Savaging Signing Statements
By Aaron Goldstein (10/06/07)
Charlie Savage came to national prominence this year for his series of articles he wrote on presidential signing statements. These articles would earn Savage, the Washington correspondent for The Boston Globe, a Pulitzer Prize.
They have also inspired a book called Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. In Takeover, Savage focuses not only on signing statements but on what he perceives as the secretive nature of the Bush Administration and the increasing concentration of power inside the White House. Bush and, to an even greater extent, Vice President Dick Cheney are presented as advocates of a President with inherent powers who need not consult Congress nor anyone else about anything.
It would be easy to dismiss Savage as simply another in the long line of authors who have made a fortune writing screeds skewering the Bush Administration. Takeover has received praise from conservatives such as syndicated columnist George Will, Norman Ornstein of the American Enterprise Institute and Mickey Edwards, a former GOP Congressman who also served as President of the American Conservative Union.
Savage does indeed raise legitimate concerns that warrant our attention and scrutiny. Why should the proceedings of Cheney’s energy task force be kept secret any more than the proceedings of Hillary Clinton’s task force on health care? Should President Bush have withdrawn from the ABM Treaty without consulting the Senate? Can the President ignore the specific wishes of Congress? Does the President have powers not stated in the Constitution? If the President does indeed have these powers and can use them does it mean he should use them? Nevertheless, I believe Savage overstates his case when he characterizes expanding presidential power under the Bush-Cheney Administration as an “immutable part of U.S. history.”
If you have read this far you might very well wonder: What the heck are signing statements? According to Christopher Kelley, an Assistant Professor of Political Science at Miami University of Ohio, who is one of the few who have studied signing statements, they are “nothing more than a statement appended to a bill the president has just signed into law.” Contrary to popular belief, signing statements did not begin with the Bush Administration nor will they end with it. Signing statements have been around since James Madison although they have come into greater use over the past 25 to 30 years beginning with the Reagan Administration.
Given that Reagan generally had to deal with a Democratic Congress, Attorney General Ed Meese wanted the President’s views on particular pieces of legislation in the Congressional record as a means of providing the White House perspective in the administration and interpretation of law and, if necessary, to be utilized in arguing cases before various Federal Courts and the Supreme Court. The Meese Justice Department was instrumental in giving the signing statement greater prominence. Indeed, a young Samuel Alito would play a role in this and his work on signing statements would be brought up at his confirmation hearings to the Supreme Court. Signing statements give the President the opportunity to make it known that certain provisions of law need not be observed if he deems them to encroach on Presidential authority as set out in the Constitution. It gives the President a means of curbing the excesses of Congressional law without having to veto it. The signing statement and its use would be expanded in the first Bush Administration, in the Clinton Administration and now with the second Bush Administration.
It is worth noting that Savage cites Kelley in Takeover for his work on signing statements and quotes him concerning the current Bush Administration’s use of them. “What we haven’t seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House. That is what is staggering. The numbers are well out of the norm from any previous administration,” said Kelley. However, in Kelley’s paper titled, “Who’s at Fault Here? The Bush Administration, Presidential Power, and the Signing Statement” he asks, “So is the administration doing anything different than previous administrations? The answer, aside from the numerous challenges the administration has made to provisions of law, is an emphatic no! The administration is fairly conventional in how it uses the signing statement.” (http://ssrn.com/abstract=976235).
While Kelley believes the Bush’s prolific use of signing statements could set bad precedents for future Presidents he argues that much of the fault for this state of affairs lies with Congress. For most of Bush’s time in the Oval Office there has been a Republican Congress in both chambers that behaved, in Kelley’s words, as “an inferior executive branch department” Kelley argues that Congress should be vigorous in defending its own prerogatives if it finds Presidential signing statements objectionable. He then goes on to list a variety of means Congress can keep a signing statement happy President in check such as cutting off appropriations, the use of existing law, protecting congressional watchdogs and just plain old fashioned persistence. So much for signing statements being an “immutable part of U.S. history.”
Given the incongruence between what Savage selectively quoted from Kelley in Takeover and what Kelley has actually written in his academic work, I knew I had to query one Charlie Savage. I did so during his recent appearance at the Ford Hall Forum in the Old South Meeting House in Boston. When I pointed out that Kelley believes President Bush’s use of the signing statement has been conventional he demurred. While praising Kelley’s academic work, Savage argued the Bush Administration has used the signing statement with more “aggression” than his predecessors. Savage cited the McCain Torture Amendment to the Pentagon Authorization Bill. “Congress passes a law that says we will not torture. Bush says, “I will torture if I want to,” said Savage.
Prior to querying Savage, I had an opportunity to correspond with Professor Kelley. I asked Kelley if signing statements free the President from obeying the law and, in effect, place him above the law as Savage argues in his book. Kelley replied, “It is simply wrong to say that the president can refuse enforcement of whatever he wants, which is often made. These signing statements always couch the challenge inside a specific constitutional power. You may disagree with the interpretation, but it is much different from saying that there is no rhyme or reason behind them. And a president may claim to refuse enforcement, but there is a larger political process at work that will decide whether his claim sticks.”
With this in mind, I then asked Savage if he thought there was a difference between declining to enforce certain provisions of law and disobeying them altogether. Savage replied that he did not believe so and cited the Government Accountability Office study that assessed sixteen provisions in law that Bush had challenged with signing statements. The study concluded that six of those provisions had been disobeyed. In Takeover, when referring to the study, he cited a law requiring the Border Patrol to move its checkpoints near Tucson every seven days. The President issued a signing statement that only he was constitutionally authorized to deploy law enforcement officers. Savage writes, “The border patrol had gone on to disobey the law, explaining to the GAO that it was only “advisory.” Yet when one examines the text of the GAO Report to the Senate Appropriations Committee, the GAO hastens to point out on page nine of the report, “Although we found agencies did not execute the provisions as enacted, we cannot conclude that agency noncompliance was the result of the President’s signing statements.” ( http://appropriations.senate.gove//News/2007_06_18_Text_of_GAO_Opinion_on_White_House_Signing_Statements.pdf ) Perhaps Savage’s writing should only be taken in an advisory manner.
As for Professor Kelley, he is bittersweet concerning his place in Charlie Savage’s work. “This has been a double edged sword for me,” Kelley wrote to me in an e-mail, “It has been great to have your arcane research project recognized in such a public way, but it also means that others get to append meanings to it that are not correct. And I am certain that the meaning of ‘Bush is the only one to use the signing statement’ is one of those meanings.”
During his talk, Savage mentioned he had only been in Washington since 2003 and thus has only covered the Bush Administration. He also mentioned that signing statements “are not a partisan issue.” Still, it remains to be seen whether Savage will be as dogged in his investigations should a Democrat be elected to the White House in 2008. Should that happen and if Savage writes another book equally critical of Hillary Clinton or Barack Obama and their use of the signing statement then one could argue that Savage is at least being consistent, if not necessarily accurate in his assessment of signing statements and presidential power. However, if he is not as vigorous when Democrats in charge on 1600 Pennsylvania Avenue, it will once again confirm the inherent liberal biases of the mainstream media. His work will be little more than yet another effort to get the Bush Administration for the sake of getting the Bush Administration.
There are legitimate concerns about signing statements and Presidential power and Savage is right to raise them. However, things are not always what they seem. A presidential signing statement does not end all further discussion. Just because the President makes his objections known it does not mean those objections are carried out. Indeed, if we cite the GAO report, President Bush’s objections were not carried out in most of the signing statements they studied. If the President can assert power then why not Congress? Although Presidents are want to expand their powers does it mean a future President will abide by the signing statement of a current President? These are questions that Charlie Savage never raises. He might be more familiar with signing statements than most of us but that doesn’t mean he read the fine print.
(Printer friendly version) Email: Aaron Goldstein
