Yesterday, President Bush issued a signing statement (#162 for those counting) to H.R. 2642, which is a supplemental appropriations bills funding defense/military related programs. This particular signing statement is purely rhetorical, where the president emphasizes how political differences were set aside because, at the end of the day, we are all "Americans." In fact, the remainder of the statement applauds the people who have volunteered to serve in the military, whom we "owe" our gratitude and "unflinching support." And the president has a great deal to crow about as he got most of what he wanted from congressional Democrats who seem either unable or unwilling to challenge him in the area of the use of military force. As President Bush concludes: "This bill shows the American people that even in an election year, Republicans and Democrats can come together to stand behind our troops and their families." Even when I decide to send these brave men and women into Iran.
On a similar matter, something has recently happened to underscore the real political importance of the signing statement--importance that is completely overlooked by almost all critics of the device--critics who fail to dig deeper into the device and strip away that rhetoric that surrounds it.
Back in January I noted Bush's signing statement challenging four provisions of H.R. 4986, the National Defense Authorization Act for FY 2008. One of the provisions, section 841 was added to the authorization bill by Senate Democrats Jim Webb and Claire McCaskill and created a "Commission on Wartime Contracting," which contained eight members (four appointed by the Democrats in Congress, two by the Republican minority leaders in the House and Senate, and two by the Bush administration).
President Bush, upon signing the bill, challenged the constitutional legitimacy of the Commission as a "hybrid, one that contained both legislative and executive members. President Bush declared that the section would "impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed..." Because this Commission could only go into effect once all the members were appointed, the President (and his Republican allies in Congress) could essentially refuse appointment of members to keep the Commission on ice. But that didn't happen. The White House and congressional leaders from both parties came together to work out precisely what this Commission would do and came to a satisfactory agreement which allowed the Commission to go forward.
Thus in this instance the signing statement served an important purpose to continue the negotiation between the Congress and the president where the legislative bargaining process failed. Hence the signing statement does not represent a snub to the intent of Congress but rather a clarification of objectionable or ill-defined language and provisions.
If you look backwards in previous administrations, you will find the signing statement has served similar purposes to either work out ad hoc agreements between the branches or follow up legislation that fixes defective provisions. For instance, in the heat of the 1996 election, Congress passed a defense authorization bill that contained a provision requiring the discharge of any HIV-positive military personnel that came under fire not just from the Clinton White House, but also the Joint Chiefs of Staff. The provision contained a time period of months in the future when it would take effect, thus giving the Clinton White House time to note in its signing statement that this provision would never be executed, starting a bargaining process with congressional Republicans that led to passage of a killer law that negated the defective provision. Thus everybody won--the author of the provision--"B-1" Bob Dornan--was able to campaign for the presidency on an "anti-gay" platform, the Clinton administration got to campaign on a pro-civil liberty/homosexual rights platform (with homosexuals being an important constituency) and the Congress got to defend its prerogatives by making the president execute the law as intended, not as he chose to execute it.
So important focus should rest on the use of the signing statement as an important device that allows the Congress and the president to continue communication even after legislation has been signed into law. And continued interbranch communication should be a good thing, shouldn't it?
