Commentary—

Kill The Imperial ‘Signing Statement’

By Daniel Smith

In its first week back from a July 4th recess, the Senate finally started floor debate on the 2008 Defense Authorization Act that tells the Pentagon the categories and programs Congress intends to fund for the fiscal year. At midweek, some 40 amendments had been or were expected to be filed. Of these, one-third address frequency of tours in war zones, withdrawal of US troops from Iraq, benchmarks, or revoking current authority to deploy troops.

One amendment that does none of these — and therefore may be overlooked in the inevitable rancid rhetoric of “cut and run,” “stay the course,” “support the troops” — is in S.2021, a bill co-sponsored by Senators Arlen Specter (R-Penn.) and John Kerry (D-Mass.). It takes on the president’s extensive use of so-called “signing statements” to subvert the will of the American people, as expressed through their representatives in Washington.

Presidents since James Madison have appended these notices to legislation when they intend to interpret a provision in a statute differently from congressional intent. But, as the nonpartisan Government Accountability Office reported in mid-June 2007, President George W. Bush has made “signing statements” a common practice — virtually rewriting legislation to conform to his “interpretation” of Congress’ intent. In 11 of the 12 appropriations bills for Fiscal Year 2006, he issued statements affecting 160 provisions of law. His justification? The provisions were unconstitutional.

The last time I checked the Constitution, the power to decide whether a provision of law is unconstitutional belongs to the courts, not the executive branch.

In fact, Mr Bush’s entire term of office has been one unending attempt to make an end-run around Congress’ legislative power. But the Founding Fathers provided, in Article II of the Constitution, the president’s remedy when he disagrees with Congress. Under Article II, he can veto the legislation, thereby challenging Congress to muster a two-thirds super-majority in both the House and the Senate to override his actions. Underlying the entire thrust of the Bush “imperial” maneuver is the highly questionable theory, often proclaimed by the president to be inherent in the Constitution, of the “unitary executive.” The White House contends that the Founders regarded the president’s viewpoint on what a law means to be of equal weight to the viewpoint of the Congress, since legislation requires his signature to become law.

But in the signing statement, he actually singles out those provisions he will not enforce.

In effect, Mr Bush is claiming a line-item veto. Congress has never passed a statute giving the president this power, and the courts have rejected a related concept that President Richard Nixon tried: sequestering money voted by Congress for programs that Nixon opposed but were included in “must-have” legislation the president signed.

The Specter-Kerry amendment is straightforward: No judicial proceeding in the United States shall take notice of or in any way rely on presidential signing statements as the source of governmental authority in any case that comes before the court.

If included in the final bill sent to the White House, will this have any effect? Recent history is not encouraging.

In 2006, an amendment by Senator John McCain (R-Ariz.) to the Defense Department Emergency Supplemental spending bill barred the use of torture by military interrogators. The amendment stated that only another law passed by Congress could repeal, supersede, or modify the McCain amendment. On signing the bill, Mr. Bush blithely ignored the McCain proviso, stating he would interpret the law so as to properly “supervise the unitary executive branch” as commander in chief and “consistent with the constitutional limitations on the judicial power.” Thus, the need for the Specter-Kerry provision in the 2008 military authorization bill. 

The Senate can and should reassert the separation of powers set out in the Constitution and make crystal clear that Congress will not stand for an Imperial Presidency. In that sense, Congress needs to act now to put the president in his place, which is a place just right for any and every president of our democracy, including George W. Bush.

(Daniel Smith, a career military intelligence officer, West Point graduate, and Vietnam veteran, currently is senior fellow on Military Affairs, Friends Committee on National Legislation, Washington, D.C.)