In signing the National Defense Authorization Act for 2008 into law, President Bush issued a signing statement stating that he would not enforce four sections of the law, citing that they would “inhibit the president’s ability to carry out his constitutional obligations”. These sections were:
- Forbidding use of taxpayer money to build permanent military bases in Iraq
- Strengthening protections for whistle-blowers within government contractors
- Requiring intelligence agencies respond to Congressional requests for information within 45 days
- Establishment of a “Commission on Wartime Contracting in Iraq and Afghanistan” to investigate contractor wrong-doing
All four of these seem to me imminently reasonable — necessary even — things to put into law, and I find it outrageous that the President would refuse to execute them. But setting that aside, I’d like to look at the legality of this signing statement from a couple points of view.
First, some would argue that the division of war-related powers between Congress and the President are unclear, so it is within reason for the President to assert that these would unconstitutionally limit his powers. If you take that point of view however, the correct response would be for the President to either veto the bill, or sign it and challenge the sections he believes unconstitutional in court. Of course he won’t do this because he wants to sign the bill to get the bits he wants, and I suspect he refuses to take his challenge to court because he fears he would lose; I certainly believe he would, as the above provisions seem well within Congress’ funding and oversight powers to me. The President is essentially exercising powers reserved for the Supreme Court by making judgments on constitutionality, and it is this Congress’ responsibility to check him.
Second, some would argue that signing statements are an executive tool with a historical precedent, used when the President’s duty to the Constitution runs afoul of Congress’ wishes, and so it is reasonable for the President to use this tool. If you take this point of view however, then even as the President suspends execution of the law, I believe it is again his responsibility to immediately take his challenge to the courts to ensure he himself is acting constitutionally. Since he is not (again I believe for the same reasons stated above), then it falls to the Congress to check him.
Both arguments lead to one conclusion: when the Executive branch is actively avoiding legal rulings on policies being pursued (as they have repeatedly done — here, as well as in cases such as FISA), the only Constitutional recourse is impeachment, and I mean this is a very concrete legal sense, not an “impeach the bastard!” sense.
So to get back to the topic at hand, can anybody defend Bush refusing to execute sections of law that I believe most people would agree make sense, and supporting this refusal on very questionable legal grounds? I certainly can’t, and Congress should be ashamed for running out the clock rather than doing their job.