Latest Signing Statement Flouts Reason and Law

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.

31 Responses to “Latest Signing Statement Flouts Reason and Law”

  1. Steve Says:

    I can defend it on two points.

    1) Might makes right.

    The President has seized these powers and Congress has not objected. Are we living in a fantasy land where should matters more than IS? The law is only meaningful in relation to what is prosecuted and what is allowed.

    2) Speed is of the essence.

    Politicians are tired of how long it takes to process ideas into actions in this country. They want their ideas implemented faster than it takes to move Congress into action. Prompting Congress to move by either changing public opinion or expensive lobbying campaigns is tedious if you can avoid it.

    Republicans like a lawless executive because they’re currently in charge. Democrats want a lawless executive because they believe they will soon be in charge.

  2. shcb Says:

    I’ve always thought the line item veto would fix this.

  3. ymatt Says:

    Steve, you’re definitely right on both points, although I’d call those motives not defenses. Because they’re able to get away with it, they are motivated to get things done quickly while they can. Your point about Congress not wanting to limit the President ahead of likely having a Democrat in office soon is something I honestly hadn’t considered, and am fairly disgusted by though. I hope (not that I have any reason to believe this will happen, honestly) that the first thing President Obama does is establish precedent-setting limits on his own power.

    shcb, you’re right, although as much as the line-item veto sounds like a great idea, I think in the end it would be just formalizing the same problems we’re seeing with an “unofficial” line-item veto via signing statements. It would be nice to think that a President with that power would use it to trim pork from otherwise reasonable bills, but you certainly don’t see the current one giving that much attention.

  4. shcb Says:


    You are right and it would only solve part of the problem. If a president felt, correctly or incorrectly, that congress was overstepping its bounds he would just ignore the law like presidents did before signing statements were so common. Line item veto would however, allow congress to exercise a veto override. As is, that portion of the bill the president ignores is sent to a state of limbo. It would also make loading up bills with nonsense less productive. All good things. But in the end it is up to all parties to stay within their assigned boundaries more or less on an honor basis.

  5. ymatt Says:

    Good point about the override, I hadn’t thought of that. That in fact makes it a much better option than signing statements since there’s direct recourse.

  6. shcb Says:

    And if the people through the democratic process haven’t given congress the required votes the veto sticks. All as it was originally designed.

  7. ymatt Says:

    It makes a lot of sense.

    What’s your opinion of this signing statement though — both the use of a signing statement at all, and the choice to “nullify” these particular portions of the bill?

  8. knarlyknight Says:

    good discussion, i almost fear i’ll pollute it with my 2 bits, which is:

    Regarding Bush’s SS to nullify “Forbidding use of taxpayer money to build permanent military bases in Iraq “, he could hardly let that bit of fantastical wishful thinking proceed given the reality of what’s currently being spent on these bases now.

    For example,

    So let’s focus, … and gather together a little basic information you’re otherwise not likely to find in one place. …the Pentagon has invested billions… As a start, it constructed one of its largest foreign bases anywhere on the planet about 80 kilometers north of Baghdad. Balad Air Base has been described by Newsweek as a “15-square-mile mini-city of thousands of trailers and vehicle depots,” whose air fields handle 27,500 takeoffs and landings every month.

    …it is said to handle congestion similar to that of Chicago’s O’Hare…
    … is “the busiest aerial port” in the global domains of the Department of Defense.

    It is also simply massive, housing about 40,000 military personnel, private contractors …, . It has its own bus routes, fast-food restaurants, sidewalks, and two PXs that are the size of K-Marts. It also has its own neighborhoods including, reported the Washington Post’s Thomas Ricks, “KBR-land” for civilian contractors and “CJSOTF” (Combined Joint Special Operations Task Force), “home to a special operations unit [that] is hidden by especially high walls.”

    … To the tune of billions of dollars, Balad’s runways and other facilities have been, and continue to be, upgraded for years of further wear…

    … [T]he sounds of construction and the hum of generators seem to follow visitors everywhere. Seen from the sky at night, the base resembles Las Vegas: While the surrounding Iraqi villages get about 10 hours of electricity a day, the lights never go out at Balad Air Base.”

    PS. the rest of the article is also a good bit of reporting of little known items, although somewhat off topic from this thread:

  9. shcb Says:

    I’m late for work, and have a busy day, I’ll get back to you guys this evening. this one is going to require some thought.

  10. shcb Says:

    I’ll give you my gut feelings, if I were pres and had the line item veto I may change my mind before this evening.

    1) Forbidding use of taxpayer money to build permanent military bases in Iraq (Veto, permanent bases are quite possibly needed)

    2) Strengthening protections for whistle-blowers within government contractors (at face value, sign, need to see details)

    3) Requiring intelligence agencies respond to Congressional requests for information within 45 days (veto)

    4) Establishment of a “Commission on Wartime Contracting in Iraq and Afghanistan” to investigate contractor wrong-doing (sign)

    You can start thinking about your responses this way.

  11. ymatt Says:

    Glad you disagree with the President on 2 and 4 — I think those may be the most clearly shameful for him to ignore, and I’d be curious why you think he’s done so.

    Number 1, well, I’m not surprised and I won’t argue it.

    Number 3, what’s your objection? To clarify what the bill says, it requires that “any existing intelligence assessment, report, estimate or legal opinion” be turned over within 45 days, unless the White House formally rejects the request in writing citing executive privilege. So it isn’t that the Congress requires total access to information, which would be outside its Constitutional role I believe, they just require expedient access to existing reports (not actual intelligence) without formal rejection from the President. This seems well within Congress’ oversight role, and doesn’t seem to violate national security or restrict the President other than to force him to formalize his decisions such that they can be challenged (similar to our agreement that a line-item veto would be preferable to signing statements). Given this, do you still object?

  12. Steve Says:

    The real lesson here is that we need better Democrats. Time to get rid of more than just Lieberman. Anyone standing in the way of impeachment is complicit in the degradation of our country.

  13. shcb Says:

    Personal note first, we found out today my youngest daughter is valedictorian of her senior class. Certainly doesn’t get her smarts from her pop.

    I’m going to address the first point even though you don’t contest it because it has a lot to with the other three points. A law forbidding taxpayer money to build permanent bases in Iraq is just silly on many levels. It is demagoguery on stilts and political grandstanding by Democrats to appease anti war types that base their decisions on emotions rather than logic. This war is going to go on way past this presidential term. Permanent bases in the area very likely may be needed. Why would you hinder future presidents with a law like this. Sure we can fly long range mission our of places like Diego Garcia but this isn’t a war that is going to be won with dropping bombs.

    Strategic importance aside, my biggest problem with this is one of governance. Iraq is a sovereign country, we defeated it and turned it back to it’s people almost immediately. Establishing permanent bases there requires treaties. Treaties are handled by the Senate and the President, not the House (article 2 section 2) passing a law requires the House’s input, making passing a law in this matter inappropriate. This isn’t just my opinion, John Jay goes into it at length in Federalist 64, most of the paper is on this subject, I really can’t pick out a line or two and put it in block quotes. The House’s only oversight powers here are to defund the bases if they are built. Much thought was put into excluding a transitory body elected by uninformed voters from having a say in matters as important as treaties.

    2) I would need to see what protections whistle blowers have now and what the new provisions were. I would also insist on protecting the rights of the corporations. Just not enough information here.

    3) This ties into point 1 above, your arguments seem reasonable at face value, but there is a separation of powers, and there is national security. This bunch of Democrats and the press, namely the New York Times haven’t shown much maturity in this area. There are committees in both the Senate and the House that have oversight powers and are privy to the reports you are suggesting I believe, they are a small group that can be watched closely and have been selected because presumably they can keep their mouths shut. And what will be gained if the President just cites executive privilege all the time? Seems congress will get less information than they do now. Again I think this is just grandstanding, nothing will be gained and something may be lost.

    4) Why do I think Bush opposes a contractor wrong doing commission?

    a) he has something to hide
    b) he knows it will be a witch hunt
    c) congress already has the power to investigate

    I would say he feels c) 80% b) 15% a) 5%

    I don’t know if I answered everything, it’s been a long day, I certainly am not ducking anything here, let me know if I missed something.

  14. shcb Says:

    Something that just occurred to me regarding 4c, the GAO is a part of congress, not the executive branch, isn’t it their mission in life to investigate this type of thing? Why would they need I new law to investigate government contracts?

  15. Steve Says:

    Why does it matter? The law passed. The president signed it.

    We have altered our constitution in the past 8 years because we have allowed the president to break the law.

    Why do people support lawbreaking by the president? It’s the ultimate anti-American position.

  16. knarlyknight Says:

    It’s easier, emotionally, for people outside the USA to stop pretending that there is still an effective international set of political structures that establish a moral conduct among nations, because living under that misconception causes one to live in a near constant state of outrage over shat “is happening” as opposed to what “should have happened.”

    Far easier, emotionally, is to face the fact that the USA no longer resembles a Republic except in a ritualistic ceremonial sense, and is operating more like an Empire now, with a heavy handed aristocratic Commander who oversees hundreds (nearly a 1000?) formiddable military bases around most of the globe which can be used at will to support corporate interests, and thus America can “create reality” as they wish now. Work with that paradigm and life is smooth, try to resist and fight for “what’s right”, truth or justice and you will face the wrath of all the people with RWA mentality who seemed to predominate in public dialogues.

    that is why I support R0nPau1 and perhaps Barrack Obama, they represent real change from the a growing …evil (for lack of a better word.)

  17. NorthernLite Says:

    I think I know the answer to that.

    They support it for pure, partisan, ideological reasons. They are so ferociously consumed with not agreeing with the “other side” that they completely ignore fact and reason. For them, it’s all about loyalty to a particular person or a particular party, instead of loyalty to their country. Never mind what’s best for the country or for the world, if the “other guy” is against it, then it must be right, no matter what.

  18. TeacherVet Says:

    NL, that statement is at least equally valid when applied to the American left. O’Reilly, Limbaugh or Hannity couldn’t have said it any better.

  19. NorthernLite Says:

    And he posts a pure, partisan, ideological response. Too funny.

  20. shcb Says:

    So none of you read anything I wrote did you? Steve sees no responsibility in congress sending bills to the president that are clearly out of the scope of their powers, Knarly thinks we are moving from a republic to a dictatorship, yet the path these sections of this bill would move us would be from a republic to a democracy, removing any power the president enjoys from the constitution (until a liberal is elected) and then joins NL on some canned blather about corporate evil right wing evil Bush, Cheney, Rice, Rush, RWA, Mother Theresa, baseball, Chevrolet…. It’s just all evil , terrible, terrible, terrible. Sorry for the rant but this is so God Damn frustrating sometimes.

  21. ymatt Says:

    Steve’s point is valid in pointing out how ridiculous these signing statements that have to legal basis are. I’d still like to respond to your arguments about the particular items that the President isn’t enforcing, but I feel like I need to read the bill in more detail first.

  22. shcb Says:


    I agree, but the only solutions I can see is for congress to only send bills to the president that don’t infringe on his rights, institute the line item veto, or only include one item on a bill (my personal favorite). I am under no illusion any of these will ever happen. I agree with Steve’s point, I just wish he would apply some of the blame to congress as well.

    I’ll be fair here, when this subject came up in the you and 08 debates I read quite a few of Bush’s signing statements, not all, but quite a few. What I found disturbing was that most of them were things like “I am signing this bill into law that will make Jellystone park a safe place for Bubu”. This kind a made me angry at you guys for making such a big deal out of such a small thing. Then I realized this is just a typical politician’s trick. Sign hundreds of meaningless pieces of paper to disguise the five or six that have meaning. I didn’t look at past presidents but I’m sure they all do it. Don’t make it right though.

    I did read the signing statement on the bill in question, it is pretty much boilerplate. I think Bush just doesn’t care to explain himself anymore. I can’t blame him really, I think he really went to Washington thinking if you’re nice to your opponents they will be nice to you, they haven’t been.

  23. shcb Says:

    I appreciate you reading the bill so we can have a rational discussion, I haven’t read it either. The problem with legislation like this is there are usually two parts, the actual part that affects people’s lives and the part that affects politicians getting reelected. I despise that aspect as much as the signing statements. Vote on the bill and then run on your record, why is that so hard for these guys? That was a rhetorical question.

  24. knarlyknight Says:

    in ref. to your exasperated post: ~you guys didn’t read anything I’d written did you??~ …to the contrary, I’ve read everything you’ve written on this thread and what you’ve said makes a lot of sense, I only have minor quibbles not worth mentioning, except possibly for the part about bush going to washington thinking if you’re nice to your opponents they will be nice to you, as that my friend is complete total BS. Bush’s alliance with Rove and the tactics used in his rise to power have been anything but nice, and no-way was Bush Jr., with pappy Bush as Mr. CIA underworld expert extraordinaire as one of many mentors, possibly in any way anywhere the LEAST bit naive as you suggest.

    To the contrary, he puts on a good ‘ol boy cowpoke act (and I like that persona, truly he can present himself as charming and salt of the earth) but he can be ruthless to his opponents, (and there have been ample rumours from whitehouse staff that he can be a brutally verbally abusive boss). Examples? Kerry swiftboated – dya think maybe he could have played nice and pulled back on those dogs? Any person especially scientists who dared to suggest global warming is an extremly relevant issue, Joe Wilson, but .. these may not be very good examples, perhaps others here can help me out?

    All in all though shcb, I’ve been impressed to witness perhaps for the first time that I’ve seen a relatively balanced line of comments from you. Now if only I can get you to view 911 with a balanced mind too. (that was a bit of a joke and a bit of a rhetorical statement.) Cheers.

  25. shcb Says:

    Those couple days were kind of a roller coaster for me personally, we all have ’em. What I was referring to in that Bush thought he could make nice with the opponent is this. You are right he is no stranger to rough and tumble politics but where he comes from, Texas, there are traditionally two types of people in politics, moderately conservative Democrats and WAY conservative Republicans. Am I right Matt? So you can get Dems and Repubs to agree on at least a few things.

    So he went to Washington thinking, he actually said this at the beginning of his term, that he could get both sides to work together in passing legislation in a bipartisan manner. He thought that he could talk to Democrats and get them to not attach junk to bills and he wouldn’t have to make signing statements to nullify them, that they could all act like adults. He had Ted Kennedy write the education bill, invited him and the entire Kennedy clan over for dinner and a viewing of JFK, but in the end it was politics as usual in Washington, because it’s all the town knows and in either 4 or 8 years the new kid, whoever he or she is is going home, and the the town will just suck up to the new kid.

  26. knarlyknight Says:

    The problem is that this President is not just flounting American law, but has been and continues to flout international and ESPECIALLY Iraqi law. Pffffffffffffffffft you say? (As in, who cares about Iraqi law? Well, the Iraqi’s for 25 million or so, and the rest of the world for hundreds upon hundreds more so.)

    Let me leave you with a couple quotes then if you wish to read more a link to the source article is also attached:

    A recent report in the New York Times outlines new U.S. demands being made on Iraq. The article states, in part, the following: “the Bush administration will insist that the government in Baghdad give the United States broad authority to conduct combat operations and guarantee civilian contractors specific legal protections from Iraqi law.” So much for Mr. Bush’s vision of a democratic Iraq.

    and the second:

    The second troubling point concerns the work of civilian U.S. contractors. One wonders why a ‘liberated’ Iraq needs to provide these contractors ‘legal protections from Iraqi law.’ Why, one might reasonably ask, should the businesses of a foreign nation be allowed to violate local law?

    The concept seems extraordinary, except when viewed from the distorted perspective of its author. Mr. Bush has taken it upon himself to violate the Constitution and make himself exempt from U.S. laws. For example, …

    “A Colony by any Other Name” from:

  27. shcb Says:

    Long on platitudes, short on specifics, that one. What are the special considerations for contractors? The right to carry an automatic weapon? That would seem reasonable considering their job. You really have a soft spot for the Palestinians don’t you?

  28. knarlyknight Says:

    What’s the matter shcb, you got a Palestinian red herring up yer butthole?

    It does not appear that the carrying of automatic weapons is at issue (although why a cook at a US marine base needs to carry one might be a good question.) The Iraqi concerns are more related to indiscriminate shooings of civilians, for one example among many refer to the September 16 massacre by Blackwater. So there seems to be an existing legal exemption from all crimes including murder in Iraq, so long as you are a truck driver, cook, laundry/housekeeper, or Blackwater mercenary working for a private contractor for Americans in Iraq.

    If you want more specifics, try these:

  29. knarlyknight Says:

    What’s the matter shcb, you got a Palestinian red herring up yer butt?

    It does not appear that the carrying of automatic weapons is at issue (although why a cook at a US marine base needs to carry one might be a good question.) The Iraqi concerns are more related to indiscriminate shooings of civilians, for one example among many refer to the September 16 massacre by Blackwater. So there seems to be an existing legal exemption from all crimes including murder in Iraq, so long as you are a truck driver, cook, laundry/housekeeper, or Blackwater mercenary working for a private contractor for Americans in Iraq.

    If you want more specifics, try these:
    www .

  30. Steve Says:

    To be honest, there’s almost no constituency in the US for obeying international law. We’re struggling enough at the moment with obeying our own laws.

    Lots of us really do believe that international law is meaningless. I hope that will change in my lifetime, but I dunno.

  31. knarlyknight Says:

    Steve, thanks for re-setting my compass. The idea that my South is actually North is is going to take me a little while to wrap my head around.

    It feels a little like when I was 5 years old and a friend’s big brother tried to tell me that there is no such person as Santa Claus. I knew all those weirdos in red suits at the mall couldn’t all be Santa Claus but if there was no Santa Claus how come everyone is lying to me?

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