Sunday, April 2, 2006 

President Bush signed the “USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006” into law. In the signing statement, Bush averred that he could withhold information about the administration’s controversial use of Foreign Intelligence Surveillance Act powers and National Security Letters if he deemed that they impaired foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties. Lawmakers and Legal experts have questioned the president’s authority to contravene the Congress’s intent in such a way.

The Patriot Act reauthorisation bill specifically mandates the Inspector General of the Department of Justice to audit the administration’s use of investigative authority granted by the Foreign Intelligence Surveillance Act and National Security Letters and requires these audits to be submitted for congressional review.

In the signing statement, President Bush wrote “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.”

This follows on the heels of the signing of the congressional ban on torture issued in January of this year, when the President declared that he would view the interrogation limits in the context of his broader powers to protect national security. A senior white house official told a Boston Globe reporter that “Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case.” The official added “We are not expecting that those two responsibilities will come into conflict, but it’s possible that they will.”

Lawmakers tried to get a handle on President Bush’s use of signing statements in 2003, by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.

Sen. Lindsey Graham, (R-S.C.) voiced concern over the way national security is being used as a catch all phrase in this and a number of other signing statements, saying “If you take this to its logical conclusion, because during war the commander in chief has an obligation to protect us, any statute on the books could be summarily waived,”

David Golove, a New York University law professor who specializes in executive power issues, said “On the one hand, they deny that Congress even has the authority to pass laws on these subjects like torture and eavesdropping, and in addition to that, they say that Congress is not even entitled to get information about anything to do with the war on terrorism.”

Sen Arlen Specter, (R-Pa) chairman of the Senate Judiciary Committee argued “He (Bush) can say whatever he likes, I don’t know if that has a whole lot of impact on the statute. Statutes are traditionally a matter of congressional intent,”

Sen Patrick J. Leahy, (D-Ver) said in a prepared statement: “The president’s signing statements are not the law, and Congress should not allow them to be the last word, The president’s constitutional duty is to faithfully execute the laws as written by the Congress, not cherry-pick the laws he decides he wants to follow. It is our duty to ensure, by means of congressional oversight, that he does so.

The signing statement is a written proclamation, issued by the president of the United Sates that accompany the signing of a law passed by the legislative branch and generally sets forth how the executive branch intends to interpret and enforce the new law.

The use of signing statements started with the US’s fifth President James Monroe (1817-1825) and from that time was used sparingly. In fact from Monroe to Jimmy Carter (39 th President 1977-1981) there were a total of a 109 signing statements issued, 75 of which were to protect presidential prerogatives and 34 were to instruct the executive branch agencies on the interpretation of sections of the law. Whereas from the Reagan administration through the Clinton administration there were a total of 396 signing statements made with 322 to protect presidential prerogative and 74 to instruct on presidential interpretation of the law. Following along this sharp increase the Bush administration issued 435 statements almost entirely objecting to encroachments upon presidential prerogatives.

The key argument involved here is in the interpretation of the constitution. The Bush administration is acting from on an idea called the Unitary Executive theory – you may have noticed it is mentioned twice in his signing statement – this theory holds that all three branches of the federal government have the power and duty to interpret the Constitution and that the meaning of the Constitution is determined through the dynamic interaction of all three branches.

This idea gained strength during the Reagan administration as a response to the presidency having been severely weakened by Vietnam and, Watergate and is mainly championed by the “Federalist Society,” a group of conservative lawyers who nearly all worked in the Nixon, Ford, and Reagan white houses. It largely claims its authority from two sources within the Constitution—the “Oath” and “Take Care” clauses of Article II. The “Oath” requirement acts as a sort of shield, protecting the president from enforcing things he independently determines are unconstitutional, and the “Oath” clause directs the president to “faithfully execute the Office of the President and [to] preserve, protect, and defend the Constitution of the United States.”

Acting on this theory, then deputy assistant attorney general in the Office of Legal Counsel Samuel Alito wrote a draft memo On a Feb. 5, 1986 outlined a strategy for strengthening presidential authority. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law. He explained his thoughts this way:

“Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” He later added that “by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.”

Phillip Cooper, a professor of public administration at Portland State University states his objection to this; “It’s nothing short of breath-taking. In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and preempted the judiciary.

The office of legal consul under President Clinton declared: “If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.”