Congress Snivels While Bush Breaks Laws

By Stephen Pizzo, News for Real. Posted June 9, 2006.

Am I missing something? I mean, I wasn't exactly an A student in civics class, but I do clearly recall that the way the U.S. Constitution was written -- and remains unamended -- is that Congress passes bills and the president either signs them into law or vetoes them. If he signs a bill, it becomes a law that the executive branch is then constitutionally required to enforce.

Am I wrong about that? Did I miss the passage of a constitutional amendment that changed the balance of power established by our founders?

If not, then the president of the United States has broken the law, not just once, but hundreds of times.

That's how many times this guy has signed bills into law and then, after the camera left, signed a separate document he calls "a signing statement," that, in effect, says, "Just kidding. Here's which parts of that bill I just signed that I will enforce, and which parts I won't enforce."

Phillip Cooper is a leading expert on signing statements; in fact he wrote the book on the subject: By Order of the President: The Use and Abuse of Executive Direct Action. Two years ago Cooper wrote that George W. Bush had issued 23 signing statements in 2001; 34 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 has now passed 750.

The White House claims all this is constitutionally kosher. But how can it be? Would someone explain to me how these noxious signing statements are any different from the line-item veto, which the U.S. Supreme Court ruled was unconstitutional? If you read one of Bush's signing statements they read very much like a line-item veto -- "Yes to this part of the bill, no to this part," etc. Sure looks like a duck to me.

For those of you unfamiliar with a Bush signing statement, here's a sample. Bush signed this little gem right after signing the USA Patriot Act "Improvement and Reauthorization Act," earlier this year. The president hailed that bill in a presigning statement for the cameras. What he didn't mention was the little piece of paper under the bill that he would sign after everyone left the room. Here it is:

President's Signing Statement on H.R. 199, "USA PATRIOT Improvement and Reauthorization Act of 2005"

Today signed into law H.R. 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005," and then S. 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006." The bills will help us continue to fight terrorism effectively and to combat the use of the illegal drug methamphetamine that is ruining too many lives.

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.

GEORGE W. BUSH
THE WHITE HOUSE,
March 9, 2006.

"Shall construe?" Who gives a fig how the president "construes" something he's about to sign? Surely not the U.S. Constitution. And most certainly the courts don't care. I've read a lot of Supreme Court cases where the "intent of Congress" in passing a bill was central to the case. But I have never heard of a case in which the "intent of the president" in signing a bill was given a scintilla of regard. Because it doesn't matter, constitutionally. If the court sees that a president signed a bill, rather than vetoing it, they consider it prima facie evidence of only one thing -- that the president intended to sign the bill into law. Not some of it; all of it.

(Besides, when it comes to "construing" the meaning of laws, isn't that the job of the third branch of government, the courts? Is Bush claiming that right now as well? Our newly self-minted Construer in Chief-Justice?)

Therefore, can any party of the first, second, third or millionth part, explain to me why a single member of Congress has yet to drag this White House into court over this clear and present attack on the Constitution's separation of powers?

After all, established law (stare decisis) is on the side of the angels in this matter. We've been here before, and not that long ago. The Supreme Court settled this matter with a clear and unambiguous decision in 1998. The court ruled against a law Congress passed that granted the president the power to pick and chose which budget items he would or would not enforce, the line-item veto. The court struck it down and told both Congress and the president that, if they wanted to rearrange the constitutional balances of power, the only constitutionally legal way is with a constitutional amendment.

Stephen Pizzo is the author of numerous books, including "Inside Job: The Looting of America's Savings and Loans," which was nominated for a Pulitzer.

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