by Matt Barr

Presidential signing statements II: So that's why he hasn't been vetoing stuff

Part I
Part II
Part III

An American Bar Association task force has a report out condemning the overuse of Presidential signing statements, those "interpretations" of new laws the President issues upon signing the bills, indicating how and whether he intends to enforce certain provisions. In one sense this is interesting as a matter of constitutional structure, in another sense it's troubling (the ABA having a great deal of clout) for the war on terror, and in another sense it's really overblown. We're considering each issue, starting with the interesting constitutional issues in the last post, and continuing now with the current President and the war on terror.

The ABA report makes it a point to emphasize that its findings are not "an attack on the current President," while owning up to the fact that "it was the number and nature of the current President's signing statements which generated the formation of this Task Force and compelled our recommendations." Ah, the number and nature.

The report credits Ronald Reagan with the first use of signing statements as a way to influence policy and public opinion. By way of one example, an immigration bill had provided that a "brief, casual and imminent absence" of a deportable alien from the U.S. would not terminate the required "continuous physical presence" required for legalized status. Reagan signed the bill and announced that deportable aliens would have to apply with the INS before any such absence, deftly thwarting the leniency intended.

(The AP dispatch by Gina Holland on the report goes so far as to implicate Mr. Justice Alito as Reagan's co-conspirator: Reagan's use of statements "as a strategic weapon" was "encouraged by then-administration lawyer Samuel Alito -- now the newest Supreme Court justice." That's a lot of attention to give to a footnote, number 32 in the ABA report, which says that Alito "wrote a memorandum while in the Office of Legal Counsel in 1986 counseling some modest experimentation with signing statements construing 'ambiguous' statutory terms but recommended avoiding interpretive conflicts with Congress where the meaning of the law was clear." Po-tay-to, po-tah-to.)

Reagan's administration arranged to have signing statements included in West's reports along with traditional legislative history in its publications, and succeeded in getting them cited in several Supreme Court cases, which had been unheard of.

President George H.W. Bush took the idea and ran with it, issuing 232 signing statements compared to 71 during Reagan's two-term tenure. In one particularly stark example, Bush took a piece of civil rights legislation intending to overrule a Supreme Court interpretation of a law and said his understanding in signing the bill was that the case was codified, not overruled. President Clinton used signing statements less often than Bush but more than Reagan.

Enter President George W. Bush, who has issued more than 800 signing statements, more than all other Presidents combined. Many such Bush statements are boilerplate, containing no citation to authority or reasoning, such as: the President will construe a law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as commander in chief consistent with the constitutional limitations on the judicial power," which was repeated in 82 signing statements during Bush's first term.

It would be dishonest to cloak this completely in the war on terror: While many of the signing statements touch national security and military issues, the thrust seems to be to protect and advance the theory of the "unitary executive," a discussion of which is beyond the scope of this post. It is not inaccurate, suffice it to say, that the point seems to be "to strengthen the powers of the office of President and make it answerable to no other branch and especially those pesky PEOPLE," provided you can scale down that last bit a little.

This really isn't as scary as it sounds: There are constitutional checks and balances that can't be avoided, and as we've been discussing, whether or not a signing statement actually avoids a constitutional responsibility or effects one is an open question.

But that said, it's the war on terror that provides the best argument for the efficacy (for that is what we're now discussing) of signing statements. If ever you don't want to waste time dithering over this or that provision of a bill, you just want the law in place so you can do your business, it's in wartime. In other words it would arguably hamstring the war effort to veto bills containing provisions of dubious constitutionality and wait, possibly in vain, for Congress to pass a law completely squaring with your sense of the constitution. Should Nixon have vetoed a military authorization bill in 1971 because it included a date for troop withdrawal? You might answer yes, but acknowledge that you might reasonably answer no.

Further, it is generally accepted even by the most progressive of observers that the responsibility and authority to ensure national security and to wage war (once authorized by Congress) rests with the President. We're generally not talking about minutae in civil rights laws or closing consular offices, here.

It is in this context that an ABA Task Force report -- reasonably enough urging the President to better communicate his objections during the legislating phase and to veto bills that aren't up to snuff -- that will foreseeably and inevitably be spun as a scathing attack on Bush administration Nazis becomes problematic.

But you needn't have this or that opinion on the terror war to see the real issue. Many critics of President Bush's use of signing statements seem to believe there should be no discretion in whether and how to enforce laws. This is unworkable and, as it happens, doesn't reflect reality.

Return with us to the thrilling days of yesteryear (i.e., last week) when Dahlia Lithwick wrote in Slate complaining that the Justice Department was arresting and prosecuting people by rote, without considering the totality of the circumstances:

The most dangerous aspect of these new terror arrests isn't that the government nabbed super-nice guys. These plotters hate this country and want to harm it. The danger is that there is no nuance, no caution, and no shade of gray in this new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what's on his mind.... The law works best when it's used as a scalpel, not an ax.

Quite so. Prosecutorial discretion is a concept as old as our tradition of law, for a very good reason:

The exercise of this discretion is vital to the proper execution of enforcement duties because the entire process of enforcing laws promulgated in the public interest involves balancing the interests of society against those interests of individuals who may threaten its well being through wrongful conduct.

Unfortunately, prosecutorial discretion defies precise definition or application. There is no specific formula to apply in every situation. Rather, the proper exercise of discretion requires flexibility to balance competing interests.

No one will seriously argue that the President enforcing a provision of law this or that way or not at all is really an exercise of prosecutorial discretion, but the idea behind prosecutorial discretion is that we recognize laws aren't one size fits all. The executive is vested with the responsibility to apply the law to circumstances. And again, you can argue that 800-plus signing statements go beyond that and that there's something else going on, but I don't think you can successfully argue that the President is expected to do exactly as Congress says in every instance. (For one thing, chicks dig nuance, caution, and shades of gray.)

None of this is to mention the obvious: If Congress were always clear when they wrote laws, we wouldn't need courts in the first place. We do because they're not.

Once you're on board with the fact that enforcement isn't a matter of pulling a string and letting go and watching the executive branch waddle around, but rather involves the sound exercise of judgment on the part of the executive, you have to deal with the executive's decisions on how things get done. In the next post, we'll talk about why once you start doing that you come to the conclusion that this whole "signing statement" kerfuffle probably isn't as important as it seems. Part III

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