The Real Problem With Bush's Signing Statements

I don't have much time to write tonight, but I wanted to call your attention to an excellent post on the Bush administration's use of signing statements. The post, which is authored by eight former OLC attorneys, including blogger Marty Lederman, takes issue with the recent American Bar Association report condemning the use of presidential signing statements.

These former Justice Department attorneys argue persuasively that there are situations where it is proper for a president to sign a bill into law while refusing to enforce a particular provision he believes to be unconstitutional. They offer the example of an omnibus bill that contains thousands of unproblematic provisions--including important appropriations--but contains one or two clearly unconstitutional provisions. In such situations, a clearly-worded signing statement serves the interests of governmental transparency and facilitates judicial resolution of the issue.

The problem, therefore, is not with the concept of the signing statement, but with the substance of the signing statements the Bush administration has issued. It's one thing to refuse to enforce a provision that clearly violates, say, the equal protection clause. But it's quite another thing to refuse to abide by a provision based on an entirely novel and unsupportable constitutional theory.

The authors also point out that the signing statements issued by the Bush administration are extraordinarily unhelpful. They consist almost entirely of vague boilerplate language that provides no real guidance regarding what provisions the administration believes are unconstitutional and why. To someone reading these statements, it is not at all clear which provisions are being enforced and which aren't. This defeats the very purpose of issuing such a statement.

Long story short, I think Marty and his colleagues get this one exactly right. Their analysis is spot on.

The one observation I would add is this. Though the Bush administration has issued a remarkable number of these signing statements over the last six years, it failed to do so in the one instance where it would have been the most helpful. In October 2001, Bush signed the Patriot Act into law, a bill that significantly amended the Foreign Intelligence Surveillance Act. At the time, he remarked that the newly amended FISA "recognizes the realities and dangers posed by the modern terrorist" and he pledged that "these important new statutes will be enforced to the full."

Almost immediately after making this statement, however, President Bush authorized the NSA to operate outside of FISA. He did so based solely on John Yoo's novel assertion that FISA unconstitutionally infringed upon the President's inherent authority as Commander-in-Chief. But in this case, there was no signing statement issued. Not even a vaguely-worded reference to the powers of the "unitary executive." Bush clearly wanted the public and most of Congress to believe that FISA was in fact being "enforced to the full."