We Don't Need a New King George
How can the President interpret the law as if it didn't apply to him?
January 23, 2006
A somewhat legal law is a little like a somewhat pregnant woman. At first blush, it seems like an absurdity. But President Bush disagrees. In the past five years, quietly but systematically, he has been arguing that the law doesn't always apply to him. How has he done this? By attaching "signing statements" that spell out his own attitude to bills he signs.
Previous presidents have sporadically issued signing statements, but seldom and mainly as boilerplate or spin. Until the 1980s, there had been just over a dozen in two centuries. The president's basic legislative weapon, after all, is the veto power given him by the founders. He can use the power as leverage to affect legislation or kill it. But he cannot legislate himself or interpret the law counter to Congress's intent. Signing statements were therefore relatively rare instances of presidential nuance or push-back. In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105.
In five years, President Bush has already challenged up to 500 provisions, according to one tallyfar, far more than any predecessor. But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive.
Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That's how our democracy works, right?
Not according to this president. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.
He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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."
Translation: If the president believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."
And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "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." That is, of course, a very strange ideawhich is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the president's view is utterly irrelevant. Alito seemed to concede that at the time, recognizing the "novelty of the procedure and the potential increase of presidential power."
Alito, of course, didn't foresee the war on terrorism. But put a war president's power together with the new use of signing statements, and Executive clout has been put on steroids. "If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived," argued Senator Lindsey Graham, a Republican from South Carolina.
As Graham shows, this isn't a Republican-Democrat issue. It's a very basic one. A president, Democrat or Republican, has every right to act unilaterally at times to defend the country.
But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It's disturbing to think we may now be quietly installing a second one.
Copyright 2006, Time, Inc., New York, NY
From: Time Magazine, January 23, 2006, p. 74. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.