Post-Gazette Editorial – 8/6/06

This page was last updated on August 7, 2006.

Signings of the times / An ABA task force warns of an abuse of power; Editorial; Pittsburgh Post-Gazette; August 6, 2006.

Below is a detailed critique of the subject editorial.

“The Bush administration talks a good game about ‘activist’ judges disobeying the law and the Constitution, but talk is all it is. Mr. Bush, with his presidential signing statements, repeatedly acts in a way ‘contrary to the rule of law and our constitutional system of separation of powers.’

“Those words are from a recent report by a task force of the American Bar Association on presidential signing statements, and although we apply them to Mr. Bush, the report is scrupulous about making them general.

“The task force, chosen to represent diverse views and backgrounds and composed of some of the nation’s leading legal minds ‘both conservative and liberal, Republican and Democrat,’ went out of its way to say: ‘Our recommendations are not intended to be, and should not be viewed as, an attack on the current president. His term will come to an end and he will be replaced by another president, who will, in turn, be succeeded by yet another.’”

[RWC] What am I bid for the Brooklyn Bridge?

“Indeed, that long-term caution underscores the risk to the American system of governance if the abuse of presidential signing statements is not addressed by Congress. Although presidential signing statements date back to President James Monroe and have picked up steam in recent years with presidents as different as Jimmy Carter, Ronald Reagan, George H.W. Bush and Bill Clinton, it is the current occupant of the White House who has caused the most concern.”

[RWC] Wow, what a shock – not!

“As the task force report concedes, ‘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.’ As revealed by the report, the scale of Mr. Bush’s behavior is staggering. ‘From the inception of the Republic until 2000, presidents produced fewer than 600 signing statements taking issue with the bills they signed ... in his one-and-a-half terms so far, President George Walker Bush ... has produced more than 800.’”

[RWC] This paragraph is an out and out lie intended to inflate the number of signing statements issued by President Bush. Regarding the number of signing statements, here’s the actual quote. “From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George W. Bush (Bush II) has produced more than 800.” We now know the PG paraphrases even when it uses quotes.

The key difference is the PG quote tells us President Bush issued more than 800 signing statements while the real quote refers to “challenges.” In truth, President Bush has issued about 130 signing statements covering about 800 challenges. In an editorial entitled “By the book” of July 4^th, the Beaver County Times employed the same stunt to inflate the number of signing statements.

“Time after time, the president has indicated he will not follow provisions of a law passed by Congress because of his own expansive theory concerning presidential powers. Among the many examples cited in the report are the McCain amendment forbidding U.S. officials to torture prisoners and a requirement that government scientists transmit their findings to Congress uncensored.”

[RWC] Signing statements do not say President Bush “will not follow provisions of a law passed by Congress.” For example, in reference to the McCain “amendment,” the Boston Globe quoted a senior administration official as saying, “Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it’s possible that they will.”

“It is, of course, Congress -- and by extension the American people who elect its members -- who are belittled by Mr. Bush acting like an unaccountable sovereign. But will Congress have the spine to assert its traditional prerogatives? Nothing in the Constitution approves of signing statements. As the report says, ‘The original intent of the framers was to require the president to either sign or veto a bill presented by Congress in its entirety.’”

[RWC] In general, I agree with the final sentence in the above paragraph. While the Constitution says nothing about signing statements, the Supreme Court has addressed and supported them.

In a memo prepared for the Clinton administration entitled “The Legal Significance Of Presidential Signing Statements,” Clinton appointee Asst. Attorney General Walter Dellinger concluded, “Many Presidents have used signing statements to make substantive legal, constitutional or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create ‘legislative history’ remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.” The memo also cited several Supreme Court rulings supporting signing statements.

“The report recommends that Congress enact laws that require the president to notify it about signing statements, justify his action in a report and also seek judicial review when constitutional questions arise. Although these recommendation [sic] must be approved by the bar association’s policy-making House of Delegates at its annual meeting next week, they should be heeded by all concerned now. In truth, activist judges are less of a problem than this activist president.”

[RWC] Did you note what was missing from this screed? Despite all the blather, the editorial didn’t provide one documented example of a law the Bush administration didn’t obey as the result of a signing statement. All we got were cherry picked excerpts from signing statements.