The Senate is holding hearings this week on President Bush’s practice of attaching presidential signing statements to legislation he signs into law:
Sen. John McCain thought he had a deal when President Bush, faced with a veto-proof margin in Congress, agreed to sign a bill banning the torture of detainees.
Not quite.
While Bush signed the new law, he also quietly approved another document: a signing statement reserving his right to ignore the law. McCain was furious, and so were other lawmakers. …
Rather than give Congress the opportunity to override a veto with a two-thirds majority in each house, he has issued hundreds of signing statements invoking his right to interpret the law on everything from whistleblower protections to how Congress oversees the USA Patriot Act.
“It means that the administration does not feel bound to enforce many new laws which Congress has passed,” said David Golove, a law professor at New York University who specializes in executive power issues. “This raises profound rule of law concerns. Do we have a functioning code of federal laws?”
Signing statements don’t carry the force of law, and other presidents have issued them for administrative reasons — such as instructing an agency how to put a certain law into effect.
There are multiple issues at work here; Congress often passes the buck to the executive branch to flesh out the details of implementing laws, particularly in cases where legislators are too divided to come up with specific guidance–hence the explosive growth of the Federal Register in the post-World War II era.
On the other hand, as the president’s critics point out, he has the opportunity to veto legislation that he believes infringes on the independence of the executive branch; indeed, if Bush believes that a proposed law is unconstitutional, his obligation to uphold the Constitution would suggest he must veto it, rather than leaving it to the courts to eventually decide.
Update: Ed Brayton at Positive Liberty has more extensive thoughts on this matter, along with some quotes from conservative constitutional law scholar Bruce Fein that underscore the dubious legal and constitutional status of portions of Bush’s statements.
