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He's a Uniter, Decider, and Now,

Interpreter
William Fisher

NEW YORK, 5 Feb (IPS) - When George W. Bush signed the 2008 National
Defence Authorisation Act into law last week, he again thumbed his nose at
Congress by taking a second now-familiar step: he issued a 'signing
statement' -- a declaration that effectively asserts his authority to ignore
parts of the law he disagrees with.
His action brought harsh criticism from dozens of legal scholars and advocacy groups
who point out that U.S. presidents have the authority under the Constitution to veto
or approve acts of Congress -- but not to modify them.
Bush's latest signing statement declares his right to ignore sections of the law
establishing a commission to investigate U.S. contractor fraud in Iraq and
Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence
agencies respond to congressional requests for documents, banning funding for
permanent bases in Iraq, and prohibiting funding of any actions that exercise U.S.
control over Iraq's oil revenues.
One administration critic, United for Peace and Justice (UFPJ) -- the country's largest
anti-war coalition with over 1,400 member groups -- characterised Bush's action as
'arrogant and unconstitutional' and called on Congress to convene hearings to
impeach the president.
Bush's use of signing statements has become one of the hallmarks of his
administration. The UFPJ charged that during the past seven years, the same kind of
language used by Bush last week 'has been the precursor to numerous violations of
law by his administration, including sections of law banning the use of torture and
banning the use of funds to construct permanent U.S. military bases in Iraq. The
president has signed laws blocking funding for the construction of permanent bases
in Iraq six times, but never stopped the construction.'
And, in a recent statement, The Constitution Project's 'Coalition to Defend Checks
and Balances', urged Congress to 'ensure through oversight that the executive
branch is enforcing those laws [passed by Congress] and is otherwise carrying out its
responsibilities in a manner consistent with the laws and the Constitution'.
Last month, a senior Justice Department official testified before the House of
Representatives Judiciary Committee that the president is free to violate any laws
until the Supreme Court rules otherwise. However, the U.S. Constitution gives
Congress the sole authority to legislate and requires the president to 'take care that
the laws be faithfully executed.'
A year earlier, a blue-ribbon American Bar Association task force composed of
constitutional scholars, former presidential advisers, and legal and judicial experts
urged Congress to adopt legislation enabling its members to seek court review of
signing statements that assert the president's right to ignore or not enforce laws
passed by Congress and demanded that the president veto bills he feels are not
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constitutional. Since he took office in 2001, the president has vetoed only one bill -- a
measure to expand health care for children of poor families.
Arguably, the most controversial of Bush's signing statements rejected the so-called
McCain Amendment in the Detainee Treatment Act of 2006, which categorically
prohibits cruel, inhuman and degrading treatment of detainees by all U.S. personnel,
anywhere in the world.
In his signing statement, Bush asserted that he was free to construe that provision 'in
a manner consistent with the constitutional authority of the President to supervise
the unitary executive branch and as Commander in Chief and consistent with the
constitutional limitations on the judicial power.'
Bush's signing statements cover not only the so-called war on terror, but also a wide
array of bills passed by Congress, ranging from affirmative action programs to
requirements of statistical compilations by executive agencies to establishing basic
qualifications for executive appointees.
The use of signing statements, however, did not start with George W. Bush. In recent
U.S. political history, they have been used by Presidents Ronald Reagan, George H.
W. Bush, and Bill Clinton as a tool to express constitutional and other objections to
legislation, influence judicial interpretation, and otherwise advance policy goals.
Earlier presidents, beginning with James Monroe, the nation's fifth chief executive,
have issued such statements. But it was not until the Reagan administration that the
nation saw a dramatic increase in the frequency of presidential signing statements.
Reagan saw the statements as a strategic tool for molding and influencing the way
legislation was interpreted by executive agencies. In eight years as president, he
issued statements objecting to 72 congressional provisions, a record at the time. His
successor, George Herbert Walker Bush, topped that mark in only four years in the
White House. Bush objected to 232 provisions. President Bill Clinton followed with
140 objections in eight years.
But, as noted by the American Bar Association's bipartisan task force, while the
current president is not the first to use signing statements, 'the frequency of signing
statements that challenge laws has escalated substantially.'
From the inception of the republic until 2000, presidents produced fewer than 600
signing statements. Since 2001, President Bush has objected on constitutional
grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current Bush
administration is creating faux law. He told IPS, 'The Bush Administration's repeated
utterance of its constitutional philosophy shapes executive branch behavior by
solidifying allegiance to norms of hostility to external accountability.'
'Like the torture memo or the rationalisations for warrantless NSA wiretapping of
domestic telephone calls, the Bush 43 signing statements embody both a disregard
for the institutional authorities of the other branches -- especially Congress -- and a
disregard for the necessity to ground legal claims in plausible law. They are best
understood as an attempt to invent law, and as an exploitation of Congress's
unwillingness, at least while in Republican hands, to allow the administration's more
extreme theories of presidential authority to go unchallenged,' he said.