In 2006, following the media attention directed towards President Bush's use of the signing statement, both the House and Senate introduced legislation, which went nowhere, to limit the president's use of this tool. The same thing happened in 2007, and now 2008 brings yet one more piece of legislation that, like its predecessors, will go nowhere. Every other bill died in committee and this one will likely share the same fate.
The "Presidential Signing Statements Act of 2008" has been introduced by Representative Walter Jones, a Republican from North Carolina. The explanation for the bill is to "promote congressional and public awareness, understanding, and political accountability of presidential signing statements" and has been sent, for consideration, to the House Judiciary Committee.
The substance of the bill--HR 5993--is as follows:
In the section titled "Findings," Representative Jones finds:
- Those signing statements that challenge the constitutionality (which I call "Constitutional signing statements") of provisions of law raise serious constitutional concerns;
- The Constitutional signing statement conflicts with the president's obligation to take care the laws are faithfully executed;
- The Constitutional signing statement violates the president's oath to defend the Constitution by signing bills that have unconstitutional provisions;
- The Constitutional signing statement violates the Constitution by adding an "item veto" to his veto prerogative;
- The Constitutional signing statement is difficult to challenge due to the "standing" requirement of Article III;
- The Constitutional signing statement is difficult to challenge because most members are unaware of their use or their significance;
- Raising the signing statement's profile would bring better congressional and public pressure against their use by the president
Now onto the requirements of the President and his/her staff as it pertains to the Constitutional signing statement.
Section 4
This section requires the president to "transmit to the Speaker of the House and the chair of the Judiciary Committee, and the majority leader of the Senate and the Judiciary Committee each signing statement that declares or insinuates the intention of the president to disregard provisions of any bill he has signed into law because he believes it is unconstitutional. The transmissions shall be made no later than three calendar days after the issuance of the statements. The president shall also have such statements published published in the Federal Register according to the same terms and conditions as if they were substantive final rules issued by the Department of Justice.
This requirement, which has appeared in previous versions of this bill, continues to puzzle me. The presidential signing statement has been accessible to anyone who is interested in finding them. Prior to the Internet age, all you needed was access to a library that had the "Weekly Compilation of Presidential Documents," that goes back to 1965. Since the Internet age, the WCPD are accessible online at http://www.access.gpo.gov/nara/nara003.html.
Furthermore, since 1978, the AG has supposed to have been transmitting to Congress any signing statement that refuses defense of law, and since 2002 the requirement has stepped up to include any signing statement that refuses enforcement of law. Now if Rep. Jones and other members of Congress have not been aware before now, then this bill will not make them any more enlightened.
Section 5
This section requires any legal personnel--AG, deputy AG, or White House Counsel, to "testify before the Committees on the Judiciary of the House of Representatives or Senate at the behest of any single Member of either committee to explain the meaning and justification of every presidential signing statement covered by this Act. Executive privilege shall not be recognized as a valid basis for refusing to appear or refusing to answer a question pertinent to the legal reasoning behind a signing statement or its legal ramifications.
First, there is nothing precluding the Congress from doing this now. Instead of inviting the AG, deputy AG, or WH Counsel to come and testify, why not invite the agency personnel to come and tell Congress whether they are following the president's orders? To be honest, inviting a someone from Justice is unproductive. All the member will get is a legal opinion that it is the president's prerogative to refuse enforcement, with partisans on both sides attacking or defending their use--at least this is how the oversight hearings have gone so far.
Second, the Congress cannot condition how the president uses executive privilege. Thus it is a waste of space and time to command that "...executive privilege shall not be recognized as a valid basis for refusing to appear or refusing to answer a question..." The president can claim executive privilege however he or she wishes. Congress of course has the right to challenge in the courts, as we have seen in the past. But that is after the fact, and not before.
Section 6
This section cuts off money to implement the signing statement if Sections 4 or 5 have been violated.
It is clear that Congressman Jones introduced this bill for advertisement purposes only. On his homepage you find JONES INTRODUCES PRESIDENTIAL SIGNING STATEMENT. Clicking this link you go to the press release which has some interesting commentary:
"Just as the American people have access to the text of bills that are signed into law, they should have easy and prompt access to the content of presidential signing statements that may effect how those laws will be executed,” Congressman Jones said. “To enable a more complete public understanding of our nation’s laws, the U.S. Congress should also be able to call for the executive’s explanation of the meaning and justification for a presidential signing statement.”
It is laughable if he thinks that public access to legislation is easier than the public access to signing statements.
“According to CRS, President Clinton issued 381 signing statements while in office, 70 of which raised legal or constitutional objections. President George W. Bush has issued 157 signing statements, 122 of which have contained some type of constitutional challenge or objection,” Jones said. “Because it’s reasonable to assume that future presidents will continue this practice, I believe Congress should act now to pass legislation that will ensure proper understanding and disclosure of these signing statements.”
This is wrong. As you readers know all to well, President Bush has now issued 160 signing statements that have challenged 1,167 provisions of law. These numbers comes from an article written by two legal scholars--Curtis Bradley and Eric Posner, who decided to recount the numbers and types of signing statements because of uncertainty in the count--even taking me to task for revising my categories, which I did. In my earlier work on the signing statement, including my dissertation, I divided the signing statement into three different types: Rhetorical, Constitutional, and Interpretive. I counted as a constitutional challenge any challenge where the president refused enforcement of a provision of law, and Intepretive any provision where the president had to supply his interpretation of a provision because it was written in an unclear manner.
The problem I ran into was a definitional one--in nearly all cases, when a president interprets or challenges, he does so by pointing to his Article II powers to justify his actions. Further, particularly by the time of Clinton and Bush II, their signing statement challenges made it tough to separate as either-or. So I sacrificed a level of understanding because it was unmanageable--and I continue to believe that anyone who continues to use the three categories are having to guess at some signing statements, and we should not be guessing. It made more sense to me to collapse the Constitutional and Interpretive categories in one category titled Constitutional. Since the president was justifying his actions in constitutional terms, I feel comfortable with my decision. Thus when I had the three categories, the total numbers were much smaller.
Posner and Bradley also note that their additional category gives them numbers different from others, which is correct. The problem with this is it provides shelter for partisans--and we have seen this on a number of different occasions where the argument is that Clinton issued more signing statements than Bush or, as Jones cites the CRS article (relying on Bradley and Posner's data) which demonstrates an incredible difference between my count, or the count by Kinkopf and Shane, thus creating a sense that no one really knows how many or how few challenges a president has made, thus the numbers are derived for partisan reasons rather than scholarly reasons.
The action by Jones has been noted by members of the press. In this article, titled "What else has Bush Lied about?," columnist David Paul Brown distorts the issue of the signing statement. Brown writes:
Presidents over the years have all used signing statements but they were used rarely and mostly for "big ticket" items. President Bush uses them to sign most any law and then essentially say, "I can choose to follow the law, follow it in part, or ignore it entirely if I choose to." He has issued more signing statements than all other presidents combined.
I have no ideal what a "big ticket" item is in political terms. In household lingo, it refers to things such as a big screen TV or a car. Further, once again we are left with the sense that the president uses a signing statement because the mood strikes him to do so. Sure, President Bush has challenged more provisions of law than any other president, but all of those challenges come packaged in constitutional terms. Thus for the most part, any one of President Bush's signing statement that challenges provisions of law reads like those challenges made by Reagan, Bush I, and Clinton. To say different demonstrates just how little you know about the signing statement.
If the Congress and partisans like Brown really want to combat the use of the signing statement--at least so long as Bush is in office--then they will continue to fight for Democratic control of Congress, because since January 2007, President Bush has barely turned to the signing statement, and when he does, it is often for purely rhetorical reasons. It appears that divided government has had a major effect on the use of the signing statement by the Bush administration, which is weird. In the past, divided government was a major reason why presidents used the signing statement to challenge provisions of law.
Second, the Congress and partisans like Brown will work hard to uncover how the challenges are implemented in the executive branch agencies, because that is what is really important. The president can make all the challenges he wants, but it is clear that he will only see through a tiny subset of those challenges. Thus Congress should continue to hold oversight hearings and press the GAO to replicate some of the studies it has done in 2007. Furthermore members of the press will continue to use their contacts inside the executive branch agencies to determine whether the signing statement is actually having an effect on implementation. Only then will we all really understand the importance of the signing statement to any president, Democrat of Republican.
