The Presidential Signing Statement Act of 2008--An Exercise in Futility

For the third year in a row, a member of Congress has introduced a bill that attempts to get a handle on the presidential signing statement, and for the third time in a row, the bill is more show than substance. That is to say, it will allow a member to run for re-election on a promise to get a handle on the president's wanton and willful violation of the Constitution by using a signing statement.

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

Before I delve into the bill's requirements, I want to take a minute to review the findings. First, I find it interesting that a Republican would admit the need for legislation because of personal ignorance. Isn't the Republican mantra all about personal responsibility? Yet right there in bullet #6: "Most Members of Congress and the public neither know nor understand the significance of presidential signing statements." Well they aren't hidden. There has been plenty written about them by scholars of varying stripe. And since 1986, they have been published in the United States Code, Congressional and Administrative News (USCAAN)--and since most members have access to Lexis-Nexis, that search engine has been putting the signing statement into legislative histories of bills going back to the early 1970s.

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.

McCain in Ohio

Republican-nominee John McCain was in my state capitol today--Columbus--to rev up the Republicans in Ohio--an important state for either Party, and one where Republicans have suffered some recent defeats at the state level, losing the Governor, State, and AG in the last election.

McCain spoke about a great many things, including the presidential signing statement. McCain has fumed over the use of the signing statement ever since President Bush used his signing statement to renege on a deal regarding torture back in 2005. In November, 2007, McCain told a gathering at a Rotary Club that he would "never issue a signing statement." He seems to have changed his stance a bit since that speech. Today McCain declared, late in the speech:

I am well aware I cannot make any of these changes alone. The powers of the presidency are rightly checked by the other branches of government, and I will not attempt to acquire powers our founders saw fit to grant Congress. I will exercise my veto if I believe legislation passed by Congress is not in the nation's best interests, but I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like. I will respect the responsibilities the Constitution and the American people have granted Congress, and will, as I often have in the past, work with anyone of either party to get things done for our country.

His position is no longer absolute, and it is also misleading. He says: "I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like." Who would disagree with that? You will not find any signing statement the challenges various provisions because the president doesn't "like it." Unfortunately the debate surrounding the signing statement has created a false belief that when the president uses them, he "willy-nilly" moves through the bill, tossing aside those provisions that he doesn't care for or about. In fact, the signing statement, when challenging a provision of law, couches those challenges in constitutional language--or more simply, when a president refuses enforcement, he does so because not only does he believe, but also his legal advisers in the White House and in the Justice Department, has told him that it violates the Constitution.

It will be important as the election season matures to nail down McCain on the issue of the signing statement since his view has changed. It also might give him the opportunity to clarify that not all signing statements are bad and further, not all challenges are carried out--in fact, only a tiny fraction of the challenges are implemented by the president.

A Signing Statement Came Down To Georgia...

For the second time this year, I have discovered a governor publicizing the issuance of a signing statement done in the spirit of the presidential signing statement. Earlier this year I wrote about Kathleen Sebelius, the current Governor of Kansas, who had issued a pres release highlighting a signing statement on a bill that dealt with food regulations. And as I noted then, as now, it is clear that the practice of the signing statement, as it is used by the president, most likely came first at the governor level where a president liked the flexibility that it provided. And in part I assume that presidents turned to the signing statement to take control of legislation because he didn't have the item veto power enjoyed by a majority of governors in the US.

The most recent governor signing statement comes out of Georgia (with apologies to Charlie Daniels), where Governor Sonny Perdue used the signing statement on "must sign" bills that came at the end of a state legislature session. When you come to the Governor's frontpage, you see front and center the link: GOVERNOR SONNY PERDUE ISSUES SIGNING STATEMENTS ON FOUR BILLS...

And it is clear that Governor Perdue uses the signing statement for rhetorical reasons and, similar to the president, for reasons declaring that a precedent has not been established:

• HB 1245--Perdue complains that the bill violated the State Constitution by combing multiple things in one bill--"Put simply, statutes should be limited to a single subject so that members of the General Assembly may cast informed votes on the important matters before them." He notes that he is signing this bill because he believes "the benefits of this legislation outweigh the harm in this case," but also using the signing statement to put the GA on notice that in the future it may not be tolerated--hence the caveat that a precedent should not be set.
• HB 1277--also a signing statement to nip the establishment of precedent. This bill extends access to a health benefit plan for state workers to teachers at Charter schools. In a previous bill, Perdue vetoed it and worked out a deal with the state legislature to get this bill to his desk. Thus in place of the veto stands the signing statement: "My signing of this legislation should not be considered acquiescence of any other employee benefits beyond policy makers' intent to allow charter school employees to enroll in the State Health Benefit Plan." Again, he puts the state legislature on notice that this window opens only so far, and once those who need in get in, it slams shut.
• SB 276--It appears that this is a signing statement for purely rhetorical purposes only. The bill involves a plan that allows the automobile insurance companies to change their customer rates without having first getting a review before the state insurance commissioner, and instead allowing the market to set the rates (look how good the market has set the gasoline rates!). Perdue uses the signing statement to tout some plan he commissioned to study the rates between regulated and unregulated states: "...approximately half o the states do not regulate the price of automobile insurance, and my study of the issue revealed no discernable difference between rates" in the two types of states. However, the person at the head of the insurance commission in Georgia--John Oxendine--claims that Perdue's study is flawed and the rates will rise in an environment where no one is watching (although you would expect that if the government is no longer watching then the press should logically step in), claiming "if the insurance company lobbyists wanted this so bad there's a reason." True that!

So more evidence that U.S. Governors are taking the lead from the president and publicizing their use of the signing statement--in this case noting the use of the signing statement on the frontpage of the Governor's website. As more scholars begin to take a look at the signing statement, clearly an area that has been unexplored is its use by governors. I look forward to reading the research as it becomes available.

Don't Give Up

I will hand it to the House for continuing to probe what sort of influence that the Bush administration has over the regulatory agencies, although for dramatic flare the House Subcommittee on Commercial and Administrative Law (inside the House Judiciary Committee) titled their hearing: HEARING ON THE RULEMAKING PROCESS AND THE UNITARY EXECUTIVE THEORY because they--and the critics of the administration--equate the unitary executive theory with the actions of the Bush administration with respect to regulatory oversight and influence. However, if you delve backwards--say for instance a circa-1990 set of hearings by the House Government Oversight Committee (then as now under the direction of Congressman Henry Waxman--D. CA) into the influence exerted by the OMB and the VP's office over the EPA and its ruling with respect to the Clean Air Act Amendments of 1990--I am positive the term "unitary executive" was not used despite the fact that Bush's influence was consistent with the theory's main tenets.

Fortunately the Committee has not just the video of the hearing itself, but also the testimony of folks on both sides of the unitary executive issue--from Heritage to the Administrator of OIRA to Rick Melberth, policy director of regulatory policy at OMBWatch, which is where I learned of the hearing (if these committees have a mechanism whereby you can get daily notices of hearings, I haven't figured out how to do that yet).

The OMBWatch folks also provide a summary of the testimony given by most who were present at the hearing under the neutral title: OMB INTERFERENCE UNDER SCRUTINY IN CONGRESS. One thing that I noticed in the article, and I am not sure if this was deliberate or accidental, but for the first time I noticed a hint that what the Bush administration has been doing via their unilateral activities, despite defending as unitarian, might not be at all. They write: "Under the unitary executive theory, President Bush and conservative constitutional scholars have argued that the president has complete control over implementation of federal law and can ignore the input of Congress in doing so. Bush has used this rationale to dramatically expand the use of presidential signing statements and to ignore the opinions of Congress in his conduct of the war in Iraq." See what I mean? Before they would have simply stated: "Under the unitary executive theory..."

One area where you have seen a great deal of consistency regarding adherence to the unitary executive theory and presidents of either Party has been in the area of centralizing rulemaking authority inside the White House. For instance, the Reagan and Clinton administrations both issued powerful executive orders that pulled the executive branch agencies closer to the White House than the Congress, and to be honest, those who hold the view that the president might have an important oversight role but it is Congress that tells these agency heads what they should and should not do are anachronistic. Their days ended long ago. The Carter administration beefed up the muscle of OMB by creating the Office of Information and Regulatory Affairs (OIRA) and every president after took advantage of it.

The Clinton administration was equally zealous when it came to protecting the president's position as the chief administrator. For instance, Elena Kagan, now the Dean of Harvard Law School, but once a SAO in the Clinton White House wrote:

When Congress delegates discretionary authority to an agency official, because that official is a subordinate of the president, it is so granting discretionary authority to the President.

It is good to see the Congress continuing to conduct oversight and challenge the president regarding his interpretation of his power compared to the other constitutional institutions. Now if I can figure out a way to learn about it when it happens so my news isn't old news!