Just two hours before President Bush began his State of the Union address earlier this week, his administration quietly issued a statement indicating that four provisions in a defense bill might not be “consistent with the constitutional authority of the president.”
The president’s action revived a controversy over his use of so-called signing statements to express his reservations about a bill even as he signs it into law.
“Congress has a right to expect that the administration will faithfully implement all of the provisions of the [act], not just the ones he happens to agree with,” Armed Services Committee Chairman Carl Levin (D-Mich.) said Thursday on the Senate floor.
Bush is not the first president to issue signing statements, but controversy over them erupted two years ago when Democrats and some Republicans argued that he appeared to be using them to lay a paper trail to expand the powers of the presidency.
“There’s nothing wrong with signing statements,” said Martin Lederman, a professor of constitutional law at Georgetown University. “The problem is that signing statements indicate that the president does not feel bound to enforce statutes.”
Courts have not ruled on what kind of legal weight the statements may carry.
Bush used signing statements frequently in his first six years as president but, ironically, has been issuing them less frequently since Democrats took control of Congress last year.
Neil Kinkopf, a law professor at Georgia State University, said Bush issued just 11 signing statements in 2007, compared to 100 or more each of the previous six years.
One reason, he suggested, is that Bush has a new crop of legal advisors -- Washington veteran Fred F. Fielding as White House counsel and Michael B. Mukasey as attorney general.
But White House spokeswoman Dana Perino suggested it was because Democrats passed fewer significant bills than their Republican predecessors.
“Remember, 2007 was the do-nothing Congress,” she quipped.
In the case of Monday’s statement, Bush put his signature on the 2008 authorization bill that sets policy for the Department of Defense even as he expressed concerns with four provisions. Those measures would: prohibit the administration from establishing permanent bases in Iraq or controlling Iraqi oil resources, establish a congressional commission to review military contracts in Iraq, protect contractor whistle-blowers, and put a 45-day deadline on U.S. intelligence agencies to respond to information requests from Congress’ committees on intelligence and armed services.
“We don’t quite know what the administration intends with this sort of language,” said Sen. Jim Webb (D-Va.), who sponsored the provision on the contracting commission. “But I want all my colleagues to be aware of it and to be aware that it potentially is an impingement on the rights of this legislative body -- in effect saying that the president has the authority to ignore a law that is now passed, a law that he has now signed.”
Perino said that the administration has no intention of building permanent bases in Iraq or seizing control of the country’s oil resources but that Bush was upholding a constitutional principle. “The signing statement . . . merely protects the constitutional prerogatives of the president and preserves commander-in-chief authorities -- for this president and future presidents,” she said.
Legal scholars generally credit -- or blame, depending on their viewpoint -- the office of Vice President Dick Cheney for seeking to expand the constitutional powers of the president during Bush’s two terms in office. In interviews, Cheney has said that he was alarmed by the erosion of presidential authority he witnessed while serving as chief of staff for former President Ford after the Watergate scandal.
Law professor Lederman said he had thought that Cheney’s interest in expanding the powers of the president had been reined in by the White House’s new legal staff.
Bush’s action Monday suggests otherwise, he said: “This assertion of commander-in-chief authority to disregard statutes is the most important and increasingly prominent separation-of-powers issue in our nation -- and will continue to be for the foreseeable future.”