Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

What’s being done about the presidential signing statements?

Posted by David Kassel on July 9, 2007

Maybe a special counsel needs to be appointed.  Maybe a lawsuit should be filed.

So far, though, it’s unclear exactly what Congress has done or plans to do in response to presidential actions, which have been described as ”threatening to overturn the existing structures of constitutional law.”

There doesn’t seem to be a concerted plan of action.

The issue I’m referring to is President George W. Bush’s use of signing statements to indicate that he won’t obey selected provisions of laws enacted by Congress.  The practice has also been described by the nonpartisan Congressional Research Service as a strategy to expand presidential power at the expense of  Congress.

Rep. John Conyers Jr., the chairman of the House Judiciary Committee, launched an “aggressive” investigation into the use of the signing statements following a hearing in late January.   No hearings, however, have been scheduled since, although an “oversight and investigative unit” of six attorneys hired by the Committee’s Democrats is continuing to investigate the matter, according to a staffer I talked to in a call to Conyers’ office.

In early May, House Speaker Nancy Pelosi suggested she might file suit over the signing statements.  This was more than a year after The Boston Globe reported that Bush has used signing statements to challenge more than 1,100 sections of bills — more than all previous presidents combined.  

I emailed Pelosi’s office on July 6, asking whether a lawsuit was still being contemplated, and whether the idea of a special counsel had been considered as well.  I haven’t yet gotten a response.

In June,  the Government Accountability Office presented the first clear evidence that federal agencies have actively disobeyed laws that were challenged by the president through the signing statements.

Presidents prior to Bush have made a practice of issuing signing statements.  But the difference with the present administration may be the sheer scale of the practice and Bush’s determination to use the signing statements to evade laws he considers to be unconstitutional or simply doesn’t want to comply with.   As The Boston Globe’s Charlie Savage noted, among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ”whistle-blower” protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

In December 2005, Bush asserted that he can bypass a statutory ban on torture. In March 2006, the president said he can disobey oversight provisions in the Patriot Act reauthorization bill.  He has declared in signing statements that he does not have to obey laws forbidding US troops from engaging in combat in Colombia, or requiring him to tell Congress before diverting money to ”black sites” where suspected terrorists are secretly imprisoned.  He has also stated that he will ignore laws passed by Congress forbidding warrantless domestic spying.

According to The Globe, last year, the American Bar Association stated that Bush’s use of signing statements was “contrary to the rule of law and our constitutional separation of powers.”

Admittedly, the options available to Congress as recourse aren’t easy ones nor are they sure of success.  For instance, there’s the question as to whether members of Congress would have standing to bring a lawsuit regarding signing statements.  And what could Congress practically hope to accomplish through a hearing process in which it subpoenaed agency heads who had disobeyed laws?

I emailed some questions about congressional options to George Dargo, a professor at the New England School of Law, who has criticized Bush for using the signing statements “to subvert the mechanisms of law enactment contained in Article I (of the Constitution).”

Dargo replied:

…when it comes to the question of a member of congress having standing to sue the executive,  you have the added problem of separation of powers.  Can you allow a member of Congress, having lost in the legislative arena, to get a “second bite at the apple” in the judicial arena?  … It appears to me that it would be a real constitutional issue that a court would have to consider.  …I am just suggesting that members of Congress would have to show some real “injury” in order to prevail on the issue of Standing in order  to have a court review the issues “on the merits”.
 
As to the agency subpoenas: well, hauling agency heads before Congress can be very intimidating in itself.  But in addition, there is always the budgetary sword of Damocles: there is the implicit threat of a  budgetary reduction or other method of control by Congress that can force agencies to cooperate.  And if there is a law violation by the agency then Congress can refer its findings to the Justice Department for possible prosecution.  I think the agencies are much more vulnerable than is the Chief Executive on this issue of Signing Statements if there are violations of the agency’s mandate under its Organic Act and its Amendments.

So, the situation is far from hopeless.  Regarding lawsuits, in particlar, Republican Senator Arlen Specter introduced legislation last year that would explicitly give Congress standing to bring lawsuits against the signing statements.  The ABA has also urged passage of this legislation.  Yet, the bill has so far apparently gone nowhere and the lawsuit option has somehow “not gained traction in Congress.”

This all isn’t to say that Conyers’ Judiciary Committee isn’t conducting a thorough review of the signing statements issue and won’t come forward in the near future with some concrete and well-developed proposals that give Congress recourse in this matter.  It’s just that, so far, things appear to have moved slowly and haphazardly in Congress.  Maybe this sense of haphazardness stems from  criticisms  that have been levied against congressional and other Democrats even from sympathetic quarters that they lack the vision thing.  It would seem the signing statements constitute one of a number of areas in which a concerted plan of action is needed by Congress in order to preserve its constitutionally protected balance of power.

Btw, I wrote before about how a series of bad presidential appointments coupled with inappropriate accountability structures have made it difficult to clean up fraud, waste, and abuse at the Department of Homeland Security, and particularly at the Federal Emergency Management Agency.

Interestingly, President Bush maintained in an October 2006 signing statement that he has the executive authority to disobey a new law in which Congress set minimum qualifications for future heads of FEMA. Congress passed legislation stating that the president must nominate a candidate who has “a demonstrated ability in and knowledge of emergency management” and “not less than five years of executive leadership.”  Bush signed the bill and then issued a signing statement saying he could ignore the new restrictions, maintaining that the FEMA provision interfered with his power to make personnel decisions.

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One Response to “What’s being done about the presidential signing statements?”

  1. Idetrorce said

    very interesting, but I don’t agree with you
    Idetrorce

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