Controversy over executive signing statements

July 22, 2006

Yesterday, US News and World Report ran an article detailing efforts by the American Bar Association to challenge the use of ‘signing statements” by President Bush. Signing statements have been used by a number of presidents to articulate their interpretations of laws passed by Congress. President George W. Bush has employed these statements on over 100 occasions, often to contravene provisions of law that the executive branch objects to. A recent example dates from the re-authorization of the PATRIOT Act:

“Today, I have signed into law H.R. 3199, the “USA PATRIOT Improvement and Reauthorization Act of 2005,” and then S. 2271, the “USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006.” The bills will help us continue to fight terrorism effectively and to combat the use of the illegal drug methamphetamine that is ruining too many lives.

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.

The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.

GEORGE W. BUSH THE WHITE HOUSE, March 9, 2006.”

As noted in our March 12 post on PATRIOT Act revisions, the revised PATRIOT legislation mandated additional reporting about the use of PATRIOT surveillance powers. As witnessed in the statement above, by invoking the concept of the “unitary executive branch” (which holds that Congress shall not dictate how the executive branch shall execute duties that are exclusive to it), the President appears to be reserving the right to refuse to comply with portions of the revised Act.

Administration lawyers defend such actions by claiming that the executive branch is trying to preserve its authority from unwarranted incursions by the Congress. Critics who oppose the President’s broad use of signing statements hold that the President is hampering the ability of Congress to legislate in areas where it has Constitutional authority to act.

On June 27, 2006, Senate Judiciary Committee chairman Arlen Specter held hearings on the use of signing statements by the administration. Testimony from the hearing is here:

Find the President’s PATRIOT Act signing statement here:

Find the US News and World Report article on signing statements here.