In late December, President Bush signed the defense appropriations bill into law after a bitter fight with congressional Democrats. At the time, few media outlets picked up that he also included what’s called a presidential signing statement to go along with it.
This is of particular interest, because earlier in December, just after The New York Times broke the warrantless wiretap story, Vice President Cheney stated that the administration has been able to restore some of “the legitimate authority of the presidency.”
How has the administration done this? One way is by using the presidential signing statement.
Presidential Signing Statements
A presidential signing statement is a letter that goes along with the signing of a bill into law, written to “define how the President interprets the laws he signs,” according to Jennifer Van Bergen, author of The Twilight of Democracy: The Bush Plan for America. The statements are not a required part of signing an act into law. Sometimes they are written simply to explain parts of the bill or act.
A signing statement can also be used to give the law a different meaning, as when the White House recently provided itself an exemption to the McCain-sponsored ban on torture. According to presidential scholar Phillip J. Cooper of Portland State University, Bush has been “especially fond of them, issuing at least 108 in his first term.” It’s the perfect tool for an executive branch hungry for greater powers. Or what Cheney called the “restoration” of the “legitimate authority” of the president.
In 1986, then Attorney General Edwin Meese arranged for signing statements to be published together with bills in the U.S. Code Congressional and Administrative News, explaining that they will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.
The Bush administration “has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress,” Professor Cooper wrote in the September issue of academic journal Presidential Studies Quarterly. “This tour d’ force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.”
A presidential signing statement is one place where the authority of the president appears to go unchallenged. The statement does not go back to Congress for approval after it is attached to the signed bill.
Whether signing statements are legally binding or not is still a major unanswered question. But one thing is clear: since it does not go back to Congress for further review, the signing statement is Bush’s way of saying, This means what I tell you it means. And now it’s the law. Or, as Van Bergen writes, “This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush’s oath of office, as well.”
Defense Appropriations Bill Signing StatementThis is the way Bush begins the presidential signing statement attached to the defense appropriations bill:
Today, I have signed into law H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006.” The Act provides resources needed to fight the war on terror, help citizens of the Gulf States recover from devastating hurricanes, and protect Americans from a potential influenza pandemic.
Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority.
Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.
And that’s just the beginning.
Let’s start by looking at what one section of this signing statement says:
The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority.
What does this mean?
Bush is simply repeating the familiar talking points he, Cheney, and Attorney General Alberto Gonzales have been trotting out to explain the White House’s unprecedented expansion of powers to issue warrantless wiretaps, among other things.
Talking points
Two of these “talking points” show up in the signing statement: the president has both (1) constitutional authority and (2) a legislative grant of authority to make certain security-related decisions.
What is a “legislative grant of authority?”
Basically that means permission from Congress. It’s also called statutory authority. In particular, Bush is referring to the broad authorization to use military force (AUMF) to defend the country against terrorists which Congress granted the president in December 2001.
These talking points are made clear in a letter to members of the House and Senate intelligence committees explaining the administration’s position on the “legal authority supporting … activities described by the president” in the warrantless wiretap scandal. The Assistant Attorney General wrote:
The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force (AUMF) of September 18, 2001, … (”[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”)
The AAG’s letter goes on to clarify the source of the legislative grant of authority.
The President’s constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, ... in order to prevent any future acts of international terrorism against the United States.”
So the constitutional authority is in the preamble; the permission from Congress is in the AUMF itself.
But critics of the administration say using the AUMF to claim this authority is a bold interpretation of what the AUMF actually says.
The AUMF does not say anything about sharing information on national security issues. The AUMF doesn’t specifically address spying on U.S. citizens, either, but Cheney, Gonzales, and the Assistant Attorney General have all referred to it as one source of the president’s power to wiretap. And yet these are rationalizations that Cheney and Gonzales are making elsewhere — quite publicly — Cheney on Nightline and Gonzales in a December 19th press briefing. It seems clear that this is what the president is referring to in his signing statement as well.
Jennifer Van Bergen said, “Bush has claimed the constitutional authority quite frequently in other contexts. He does not need to find his reasoning or the language he uses in the AUMF itself.” Why does this presidential signing statement add that the president’s authority doesn’t depend on a legislative grant? Perhaps this was inserted as a reminder that if the AUMF were revoked, the presidential authority would still be intact.
The president rewrites the law he is signing
The president isn’t just using his signing statements to reinterpret law to suit his agenda; he’s using them to literally rewrite the laws themselves.
Take for example this section of his signing statement attached to the defense appropriations bill:
Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.
Here Bush actually gives a different meaning to three sections of the defense bill. In doing so, experts say, he is redefining sections of the act.
The three sections singled out by Bush in his presidential statement have one thing in common: they all say basically that if he wants to spend this money, he must tell Congress 30 days ahead of time.
The “special access program” clause (Section 8007) reads:
Funds appropriated by this Act may not be used to initiate a special access program without prior notification 30 calendar days in session in advance to the congressional defense committees.
Special Access Programs, or SAPs
A Special Access Program, or SAP, is a highly-classified Department of Defense program that involves so-called “black sites” and secret interrogations of terrorist suspects. In his signing statement, Bush states he has no obligation to tell Congress ahead of time before setting up any new ones. He writes, “Although the advance notice contemplated … can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly…”
Contemplated? This is not the language of “contemplation.” The defense appropriations bill states specifically that these funds may not be used without prior notification.
Bush concludes this paragraph by stating, “The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.” In other words, Bush is using this signing statement to tell Congress he damned well isn’t going to tell them in advance about spending money for new SAPs.
This is not the first time Bush has stated this. Steven Aftergood writes in his newsletter Secrecy News:
In 2001, Congress prohibited the creation of new SAPs except where 30 day prior notice was given to the congressional defense committees.
But in an early display of its controversial use of presidential signing statements to undercut legislative action, the Bush White House issued a statement reserving the right to defy this notification requirement.
In fact, since January 2002 Bush has challenged the congressional reporting requirement for SAPs yearly in his presidential signing statements accompanying every defense appropriations bill.
Line-item vetoes?
According to some experts, in addition to redefining laws he’s signed, Bush has established a de facto line-item veto.
A line-item veto rejects one portion of a bill only, without nullifying the whole thing. When Bush frames the advance notice clauses as mere “contemplation,” he implies that these clauses were not passed into law with the rest of the act. John Dean, former White House Counsel to President Nixon, agrees. Dean writes on the Findlaw web site that Bush is indeed “using signing statements like line-item vetoes.” He explains that according to the Constitution, a president must either approve or veto the entire bill, and “not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill.”
Bush is also blatantly disregarding the fact that the Supreme Court ruled the line-item veto unconstitutional in 1998. At the very first press conference of his second term, Bush said that the president needed a line-item veto that “passed constitutional muster.”
Again, in a December 2004 press conference, Bush said, “Now, I think the President ought to have a line-item veto, because within the appropriations bills, there may be some differences of opinion on how the money is being spent.”
Christopher Kelley, a presidential scholar at Miami University in Ohio, says that while the objections spelled out in the presidential signing statements are not legally considered a line-item veto, “by simply refusing to defend a provision of a bill, the president does exercise an item veto unless Congress acts.”
“If Congress is closely monitoring the executive branch it is not likely that the president will actually fulfill the pronouncements of his signing statement,” Kelley said. He explained that the president’s preferences win out only if Congress does not step up and challenge him.
Hidden in Plain Sight
What has Bush accomplished with his signing statements? First, he has used them to define the extent of his authority. At the same time, he uses them to change the meaning of laws passed by Congress. He has used them to the same effect as the line-item veto that was judged unconstitutional. The signing statements are in the public record, but until recently, this has all gone virtually unnoticed.
It remains to be seen whether the Bush signing statements will be used in deciding whether it is legal for a president to defy specific clauses of acts that have congressional approval, or if a law simply means what it said when Congress approved it.
Supreme Court Justice nominee Samuel Alito told his congressional interrogators he believed in a “unitary executive.” Van Bergen terms this “a code word” for “nearly unlimited executive power.” During the hearings, Alito failed to explain that he was a key figure in drawing up the Reagan administration’s strategy for using the presidential signing statement more effectively. The Bush administration has used this strategy to reclaim what they call the president’s “legitimate authority.” The foundation has been laid for the President of the United States to simply bypass sections of laws he doesn’t like. With Alito’s appointment to the highest court in the land, it’s quite possible that over-reaching signing statements will become yet another troubling legacy of the Bush White House.