I recently read the article by Philip Cooper from Presidential Studies Quarterly that was mentioned in the Washington Post last week. As I have noted in previous posts, presidential signing statements have been used by the Bush administration to reinterpret legislation passed by Congress. Such statements are also favored by Supreme Court nominee Samuel Alito, who considers the executive’s statement of its understanding of the meaning of a statute as important as the legislative history–a remarkable claim, as I noted previously. In combination with some of Alito’s other views related to the “unitary executive” thesis, support of signing statements constitutes a theory of executive-legislative relations that is postively Latin American.
In light of the looming vote in the Senate on Alito, Cooper’s research on signing statements could not be more timely or important. From the conclusion to the article:
Presidential signing statements … can and have been used as line-item vetoes of legislation presented to the president for signature or veto but without the use of the formal veto or the opportunity for legislative override processes.
It is this unilateral aspect of signing statements that I find so troubling. Their use amounts to an informal amendment to the constitution, absent any controls. A real line-item veto, or various amendatory veto provisions found in some Latin American constitutions and those of several US states, always give the legislature an opportunity to respond and override. These formal provisions often sharply restrict the legislature’s realistic options for response, and it is that increment to executive lawmaking authority that I dislike, on principle (and based on my own research on comparative presidentialism). But at least the provisions found in some constitutions are explicit and provide a mechanism for legislative response. An interpretation of the US constitution that allows for signing statements to function as de facto line-item veotes is troubling precisely because it is stands on ambiguous constitutional logic and because the use of these statements is unregulated by congress.
In the body of the article, Cooper notes that the current administration has used signing statements far more expansively than past administrations, both quantitatively and qualitatively. Signing statements by Bush have been much more numerous, but as Cooper notes, the numbers can be misleading. What it more important is the scope of authority being asserted by the president. On the matter of the nature of Bush’s statements, Cooper notes:
they are not alone assertions of executive authority, but also often dramatic declaratory judgments holding acts of Congress unconstitutional and purporting to interpret not only Article II presidential powers but those of the legislature under Article I. [emphasis mine]
On the argument that this administration is so fond of for justifying the alleged indispensibility of its actions–we are at war:
the administration has not constrained its assertions as the years have passed since 9/11, but has, on the contrary, expanded them both internationally and domestically, even in the face of judicial rulings that make clear that the existence of the war on terror does not justify any action the president considers expedient to advance the conflict and in light of the fact that the Supreme Court has already rejected the line-item veto.
Cooper notes that the statements have been “heavily laced with ideology,” specifically the “untary executive” thesis, and that they have even included assertions that the executive will interpret as advisory provisions of statutes that are clearly intended, from their language, to be mandatory. Examples here include some provisions of the Help America Vote act and requirements for the provision of information to the Comptroller General (the independent agency established by Congress decades ago as a watchdog over the executive–this all makes me wonder if Federalist Society members like Alito think the very existence of the Comptroller General is unconstitutional).
The full citation to this important academic article is:
Philip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements. “Presidential Studies Quarterly, Volume 35, Issue 3, September 2005.