There’s an interesting new report [PDF] from the Congressional Research Service (leaked to the Federation of American Scientists’ Secrecy News) on presidential signing statements, a practice introduced by James Monroe and now used by George W. Bush to keep his fingers crossed while signing bills into law. CRS confirms the Boston Globe scoop that counted more than 700 examples of presidential pushback on specific legal provisions. But as the CRS points out, Bush’s objections seem to be less about constitutional principle than the (questionable) assertion of presidential preeminence:
… the large bulk of the signing statements the Bush II
Administration has issued to date do not apply particularized constitutional rationales
to specific scenarios, nor do they contain explicit, measurable refusals to enforce a
law. Instead, the statements make broad and largely hortatory assertions of executive
authority that make it effectively impossible to ascertain what factors, if any, might
lead to substantive constitutional or interpretive conflict in the implementation of an
act. The often vague nature of these constitutional challenges, coupled with the
pervasive manner in which they have been raised in numerous signing statements
could thus be interpreted as an attempt by the Administration to systematically object
to any perceived congressional encroachment, however slight, with the aim of inuring
the other branches of government and the public to the validity of such objections
and the attendant conception of presidential authority that will presumably follow
from sustained exposure and acquiescence to such claims of power.
Translation: Dubya issues signing statements because he can. It’s part of the big ol’ executive power play cooked up by Cheney, Addington, Yoo et al. And as today’s headlines make clear, in the absence of opposition, the power’s there for the taking.
The CRS report also contains a couple of tidbits that hint at how the Supreme Court might line up if this issue winds up there: Back when he worked for Reagan, Samuel Alito argued for signing statements’ “rightful place in the interpretation of legislation.” And in a 1991 decision, Antonin Scalia heartily affirmed the president’s “power to veto encroaching laws …or even to disregard them when they are unconstitutional.”
All of which raises a question that no one has answered to my satisfaction yet: If a president thinks a law is unconstitutional—or wants to puff out his chest at Congress—why not simply veto it? Or has Bush rendered the veto—like other bothersome checks and balances—obsolete?