How Bush Breaks the Law
Bob Egelko/San Francisco Chronicle, May 7, 2006
President Bush signed a military spending bill in December that included a hard-fought amendment banning the cruel, inhuman or degrading treatment of foreign prisoners. Then he put a statement in the Federal Register asserting his right to ignore the ban when necessary, in his judgment, to protect Americans from terrorism.
In March, Bush signed a renewal of search and surveillance provisions of the USA Patriot Act and said at a public ceremony that civil liberties would be protected by a series of new amendments. Then he quietly inserted another statement in the Federal Register that virtually nullified one of those amendments, a requirement that the administration report to Congress on the FBI's use of its powers under the Patriot Act to seize library, bookstore and business records.
Civics textbooks say presidents have two choices when Congress passes a bill that's not completely to their liking: They can sign it into law, or they can veto it and let Congress try to override them.
Bush, far more than any of his predecessors, is resorting to a third option: signing a bill while reserving the right to disregard any part of it that he considers an infringement on his executive authority or constitutional powers.
In more than five years in office, the president has never vetoed a bill. But while approving new laws, he has routinely issued signing statements interpreting the legislation in ways that amount to partial vetoes of provisions to which he objects.
White House spokesman Blair Jones insisted that Bush is not trying to undermine the lawmaking authority of Congress, and noted that many past presidents have issued statements on the meaning of bills they sign.
Presidential scholars, in fact, trace signing statements back to the early 19th century. But for much of the nation's history, they have been little more than bureaucratic memos instructing subordinates on the implementation of new laws. Bush has transformed them into declarations of executive supremacy.
According to Christopher Kelley, an assistant professor of political science at Miami University in Ohio who has studied presidential powers, Bush issued 505 statements in his first term objecting to portions of new laws on constitutional grounds. Documents available at the White House Web site indicate that the number since Bush took office now exceeds 700.
By comparison, Kelley said, President Ronald Reagan, the first to use signing statements as an instrument of presidential power, issued 71 such statements in two terms; President George Bush issued 146 in one term; and President Bill Clinton issued 105 in two terms.
The numbers tell only part of the story, said Phillip Cooper, a professor of government administration at Portland State University who has studied signing statements and other executive actions.
"This administration has been much more systematic and much broader in scope'' in signing statements, Cooper said, on its "path to expand presidential powers at the expense of Congress and the courts.''
He said Bush has pursued that goal with a variety of presidential directives and in the electronic surveillance he ordered after Sept. 11, 2001, of international contacts between Americans and alleged terror suspects, without the court warrants required by a 1978 law. When the surveillance program was disclosed by the New York Times in December, the administration said Bush's constitutional powers overrode any congressional authority to require warrants.
Among the most common targets of Bush's signing statements have been laws requiring his administration to disclose information, issue reports, appoint officials with specified qualifications, or consult with Congress on the implementation of a law. Bush has regularly reinterpreted these mandates as "advisory'' measures that he is free to ignore.
Other statements have scuttled affirmative action programs, rejected congressional criteria for spending federal money, and declared that Bush would follow laws affecting international affairs only to the extent that they respected "the constitutional authority of the president to conduct the nation's foreign relations.''
A rare congressional reaction came from Sen. Patrick Leahy, D-Vt., author of the Patriot Act amendments requiring the Justice Department to report to Congress on the FBI's use of its powers to search and seize records.
After learning in March that Bush had asserted authority to withhold the information, Leahy said the president "appears to believe that he can pick and choose which laws to obey and need never submit to congressional oversight.'' He accused Bush of making "a radical effort to reshape the constitutional separation of powers and evade accountability and responsibility for following the law.''
In response, Jones, the White House spokesman, said Bush's bill-signing statements simply affirm that he "will faithfully execute the law in a manner that is consistent with the Constitution. That's the oath he took and the one he keeps.''
The question is who decides -- the president, Congress or the courts -- whether a law is being executed in a manner that is consistent with the Constitution.
The civics-book answer is clear: Congress passes the laws, the president carries them out, and the courts decide whether they're constitutional. And before ruling on the validity of a law, courts traditionally determine its meaning by examining the intent of Congress -- not the president -- as expressed in the language of the statute, congressional debates and committee reports.
Although the courts have not yet decided how much weight, if any, to give to presidential signing statements, most legal scholars doubt a president's authority to reinterpret laws in ways that conflict with congressional intent. One who disagrees, John Eastman, a law professor at Chapman University in Orange County, says his view -- that the president shares constitutional lawmaking power with Congress -- is not widely held.
"A significant majority of our nation's leading constitutional scholars think we have a parliamentary system where the president is a functionary of Congress,'' Eastman said.
The Supreme Court could address the issue in a current case in which the administration has argued, based on a Bush signing statement in December, that a new federal law has stripped courts of jurisdiction over pending appeals from foreigners held at Guantanamo Bay. Sen. Carl Levin, D-Mich., an author of the law, says Congress "considered and rejected" the president's interpretation.
But presidential signing statements are seldom challenged, for two reasons: Congress pays little attention to most of them, and private citizens are usually unable to prove they were harmed by the president's actions, a prerequisite for the right to sue.
Much of the theory behind signing statements can be traced back 20 years to a Reagan administration effort to regain presidential prerogatives lost to Congress after the Watergate scandal of the 1970s. Future Supreme Court Justice Samuel Alito, then a Justice Department lawyer, was among the advocates for a new role for traditionally obscure bill-signing statements.
"The president's understanding of the bill should be just as important as that of Congress,'' Alito said in a February 1986 memo. If presidents used the statements to announce their interpretations, he wrote, "it would increase the power of the executive to shape the law.''
He cautioned, however, that such statements probably "will not be warmly welcomed by Congress.'' Alito advised starting small, with a limited number of bills and with interpretations that avoided direct conflicts with lawmakers.
Asked about the memo at his Supreme Court confirmation hearing in January, Alito stressed that he had been speaking as a lawyer, not a judge.
The Reagan administration made signing statements more prominent, arranging for their publication as part of a bill's legislative history, and in at least one case, persuading the Supreme Court to adopt Reagan's interpretation of a newly signed law, Kelley said.
On the other hand, a Reagan signing statement changing the rules on federal contracting led to lawsuits by contractors and a threat by Congress to cut Justice Department funding before the administration retreated, said Portland State's Cooper.
Clinton had a similar run-in with Congress, and ultimately backed down, after issuing a signing statement in 1999 questioning lawmakers' authority over the appointment of an official to oversee security at nuclear weapons laboratories.
Bush also backpedaled when members of Congress challenged his narrow definition of whistle-blower protections for federal employees in a 2002 signing statement. But that was a rare exception for a president who has "taken every opportunity to push the envelope,'' Cooper said.
In an article for the Presidential Studies Quarterly last September, Cooper wrote that Bush's statements typically give the widest possible scope to presidential powers, and the narrowest scope to congressional powers, and are replete with catch-phrases that may offer barely a clue about how he plans to implement the law.
An example was the March 9 statement on the Patriot Act's FBI reporting requirements, which Bush said he would interpret "in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which would impair foreign relations, national security, the deliberative processes of the executive, or the performance of the executive's constitutional duties.''
Most of those phrases recur in other signing statements, particularly the "unitary executive branch,'' a much-debated concept of absolute presidential control over all federal agencies. Cooper said he found the phrase in 82 Bush signing statements from 2001 through 2004.
Bush's language can be even more opaque. In signing the Export-Import Bank Reauthorization Act of 2002, he said he would implement one section "in a manner consistent with the requirements of equal protection under the Due Process Clause of the Fifth Amendment to the Constitution.''
The phrase, which Cooper found in 15 first-term signing statements, is shorthand for the administration's view that all affirmative action based on race or sex is unconstitutional. In this case, it meant that Bush would not implement a provision requiring the Export-Import Bank to try to increase loans to businesses owned by minorities or women.
Occasionally, a signing statement attracts enough attention to become a public challenge to congressional lawmaking power. That was the case in December, when Bush claimed the authority to disregard Congress' newly enacted ban on cruel, inhuman or degrading treatment of captives held abroad, citing his role as head of the "unitary executive branch'' and his powers as commander in chief.
The measure's authors, Sens. John McCain, R-Ariz., and John Warner, R-Va., responded by promising "strict oversight to monitor the administration's implementation of the new law.'' They didn't explain how they planned to detect abuse at far-flung and sometimes-secret prisons, and so far they have not held any hearings.
Likewise, Leahy, despite his criticism of Bush's Patriot Act signing statement, has not demanded a congressional inquiry. Last week, in response to an article on signing statements in the Boston Globe, Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said he would invite administration officials and legal scholars to a hearing on the topic in June.
"Congress runs a real danger, in the long run, of diminishing (its) prerogatives'' by failing to object forcefully, said Kelley, who generally supports a president's authority to interpret the Constitution. He said Congress should draw the line, at some point, by threatening funding cutoffs or other measures that the president can't ignore.
Bush seems to be succeeding in a strategy "to put forth these extravagant claims and try to intimidate and cow Congress,'' said Bruce Fein, a conservative commentator and former Justice Department official under Reagan. "He can go to court and say Congress remained silent.''
Eastman, of Chapman University, said the critics have it backward. Congress, he said, always wants to tie the president's hands, and Bush is merely defending his constitutional authority.
"He has drawn the same line that every other president has drawn,'' Eastman said. "He is exercising broader powers than other presidents have needed to exercise because he is in the middle of a war.''
Nevertheless, it would be wise to lower the temperature and avoid unnecessary confrontations with Congress, said another administration supporter, Douglas Kmiec, who was a leader in developing signing statements in Reagan's Justice Department.
Signing statements were "intended to let the chief executive exercise some initial control over what his subordinates were doing in the implementation of statutes,'' said Kmiec, now a Pepperdine University law professor. "It's morphed into a general opportunity to say, 'I'm president,' over and over again.''
E-mail Bob Egelko at firstname.lastname@example.org.
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