In January, John Dean assessed the "troubling" frequency of Bush's signing statements:
By JOHN W. DEAN
Friday, Jan. 13, 2006
Presidential signing statements are old news to anyone who has served in the White House counsel's office. Presidents have long used them to add their two cents when a law passed by Congress has provisions they do not like, yet they are not inclined to veto it. Nixon's statements, for example, often related to spending authorization laws which he felt were excessive and contrary to his fiscal policies.
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By Cooper's count, George W. Bush issued 23 signing statements in 2001; 34 statements in 2002, raising 168 constitutional objections; 27 statements in 2003, raising 142 constitutional challenges, and 23 statements in 2004, raising 175 constitutional criticisms. In total, during his first term Bush raised a remarkable 505 constitutional challenges to various provisions of legislation that became law.
That number may be approaching 600 challenges by now. Yet Bush has not vetoed a single bill, notwithstanding all these claims, in his own signing statements, that they are unconstitutional insofar as they relate to him.
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The frequency and the audacity of Bush's use of signing statements are troubling. Enactments by Congress are presumed to be constitutional - as the Justice Department has often reiterated. For example, take what is close to boilerplate language from a
(selected at random): "It is well-established that Congressional legislation is entitled to a strong presumption of constitutionality. See ('Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.')."
Bush's use of signing statements thus potentially brings him into conflict with his own Justice Department. The Justice Department is responsible for defending the constitutionality of laws enacted by Congress. What is going to happen when the question at issue is the constitutionality of a provision the President has declared unconstitutional in a signing statement?
Does the President's signing statement overcome the presumption of constitutionality? I doubt it. Will the Department of Justice have a serious conflict of interest? For certain, it will.
more...Two more:
October 4th, 2006
Today, I have signed into law H.R. 5441, the "Department of Homeland Security Appropriations Act, 2007" (the "Act"). The Act appropriates the funds needed to protect the United States against terrorism, secure the Nation's borders, assist States and localities in dealing with natural disasters, and perform the other important functions of the Department of Homeland Security. The Act also strengthens the capabilities of the Federal Emergency Management Agency to prepare for and respond to emergencies requiring action by the Federal Government.
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Section 513 of the Act purports to direct the conduct of security and suitability investigations. To the extent that section 513 relates to access to classified national security information, the executive branch shall construe this provision in a manner consistent with the President's exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief, to classify and control access to national security information and to determine whether an individual is suitable to occupy a position in the executive branch with access to such information.
To the extent that section 514 of the Act purports to allow an agent of the legislative branch to prevent implementation of the law unless the legislative agent reports to the Congress that the executive branch has met certain conditions, the executive branch shall construe such section as advisory, in accordance with the constitutional principles enumerated in the Chadha decision.
The executive branch shall construe section 522 of the Act, relating to privacy officer reports, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.
To the extent that provisions of the Act, such as section 558, purport to direct or burden the conduct of negotiations by the executive branch with foreign governments or other entities abroad, the executive branch shall construe them as advisory. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.
Provisions of the Act, including under the heading "Office of the Secretary and Executive Management" and sections 521, 539, 540, and 559, refer to joint explanatory statements of managers accompanying conference reports on specified acts. Such statements do not satisfy the constitutional requirements of bicameral approval and presentment to the President needed to give them the force of law.
more...September 29th, 2006
Today, I have signed into law H.R. 5631, the "Department of Defense Appropriations Act, 2007." The Act appropriates the funds needed to fight the war on terror, advance other United States interests around the world, and support our Armed Forces. The Act also continues funding for Government programs for which the Congress has not yet enacted regular appropriations acts.
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Section 8050 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2007 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8050 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President's constitutional authority as Commander in Chief.
A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8032(b), and 8089 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President's constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient.
Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.
The executive branch shall construe section 8093, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8095 and 8101 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.
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