Saturday, October 11, 2008

Bush's 'Signing Statement' Is Not US Law

By Roger Alexander

India has now ‘operationalised’ the 123 Agreement with the US despite the US Congress HR 7081 or  the US-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act. The new US domestic legislation has put an end to the Government of India’s spin that the 123 Agreement does not trump the provisions of the Hyde Act as far as American obligations are concerned. This has been done by explicitly inserting rules of construction stating that nothing in the Agreement should be construed to supersede the legal requirements of the Hyde Act.

India’s Ambassador to the US Ronen Sen curtly brushed aside pointed questions saying that India was “completely satisfied” by President Bush’s ‘Signing Statement’. A ‘Signing Statement’ is a written comment issued by a President at the time of signing legislation. Often, signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs etc.

The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3).

In one frequently used phrase, George W. Bush has routinely asserted that he would not act contrary to the constitutional provisions that direct the president to “supervise the unitary executive branch.”  This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George HW Bush. Basically, George W Bush asserts that Congress cannot pass a law that undercuts the constitutionally granted authorities of the President. 

John W. Dean, a FindLaw columnist, argues that Bush has used signing statements like ‘line item vetoes.’ Yet the US Supreme Court held the line item vetoes are unconstitutional. In 1998, in Clinton v New York, the High Court said a president had to veto an entire law: Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like.

The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. That Clause says that after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it" - that is, veto the bill, in its entirety - if he does not.

Following the Court's logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill - not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill. Yet that is exactly what Bush has been doing over the past eight years. The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part. The powers of foot-dragging and resistance-by-signing-statement are not mentioned in the US Constitution alongside the veto, after all.

Anyway, Bush remains in the White House for three more months before he retires to Crawford on January 20, 2009. And by incorporating an explicit reference to Bush’s letter — as well as other “authoritative representations” on the subject by the administration — Congress has given its interpretations a definite legislative status, which will live well beyond the life of the current presidency. The next President may well choose to ignore Bush’s personal interpretation of the Berman Law. And that is what is going to remain of the statute books.


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