The Problem Isn't Signing Statements; It's Enforcing the Laws

Some will consider it presumptuous for a non-lawyer to take issue with a prestigious panel of the American Bar Association. But in the case of presidential signing statements, the ABA is wrong.

The issue is whether presidents should be able to raise constitutional concerns about provisions in bills when they sign them into law. The ABA's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine issued a report July 24 calling such statements "contrary to the rule of law and our constitutional system of separation of powers," and it offered recommendations to deal with them. Two days later, Senate Judiciary Chairman Arlen Specter (R-Pa.) introduced a bill to implement a modified version of the recommendations. And on Tuesday the ABA's House of Delegates endorsed the task force's recommendations.

The ABA recommends that the president give advance notification of any constitutional concerns with a bill while it is still pending before Congress and that he veto bills containing any provisions he considers unconstitutional. Moreover, it urges legislation to require the president to provide Congress copies of all signing statements along with the reasons and legal basis for any statements on provisions he claims authority to disregard, ignore or refuse to enforce.

Both the ABA recommendations and Specter's bill would give Congress standing to obtain a declaratory judgment on a signing statement's legality (though the courts still could deny standing on grounds Congress was not sufficiently injured by a statement's mere words to constitute a case or controversy). Specter's bill also would forbid courts from using the signing statements "as a source of authority" (again, something the courts could ignore).

I must confess I never considered this much of an issue during my three decades on Capitol Hill. I saw plenty of these constitutional signing statements and they always struck me as little more than Justice Department boilerplate designed as body armor to deflect perceived assaults on presidential powers. In fact, I had all but forgotten about these "constitutional caveats," as I came to regard them, until they popped back onto the radar screen earlier this year in the runup to the confirmation hearings for Judge Samuel Alito to become a Supreme Court justice.

On Jan. 2, The Washington Post reported on a memo Alito authored in February 1986 while serving in the Office of Legal Counsel at Ronald Reagan's Justice Department. In that memo he urged that the president resurrect the practice of issuing signing statements to provide his interpretation of the law. Alito's theory was that the statements could be used as part of the legislative history in any subsequent court cases. Alito went on to caution that such statements would "not be warmly welcomed by Congress," which was "likely to resent the fact that the President will get the last word on questions of interpretation." Nevertheless, his recommendations warmly were embraced by the administration, which issued signing statements raising constitutional issues with 71 provisions of law during Reagan's two terms.

Two days after the Post article, a Boston Globe headline blared, "Bush could bypass new torture ban; Waiver right is reserved." The story described President Bush's signing statement on the Defense supplemental appropriations bill, which included the torture ban for detainees. The provision had been negotiated with Sen. John McCain (R-Ariz.), and although McCain and others understood it to be an absolute ban, the president's statement said it would be construed "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 achieve the shared objective ... of protecting the American people from further terrorist attacks."

On March 9, the president further stirred the pot when he said he would construe the oversight reporting requirements in the USA PATRIOT Act renewal bill "in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which would impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

The ABA report cited the current president for more than 800 constitutional challenges in signing statements over the past six years — more than all preceding presidents combined. It went on to claim that these constitutional statements are a de facto line-item veto because they allow a president to pick and choose which provisions of the law he will enforce. This, the panel said, flies in the face of the 1998 Supreme Court decision declaring a statutory line-item veto unconstitutional.

While the ABA and various Members of Congress are to be commended for their concern about the prerogatives of Congress, their legislative remedies are misdirected. The issue is not whether the president has a right to issue signing statements or how his stated concerns are couched or interpreted. The president does have an obligation under the Constitution to "take care that the laws be faithfully executed," which obviously includes a right to state how he will do so. Surely any attempt by Congress to limit or regulate that right interferes with his constitutional duty.

The real issue is how the president subsequently executes the thrust of his statements' provisos. In most instances in which presidents express constitutional reservations about the authority of Congress to impose requirements on the executive, the executive nonetheless voluntarily complies with the requirements of the law. If anything, Congress should be grateful for these publicly announced presidential reservations since they provide an early warning system on where to look for possible failures to fully enforce the law. The proof is in the pudding, not in its labeling.

Alito was wrong when he argued that the president has the final word by issuing signing statements. The courts and Congress still are there to push back if the president oversteps — by judicial rulings that his actions violate the law or Constitution; by oversight hearings and enforcement of subpoenas for information required by law; or, if all else fails, by impeachment for failure to faithfully execute the law.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.