Bush Administration's Adversarial Relationship with Congress -- as Illustrated by Its Refusal to Even Provide the Number of Signing Statements Issued

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The Bush Administration's Adversarial Relationship with Congress --
as Illustrated by Its Refusal to Even Provide the Number of Signing Statements Issued by President Bush
By JOHN W. DEAN

This summer, the Senate Judiciary Committee has held hearings on President Bush's uses and abuses of signing statements. Technically, these are statements by the President accompanying his signing of legislation. In this Administration, however, signing statements have been used as a dodgy practice of telling the Congress to go to hell.

Rather than vetoing bills, Bush issues vague statements to try to cut them off at the knees even as he purports to give them legs. These statements say, in essence, that he may or may not enforce this or that provision of a given law, depending on whether he thinks the provision is unconstitutional.

Given Bush's extraordinarily broad claim of Presidential power, he tends to deem any law that conflicts with his plans "unconstitutional." And despite the Supreme Court's recent Hamdan v. Rumsfeld decision clearly and sharply repudiating this view of his powers, Bush is likely to go right on doing so.

In truth, Bush himself does not have a clue about what he is doing, for this ploy is being guided by Vice President Cheney's office; I am told it is David Addington leading the way. Though carried out by Bush, it is best seen as another of Cheney's undertakings to enhance presidential power by neutering Congress. And it is working.

Bush's Use of Signing Statements Is Unprecedented and Unconstitutional

Bush's defenders have portrayed his actions with signing statements as standard operating procedure for all recent presidents. In particular, they have cited Presidents Reagan, George H.W. Bush, and Clinton's signing statement practices as precedents. But Bush's use of the signing statement is not only non-standard, it is egregious, and plainly itself unconstitutional.

The Constitution, and the president's oath of office swearing to uphold it, require a president to veto legislation he finds unconstitutional, and send it back to Congress so its members can correct the flaw. The system is simple and wise - and Bush is subverting it.

In over six years in office, Bush has not vetoed a single bill. Therefore, he has avoided the political costs those vetoes would have rightly entailed. Instead, Bush has issues a steady stream of signing statements claiming that the very bills he is signing have constitutional problems.

Bush's extraordinary and unconstitutional use of signing statements is making the laws enacted by the representatives of the people irrelevant. It is also making a mockery of due process: How can anyone have prior notice of what the law says, if so many laws come with a warning that the President may disregard some of their provisions?

These serious and fundamental issues are exactly what prompted the Senate to hold hearings.

Non-Government Witnesses Are Not Certain How Many Signing Statements Bush Has Issued; And the Executive Branch Refuses to Reveal the Number

Bush's number of signing statements is disproportionately large - exceeding the number issued by any president ever. But how large, exactly? Amazingly, the Administration will not say - though this was surely one of the facts the Judiciary Committee had hoped to learn from the Executive Branch.

Although unable to give precise numbers, Harvard law professor Charles Ogletree and former Reagan Administration associate deputy attorney general Bruce Fein found the evidence sufficient to express deep concern about Bush's use of these statements. Meanwhile, witnesses defending Bush - including Vanderbilt University law professor Christopher Yoo and Georgetown University law professor Nicholas Quinn Rosenkranz simply took the tack that regardless of how much Bush had used signing statements, it did not matter. Most striking of all, however, was the testimony of Bush Administration Office of Legal Counsel (OLC) Deputy Assistant Attorney General Michelle Boardman.

To begin, respect for the Committee would have suggested the Attorney General, the Deputy Attorney General, or the head of the Office of Legal Counsel should have attended. And the ranking minority member of the committee, Patrick Leahy, did not miss the insult.

But much more disturbing than the fact that it was a Deputy Assistant Attorney General who appeared, was what Boardman said, and did not say.

If anyone has the exact numbers of signing statements, or the resources and access to determine that number, it is OLC. And OLC is typically clear, authoritative, and to the point when it provides information. Yet not only did this Justice Department spokesperson not provide that information, she sought to make it as difficult as possible for the Committee to determine it accurately.

More stunningly, Boardman presented information to the Senate that appears to be false on its face. It is not clear if the misrepresentation was careless, or intentional.

A Questionable Catalog and Count of Bush's Signing Statements

Boardman's testimony described the presidential statements at issue as "constitutional signing statements." (She failed, however, to note the fact that the political scientists who developed this label, Christopher Kelly, also classifies signing statements as "rhetorical" and "political," and the criteria for each are less than definitive.)

Accordingly, she broadly cataloged the areas of constitutional concern that are purportedly addressed by Bush's "constitutional signing statements," and stated the Justice Department's count of the number of such statements Bush has signed in each area.

Boardman testified that bills that contain a "legislative veto" -- in violation of Article I, Section 7, regarding presentment and approval -- resulted in forty-seven signing statements. She testified that violations of Article II, Section 3, which gives the president discretion as to when to present legislative proposals to Congress, have resulted in sixty signing statements. And she testified that provisions that violate the appointments clause of Article II, Section 2, in which Congress has instructed the president whom to appoint have resulted in nineteen signing statements.

This is a total of 126 "constitutional" signing statements. But throughout her testimony, Boardman says the President has only issued "110 constitutional signing statements." Possibly, she counted some statements as violating two separate provisions, but since she did not clarify her counting method, that's unclear. But what is more important here than the gap between 110 and 126, is the gap between the count of 110 constitutional signing statements and the higher numbers other observers have counted (which I will detail below).

The President's Most Controversial Signing Statement Use Led to the Fuzziest Numbers

Unsurprisingly, the numbers got even fuzzier when Boardman got into the President's most controversial uses of signing statements - those purportedly justified by his control of national security information and foreign affairs.

Relying on the U.S. Supreme Court's ruling in Department of Navy v. Egan, the Justice Department suggests that classification of national security information is a constitutional function of the President, since the Court states in Egan that the President draws his authority to classify information from the Constitution. That's true - as far as it goes.

But the Court also acknowledges in Egan that this is an area where Congress has the predominant authority to act: While it notes that "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs," it recognizes that this rule yields when "Congress specifically has provided otherwise. "

Significantly, this is far from the only instance in which the Justice Department ignores the fact that Congress's authority trumps the President's in defending President Bush's signing statement practices. Even the Court's recent decision in Hamdan v. Rumsfeld - which made crystal clear, as well, that a president does not have unilateral and exclusive powers in all matters of national security - has not seemed to have made DOJ suitably abashed at these claims, judging by Boardman's testimony.

Nonetheless, Boardman reported that Bush has issued "constitutional signing statements" sixty-two times when he believed the provisions of a bill called for a disclosure information that he believed was contrary to national security. This, of course, brings the total, which she does not tally, to 188 signing statements -- seventy-eight more than her claim of a more modest 110. No explanation was given regarding this inconsistent information.

When Boardman finally turned to her last category, she stated that "President Bush has issued numerous [additional] signing statements involving foreign affairs and his powers as Commander in Chief … [which] has increased markedly since the September 11th attacks." Here, she offers no actual number whatsoever. It can only be concluded that the number is so great, the Administration prefers not to acknowledge it.

This Incident Is Part of a Larger Assault on Congress as An Institution

Though what meets the eye here is bad enough, more is going on here than meets the eye. The numbers-games here are only a small part of a larger effort to diminish the powers of Congress. Why attack a same-party Congress - one that has never been the slightest problem for Bush? Simple: This attack isn't an attack on this Congress. It is an attack on the institution itself, as it persists over time.

It is an attack, in other words, on the fundamentals of our three-branch system, by an Administration that seems to believe that, after 9/11, it would be more efficient to have but a single branch. But the Framers - who had seen times of war, too - did not agree, and their system of checks and balances has proved essential to freedom.

The fact that the Department only sent a third-level OLC official, when the Attorney General had been invited, was a clear slap at the Judiciary Committee. The Administration's message was plain: Butt out, you have no business investigating this matter, so we are going to give you a witness whom we may or may not back up. They also obviously hoped to stall and confuse the issue, and they succeeded: Boardman's testimony could not have been murkier.

"While the task of counting constitutional signing statements is inexact because of the difficulty of characterizing such statements," Boardman testified, "according to one study, President Reagan issues constitutional signing statements with respect to 71 laws, George H.W. Bush 146; [and] Clinton 105." For these numbers, she cited Christopher Kelly's 2003 study, A Comparative Look at the Constitutional Signing Statement.

It is ironic that Boardman chose to cite Kelly, for she comes out with very different counts as to past presidents than he does. And her claim that President Bush has issued only 110 constitutional signing statements, as of June 20 of this year, seriously conflicts with the report of the Boston Globe, which first drew public attention to this matter in April 2006, by quoting and, apparently, interviewing Kelly. The Globe found that Bush had issued signing statements relating to a shocking 750 different statutes.

Congress' Inability, or Unwillingness, to Exercise Meaningful Oversight

Judiciary Committee Chairman Arlen Specter is one of the few Republicans who has showed any interest in Congressional oversight of the Administration. Yet the White House has learned that they can largely stonewall him, and soon he will be on to other business. So, in effect, there is no real oversight of this presidency from the GOP- controlled Congress. This is another example, and the list is long, of Republicans refusing to question their President.

Congressional Democrats have never been willing to totally forego oversight, as Democratic Presidents John Kennedy, Lyndon Johnson and Bill Clinton learned. We must all hope that, if and when Democrats regard control of Congress, and if and when a Democrat is in the Oval Office, Congressional Democrats will still see their role as much more as that of a mere extension of the presidency. This is not how the system was designed to work.

As for signing statements, hopefully when the American Bar Association's special study on this problem is issued - and it is inconceivable that they will not find it a serious problem - the Congress may, at last, find its spine.

John W. Dean, a FindLaw columnist, is a former counsel to the President.