Thursday, May 04, 2006

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.


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?


Anonymous said...

THis is perhaps the most terrifying thing I have ever read...

Anonymous said...

So, what's your opinion on the 2nd Amendment?

Anonymous said...

The scary part is that Bush has blatantly infringed upon both the judicial branch and the legislative branches duties without protest from either one.

Also the fact that the signing statements were introduced in the form they are used today by one Samuel Alito, who now sits upon the supreme court which would determine the constitutionality of said statements.


Hume's Ghost said...

I think its imperative that the public vote into office in the next election a Congress that will take the steps necessary to protect the Constitution.

It is thus terribly important that the public be made aware of just how dangerous the legal theories of this adminsitration, exemplified by the Yoo Doctrine, are.

In the Federalist, Publius (the collective pen name of Jay, Hamilton, and Madison) repeatedly draw upon the lessons of history to try to explain why various provisions of the Constitution were necessary. Its actually one of the recurring themes of the papers, that we should pay attention to the lessons history teaches us. In #20, Madison writes:

Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.

In Nazi Germany, Hitler came to power by invoking Article 48 of the Weimar Republic's Constitution which allowed for the rule of law to be suspended as a matter of national security.

Consider how unsettling it is to hear the administration's opinions on the AUMF and its unitary executive powers to protect national security which imply and even lower threshold for the abrogation of the rule of law than Article 48.

Now this isn't to say that I'm trying to equivocate Bush to Hitler, but that the lesson we can take from the history of the Weimar Republic is that we must always be on guard against the erosion of institutions meant to protect our civil and constitutional liberties.

Anonymous said...

So if he's a king, is he George II or George III?

An important question, b/c if I'm going to run into the streets to protest, I want to be sure I get it right?

Anonymous said...

Does anyone have any theories as to why this, and the many other shocking transgressions of our president, seem not to matter to most of the public? Public apathy about these things is what I really find unsettling.

Hume's Ghost said...

I can think of several reasons.

1. People take functioning democracy for granted.
2. Media does not do an adequate job of keeping citizens informed.
3. People are not taught civics so that they have a basic understanding of our constitutional principles and how a liberal democracy functions.
4. Post 9/11, an atmosphere of nationalism has been coupled with fear-mongering to cultivate a deference to authority which promises safety from terrorism.

Anonymous said...

Wow, all good theories.


Curiosis said...

Bush can make whatever signing statement he wants. It is when he actually breaks the laws passed by Congress that he should be investigated. I can say all day long, "I'm going to drive really fast," but until I actually speed I won't get a ticket.

The question I have is, has the President actually broken any of these laws?

Alonzo Fyfe said...

Signing statements are written instructions towards underlings telling them how to act. It is no different than, for example, an email from a corporate executive stating, "All employees must immediately destroy all emails and other materials having to do with X,"

Even if the employees disobey the instruction, giving the instruction itself violates the law.

Curiosis said...


I would charterize these signing statements more as threats to break the law than actual law breaking.

And as I asked, has the President actually broken any of these laws?