Views » June 19, 2007 » Web Only

Officially Contemptuous of Congress

A new GAO report confirms that Bush’s signing statements have undermined the rule of law

By Brian Beutler, The Media Consortium

Well, it’s official: President Bush doesn’t much respect the laws Congress passes. A Government Accountability Office (GAO) report—commissioned by Sen. Robert Byrd (D-WV) and Rep. John Conyers (D-MI) and released yesterday—confirms that Bush’s use of presidential signing statements are, in fact, utterly without precedent.

Though they’ve been used by American presidents for about 200 years, signing statements—edicts issued by the president to declare his intent to construe a provision within a law differently than Congress does—are Constitutionally questionable. But George W. Bush’s use of them far exceeds his predecessors’, both in number and in severity, and he has consistently used them to flout the will of the legislative branch.

Though the GAO report makes no claims about the legitimacy of Bush’s statements or of the use of statements in general, it indicates that, in practice, the statements have the effect of nullifying the law in question in about 30 percent of cases. The issues are important: They include accounting for Iraq war funding and security measures for the border patrol.

And that’s just from the GAO’s inquiry into the 11 signing statements Bush issued against appropriations acts in 2006, which constituted objections to 160 different provisions. Bush has released more than 100 signing statements in his presidency, taking exception to hundreds of provisions of the law.

The report was conducted fairly simply. GAO officials surveyed 19 of last year’s 160 objections to determine how the statements had impacted the implementation of laws. According to the report: “We contacted the relevant agencies and asked them how they were executing the provisions. After evaluating the responses we received, we determined that agencies failed to execute six provisions as enacted.”

Alongside the failures of law, the reports also list the rationales that the president used to strike down the provisions. For instance, the GAO found that, by citing the Unitary Executive Theory, Bush allowed the Department of Defense to exclude “costs for any other contingency operations, such as those in Iraq” as Congress had mandated.

Indeed, it’s the Unitary Executive Theory—another Constitutionally dubious concept—that has made Bush’s use of signing statements especially damaging. Last year, Sen. John McCain (R-AZ) inserted a provision into the Department of Defense emergency supplemental bill that would have criminalized the use of torture by U.S. military interrogators. In order to protect the measure’s effectiveness, McCain included a provision that aimed to stop all interference by the President, save for a veto of the entire package. “The provisions of this section,” it read, “shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.”

But upon signing the law, President Bush declared his intent to interpret the law “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.”

Supplying much of the jurisprudential weight to the president’s practice has been Supreme Court Justice Antonin Scalia, who has written widely in support of the statements. In particular—as the Boston Globe’s Charlie Savage has reported—in his dissent against the court’s decision in the case of Hamdan v. Rumsfeld to block Guantanamo Bay military tribunals, Scalia wrote that “in its discussion of legislative history the court wholly ignores the president’s signing statement, which explicitly set forth his understanding that the [Detainee Treatment Act] ousted jurisdiction over pending cases.”

Scalia appears to have laid out his philosophy on signing statements in a 1986 memo, wherein he wrote, “Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress.”

In 2006, Sen. Arlen Specter (R-PA) introduced legislation that would have forbidden federal courts from legitimating presidential signing statements and allowed Congress to bring up the question of their constitutionality before the Supreme Court. But the bill never made it to the Senate floor and expired at the end of the 109th Congress.

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• Reader Comments

  The problem with provisions like the ones about the Defense budget, however, is that they have no teeth. Yes, they say, “Thou shalt ask for the money in this way,” but then they provide no penalty if the agency doesn’t ask for it that way. If there’s no penalty attached to the provision, such as a restriction on spending funds for some purpose if the provision isn’t followed, then those are merely advisory and not binding. This is poor drafting on the part of Congress, and not some conspiracy on the part of the Executive branch (at least with regard to those particular provisions).

  Posted by Moose on Jun 19, 2007 at 7:27 PM

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