The Signing Statement Revisited

The House Armed Services Committee (HASC) recently released a report on its findings regarding the Bush administration's use of the presidential signing statement--although one could argue that it is too little, too late--the Bush administration has all but abandoned the signing statement as its preferred device to control policy. Since the Democrats have taken control of the Congress in 2007, the administration has issued just nine statements, and from this nine have challenged a paltry 16 provisions of law. In 2006 alone, the administration issued a total of 28 signing statements with 201 challenges!

The HASC Subcommittee on Oversight and Investigations held hearings regarding the signing statement to the National Defense Authorization act--a bill that had been vetoed and then, after fast tracking it for passage, the administration worked out all the problems with the Congress, only to then single out a number of provisions as constitutionally defective. One of those provisions was the "Commission on Wartime Contracting," created to investigate war profiteering by US contractors.

The Committee made five findings:

* The signing statement President Bush added to the authorization bill claimed there were defective provisions, and implied they were defective for the same reasons of past bills, and then did little to claim what he would do. Actually, if they wanted to gripe about a challenge that said nothing, then they should have cited the signing statement to the "Consolidated Appropriations Act" of 2008. There, Bush declared:

Finally, this legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.

If you were wondering, "what is he talking about," you would be in the same boat with the rest of us. The fact of the matter, since the signing statement made its official debut in 2006, the administration has responded to all the public interest by making more difficult to track what it is doing. There is the vague statements that leave out what the objection is about and what he intends to do about it. And, for those interested in the unitary executive, you will be sad to learn that it has disappeared from the public pronouncements of the Bush administration. Where it once was a part of every challenge the president issued ("...and to supervise the unitary executive branch") it has gone MIA. Now, when there is a challenge, the president simply states "...and to supervise the executive branch."

* Presidents have "issued signing statements for quite some time,[while] this President has issued a significantly larger percentage of signing statements challenging or objecting to various provisions of law."

This is priceless. Is the Congress saying that a signing statement that contains challenges claiming provisions are defunct is OK so long as it doesn't happen all the time? If ever a report showed a partisan tinge, it is in this claim. "We, the Democrats, do not object to the use of the signing statement. We simply object to the way that President Bush has used them."

The fact of the matter is, the members of the Subcommittee haven't the foggiest ideal how the signing statement has been used in the past.

* The signing statement may actually "serve a legitimate function as a tool for continuing dialogue between the President, Congress, and the public. On the other hand, signing stateents may be a mechanism to expand executive authority at the expense of the legislature."

It is funny that they claim a legitimate role for the signing statement in a report that is so damning. The reason it is funny--or perhaps ironic-is because this particular signing statement played the role they praise. President Bush objected to the "Commission on Wartime Contracting," which is section 841 of the bill. In particular, the bill would allow for half the members to be chosen by Democrats and Republicans in Congress. Bush objected to this particular provision because it violated his appointment powers, vested to him by Article II of the Constitution. In essence, Bush and his Republican allies in Congress could have prevented this Commission from ever having one meeting by withholding their appointees. Instead, they used that challenge as a starting point in negotiations with congressional Democrats over the scope of the Commission's investigations and what access to information it would have. Thus the signing statement challenge essentially places a second track onto the legislative process that starts with the president and ends with a compromise between the Congress and the president, leading to execution of the law. There is nothing new here. This is the role that the signing statement has played in the past, and it is a useful role. The congressional Democrats praise it, but do not praise the role it played regarding this particular signing statement.

* The signing statement can provide a "roadmap" which demonstrates which provisions "merit a higher degree of oversight as it tracks implementation."

In essence, the president needs to be clear what provisions he finds constitutionally troubling so that the Congress can decide which actions to take. But first, it needs to be certain that the president is executing the law as the Congress intended, because if he isn't, then the Congress needs to decide what actions it needs to take, from remedying the provision to suing the president in Federal Court.

* Because the Congress does not understand how President Bush has used the signing statement, it is unsure exactly how to respond to it.

The authors note that there are several various pieces of legislation dealing with the signing statement, some of which are redundant. Yet no one is certain which piece will do the trick. The Committee also refers to the law that requires the administration to inform Congress whenever it refuses to execute the law. It claims this also extends to the military and the executive branch agencies--they are to inform Congress whenever they are ordered to refuse execution of the law.

As I have noted before, this law built upon a law passed in 1978 that required the administration to inform Congress whenever it decide not to defend a defective law. In 2002, the Congress added on to that by requiring the administration to also inform Congress whenever it refused to defend or execute the law. As I have noted elsewhere (and something this Committee overlooks), I had a FOIA request answered regarding this very question. I sent a FOIA to the Bush DOJ asking them to send me any communication they had with Congress regarding this law, and they sent me a list of laws that were either not defended or executed, but the list was from the Clinton administration.

In the signing statement to the 2002 law, the administration refused to recognize the demand by the Congress, and the information they sent me void of any challenges they had made demonstrates that they have made good on that particular challenge. Yet Congress has done nothing to determine why this has happened.

The report ends with "Ongoing Actions," which really isn't much. There are three actions, which includes more monitoring and continued study. Number two, however, is interesting if they actually see it through. Action #2 states that they "may" (and the operative word is "may") "task the GAO to conduct a study of National Defense Authorization Acts, or other laws within HASC jurisdiction..." If you look at bills that consistently receive a signing statement, then the "National Defense Authorization Acts" consistently receive challenges from signing statements regardless of president. It was the NDAA bills where Clinton ended up in a firefight with Congress from 1999 to the moment he left office. In 1999, the Congress attempted to create a layer inside the Department of Energy that was out of the control of the president. Clinton first disregarded the law and placed his own Secretary of Energy into the position, and then when he worked out an agreement with the Congress to allow the new layer to go into place, he got into another fight in 2000 over how this person could be removed from office. Congress said the person could only be removed for such things as malfeascence in office or neglect of duty, and Clinton defined neglect of duty as "a failure to follow the lawful directives of the President."

It is a shame that the HASC didn't attempt to sample the research that has been done on the signing statement. If it had, it would have been able to answer some of the questions that it had during the hearings and in this report. That said, it is great to see that there is interest in the presidential signing statement. The "proof in the pudding" moment will come if the Congress maintains its interest once the Bush administration leaves office.