A group of American Bar Association lawyers are arguing that President Bush’s use of executive signing statements constitutes a violation of the principle of separation of powers. The Volokh Conspiracy has an example of such a statement in regards to the PATRIOT Act.
Ramesh Ponnuru had some intelligent observations on signining statements in The Corner. I agree with him on the fourth point: if Bush believed that the text of a piece of legislation was blatantly unconstitutional, he should veto the bill. That is where the Founders gave the Executive the ability to shape legislation. The President does have the right to argue that the Executive Branch must carry out the requirements of a piece of legislation in a certain way, but he has no right to argue that a piece of legislation does not apply at all. Some of the President’s signing statements clearly fall under Ponnuru’s fourth category.
As Justice Stevens wrote in Clinton v. City of New York (which struck down the Line Item Veto Act of 1996):
Something that might be known as “Public Law 105—33 as modified by the President†may or may not be desirable, but it is surely not a document that may “become a law†pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.
If there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,†such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.
The same basic principle applies here. If the President is doing more than interpreting the statutory requirements of a piece of legislation in the absence of clear direction, he’s violating the Constitution. The President is the head of a unitary Executive Branch as defined in Article II, §1. However, the President’s defense mechanism for preserving and protecting Executive power isn’t contained in signing statements which alter the substance of legislation: they’re found in the President’s veto power and if necessary ajudication by the Supreme Court.
I agree that some of the rules passed by Congress were encroachments on the Executive mandate as Commander in Chief and were harmful to the security of the United States and its citizens. However, the President does not have the right to alter the substance of legislation short of a Constitutional amendment granting him such powers. His sole power to alter legislation is through the use of his Article I, §7 veto powers. President Bush’s use of signing statements may cross that line, in which case those statements are unconstitutional and therefore null and void.
However, the use of signing statements themselves are not inherently unconstitutional – and there are precedents for the President to essentially ignore acts of Congress – however, I agree with Jefferson when he wrote that:
[the President’s veto power] is the shield provided by the constitution to protect against the invasions of the legislature [of] 1. the rights of the Executive 2. of the Judiciary 3. of the states and state legislatures.
President Bush has vetoed one bill in his entire term of office. He has signed several bills which he has argued are blatantly unconstitution, such as McCain-Feingold. If the President does not wish to exercise his veto power, then he has to live with the legislation he signs.
UPDATE: Ed Whelan strongly argues against the ABA’s position on signing statements. I agree with him that some of the ABA’s arguments reach to rhetorical excess, but when is it Constitutionally acceptable for the Executive to take an action which directly alters the intent of legislation? We conservatives get rightfully upset when the Judiciary tries to impose their will through the “interpretation” legislation – why should it be any different for the Executive?
The job of the President is to veto unconstitutional legislation. That is the Executive’s recourse to badly-crafted or unconstitutional legislation from Congress. President Bush has tried to make an end-run around the process to avoid making politically risky stands on key issues. Even if the President happens to be right, it’s still not the correct way of going about things.
I think that it would be great if we could get some kind of law passed that says that any citizen that runs for office in our great country needs to have had some education on the Constitution. It is the law of the land after all, regardless of how many politicians ignore it.