More on Signing Statements

Controversy over George W. Bush's use of signing statements

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There is an ongoing controversy concerning the extensive use of signing statements to modify the meaning of laws by President George W. Bush. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers".[1]
George W. Bush's use of signing statements is controversial, both for the number of times employed (estimated at over 750 opinions) and for the apparent attempt to nullify legal restrictions on his actions through claims made in the statements. Some opponents have said that he in effect uses signing statements as a line-item veto although the Supreme Court already held the one line item veto bill as an unconstitutional delegation of power in Clinton v. City of New York.[9]

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Previous administrations had made use of signing statements to dispute the validity of a new law or its individual components. George H. W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush's 130 signing statements contain at least 750 challenges.[6] [10] In the words of a New York Times commentary:
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.[11]
The signing statement with the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody attracted controversy:
The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.
This statement specifically refers to a unitary executive theory, under which the President asserts broad authority to use his independent judgment to interpret and apply the law. The President has with the signing statement to the McCain Detainee Amendment reserved his authority to challenge parts of the law passed by Congress.[12]

Blue ribbon panel on signing statements
On July 24, 2006, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, appointed by ABA President Michael S. Greco, issued a widely publicized report condemning some uses of signing statements. The task force report and recommendations were unanimously approved by ABA delegates at their August 2006 meeting.[1]

The bipartisan and independent blue ribbon panel was chaired by Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He is past chair of the ABA Criminal Justice Section, chair of the ABA Task Force on Domestic Surveillance and the ABA Task Force on Treatment of Enemy Combatants; and president-elect of the American Judicature Society.

The report stated in part:

Among those unanimous recommendations, the Task Force voted to:

1. oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;

2. urge the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;

3. urge the President to confine any signing statements to his views regarding the meaning, purpose, and significance of bills, and to use his veto power if he believes that all or part of a bill is unconstitutional;

4. urge Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements, and to report to Congress the reasons and legal basis for any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, and to make all such submissions be available in a publicly accessible database.