An intellectual freedom blog with an emphasis on libraries and technology

Friday, January 20, 2006

U.S. Presidential Powers in the 21st Century

"Signing statements": the quiet coup

Bush (or more likely some of his minions) has found a way to cut Congress off at the knees and has been doing so since 2001. Nevermind the illegal wiretapping or secret trials. What I found will prove far worse, with implications that reach far into the future. And everything sits in plain sight with no attempt by anyone to conceal it.

The President has a little known capability called the "signing statement." When a bill becomes law the President can add a statement. What are these? According to Phillip J. Cooper in Presidential Studies Quarterly:

Presidential signing statements are pronouncements issued by the president at the time a congressional enactment is signed that, in addition to providing general commentary on the bills, identify provisions of the legislation with which the president has concerns and (1) provide the president's interpretation of the language of the law, (2) announce constitutional limits on the implementation of some of its provisions, or (3) indicate directions to executive branch officials as to how to administer the new law in an acceptable manner.

During Reagan Administration Attorney General Meese made changes to the way the government records and regards signing statements. "[Meese] managed to have these signing statements included in the legislative history published in the U.S. Code Congressional and Administrative News and they were more systematically presented than before in the Weekly Compilation of Presidential Documents." President Bush has embarked on a plan to make use of these statements to nullify select parts of legislation and expand presidential powers well beyond any previous president in history. In his article: "George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements" in Presidential Studies Quarterly (Washington: Sep 2005.  Vol. 35,  Iss. 3,  p. 515-532) Cooper explains in detail what Bush is doing and the implications for the future. I can only summarize here. I urge anyone interested in democracy to read the full article.

Bush has seized upon the "announce constitutional limits" aspect of signing statements to grant himself wide ranging powers. For example, Bush added the following signing statement addressing the "no torture" amendment to military appropriations bill:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

As Sidney Blumenthal pointed out in Bush's war on professionals (in "In short, the president, in the name of national security, claiming to protect the country from terrorism, under war powers granted to him by himself, would follow the law to the extent that he decided he would."

Cooper's article explains with specific examples how Bush's signing statements have staked out broad constitutional "concerns" which relate very broadly and all work to bring more power to the executive branch. In the process of describing how the executive branch officials should implement a given law, according to Cooper, "the White House would effectively rewrite the legislative requirements in the process of implementation." These statements also have had the effect of making mandatory provisions of legislation advisory or precatory (request not requirement). Which "is nothing less than a post-congressional amendment process without benefit of either bicameralism or presentment." In other words, revising legislation without Congressional approval or participation. Without the use of a veto the President can rob the legislature of the opportunity to invoke its power to override.

I thought that the Supreme Court was the branch of the government that interpreted law and made determinations of constitutionality. The Supreme Court may someday decide how, when and even whether the Presidential signing statement has any weight when considering the intent or constitutionality of a law. But who is the architect of the use of signing statements to allow a president to usurp Congress' role in making legislation? Samuel Alito, who in in 1986 worked as the deputy assistant attorney general in the Justice Department's Office of Legal Counsel.

We can see a long term plan at work here. We need not resort to conspiracy theory: the workings all happen in plain sight. Over the decades since Reagan's election Republicans have worked to gain control of the judiciary at all federal levels through appointments of loyalists. We have already seen a Supreme Court decision giving a disputed election to the candidate with fewer votes. With a judiciary stacked with judges willing to give signing statements the full authority to determine how to interpret a given law, how much power does Congress have anymore? As Cooper writes: "The administration of George W. Bush has quietly, systematically, and effectively developed the presidential signing statement to regularly revise legislation and pursue its goal of building the unified executive." And without most of Congress, the mainstream media or the democrats even noticing. What does this say about the future of democracy in the U.S.? We, of course, continue to have the right to vote for representatives and senators--for all the good it does us.