More on Presidential Signing Statements

From today's New York Times:

Editorial
Veto? Who Needs a Veto?

Published: May 5, 2006
One of the abiding curiosities of the Bush administration is that after more than five years in office, the president has yet to issue a veto. No one since Thomas Jefferson has stayed in the White House this long without rejecting a single act of Congress. Some people attribute this to the Republicans' control of the House and the Senate, and others to Mr. Bush's reluctance to expend political capital on anything but tax cuts for the wealthy and the war in Iraq. Now, thanks to a recent article in The Boston Globe, we have a better answer.

President Bush doesn't bother with vetoes; he simply declares his intention not to enforce anything he dislikes. Charlie Savage at The Globe reported recently that Mr. Bush had issued more than 750 "presidential signing statements" declaring he wouldn't do what the laws required. Perhaps the most infamous was the one in which he stated that he did not really feel bound by the Congressional ban on the torture of prisoners.

In this area, as in so many others, Mr. Bush has decided not to take the open, forthright constitutional path. He signed some of the laws in question with great fanfare, then quietly registered his intention to ignore them. He placed his imperial vision of the presidency over the will of America's elected lawmakers. And as usual, the Republican majority in Congress simply looked the other way.

Many of the signing statements reject efforts to curb Mr. Bush's out-of-control sense of his powers in combating terrorism. In March, after frequent pious declarations of his commitment to protecting civil liberties, Mr. Bush issued a signing statement that said he would not obey a new law requiring the Justice Department to report on how the F.B.I. is using the Patriot Act to search homes and secretly seize papers if he decided that such reporting could impair national security or executive branch operations.

In another case, the president said he would not instruct the military to follow a law barring it from storing illegally obtained intelligence about Americans. Now we know, of course, that Mr. Bush had already authorized the National Security Agency, which is run by the Pentagon, to violate the law by eavesdropping on Americans' conversations and reading Americans' e-mail without getting warrants.

We know from this sort of bitter experience that the president is not simply expressing philosophical reservations about how a particular law may affect the war on terror. The signing statements are not even all about national security. Mr. Bush is not willing to enforce a law protecting employees of nuclear-related agencies if they report misdeeds to Congress. In another case, he said he would not turn over scientific information "uncensored and without delay" when Congress needed it. (Remember the altered environmental reports?)

Mr. Bush also demurred from following a law forbidding the Defense Department to censor the legal advice of military lawyers. (Remember the ones who objected to the torture-is-legal policy?) Instead, his signing statement said military lawyers are bound to agree with political appointees at the Justice Department and the Pentagon.

The founding fathers never conceived of anything like a signing statement. The idea was cooked up by Edwin Meese III, when he was the attorney general for Ronald Reagan, to expand presidential powers. He was helped by a young lawyer who was a true believer in the unitary presidency, a euphemism for an autocratic executive branch that ignores Congress and the courts. Unhappily, that lawyer, Samuel Alito Jr., is now on the Supreme Court.

Since the Reagan era, other presidents have issued signing statements to explain how they interpreted a law for the purpose of enforcing it, or to register narrow constitutional concerns. But none have done it as profligately as Mr. Bush. (His father issued about 232 in four years, and Bill Clinton 140 in eight years.) And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.

Like many of Mr. Bush's other imperial excesses, this one serves no legitimate purpose. Congress is run by a solid and iron-fisted Republican majority. And there is actually a system for the president to object to a law: he vetoes it, and Congress then has a chance to override the veto with a two-thirds majority.

That process was good enough for 42 other presidents. But it has the disadvantage of leaving the chief executive bound by his oath of office to abide by the result. This president seems determined not to play by any rules other than the ones of his own making. And that includes the Constitution.