Bob Barr

Bush's Signing Statements Are a Real Danger

Roll Call

July 18, 2006

Late in June, the chairman of the Senate Judiciary Committee, Pennsylvania’s Arlen Specter (R), presided over a hearing about presidential signing statements. This might seem an obscure issue, of little importance in Americans’ daily lives. However, presidential signing statements go to the very heart of our country’s system of checks and balances.

Throughout history, signing statements have been used to thank supporters, provide reasons for signing a bill or express satisfaction or displeasure with legislation passed by Congress. More recently, Presidents Ronald Reagan, George H.W. Bush and Bill Clinton have used signing statements to express constitutional and other objections to legislation, influence judicial interpretation and otherwise advance policy goals.

But the current president, George W. Bush, has further transformed the use of the presidential signing statement. On numerous occasions, he has used this mechanism to challenge or deny effect to legislation that he considers unconstitutional, but nonetheless signs. This is where we begin to tread into uncharted — and, I believe, constitutionally dangerous — territory.

Since 2001, Bush has objected on constitutional grounds to more than 500 provisions in more than 100 pieces of legislation, a number that approaches the 575 constitutional statements issued by all of his predecessors combined.

One scholar has identified 82 instances in which Bush has disputed a bill’s constitutionality on the basis that Article II of the Constitution does not allow Congress to interfere with the president’s “power to supervise the unitary executive”; 77 instances in which he has claimed that, as president, he has “exclusive power over foreign affairs”; and 48 instances in which he has claimed “authority to determine and impose national security classifications and withhold information.”

In a democracy, such assertions of power do not happen in a vacuum. They affect the careful balance of power in our system of government. The executive branch is not free to unilaterally change that balance; our Constitution requires legislative and judicial involvement to ensure public debate and oversight and to guard against centralization of power.

Article I of the Constitution gives Congress the power to make the laws. Under Article II, the president has the duty to take care that the laws be faithfully executed. The Constitution also says that if the president objects to a law, he should veto it. This gives Congress the chance to override his veto, enacting the law despite the president’s opposition or to sustain the veto and work to address the president’s objections. This system drives an ongoing negotiation between the two political branches.

In his nearly six years in office, Bush has not vetoed a single bill. Instead, he has signed bills into law and then issued signing statements that declare he will not give them, or a provision of them, effect. In doing this, the president is cutting off the negotiation and usurping the power of Congress. He effectively is vetoing the law without giving Congress the opportunity to override his veto or address his concerns, as required by the Constitution.

Unfortunately, Congress has been complicit in this “power grab.” Congress repeatedly has acquiesced to Bush’s unilateral actions. It has failed in its constitutional obligation to make the laws and to oversee the White House’s actions to make sure it is implementing those laws and doing so lawfully and constitutionally.

For all these reasons, I have joined many colleagues across the political spectrum in forming the Constitution Project’s bipartisan Coalition to Defend Checks and Balances. We just issued a statement urging the president to immediately abandon these inappropriate uses of presidential signing statements, and to publicly announce and explain his intention not to comply with any statute or treaty. We also urge Congress to make unmistakably clear the link between a president’s inappropriate use of signing statements and the costs of doing so — and then to follow through with specific actions to restore our checks and balances.

The separation of powers is not a mere “technicality.” It is the centerpiece of our Constitution, guarding us from the possibility of a monarchy (or worse). This balance must be restored.

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.