George W. Bush, A Judiciary Of One
Signing the 21st Century Nanotechnology R & D Act, all the better to bug you.
Presidential Signing Statements
The Bush-Cheney White House is responsible for the birth of a new constitutional doctrine. He has elevated himself to
become a judiciary of one. . When the president signs legislation passed by Congress, he frequently adds his own signing statement stating those legislative provisions he intends to ignore based on his interpretation of the Constitution. This caused
the New York Times
to note, “President Bush doesn't bother with vetoes; he simply declares his intention not to enforce anything he
Through the magic of the president’s petulant pen, signing statements never mentioned in the Constitution, Bush has
ordered the torture of prisoners and spying on U.S. citizens without a warrant. Just have the boys in the back room
knock out one of those signing statements. It’s all good.
But this seems odd. We’ve never seen a creature quite like this before. As Common Sense Common Grounds poster Noonan
points out, the U.S. Constitution describes the division of federal powers in a fashion that even a sixth grader can
The following is from the American Barr Association’s Law Day curriculum for elementary school students.
Understand the concept of separation of powers.
Recognize how the Constitution provides for separation of powers.
Categorize public officials into one of three branches of government.
Apparently the current occupants of the White House were so clever they skipped the sixth grade. This was evidenced most
recently when Vice President Cheney tried to tell the House Government Oversight and Government Reform Committee that he
wasn’t a member of the executive branch. Which branch might you belong to, he was asked? Unfortunately Cheney backed
down without uttering what was probably on his mind, “The only one that counts, my branch you fools!”
The Limited Use of Signing Statements in the Past
It is not uncommon for a president to attach a signing statement to legislation outlining the importance and
significance of the act either to the public or government agencies. These are called rhetorical and political signing statements
. They don’t change or challenge laws passed. Broad based constitutional signing statements, uncommon in the past, are
now a very serious matter
. Essentially, the chief executive states that he will not enforce parts of legislation that he signs into law because
he thinks it is unconstitutional, a power not granted to the president.
Jennifer Van Bergen
cites James Madison’s most salient argument against this executive hubris:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Legal scholar, Neil Kinkopf
carries Madison’s analysis forward:
The assertion of a presidential power to refuse to enforce a law stands in deep tension with the constitution. As the
Supreme court has repeatedly recognized, the take care clause--which provides that the President "shall take care that the Laws be faithfully executed"--establishes that the
President does not hold the royal prerogative of a dispensing power, which is the power to dispense with or suspend the
execution of the laws. The take care clause, then, makes plain that the President is duty-bound to enforce all the laws, whether he agrees with them or not.
If a president feels compelled to issue a signing statement, it’s expected that he will proceed only when a dire
constitutional violation is involved He should attempt to get the sections he finds abjectly unconstitutional changed by
Congress and also take the matter to the Courts. President Clinton objected to a defense bill
requiring immediate discharge of military personnel with HIV AIDS. After the signing statement, he tried to reverse
this legislatively and took it to court. This was the rare exception, not the rule until 2001.
The Bush Signing Statements – Slouching Toward Tyranny
It’s no surprise that the two previous reigning champions of signing statements include former President’s Reagan and
George H.W. Bush. But their record is nothing compared to the 43rd president. He signs with a vengeance invoking broad
constitutional powers foreign to the executive branch. He is a self proclaimed judiciary of one.
Unless Bush thought this up on his own, it was some strange council that urged the frequent use of the aberrant
practice. Cheney, Gonzales, or Ted Olson, who knows? There’s a long list of suspects.
Despite having a Republican Congress for the first six years of his reign, Bush issued signing statements containing 1046 constitutional challenges
to the legislation that he’s signed. There are two common elements.
The first is petulance. If he wants to ignore any part of a bill that Congress passes, Bush simply issues a signing
statement and implements his subversive scheme. As Kinkopf said earlier, “… the President does not hold the royal
prerogative of a dispensing power … the power to dispense with or suspend the execution of the laws.”
The second element involves an Orwellian process of creating meaningless words that support the process. The key words
are unitary executive. Stripping away historical distortions, “the unitary executive
is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing
statements to quietly expand presidential authority.”
Legal scholar and former Reagan Justice Department official, Bruce Fein, testified before Congress and explained how the
process works. Fein pointed out that the Bush signing statement for the Detainee Treatment Act of 2005, which prohibited torture, lead to a 180 degree change in the law:
…unitary executive and Commander in Chief powers (used in the signing statement) clearly signify that President Bush is asserting that he
is constitutionally entitled to commit torture if he believes it would assist the gathering of foreign intelligence.
President Bush nullified a provision of statute that he had signed into law and which he was then obliged to faithfully
Bruce Fein, June 27, 2006
, Senate Committee on the Judiciary
Torture and White House protest courtesy of signing statements. War supporters in the background exercise their
constitutional rights by suggesting that the protesters wires be turned live. WikiMedia Commons
, Creative Commons
Perpetual Power Consolidated
Perpetual presidential power consolidated is the purpose of these statements. An historical interpretation
places the emergence of signing statements in the context of declining presidential power as a result of the Viet Nam
War and Watergate. In reaction to these events, chief executives, particularly the current Bush, tasked their Office of
Legal Counsel to find a way to accumulate more power for the executive branch.
While this effort has achieved spectacular results, I argue that the diminished presidential powers after Nixon were
more in line with the correct vision of the Constitution’s authors. Their skepticism regarding absolute power was based
on first hand experience with rule by a mad monarch plus strong historical evidence. The Parliamentarian victory in the
English Civil War brought the possibility of popular rule
to the British Isles. As good students of history, they were aware of how that promise was undone by the restoration of
monarchy, tyranny by definition, leading to the aggregation of power in the hands of one – the king.
The progress of the United States since the 1950’s is marred by one failure after another due to the delusions allowed
by solitary executive functioning. The net gains from the following executive actions are negligible, the losses
irredeemable: Viet Nam; massive civil rights violations related to voting, employment, and First Amendment freedoms; the
Iran-Contra affair; the several hundred military incursions in foreign lands; 1,000 U.S. military installations in over
60 countries; and the pervasive tragedy of Iraq.
These adventures concocted by presidential tyranny reflect more on the need to control the human lust for power than
they do on any rational policy. The costs are subtracted directly from progress made in science, commerce, and the
expansion of the creativity and benefits by a population willing to work, experiment, and achieve.
A Whimper Not a Bang
Former Nixon counsel and journalist John Dean discussed the Bush abuse of signing statements. He anticipated a strong
reaction from Congress:
In short, Bush's signing statements, which are now going over the top, are going to cause a reaction. It is inevitable.
If Republicans lose control of either the House or Senate - and perhaps even if they don't, if the subject is torture or
an egregious violation of civil liberties -- then the Bush/Cheney administration will wish it had not issued all those
signing statements. John Dean 1/13/06
Wishful thinking for a legislative body which somehow keeps forgetting these words from the Constitution: “The Congress
shall have the power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land
and Water.” (Article 1, Section 8, Clause 1)
The Republicans lost control of both the House and the Senate. But, alas, the reaction of Congress to the unitary executive and his scribbling is barely noticeable. Perhaps the next president will begin his term by attaching a simple note to
the first legislation he or she signs: “I will take care that the laws of the United States are faithfully executed.”
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