The significance of presidential signing statements
By Rohn K. RobbinsVail Law I always find fascinating what sticks in the collective imagination. Kobe stuck in the imagination, as did O.J. and Michael Jackson. Natalee Holloway and Susan Smith had long shelf lives and, in the world of political intrigue, Watergate, the JFK assassination and the Clinton impeachment hearings were, at least in modern times, unrivaled. Lately, the missteps in Iraq – particularly in the wake of the car wreck that was Joe Lieberman’s re-election defeat – is demanding increasing attention.I am equally fascinated by what does not stick; perhaps for lack of a Woodward and Bernstein, a paucity or salacious details, or for the lack of the sheer horror of a 9-11 or a Susan Smith. One such thing that lit up like fireflies in a Midwest July evening, then as quickly disappeared, was the matter of presidential signing statements which, if lacking the personal grisly terror of an Andrea Yates, may have broader implications.Okay, let’s first define our terms; what are presidential signing statements? And, second, why the recent ripple caused by President Bush’s abundant use – or some might say abuse – of them?What are they?A presidential signing statement is, in simplistic terms, presidential marginalia. It is where a law which is passed by Congress does not quite suit the president’s tastes, predilections and/or agenda and, instead of exercising his Constitutional authority to veto it, the president, amends, appends or otherwise alters or revises the law before (and, some might say, as a condition of) signing it.It is not that presidential signing statements are new. They are not. It is, however, this president’s abundant use of them that has raised some eyebrows both in Washington and among the legal intelligentsia. Ultimately, signing statement, liberally applied, like the suspect salve allegedly massaged into the epidermis of Justin Gatlin, leads to trouble, both in Gatlin’s and the president’s cases, legal trouble.The big bugaboo here is that signing statements may be unconstitutional. In his excellent book, “By Order of the President: The Use and Abuse of Executive Direct Action,” Phillip Cooper, a leading authority on signing statements, counts 107 signing statements issued by George W. Bush in his first term, leading to an astounding 505 constitutional challenges to various provisions of legislation that was enacted into law. In that time, the president had not vetoed a single bill. He has, since, vetoed one bill, dealing with stem cell research. Instead of employing his executive privilege to veto legislation, President Bush has been wielding signing statements to effectively nullify their applicability to the executive branch. In essence, Bush has employed signing statements as de facto directives to executive departments as to how they are to apply or implement the particular law in question.This presents an interesting conundrum. If and when a particular law is interpreted in court (the president’s thinking may go), the particular signing statement may, if the court is friendly to the broad exercise of executive privilege, deem the statements relevant in construing the intent and precise meaning of the law. Since the president did not veto the legislation, in which event there would be no law to construe, a signing statement may give weight to what the law is supposed to mean. There is little debate that President Bush has exercised his pen, as regards his signing statements, to consolidate greater power in the executive.Despite the fact that each signing statement is published in the Weekly Compilation of Presidential Documents, the wielding of the president’s pen went largely unnoticed and uncommented upon until earlier this year when the president employed a signing statement to try and subvert the McCain amendment regarding torture (arising as the outfall of Abu Grahib and, to a less scandalous extent, Gitmo).In attempting to broaden presidential power, this president has, at least in some respects, been treating Congress as a mere advisor, rather than the co-equal branch of government the Framers clearly intended it to be and which has well served this nation through the first quarter millennium of its existence. This is something of which we should all be afraid and which all of us should heed. If history has a lesson which does not need repeating, it is that consolidation of power is, ultimately, a dangerous thing which is precisely why the Framers saw to its diffusion among the executive, legislative and judiciary.’Be very afraid’One of the problems fostered by this president’s seemingly excessive use of signing statements is the fact that in employing them, he has generally failed to cite the authority upon which he is relying for his interpretation of the law. And without such authority the statements smack of little more than executive fiat. Another problem raised by this president’s employment of signing statements is that, at least as to some laws, the statements have perverted them to the point that it is as if no law had been passed at all. Why this is significant is, had the president vetoed the law, the Congress could have overridden the veto. But when a law is amended into inapplicability by a signing statement, the Congress has no such recourse. Thus, a important balance among the branches of the federal government has been unsettled.Some have persuasively argued that President Bush’s signing statements amount to line-item vetoes. If the argument is tenable, then Mr. Bush is clearly at odds with the Supreme Court holding in the 1988 case of Clinton v. New York which held that the president, if he is to veto at all, must veto the entire law and may not pick and choose upon those provisions he likes and those he does not. In deciding Clinton, the Court held the Line Item Veto Act an unconstitutional violation of the Presentment Clause which provides that, after a bill has passed both Houses, but “before it become(s) a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it” – that is, veto it in its entirety if he does not.Troubling, too, is the fact that enactments by Congress are presumed to be constitutional. As the Justice Department is responsible for upholding and defending the constitutionality of the laws, what would happen when the very issue is the constitutionality of a provision the president has declared unconstitutional in a signing statement? What would prevail, the presumption of constitutionality or the president’s interpretation of the law vis-B-vis a signing statement? One thing is for certain, the Justice Department will have on its hands a profound and irreconcilable conflict of interest.The foregoing illuminates only the tip of the troubled icebergs lying just beneath the surface of constitutional conflict. Let it suffice, however, the potential problems are far broader and potentially far deeper than extrapolation within the limits of space permit and the implications are, potentially, manifest.As Veronica Quaife (Geena Davis) summed up in David Cronenberg’s 1986 thriller, The Fly, “be afraid, be very afraid.”Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard at 7 p.m. Wednesdays on KZYR radio (97.7 FM) as host of “Community Focus.” Reach Robbins at 926-4461 or email@example.com.Vail Daily, Vail, Colorado
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