According to an article in the Boston Globe, the General Accountability Office reports that “US Agencies disobey 6 laws that president challenged” through signing statements. In other words, this organization has collected evidence showing that members of the Bush Administration are violating laws that Congress has passed and the President has signed.
A ‘signing statement’ is a statement filed on the same day that a President signs a bill into law. Signing statements are not mandatory – they are not even mentioned in the Constitution. They are, instead, something that Presidents have done in as a way of making a formal statement about the legislation that he has just signed into law. Typically, a President will use a signing statement to formally recognize and thank those who have worked to get a particular law through the legislative process, and to explain what he hopes the new law will accomplish.
However, sometimes, Presidents have used signing statements to rewrite the law. President Bush has done this more than all other Presidents in history – combined. Rather than veto a law that he does not like (which the Constitution gives the President the power to do), Bush simply uses a signing statement to rewrite the law, and then signs the law he wants, rather than the law that Congress has passed.
Bush’s most infamous use of a signing statement came when Congress passed a law that outlawed the torture of prisoners. Congress passed this law by a huge margin – more than enough to sustain a Presidential veto. The Bush Administration fought against this law while Congress debated it, but failed to prevent its passage. When the bill reached his desk, rather than veto the legislation, Bush issued a signing statement that effectively said that he will obey the law only to the degree that he desires to do so.
However, a question remains, when the President says that he is going to ignore a particular law, is he really ignoring it? I can say that I am going to ignore the law against speeding. However, I do not deserve a ticket merely because I have announced an intention to violate the law. I am not guilty of a criminal act until I am actually caught speeding.
I could, under some circumstances, be arrested and charged with conspiracy to break a law. This happens when there is evidence that I am actually making plans to break a law, before I actually break it. For example, the police do not have to wait for me to actually kill my business rival before they step in and charge me with a crime. It is enough that they caught me, for example, trying to negotiate with somebody I thought was a hit-man in order to arrange the murder. Conspiracy requires that I show enough intent to make it reasonable to believe that I would have gone ahead with an act.
Signing statements alone do not violate the law, nor do they show enough intent to support a charge of conspiracy.
However, what the General Accountability Office did was pick 19 laws that the Bush Administration changed through his signing statements. They then asked those members of the Administration that the law applies to and asked if they have obeyed the law that Congress has passed, or the President’s rewritten law.
Of the nineteen examples of laws rewritten through the use of signing statements, investigators found 3 cases where they could not determine if the law would be enforced as written. The law required executive action when triggered by specific circumstances, and those specific circumstances have not yet come about. Ten of those laws were being enforced as written. However, in the case of 6 of those laws, the Administration is violating the expressed will of Congress. In other words, the administer is ignoring the law that Congress passed and is following the President’s law instead.
The OMB included in their report the fact that they did not test whether the agency violated the law because of the signing statement. They simply asked the agency what the agency had done to conform to the law as written, and found 6 instances in which the agency obeyed the President’s law but ignored Congress. These agencies may have decided to violate the law for other reasons, or simply acted in ignorance of what the law said.
Still, President Bush has issued over 1000 signing statements in his career, and the OMB only studied 19 of those laws. We have more than enough reason to suspect that if Congress were to investigate the remaining signing statements, they would find additional cases where the President and his administration is acting in total disregard for the law. From there, it would be possible to launch an investigation, to collect emails an dother documents, and to determine whether the nature of those illegal activities – determine who is responsible, and who needs to resign.
The question now is whether Congress will take action.
There is a principle in law that states that silence implies consent. If you are given an opportunity to speak up and express an opinion on a subject, and you do not do so, others have a reason to assume that you consent to the proposal. If Congress remains silent and inactive in the face of a President who overrides and disregards its will, then they give their consent for this and all future Presidents to continue the practice.
This is nearly identical to allowing the President to dissolve the legislature (or, at least, divest it of power and turn it into a body of Presidential advisors rather than legislators) and to declare himself the sole author of all laws.
In Al Gore's book, "The Assault on Reason," he tells us that this is, effectively, the situation that Julius Caesar created in ancient Rome when that republic died. Caesar did not disband the Senate. He kept it intact, to give the people some false sense of control. The idea that a tyranny does not exist as long as there is a semblance of a body of elected officials in government is naive. The question is not whether there is a body of individuals elected by the people, but whether that body has power to determine the laws of the land, or if that power rests instead with an executive who writes his own law.
And it was the people of Rome who gave their voice and support, not to the Senate, but to Caesar.
So, what will become of people that the General Accountability Office have found to be acting in violation of the law?
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