On President Bush's Signing Statements

July 19, 2006

By Martin Magnusson, Editor-at-Large
President Bush is often praised for his restraint in using his presidential veto power; every single bill that has come across his desk has been signed into law. That said, his presidency has also been marked by the large number of signing statements that he has issued - over 750. Signing statements are essentially an explanation of how the president intends to interpret and enforce new law. President Bush has used such signing statements to indicate his refusal to enforce specific provisions of congressional legislation pertaining to a broad range of concerns, including detainee torture, oversight provisions of the USA PATRIOT Act, and whistle blower protections.
This practice has troubled some constitutional scholars, who contend that it is violative of the system of checks and balances that ensures an even distribution of power between the branches of government. As John Dean has noted:

Generally, Bush's signing statements tend to be brief and very broad, and they seldom cite the authority on which the president is relying for his reading of the law. None has yet been tested in court. But they do appear to be bulking up the powers of the presidency.

In fact, President Bush's use of signing statements seems to function very much like a line item veto, which the Supreme Court examined in Clinton v. New York. In Clinton, the Supreme Court held that the Presentment Clause requires that the president either veto a bill in its entirety or sign it into law. President Bush's use of singing statements, though, obviates a choice between these two alternatives.
A new development in this story came in June, when the American Bar Association announced that it will assemble a task force to examine this presidential policy. The president of the ABA, Michael Greco, indicated that
The American Bar Association feels a very serious obligation to ensure that when there are legal issues that affect the American people, the ABA adopts a policy regarding such issues and then speaks out about it. In this instance, the president's practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches.

This task force will make its report and the ABA will then vote on whether to adopt the task force's findings. The task force roster includes a number of notable academics, including Harold Koh, Kathleen Sullivan, Stephen Salzburg and Charles Ogletree.
Skepticism of presidential signing statements, however, is far from universal. Ed Whelan, a former clerk to Justice Scalia), argues that
signing statements are an appropriate exercise of the President's constitutional duty to "take Care that the Laws be faithfully executed." Consistent with the President's oath of office to "preserve, protect, and defend the Constitution," that duty has long been understood to require that the President distinguish between those provisions of enacted law that are constitutional and those that aren't.

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