Monday, August 14, 2006

Signing statements: Have they had any effect on law enforcement?

The NPR show Fresh Air this evening had an interview with Boston Globe reporter Charlie Savage, revisiting his April, 2006, article about president Bush's unprecedented use of signing statements. You can listen to that segment of the show on I was waiting for the interviewer to ask what effect the signing statements have had on federal law enforcement. But he didn't, and so I'm left still wondering whether these statements matter or not.

Bush's signing statements are clearly another way he has attempted to greatly expand the powers of the president, and another aspect of his administration's 'unitary executive' theory, which holds that the president's powers as head of the executive branch and as commander in chief of the armed forces cannot be limited by Congress, and that the president has the authority to judge the constitutionality of laws passed by Congress. In effect, some argue, Bush's signing statements are like a line-item veto that cannot be overturned by Congress nor reviewed by the courts.

Well, maybe... I certainly don't like the signing statements, and believe the 'unitary executive' theory as it's been construed by this administration is a grave threat to the constitution. What the statements can and cannot do need to be clearly defined by Congress and the courts. But can anyone point out an example of where a federal agency has not enforced a law passed by Congress because of a signing statement? And if any agency did that, couldn't they be sued for not enforcing the law, thereby bringing the signing statement (and perhaps the whole principle of signing statements) before the courts?

Without any examples of the detrimental effects of these statements, they seem pernicious more for the principle they embody than for any real force they have in law.


Rob said...

I would respectfully point out there is more than a constitutional principle at stake. The Bush Administration is utilizing signing statements to disregard congress's will about the treatment of detainees.

One historical item that comes to mind stems from the Nixon Administration. Nixon created OSHA and congress appropriated money to fund it. Nixon then proceeded to impound those funds required for the agency to operate and lawfully appropriated by congress. I'm not certain if there was a signing statement involved though.

Ambivalent_Maybe said...

I think the treatment of detainees (and the whole category of 'detainee' in the first place) was justified primarily by a presidential order. The signing statement appended to the more recent McCain legislation has, as far as I know, yet to be shown to have had any real effect. That is, no one has yet been caught disregarding the statue, and defending their actions by pointing to the signing statement.

I don't know anything about Nixon and OSHA, but I'm not surprised his administration came up; Nixon provides the model (and his administration many of the key personnel) for Bush's attempt at an imperial presidency.

christian_left said...

You raise a good point: it would be interesting to know if the signing statements have affected concrete actions. But you set a high bar when you look for publicly known cases of specific litigation. I would worry also about the more subtle and longer-term effects. It is quite likely that some laws are being less aggressively enforced (if not perhaps flagrantly violated) in the wake of signing statements. Or that such statements are shaping the perceptions of enforcement officials.

Moreover, the legacy of a signing statement could be in the more distant future. As people gradually become accustomed to them, they may became accepted as a political reality over time. The whole idea must be vigorously opposed now, from the beginning, so as to deny signing statements the veneer of respectability that seems to come with longevity. In other words, we cannot allow it to become an accepted custom. It would be nice to get a test case to throw out the whole idea once and for all as unconstitutional.

Tom said...


Wow! I am impressed - you are on to something!