A lot of attention lately has been focused on “presidential signing statements” — declarations by the President as to how he intends to interpret the statutues he signs into law. Though the signing statement has existed for the history of the Republic, the current President has grotesquely expanded its use. In a report by the American Bar Association, it is noted that, from the founding of the Republic through the inauguration of President George Walker Bush, the signing statement had been used fewer than 600 times. In President Bush’s six years, he has issued over 800 such signing statements. Moreover, he has aggressively used these statements to stake out his political position, to override Congressional intent, and to establish himself as the only arbiter of the constitutionality of his actions.
What are the implications for the Republic?
In the New York Times (2006 July 31), Walter Dellinger argues that signing statements are not per se a problem. Perhaps Mr. Dellinger’s position is understandable, as he was head of the Office of Legal Counsel at the Justice Department from 1993 to 1996, during which time President Clinton also made extensive use of signing statements. In 1994, Mr. Dellinger wrote a memo trotted out by the Bush defenders as justification (although Mr. Dellinger claims that the current White House is ignoring the cautionary parts of that memo). But in the end, Mr. Dellinger agrees with the White House that a President can, at least in some circumstances, use a signing statement to declare his intent not to enforce a law, or part of a law.
This is, at best, extra-constitutional. It is in fact an assault on the separation of powers. By allowing the President to disregard a law, or part of a law, we raise him above the law — exactly the principle the American Revolution was fought to overthrow. The President takes an oath to faithfully execute the laws of the United States — not to judge them, amend them, nullify them, or eviscerate them. Only the people’s representatives as vested in the elected Houses of Congress can make the laws.
If the President feels a bill is unconstitutional, he has a constitutional recourse: He can veto it. If the House and Senate disagree, they can override. According to the defenders of Mr. Bush, the President may then obviate the law anyway — except now, there is no Congressional recourse. Of course Congress could pass another law, specifically telling the President to enforce the first. But just as obviously, the President could find this new law equally “unconstitutional” and refuse to enforce it. You can imagine a Monty Python-esque escalation of laws passed and nullified.
Oh, Mr. Dellinger and others would like you to believe that the constitutional impact is small and that the Founders must not have intended that the President be so constrained. Mr. Dellinger says, “When a bill with a thousand provisions includes one that is unconstitutional, the Constitution does not force the president to choose between two starkly unpalatable options: veto the entire bill or enforce an unconstitutional provision.” Yet, in fact and quite clearly, this is exactly what the Constitution requires. It is disturbing and disheartening to see an established legal scholar with clear constitutional experience fall so miserably flat, in order to justify a policy he embraced (in my opinion, mistakenly) while his party was in office.
Mr. Dellinger wrings his hands over the hypothetical of a President who enters office after the passage of a law which he/she believes to be unconstitutional. How can the President be asked to execute such a law? Well, for starters, how about via that oath he/she takes on entering office? The President would still have options: For example, he/she could use executive orders to constrain as much as reasonably could be done the impact of the law (thereby resting on the executive authority). Or he/she could sue (or find someone who has standing to sue) over the execution of the law, and then instruct the Attorney General not to defend the law (resting on the judicial branch). And of course, he/she could — Heaven forbid! — rally the people and lobby the Congress to have the offending law repealed, thereby repairing the alleged offense to the Constitution. Of course this would involve the legislative branch and would require the President be not only right but convincing — and that’s just so much work for a President who is, after all, apparently divinely inspired with the knowledge of the right without any effort.
Arguments that this would hobble the executive beyond the desires of the Founders are, really, just plain silly. Running throughout all of the commentary on the design and adoption of the Constitution was a great distrust of the executive power. Some wanted it crippled. Others saw it as necessary. But all wanted it restrained, and they deliberately designed an instrument to constrain it. They had just thrown off the yoke of an arbitrary executive who disregarded the law and the rights of the citizenry; they were not about to set up one themselves. They took power from the executive and flung it away so violently that for two centuries it withstood the gravitational attraction of centralized power. Now, it seems, the pieces are coming home to congeal into a Founders’ nightmare.
Even after Watergate, the disgraced President Richard Nixon hewed to his own expansive philosophy: “When the president does it that means that it is not illegal.” Later in the same interview, Nixon admits that — though “I haven’t read every word, every jot and every title” of the Constitution he swore to uphold and defend — he knows that it does not explicitly or even implicitly recognize the Presidential authority he was claiming. It was this disregard for the established system of checks and balances, of the rule of law, that led to Nixon’s downfall and the accusation by John Dean that there was “a cancer–within, close to the Presidency, that’s growing. It’s growing daily.”
Under the ever-more-radical gyrations of the acolytes of the unitary executive, it is clear that the cancer has metastasized throughout the executive branch and, dismayingly, deep into Congress and the Supreme Court. They seek every crack in the system, every small gap in the laws, to push a vast and terrible realignment of American thought. We are losing the habits of freedom, and the time is not far when we will pay for our neglect.
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