News & Politics

Congress Snivels While Bush Breaks Laws

Bush's propensity for wishy-washy 'signing statements' makes congressional legislation look disposable. Why aren't Congress members crying foul?
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.
"U.S. District Court Judge Thomas F. Hogan decided on February 12, 1998 that unilateral amendment or repeal of only parts of statutes violated the U.S. Constitution. This ruling was subsequently affirmed on June 25, 1998 by a 6-3 decision of the Supreme Court of the United States in the case Clinton v. City of New York." Justice Anthony M. Kennedy, in a concurrence of the opinion of the Court, objected to the argument that the Act did not violate principles of the separation of powers and threaten individual liberty, stating that the "undeniable effects" of the Act were to "enhance the President's power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another." (More)
Bush's signing statements are an even more egregious constitutional insult than the line-item veto. At least the line-item veto was granted to the president by Congress. This time Congress wasn't even asked. Bush simply claimed this power for himself. And so far, he's gotten away with it.

So, I ask again, why has no member of Congress filed suit? You would think that they would at least be offended. Besides being unconstitutional, Bush's signing statements are also condescending. They might as well be worded like this:
To: Congress
From: The President of the United States
To Whom it May Concern:
I have read your bill noted above and I signed it in front of the TV cameras surrounded by all you smiling jackals. Because I understand you need to show your constituents back home that you really are doing something up here after all.
But I didn't like some of the parts of the bill you gave me. Rather than embarrass you with a veto or -- God forbid! -- provide you with an opportunity to embarrass me with veto override, I will simply ignore the parts of this bill that I don't like.
So, for your records, here is my marked-up copy of your bill. For your convenience I drew a happy face :-) next to the sections I will enforce, and a frowny face :-( next to the sections I intend to ignore.
Now, y'all all have a nice day.
George W. Bush :-)
This administration has usurped plenty of congressional power over the last six years as well as chipping away at the third "co-equal" branch of government, the courts. But Bush's signing statements, which treat congressional legislation like boxes of See's candy, are the most blatant, obnoxious and dangerous coup of them all.
"These signing statements are to Bush and Cheney's presidency what steroids were to Arnold Schwarzenegger's bodybuilding. Like Schwarzenegger with his steroids, Bush does not deny using his signing statements; does not like talking about using them; and believes that they add muscle. But like steroids, signing statements ultimately lead to serious trouble." --John W. Dean, former White House Counsel under Nixon
Where's Congress today? Well, the Senate is voting on an amendment to the Constitution -- to protect us from the scourge of same-sex marriages.

Where are key Democrats?

Hey, Hillary, tell us if you will, which poses the greatest threat to the American way of life -- flag burning or presidential signing statements? Hmm?

Hello, members of Congress! Is anyone home? Did you all forget that the Supreme Court is just across the street? Hell, you could pitch a briefcase full of Bush's signing statements and hit the goddamn place. Shouldn't you be storming the steps of the Supreme Court, frothing at the mouth, lawyers in tow, demanding the court's immediate and urgent attention to this attack on the legislative branches' constitutional power?

Shouldn't you? After all, didn't each of you take the oath pledging to "obey and protect the U.S. Constitution"? Or did you have your own little signing statement tucked into your pocket when you took that oath? Maybe you signed later. You know, "just kidding." That's about the only thing that would explain it. I look forward more and more with each passing day to the first Tuesday of November. Because on that day I'm going into the voting booth loaded for bear -- incumbent bear. Shame on you. You are beneath contempt. All of you.
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.