Presidential Signing Statements and the American Democracy

On December 15, 2005, President George W. Bush met with Senator John McCain in the Oval Office. There, he expressed his support for McCain’s amendment to the Department of Defense Authorization bill - a pledge by the US government not to use torture or “cruel, inhuman, or degrading treatment or punishment.” Much media fanfare accompanied this concession by the President; not surprising given that it came after months of acrimonious debate on the issue. Both the President and Vice President Dick Cheney initially opposed the amendment, the latter strongly believing that an exemption for the CIA was necessary for national security. However, Congress and the general public supported the legislation, largely because of the horrific Abu Ghraib scandal in Iraq. Consequently, the President’s position reversal on the torture issue was greeted with jubilance. “The fog of law is finally lifting,” declared Representative Jane Harman (D-CA), a ranking member of the House Intelligence Committee; “America’s moral black eye is finally healing.”

But what many observers - and certainly most laymen - missed was the actual signing of the bill, on December 30. Shielded from media scrutiny by the impending New Year, President Bush did not simply sign the bill; he also tacked on a presidential “signing statement.” It read:



The executive branch shall construe [the anti-torture amendment] 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, which will assist in achieving the shared objective of the Congress and the President… of protecting the American people from further terrorist attacks.



The intent of this declaration was clear. President Bush was stating that he planned to contravene the law when he deemed it necessary. Marty Lederman, a law professor at Georgetown University who served in the Justice Department from 1997-2002, told the Boston Globe, “The whole point of the McCain amendment was to close every loophole. The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute.”

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Presidential “signing statements” have been a part of the American political and judicial landscape for years - the first such statement was released by President Monroe in 1821. Initially, however, these statements were used sparingly. Between 1821 and 1981, only 75 presidential signing statements were issued, an average of approximately one statement every two years. However, beginning with the Reagan presidency, the use of signing statements has increased dramatically. Reagan and his two immediate successors, George H.W. Bush and Bill Clinton, issued 247 signing statements from 1981 to 2001, and President George W. Bush has since accelerated the trend. During his first six years in office, the sitting President has issued a whopping 134 signing statements, asserting the authority to defy over 750 pieces of signed law.

When President Bush issued his statement regarding the anti-torture provision, political pundits and legal scholars were understandably alarmed. Here was a President brazenly declaring his intention to ignore a signed law, one supported by numerous international treaties, whenever he wanted. The American Bar Association (ABA) immediately commissioned a Task Force to further investigate the issue of signing statements. Their report blasted the new practice: “The use of presidential signing statements to have the last word as to which laws will be enforced and which will not… poses a serious threat to the rule of law.” Even the Republican Congress reacted strongly to the President’s actions; Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, introduced the Presidential Signing Statements Act on July 26, 2006. The bill, which seeks to limit the legal force of presidential signing statements, was immediately referred to the Senate Judiciary Committee for discussion. Specter said, "Our legislation doesn't amount to anything if the president can say, 'My constitutional authority supersedes the statute.' And I think we've got to lay down the gauntlet and challenge him on it."

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It is this author’s contention that the continued use of signing statements as instruments of presidential power would be legally, politically, and ethically detrimental to American democracy.

Though there is nothing in the law that allows or disallows the use of presidential signing statements, there appears to be little basis for such statements to supersede signed legislation. In other words, signing statements are of dubious legal significance, at best. The Supreme Court has grappled with the legality issue, but has yet to establish a clear precedent. One need look no further than the cases of Bowsher v. Synar and Hamdan v. Rumsfeld for evidence of this hazy legal status; in the former case, the Court ascribed legal weight to presidential signing statements, while in the latter it did not. It seems as though the jury is still out – literally – on the legal status of signing statements. The Court’s current position on this issue – unsure and inconsistent – represents a real threat to some fundamental elements of the American democracy.

Let us look back at President Bush’s signing statement for the McCain amendment. In this statement, President Bush invokes the Constitution – twice, in fact – to bolster his argument. He seems to be saying that the amendment might infringe on his constitutional duties – indeed, that the amendment might, in certain instances, be unconstitutional. So the President is arguing that through the issuance of this statement, he is protecting not just the Office of the President but the Constitution itself. However, the American political system has always provided the president with a weapon against any legislation thought to be unconstitutional: the veto. In theory, a President presented with an unconstitutional bill can and should veto it.

However, this is not what the President did in the case of the anti-torture amendment. Instead, President Bush used a signing statement to declare his intention to ignore one piece – and only one piece – of a signed law. Sound familiar? How is a presidential signing statement with legal weight any different than a line-item veto? Frankly, it isn’t. The ABA concurs: “To sign a bill and refuse to enforce some of its provisions because of constitutional qualms is tantamount to exercising the line-item veto power held unconstitutional by the Supreme Court in Clinton v. New York.” So basically, a president is not only evading Legislative branch checks on Executive power by issuing signing statements, but is also circumventing Supreme Court precedent.

What is under attack here is the doctrine of “separation of powers,” a critical component of the US Constitution that dates back to the days of Montesquieu and the Enlightenment. This doctrine allows for both accountability and balance in government: each of the three branches is constantly able to check the others to ensure that no single branch dominates government to the detriment of society. However, the signing statement threatens to seriously damage that doctrine by giving the Executive branch the authority to override and overpower the other two branches, most notably the Legislative branch. In a world of legalized signing statements, the Legislative branch would be little more than an advisory body, offering proposals to a tyrannical president. As such, signing statements are essentially the enshrinement of Presidential and Executive dominance, checks and balances be damned.

Aside from the clear threat signing statements pose to the separation of powers, checks and balances, and the American legal system, there are also political and ethical arguments against their use. When a president signs a bill, especially one that is high-profile and supported by the American public, he tends to benefit from a nice bump in popularity. Conversely, the use of a presidential veto against a popular bill is normally frowned upon. Signing statements provide the president with an easy, if unethical, way around this dilemma. By signing a bill publicly, then slipping in a contradictory signing statement under the radar, a president can both enjoy a popularity bump and achieve a substantive political victory. It is the equivalent of the president having his political cake and eating it too, and it comes at the expense of political openness and, arguably, the public’s right to know.

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When a presidential signing statement directly opposes a signed and stamped US law, the only logical conclusion is that the statement represents an attempt by the Executive branch to bypass the law. Such actions are not only legally and politically questionable, but also fundamentally destructive to the American system of law. Quite simply, law is the cornerstone of the American democracy; it is a network of legal statutes, overseen by three branches of government representing the people and accountable to one another through checks and balances, that distinguishes the American democracy from corrupt and/or authoritarian systems of government. And presidential signing statements undermine this system by ignoring legal edicts, dissolving the separation of powers, and deceiving the public. If the United States plans to continue traversing the globe, spreading freedom to the downtrodden, it must first abide by and respect the tenants of democracy at home.