Sliming Statements:
How to Pour Goo on the Constitution??

January 11, 2006

Comment #547
Correction to #547

Discussion Thread - Comment# 545

Attached References:

[Ref.1] "Unchecked Abuse," Washington Post [Editorial], January 11, 2006; A20

Separate Attachments:

[Atch. 1] Gary L. Galemore (Analyst in American National Government Government and Finance Division), The Presidential Veto and Congressional Procedure,? Congressional Research Service, Report #98-156 GOV, Updated January 29, 2001

[Atch 2] Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel
Using Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law, February 5, 1986


On July 9, 2005 President Bush, facing a mutiny among his supporters in Congress, threatened to veto legislation sponsored by Senator McCain that would ban the torture of prisoners held by US troops in the so-called "war on terror." His Republican troops in Congress, nevertheless, ignored his threat and Congress overwhelmingly passed McCain's legislation last month. Instead of making good on his threat, the President signed it in a White House ceremony in December, but he also issued a "signing statement" that said he would interpret the new law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." [see Ref 1 below] ... A signing statement? I just re-read the Constitution and could not find any reference to signing statements. The constitutional limitations of judicial power? Since, Mr. Bush has taken an oath to faithfully execute the duly enacted laws of the United States (i.e., those passed by Congress and signed by the President and, under the precedent first established in Marbury vs. Madison, interpreted constitutionally by the Judiciary), why go to the trouble of issuing a weird statement that relates to interpreting executive powers in the context of the limitations of the Judicial branch of government? I would think his oath to faithfully execute laws would render such strange verbiage completely unnecessary.

All this begs a general question: What is going on in the hall of mirrors that is Versailles on the Potomac?

Discussion

If the President doesn't like a bill, the traditional view is that he can and should veto it. That is certainly what the Framers of the Constitution intended when they assigned the veto power to President in their carefully crafted system of checks and balances.

The Constitution (Art. I, Sec. 7, Par. 2) has this to say about passing laws in relation to the veto procedure:

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."

By requiring the president to explain his "Objection" [capitalization in the original] to bills he has vetoed, the language of the Constitution clearly requires that he issue what might be called a "not-signing statement." But this language does not require him to explain his reasons for signing a bill, nor does it call for a Presidential interpretation of the meaning of the legislation as part of a condition of his approval of that legislation or in terms that might be construed as precedent setting. While it should be noted that this language does not prohibit the President from issuing such statements, the 9th and 10th Amendments to the Constitution clearly prohibit the President, Congress, or the Judiciary from acquiring powers or infringing on individual rights not enumerated in the Constitution. So the President cannot claim an omission in Constitution's language legitimates his assertion of constitutionally-granted power having legal standing.

One thing is very clear in the language and from precedent: The president's power to veto proposed legislation is one of the Constitution's most awesome checks on the legislative power of Congress. This power is evident in the fact that the Constitution requires a 2/3 majority in each house of Congress to override his veto. The awesomeness of this power is reflected by in the fact that only 106, or 7.2%, of the 1,484 regular vetoes by all the Presidents from the beginning of George Washington's first term in 1789 have been overridden by Congress (according to analysis of veto power and the statistics compiled by the Congressional Research Service or CRS see Attachment 1 ).

The table below recapitulates all 1,484 formal vetoes compiled by CRS (please see Mr. Spinney's correction for a discussion of these data).

:

 

It is strange that Mr. Bush is one of only 8 presidents who have never chosen to exercise this power, even more so in that he is the only one not to have done so in the modern era after 1900. Yet Mr. Bush must be surely ranked as one of the most divisive and controversial Presidents in history. His abdication of this constitutionally authorized power is made even more bizarre by the fact that Mr. Bush is clearly one of the most extreme proponents of presidential power in American history. All this begs the question: Why has he never formally vetoed a bill, particularly in view of the fact that he has threatened to veto a bill on several occasions?

The simple answer may be that he simply does not think a veto is necessary because he believes he has the power to interpret the law at its enactment in any way that serves to justify his executive actions and set legal precedence. Such a belief requires us to delve into the murky world of "signing statements" and the novel question of presidential intent in legal precedents concerning the enactment or execution of the laws.

While presidents often make public statements when signing bills, formal signing statements spelling out how the President intends to interpret the intent of Congress in the execution of the law he is agreeing to were extremely rare until the mid-1980s of the Reagan Administration. The Reaganauts were exploring ways to mitigate the requirements of duly enacted legislation they did not agree with. In a Feb 5, 1986 draft memo to the Litigation Strategy Working Group, Samuel A. Alito, then deputy assistant attorney general in the Office of Legal Counsel, posited a rationale for having the president routinely issue statements about the meaning of statutes when he signs them into law. [see Attachment  2] Alito wrote -

"The novelty of the proposal previously discussed by this Group is the suggestion that Presidential signing statements be used to address questions of interpretation. Under the Constitution, a bill becomes law only when passed by both houses of Congress and signed by the President (or enacted over his veto). Since the President's approval is just as important as that of the House or Senate, it seems to follow that the President's understanding of the bill should be just as important as that of Congress. Yet in interpreting statutes, both courts and litigants (including lawyers in the Executive branch) invariably speak of "legislative" or "congressional" intent. Rarely if ever do courts or litigants inquire into the President's intent." [emphasis added]

In Reference 1 below, the editors of the Washington Post give us an example of how the language of the signing statement can be used under Alito's admittedly novel theory of precedence setting finding statements. The editors of the Post point to the assertion by the president's lawyers that his wartime powers allow the him to ignore statutes passed by Congress. I urge readers to study this editorial, because it presents a portrait of this kind of reasoning in action. If the editors' contention is substantially true, they are describing a mindset that goes far to explain why a President who takes a reckless, almost bully-like, pride in his unfettered power (remember his boast "Bring em on" with respect to the Iraqi insurgents), doesn't feel the need to exert his clear Constitutional power of the veto even though he disagrees with the legislative intent of Congress.

If the analysis by the editors of the Post is substantially correct, I submit that a better name for this kind of signing statement is SLIMING statement, because it pours sewage into the Constitution by creating executive power where none exists and increases the quasi-legalistic slime now now covering up the slippery slope of growing executive power at the expense of an accumulating breakdown of checks and balances. This breakdown allowed us to slip off the cliff in Iraq [see Comment #545) and, more generally, to slip into a deepening abyss of authoritarianism where the will of people as reflected by their representatives in Congress no longer matters.

Recommendation

There may be a simple solution to Sliming Statements: Congress should pass a law that prohibits the issuance of signing statements of Presidential intent and requiring the President to veto proposed legislation he does not want to execute, in accordance with the clear language of the Constitution. At the very least, we the people could be entertained by the freak-show logic of his signing statement if he signs a bill he hates into law.

Chuck Spinney

"A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives." James Madison, from a letter to W.T. Barry, August 4, 1822

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Reference 1

Unchecked Abuse

Washington Post [Editorial]
Wednesday, January 11, 2006; A20
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/AR2006011001536.html?nav=rss_print/editorialpages

His national security adviser, Stephen J. Hadley, said that "the legislative agreement that we've worked out with Senator McCain" makes the ban on cruel, inhuman and degrading treatment "a matter of law that applies worldwide, at home and abroad."

Having publicly accepted the ban on cruel, inhuman or degrading treatment, Mr. Bush is planning to ignore it whenever he chooses. As a practical matter, there may be no change in the operations of the CIA's secret prisons, where detainees have been subjected to such practices as painful shackling, mock execution, induced hypothermia and "waterboarding," or simulated drowning.

Without aggressive monitoring and possibly further action by Congress, illegal abuse of foreign prisoners in the custody of the United States is likely to continue.