the courts?

As it turns out, Bush also claims the right to sidestep the courts. The issue with warrantless eavesdropping is a case where Bush claims the courts have no jurisdiction, and he alone gets to decide if his own actions are Constitutional. In other words, Bush neutered the courts by claiming that they have no authority to review his actions.

Along these same lines, the Boston Globe provided an example of a signing statement in 2005 that effectively overturned a Supreme Court opinion that went against him.

Dec. 17: The new national intelligence director shall recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community.

Bush's signing statement: The executive branch shall construe the law in a manner consistent with a constitutional clause guaranteeing ''equal protection" for all. (In 2003, the Bush administration argued against race-conscious affirmative-action programs in a Supreme Court case. The court rejected Bush's view.)

So, Congress has been rendered powerless – Bush claims the authority to rewrite any law given to him. The Judicial Branch has been neutered – Bush has claimed the authority to prevent any case from reaching the courts and the authority to overrule the Supreme Court on matters he disagrees with.

Where did our system of checks and balances go?

More importantly, how do we get it back if we do not impeach this President while Congress still has the power to do so?